Judge Jill Feeney, Case Number: 23STCV06786, Date: 2023-10-04 Tentative Ruling

This is an action for breach of implied warranty of habitability, tortious breach of implied warranty of habitability, and negligence. Plaintiff Briana Jocelyn Garcia-Nava alleges that she resided at a rental property located at 1148 E. 80th St., Los Angeles, CA 90001 and owned by Defendant Saenz LLC. Defendants Nelson A. Saenz Claros and Antonia Elizabeth Reyes Mejia are members and managers of Saenz LLC. Plaintiff alleges that Defendants failed to install a working heater and carbon monoxide alarms in her unit, causing her to suffer carbon monoxide poisoning on January 7, 2023.

Defendant Saenz LLC demurs to Plaintiff’s Complaint on the grounds that the Complaint fails to state facts sufficient to support Plaintiff’s causes of action against her. The Court notes that although the demurrer references a motion to strike, no motion to strike was filed as to Defendant Saenz LLC.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., section 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Saenz LLC’s counsel testifies that the parties met and conferred via mail and could not resolve their dispute over Plaintiff’s Complaint. (Lucente Decl., ¶¶4-6.) This is insufficient because the parties were required to meet and confer in person or via telephone. Nevertheless, failure to meet and confer is not grounds to sustain or overrule a demurrer.

To establish a breach of the implied warranty of habitability, a plaintiff must establish (1) “the existence of a material defective condition affecting the premises’ habitability,” (2) “notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,” (3) “the landlord was given a reasonable time to correct the deficiency, and” (4) “resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

Saenz LLC demurs to the first and second causes of action for breach of implied warranty of habitability on the grounds that (1) Plaintiff failed to attach the lease to her Complaint showing she is a third-party beneficiary to the contract in violation of Code Civ. Proc., section 430.10(g) and (2) the Complaint fails to allege facts establishing notice to the landlord and whether the landlord had reasonable time after discovery of the condition to cure it.

Here, Plaintiff’s Complaint alleges that Saenz LLC is the owner of the rental property where she resided at 1148 E. 80th St., Los Angeles, CA 90001. (Compl., ¶3.) Defendants Saenz and Mejia are members and managers of Saenz LLC. (Compl., ¶4.) In September 2022, Plaintiff’s partner, Edwin Pereira entered into a one-year lease with Defendants Saenz LLC or its agents to rent the unit for $1,400 per month. (Compl., ¶15.) Plaintiff does not have a copy of the lease. (Compl., ¶15.) At the time Pereira entered into the lease, Defendants knew Plaintiff would be residing with Pereira and that Plaintiff would possibly contribute to rent payments. (Compl., ¶16.) Defendants impliedly agreed that Plaintiff was a third-party beneficiary under the lease. (Compl., ¶16.)

On January 7, 2023, Plaintiff and Pereira were cooking outside on a charcoal grill. (Compl., ¶19.) Plaintiff and Pereira brought the grill inside because of cold weather and because their unit lacked a heater. (Id.) Without a carbon monoxide alarm, Plaintiff and Pereira unknowingly inhaled carbon monoxide emitted by the charcoal briquettes in the grill. (Id.) Plaintiff and Pereira suffered hypoxemia and lost consciousness. (Id.) When Plaintiff regained consciousness the next morning, she found Pereira lying dead next to her. (Id.) Plaintiff suffered severe and permanent neurological and physiological injuries. (Id.)

Defendants were at all times aware that the unit did not have a heater or carbon monoxide alarm, that carbon monoxide is deadly, and that people without heaters were likely to engage in dangerous conduct to heat their homes. (Compl., ¶28.) Defendants were required to install a carbon monoxide alarm in every rental under Health & Safety Code, section 17926.1. (Compl., ¶13.) Los Angeles County Code, section 11.20.470 requires every dwelling to be provided with heating facilities capable of maintaining a minimum room temperature of 70 degrees Fahrenheit in all habitable rooms. (Compl., ¶9.)

In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199.)

