Judge: Joel L. Lofton, Case: 22BBCV00137, Date: 2022-10-27 Tentative Ruling
Case Number: 22BBCV00137 Hearing Date: October 27, 2022 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: October
27, 2022 TRIAL DATE: No date set.
CASE: PAMELA LETT, an
individual; DIANNE CHAVEZ, an individual, v. HAMLET YARIJANIAN, an individual;
and DOES 1 to 10, inclusive.
CASE NO.: 22BBCV00137
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant Hamlet Yarijanian
RESPONDING PARTY: Plaintiffs
Pamela Lett and Dianne Chavez
SERVICE: Filed June 17, 2022
OPPOSITION: Filed October 14, 2022
REPLY: Filed October 20, 2022
RELIEF
REQUESTED
Defendant objects to Plaintiffs’ sixth, seventh, and ninth causes of
action.
Defendant moves to
strike references to punitive damages in Plaintiffs’ complaint.
BACKGROUND
This case arises out of Plaintiffs
Pamela Lett (“Lett”) and Dianne Chavez’s (“Chavez”) respective leases of a
portion of the residential property owned by Defendant Hamlet Yarijanian
(“Defendant”) located at 1773 N. Oxford Avenue, Pasadena, California
(“Property”). Plaintiffs allege the Property suffered from defects, including a
lack of railing on the stairs, electrical issues, and lack of heating and hot
water. Plaintiffs also allege that the Property was not up to code. Chaves also
alleges that her daughter was shocked as a result of the faulty electrical
wiring.
Plaintiffs filed this complaint on March 1,
2022, alleging nine cause of action for (1) breach of contract, (2) breach of
the implied warranty of habitability, (3) breach of the implied covenant of
quiet use and enjoyment, (4) negligence, (5) constructive eviction, (6)
intentional infliction of emotional distress, (7) fraud, (8) violation of LACC,
and (9) Unruh Civil Rights Act.
TENTATIVE RULING
Defendant’s
demurrer to Plaintiff’s sixth, seventh, and ninth causes of action is sustained
with 20 days leave to amend.
Defendant’s motion to strike portions of Plaintiffs’
complaint referencing punitive damages is granted with 20 days leave
to amend.
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer for sufficiency tests whether the
complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal. App. 4th 740, 747.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice. (Code Civ. Proc. section
430.30(a).) A demurrer tests the pleadings alone and not the evidence or
other extrinsic matters. (SKF Farms v. Superior Court (1984) 153
Cal. App. 3d 902, 905.) The only issue involved in a demurrer hearing is
whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn v.
Mirda, supra, 147 Cal.App.4th 740, 747.)
Motion to Strike
Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike a pleading or any part
thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The
court may, upon a motion, or at any time in its discretion, and upon terms
it deems proper, strike any irrelevant, false, or improper matter inserted in
any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may
also strike all or any part of any pleading not drawn or filed in conformity
with California law, a court rule, or an order of the court. (Code Civ.
Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one
that is not essential to the statement of a claim or defense; is neither
pertinent to nor supported by an otherwise sufficient claim or defense; or a
demand for judgment requesting relief not supported by the allegations of the
complaint. (Code Civ. Proc., 431.10, subd. (b).) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (Code Civ. Proc., § 437.)
DISCUSSION
Meet and Confer
Defendant’s counsel provides that he sent a meet and confer letter on May
24, 2022. (Bowen Decl. ¶ 2.)
Defendant’s counsel further provides that on May 31, 2022, he spoke by phone
with Plaintiff’s counsel, but Plaintiff’s counsel refused to discuss the merits
of the complaint. (Id. ¶ 4.)
Sixth Cause of Action for Intentional
Infliction of Emotional Distress
Defendant
asserts that the Plaintiffs’ sixth cause of action fails to allege facts
sufficient to state a claim for intentional infliction of emotional distress.
“ ‘ “[T]o state a
cause of action for intentional infliction of emotional distress a plaintiff
must show: (1) outrageous conduct by the defendant; (2) the defendant's
intention of causing or reckless disregard of the probability of causing
emotional distress; (3) the plaintiff's suffering severe or extreme emotional
distress; and (4) actual and proximate causation of the emotional distress by
the defendant's outrageous conduct.” ’ ” (Vasquez v. Franklin Management
Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “ ‘Conduct, to be
“ ‘outrageous’ ” must be so extreme as to exceed all bounds of that usually
tolerated in a civilized society.’ ” (Huntingdon Life Sciences, Inc. v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)
Defendant
argues that Plaintiffs’ allegations include boilerplate language that fails to
sufficiently allege facts constituting intentional infliction of emotional
distress. In opposition, Plaintiffs point to allegations that Defendant knew
the Property was not suitable for habitation and had issues relating to
permitting. (Complaint ¶¶
21-22.). Plaintiffs also point to portions of their complaint where they allege
Defendant told them “they are assuming the risk of an injury they
incur because now they have knowledge of the issues with the Property.”
(Complaint ¶ 24.)
Here, Plaintiffs’ allegations support a claim that
Defendant intentionally rented to Plaintiffs a property rife with defects.
However, Plaintiffs’ complaint does not allege that Defendant acted with intent
or reckless disregard to cause Plaintiffs emotional distress. Thus, Plaintiffs’
sixth cause of action lacks an essential element and thus fails to state a
claim for intentional infliction of emotional distress.
