Judge: Joel L. Lofton, Case: 22STCV04899, Date: 2023-02-28 Tentative Ruling
Case Number: 22STCV04899 Hearing Date: February 28, 2023 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: February
28, 2023 TRIAL DATE: August 8, 2023
CASE: ROSEMARY JENKINS,
an individual, v. AVANA NORTH HOLLYWOOD APARTMENTS, an unknown entity, AVANA,
LLC, a California limited liability company, OTSEGO APARTMENTS, a California
limited liability company, OTSEGO APARTMENTS, LLC, a California limited
liability company, and DOES 1 through 50, inclusive.
CASE NO.: 22STCV04899
DEMURRER
WITH MOTION TO STRIKE
DEMURRING PARTY: Defendant BRE Silver MF North
Hollywood CA LLC
RESPONDING PARTY: Plaintiff Rosemary Jenkins
SERVICE: Filed September 7, 2022
OPPOSITION: Filed February 16, 2023
REPLY: Filed February 21, 2023
RELIEF
REQUESTED
BRE demurrers to Plaintiff’s second, third, fourth, fifth, sixth,
seventh, and eighth causes of action.
BRE also moves to strike
Plaintiff’s prayer for punitive damages and attorneys’ fees.
BACKGROUND
This case arises out of Plaintiff Rosemary
Jenkins’ (“Plaintiff”) trip and fall claim against Defendants Avana North
Hollywood Apartments, Avana, LLC, Otsego Apartments, and Otsego Apartments LLC (“Defendants”).
Plaintiff alleges she was a tenant at Defendants’ apartment building. Plaintiff
alleges that the building had been under construction and that the floor of the
common area was not aligned with the floor of the elevator. Plaintiff alleges
that on April 28, 2021, she tripped and fell as a result of the misalignment.
Plaintiff filed this complaint on
February 8, 2022, alleging eight causes of action for (1) general
negligence/premises liability, (2) breach of the implied warranty of
habitability, (3) negligence per se, (4) negligent maintenance of premises, (5)
breach of the covenant of quiet enjoyment, (6) private nuisance, (7) violation
of Civil Code section 1941.1, and (8) gross negligence.
TENTATIVE RULING
BRE’S
demurrer to Plaintiff’s third, fifth, seventh, and eighth causes of action are
SUSTAINED with leave to amend.
BRE’s demurrer
to Plaintiff’s second and fourth causes of action is OVERRULED.
BRE’s
motion to strike is GRANTED with 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.)
Additionally, a
special demurrer to a complaint may be brought on the ground the pleading is
uncertain, ambiguous, or unintelligible. Code Civ. Proc section 430.10(f); Beresford Neighborhood Assn. v. City of
San Mateo (1989) 207 Cal.App.3d 1180, 1191.) A demurrer based
on uncertainty is disfavored and will be strictly construed even when the
pleading is uncertain in some respects. (Khoury v. Maly's of California, Inc. (1993) 14
Cal.App.4th 612, 616.) A demurrers based on uncertainty are “granted only if
the pleading is so incomprehensible that a defendant cannot reasonably
respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208
Cal.App.4th 1125, 1135.)
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
Second Cause of Action for Breach of the
Implied Warranty of Habitability
BRE argues
that Plaintiff’s second cause of action fails because Plaintiff fails to allege
BRE’s knowledge and reasonable time to remedy the defect and fails to assert a
habitability defect by relying on Civil Code section 1941.1.
“[A]
warranty of habitability is implied by law in residential leases”. (Green v.
Superior Court (1974) 10 Cal.3d 616, 637.) “The elements of a cause of
action for breach of the implied warranty of habitability ‘are the existence of
a material defective condition affecting the premises' habitability, notice to
the landlord of the condition within a reasonable time after the tenant's
discovery of the condition, the landlord was given a reasonable time to correct
the deficiency, and resulting damages.’ ” (Peviani v. Arbors at California
Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891.) “When the alleged
defect is in a common area, the landlord's duty to inspect and maintain the
common area removes any excuse by the landlord regarding a lack of knowledge.”
(Ibid.)