For a plaintiff to allege breach of contract as a third-party beneficiary, the plaintiff must plead a contract that was made expressly for his benefit. (See Martin v. Bridgeport Community Association, Inc. (2009) 173 Cal.App.4th 1024, 1034.) “‘The test in deciding whether a contract inures to the benefit of a third person is whether an intent to so benefit the third person appears from the terms of the agreement . . . .’” (Id. (quoting Schonfeld v. City of Vellejo (1975) 50 Cal.App.3d 401, 420.) “The fact that a third party is incidentally named in the contract, or that the contract, if carried out according to its terms, would inure to his benefit, is not sufficient to entitle him to enforce it.” (Id.) “Reading the agreement as a whole in light of the circumstances under which it was made, the terms of the agreement must clearly manifest an intent to make the obligation inure to the benefit of the third party.” (Id.)

Here, Plaintiff is permitted to plead the legal effect of a contract, rather than providing the contract. The Complaint states that Pereira was a party to the lease. Plaintiff was a third-party beneficiary of the lease because Defendants knew she would be living with Pereira and contributing to rent.

Saenz LLC next argues that the Complaint fails to allege facts showing Defendants had notice of and sufficient time to cure the alleged defective conditions. The Complaint states that Defendants were at all times aware that the unit did not contain a heater or carbon monoxide detector. Thus, Defendants were aware of the condition since at least September 2022, about four months before the incident at issue took place. The Court finds that these facts are sufficient to show Defendants had notice of and sufficient time to cure the alleged conditions.

With respect to the second cause of action, Saenz LLC contends that it is duplicative of the first. However, there is authority supporting a cause of action in both contract and in tort under an implied warranty of habitability theory. (Stoiber v. Honeychuck (1980) 101 CA3d 903, 917-917, 920.)

Under Civil Code Section 1714 “[e]veryone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property.”

Saenz LLC demurs to the cause of action for negligence on the grounds that Plaintiff does not have a relationship with any of the Defendants and Plaintiff’s conduct bringing a charcoal barbeque indoors was not foreseeable.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” (Id. p. 645.)

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555.)

Here, Plaintiff’s Complaint pleads a cause of action for negligence under a theory of negligence per se. The Complaint alleges that Defendants were required to comply with Health & Safety Code, sections 17920.3 and 17926.1, and Los Angeles County Code, section 11.20.470.

Health & Safety Code, section 17926.1 provides that “an owner or owner’s agent of a dwelling or unit intended for human occupancy who rents or leases the dwelling unit to a tenant shall maintain carbon monoxide devices in the dwelling unit…A tenant shall be responsible for notifying the owner or owner's agent if the tenant becomes aware of an inoperable or deficient carbon monoxide device within his or her unit. The owner or owner's agent shall correct any reported deficiencies or inoperabilities in the carbon monoxide device and shall not be in violation of this section for a deficient or inoperable carbon monoxide device when he or she has not received notice of the deficiency or inoperability.” (Health & Safety Code, section 17926.1.)

Los Angeles County Municipal Code, section 11.20.470 requires every dwelling to be provided with heating facilities capable of maintaining a minimum room temperature of 70 degrees Fahrenheit in all habitable rooms. Violations under this title of the municipal code are punishable by a fine of up to $500 and/or imprisonment in the County jail. (Los Angeles County Municipal Code ,section 11.02.080.) Section 11.02.150 further provides that “Part 2 of Chapter 11.02 and Chapters 11.06 through 11.38 of this title are intended to supplement the provisions of the laws and regulations of the state of California by prescribing higher standards of sanitation, health and safety.”

One factor in determining whether a duty is owed is the foreseeability of harm to the plaintiff and whether that foreseeability is reasonable. (Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 306.) If the injury was not foreseeable, then there is no duty. (Id.)

Here, Plaintiff’s Complaint alleges that carbon monoxide is deadly and that carbon monoxide alarms are the only effective way to detect carbon monoxide inside an apartment. (Compl., ¶28.) Additionally, Defendants were aware that people without heaters can mistakenly engage in dangerous conduct to heat their homes. (Id.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)