Defendant’s demurrer to Plaintiffs’ sixth cause of action
is sustained.
Seventh Cause of Action for Fraud
Defendant asserts that Plaintiffs’ seventh cause of
action for fraud fails to plead facts with the specificity required for claims
of fraud.
“The elements of fraud, which give
rise to the tort action for deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c)
intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e)
resulting damage.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060,
citations omitted.
“Fraud is
required to be pleaded with specificity.” (People ex rel. Harris v. Rizzo (2013)
214 Cal.App.4th 921, 947.) “Fraud allegations must be pled with more detail
than other causes of action. The facts constituting the fraud, including every
element of the cause of action, must be alleged factually and specifically. The
objectives are to give the defendant notice of definite charges which can be
intelligently met, and to permit the court to determine whether, on the facts
pleaded, there is any foundation, prima facie at least, for the charge of
fraud.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007)
158 Cal.App.4th 226, 240, internal quotation marks omitted.)
“Thus
the policy of liberal construction of the pleadings ... will not ordinarily be
invoked to sustain a pleading defective in any material respect. This
particularity requirement necessitates pleading facts which show how, when,
where, to whom, and by what means the representations were tendered.” (Morgan
v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1262.)\
Plaintiffs’ seventh cause of action
alleges that Defendant falsely represented “explicitly or impliedly that the
Property was habitual for living purposes”. (Complaint ¶ 60.) Plaintiffs then allege that Defendant
failed to warn them about permit issues, faulty electrical wiring, and problems
with plumbing. (Ibid.)
In opposition, Plaintiffs argue their allegations are sufficient.
They first point to allegations that Defendant “specifically assured Ms. Lett
he would do everything in his power to ensure the Property met the needs of her
and her family.” (Complaint ¶ 12.) Plaintiffs also point to allegations that
Defendant assured Lett that he would address her concerns that the Property
needed a gate and railing on the stairs. (Id. ¶ 13.)
However, Plaintiffs’ allegations involve generalized assurances
made by Defendant and lack specific facts such as detail regarding when the
representations were made and the specific contents of the representations.
Plaintiffs argue that the specifics of the facts surrounding the allegations of
misrepresentations can be ascertained by the allegations that the
misrepresentations were made during the inspection. Plaintiffs’ argument,
however, is not supported by the allegations in their complaint. Plaintiffs’
complaint alleges a general picture that Defendant made various claims during
an unspecified time in an unspecified manner. As currently pled, Plaintiffs’
seventh cause of action fails to plead a cause of action for fraud with
sufficient specificity.
Defendant’s demurrer to Plaintiffs’ seventh cause of action is
sustained.
Ninth Cause of Action for Violation of Unruh Civil Rights Act
Defendant also demurrers to Plaintiff’s ninth cause of action.
“The Unruh Act provides: ‘All persons within the jurisdiction
of this state ... no matter what their ... disability ... are entitled to the
full and equal accommodations, advantages, facilities, privileges, or services
in all business establishments of every kind whatsoever.’ (Civ. Code, § 51, subd. (b).) ‘A plaintiff can recover under
the [Unruh Act] on two alternate theories: (1) a violation of the ADA (Civ. Code, § 51, subd. (f)); or (2) denial of access to a
business establishment based on intentional discrimination.’ ” (Martinez v.
Cot’n Wash, Inc (2022) 81 Cal.App.5th 1026, 1035.)
Here,
Plaintiffs concede that their Unruh Act claim fails to allege facts sufficient
to state a cause of action. Therefore, Defendant’s demurrer is sustained as to
Plaintiff’s ninth cause of action.
Motion
to Strike
Defendant
moves to strike portions of Plaintiffs’ complaint that references punitive
damages.
Punitive damages may be imposed where it is proven by clear
and convincing evidence that the defendant has been guilty of oppression,
fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is
conduct intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on with a willful and conscious disregard
of the rights or safety of others. In Smith v. Superior Court
(1992) 10 Cal.App.4th 1033, 1042, the Court held that “conclusory allegations”
“devoid of any factual assertions supporting a conclusion petitioners acted
with oppression, fraud, or malice” were insufficient to properly plead a claim
for punitive damages.
Here,
Plaintiffs’ conclusory allegations are insufficient to support a prayer for
punitive damages. Plaintiffs simply state that “Defendant’s actions and or
omissions were intentional and malicious, with an intent to cause injury, such
that Plaintiffs are entitled to an award of punitive damages.” (Complaint ¶¶ 58 and 67.) Plaintiffs fail to plead sufficient facts to
support their conclusions that Defendant acted with malice. Plaintiffs have not
addressed this issue in their opposition.
Defendant’s motion to strike portions of Plaintiffs’
complaint referencing punitive damages is granted.
CONCLUSION
Defendant’s
demurrer to Plaintiff’s sixth, seventh, and ninth causes of action is sustained
with leave 20 days to amend.
Defendant’s motion to strike portions of Plaintiffs’
complaint referencing punitive damages is granted with 20 days leave
to amend.
Moving
party to give notice.
Dated: October 27,
2022 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the court indicating their
intention to submit.
Parties intending to appear are strongly encouraged to appear remotely. alhdeptx@lacourt.org