Plaintiff
alleges that there was a material defect in the common area in the apartment
building’s common area because the floor of the common area was not level with
the floor of the elevator. (Complaint ¶ 11.) As a result, Plaintiff alleges she fell and suffered
damages. (Id. ¶ 24.) BRE’s argument that Plaintiff fails to allege
knowledge and reasonable time to correct the deficiency is unavailing because
under the rule in Paviani, supra, BRE is unable to rely on their
excuse of lack of knowledge because they had a duty to inspect and maintain the
common area. (62 Cal.App.5th at p. 891.) Further, although Plaintiff and
BRE both argue the applicability of Civil Code section 1941.1, the elements of
a cause of action for a breach of the implied warranty of habitability merely require
that Plaintiff allege a material defective condition, which she has done so
here.
BRE’s
demurrer to Plaintiff’s second cause of action is overruled.
Third Cause
of Action for Negligence Per Se
BRE
demurrers to Plaintiff’s third cause of action for negligence per se on the
grounds that this cause of action is duplicative to Plaintiff’s negligence
claim.
“ ‘[T]he
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.’ ” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516,
534.) “Therefore, the doctrine of negligence per se is within the scope of
pleadings that allege general negligence, as proof of a breach of duty is not
limited to common law standards of care.” (Jones v. Awad (2019) 39
Cal.App.5th 1200, 1211.)
In Palm
Springs Villas II Homeowners Assn., Inc v. Parth (2016) 248 Cal.App.4th
268, 290, the Court, citing Rodriguez v. Campbell Industries (1978) 87
Cal.App.3d 494, 501, stated that duplicative causes of action were grounds for
sustaining a demurrer. In Rodriguez, supra, the Court sustained a
demurrer for a cause of action that “combine[d] all the preceding causes, alleging they
are joint and concurrent causes of plaintiffs' damages.” (877 Cal.App.3d at p.
498.) The Rodriguez Court held that the deficient cause of action
“contain[ed], by necessary implication, all of the allegations of each of the
preceding four alleged causes and thus adds nothing to the complaint by way of
fact or theory of recovery.” (Id. at p. 501.)
In
opposition, Plaintiff concedes that the negligence per se is based on her
negligence claim but argues that because of the legal implications the doctrine
provides. Plaintiff’s third cause of action is based on the same facts as her
negligence claim and cites the same or similar statutes as well. “Therefore,
the doctrine of negligence per se is within the scope of pleadings that allege
general negligence, as proof of a breach of duty is not limited to common law
standards of care.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1211.) Plaintiff’s
claim here rests on the same negligence theory of recovery.
BRE’s
demurrer to Plaintiff’s third cause of action is sustained.
Fourth
Cause of Action for Negligent Maintenance of Premises
BRE argues
Plaintiff’s claim here fails because it is duplicative of her negligence claim.
Claims for
“ premises liability and negligence rest on the same elements—namely, (1)
a legal duty of care, (2) breach of that duty, and (3) proximate cause
resulting in injury.” (Martinez v. City of Beverly Hills (2021) 71
Cal.App.5th 508, 517.) “A premises liability claim is distinct from a
negligence claim as it ‘ “ ‘is grounded in the possession of the premises and
the attendant right to control and manage the premises.’ ” ’ ” ” (Green v.
Healthcare Services, Inc. (2021) 68 Cal.App.5th 407, 419.)
Although
Plaintiff’s claim for premises liability is based on the same elements,
California case law recognizes premises liability as a distinct cause of
action. BRE’s demurrer is overruled.
Fifth
Cause of Action for Breach of the Covenant of Quiet Enjoyment
BRE
argues that Plaintiff’s fifth cause of action because Plaintiff fails to attach
or plead the terms of the lease which purportedly gives rise to her claim.
“ ‘In the
absence of language to the contrary, every lease contains an implied covenant
of quiet enjoyment, whereby the landlord impliedly covenants that the tenant
shall have quiet enjoyment and possession of the premises.’ ” (Bromy v.
Lukosvky (2013) 219 Cal.App.4th 278, 285.)
“[A] plaintiff may plead the legal effect of
the contract rather than its precise language.” (Miles v. Deutsche Bank
National Trust Co. (2015) 236 Cal.App.4th 394, 402.)
Plaintiff’s
complaint neither contains a copy of the lease agreement or the legal effect of
the contract. Plaintiff merely alleges that she was “a tenant in Defendant’s
apartment building”. (Complaint ¶ 11.) In opposition, Plaintiff argues that Defendant is aware
that she is a tenant in their building. However, Plaintiff’s arguments do not
establish that her cause of action for breach of the covenant of quiet
enjoyment is sufficiently pled.
