Judge Jill Feeney, Case Number: 23STCV11253, Date: 2023-12-08 Tentative Ruling

If Plaintiff wishes to file a first amended complaint addressing the issues identified with respect to the retaliatory eviction cause of action, Plaintiff must file and serve any first amended complaint with 20 days after the date of this order.

This is an action for Intentional Infliction of Emotional Distress (“IIED”) and violations of Civ. Code, section 1942.5(d). Plaintiff alleges that he was Defendant’s tenant. In June 2022, when Plaintiff notified Defendant of a leak in his sink that required repair, Defendant began engaging in retaliatory conduct which caused him emotional distress.

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).)

Here, Defendant’s counsel testifies that he met and conferred with Plaintiff telephonically and could not resolve their dispute over Plaintiff’s Complaint. (Garber Decl., ¶¶2-4.) Defendant satisfied meet and confer requirements.

The elements for a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress.¿ (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)¿

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Here, the Complaint alleges that Plaintiff was Defendant’s tenant. (Compl., p.1.) In June 2022, he notified Defendant that there was a problem with the plumbing under his kitchen sink and it had a slight leak. (Id.) Defendant then began making harassing phone calls to Plaintiff, screamed at Plaintiff, attempted to unlawfully enter the premises, refusing to leave the premises, threatening to cut off water and other utilities, and threatening to evict Plaintiff. (Id.) It appears from Plaintiff’s address on the Complaint that he remains in possession of the premises.

Defendant argues that the slight leak under his sink does not justify a finding that Defendant engaged in outrageous conduct. Defendant cites Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921, where a court ruled that the availability of remedies for breach of implied warranty of habitability did not preclude a tenant from suing his landlord for intentional infliction of emotional distress if the landlord’s acts are extreme and outrageous and result in severe mental distress. Defendant argues that unlike Stoiber, where the premises there suffered from more severe habitability issues, the minor leak in Plaintiff’s home here does not constitute outrageous conduct.

Defendant only discusses the leaking sink and does not address Plaintiff’s alleged conduct. The court in Stoiber cited Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, where a landlord’s conduct imposing rent increases, shouting at the tenant, insulting the tenant, directing the tenant to vacate the premises, and threatening violence constituted outrageous behavior. Here, Plaintiff alleges that Defendant screamed at him, made harassing phone calls, threatened him with eviction or cutting off utilities, entered his home, and refused to leave his home. These acts are closer to the conduct described in Newby. Thus, the Court finds the facts alleged in Plaintiff’s Complaint are sufficient to support a cause of action for IIED.

Civ Code, section 1942.5(a) provides that a lessor may not cause a lessee to quit voluntarily, increase rent, decrease any services, or recover possession of a dwelling within 180 days after a lessee makes an oral complaint to the lessor regarding tenantability, among other things.

“[T]enants who are the victims of retaliatory conduct by their landlords have complementary rights of action both in the common law and under the statutory scheme adopted by the Legislature.” (Rich v. Schwab (1998) 63 Cal.App.4th 803, 811.)

A tenant is protected for making written or oral tenantability complaints to a landlord or lessor about a dwelling. (Civ. Code, section 1942.5(a)(1); Kemp v. Schultz (1981) 121 Cal.App.3d Supp. 13, 18 [“a tenant, who is not in default in the payment of rent, may invoke the defense of retaliatory eviction, upon proof that he has made an oral complaint to the landlord regarding the tenantability of the premises,” even where no complaint was made to a governmental entity].)

Here, Defendant argues that the element that Plaintiff is not in default of payment of rent is missing from Plaintiff’s Complaint. The Complaint does not allege that Plaintiff is not in default of payment of rent. Additionally, the Complaint does not allege that Defendant has caused Plaintiff to involuntarily quit the premises, raised rent, or decreased services within 180 days of Plaintiff’s complaint about the leaking sink. Therefore, the Complaint fails to state facts sufficient to support a cause of action for retaliatory eviction.

For claims based on written contract, the plaintiff may plead it “by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 abrogated on other grounds in Freeman v. Quicken Loans Inc. (2012) 566 U.S. 624.) To plead a contract’s legal effect the plaintiff’s pleading must include “the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Id.)¿

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

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).)

“Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [citation omitted].) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Ibid. [citing College Hospital, Inc., supra, 8 Cal.4th at p. 726 [for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character]].)

Here, the Complaint alleges that Defendant engaged in retaliatory conduct which caused Plaintiff emotional distress. Defendant allegedly screamed at him, entered his home and refused to leave, threatened eviction, and threatened to turn off utilities. Defendant’s conduct unlawfully entering Plaintiff’s home and threatening him demonstrate a willful disregard for Plaintiff’s rights. Given the extreme conduct alleged, the Court finds the conduct rises to the level of despicable conduct sufficient to support a demand for punitive damages. Defendant’s motion to strike is denied.