BRE’s demurrer to Plaintiff’s fifth cause of action is
sustained.
Sixth Cause of Action for Private Nuisance
The California “Supreme Court set
out the elements of an action for private nuisance. First, the plaintiff must
prove an interference with his use and enjoyment of its property. Second,
the invasion of the plaintiff's interest in the use and enjoyment of the land
must be substantial, i.e., it caused the plaintiff to suffer
substantial actual damage. Third, the interference with the protected interest
must not only be substantial, it must also be unreasonable,
i.e., it must be of such a nature, duration, or amount as to constitute
unreasonable interference with the use and enjoyment of the land.” (Today’s
IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022)
83 Cal.App.5th 1137, 1176.)
“Where
negligence and nuisance causes of action rely on the same facts about lack of
due care, the nuisance claim is a negligence claim.” (El Escorial Owners’
Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Although
the case in El Escorial was in a different procedural posture, the Court
held that “[t]he trial court reasonably found that Escorial's nuisance cause of
action was merely a clone of the first cause of action using a different
label.” (Ibid.)
In this
case, Plaintiff’s claim for private nuisance alleges no new facts. Further,
based on the ruling in El Escorial, Plaintiff’s purported nuisance claim
is a negligence claim. Plaintiff’s claim here does not add any factual
distinctions or a separate theory of recovery.
BRE’s
demurrer to Plaintiff’s sixth cause of action is sustained.
Seventh
Cause of Action for Violation of Civil Code section 1941.1
BRE also argues
that Plaintiff’s seventh cause of action for violation of Civil Code section
1941.1 is duplicative.
Plaintiff
does not address this argument in opposition. Further, Plaintiff’s seventh
cause of action alleges no new facts. Additionally, Plaintiff’s first cause of
action alleges that BRE’s failure to comply with Civil Code section 1941.1 is
the basis for her claim for negligence. (Complaint ¶ 14.) Therefore, Plaintiff’s seventh cause of
action fails to adds neither new facts nor a new theory of recovery and is
therefore duplicative.
BRE’s demurrer to Plaintiff’s seventh cause of action is
sustained.
Eighth
Cause of Action for Gross Negligence
BRE also argues that Plaintiff’s eighth cause of
action for gross negligence fails to state a claim.
“Gross negligence is generally defined as ‘ “ ‘the
want of even scant care or an extreme departure from the ordinary standard of
conduct.’ ” ’ ” (County of San Diego v. Superior Court (2015) 242
Cal.App.4th 460, 474.) “Gross negligence is a subspecies of negligence; it is
not a separate tort.” (Joshi v. Fitness International, LLC (2022) 80
Cal.App.5th 814, 825.)
Plaintiff’s
eighth cause of action again relies on the same facts as her other claims, but
Plaintiff now adds that the conduct “constitutes a want of even scant care and
an extreme departure from the ordinary standard of conduct.” Plaintiff adds no
factual allegations or theory of recovery. Also, because gross negligence is a
subspecies of negligence, BRE’s demurrer to Plaintiff’s eighth cause of action
is sustained.
Motion
to Strike
BRE
moves to strike Plaintiff’s requests for punitive damages and attorney’s fees.
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). A plaintiff seeking punitive damages “must include
specific factual allegations showing that defendant's conduct was oppressive,
fraudulent, or malicious to support a claim for punitive damages. [Citation.]
Punitive damages my not be pleaded generally.” (Today’s IV, Inc. v. Los
Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th
1137, 1193.)
“ ‘A party
may not recover attorney fees unless expressly authorized by statute or
contract.’ ” (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464.)
Plaintiff’s
claims for punitive damages rely on the same set of facts as her negligence
claims. However, besides generally alleging Defendants were guilty of
oppression, fraud, or malice, Plaintiff fails to allege a claim under which
punitive damages would be recoverable. Additionally, Plaintiff does not address
BRE’s assertion that her claim for attorney’s fees is improper. Plaintiff’s
complaint provides that she is entitled to recovery of attorney’s fees pursuant
to Civil Code section 1942.4, subdivision (b), but Plaintiff does not allege
Defendants violated that statute.
BRE’s motion
to strike Plaintiff’s prayer for punitive damage and Plaintiff’s prayer for
attorney’s fees is granted.
CONCLUSION
BRE’S
demurrer to Plaintiff’s third, fifth, seventh, and eighth causes of action are
SUSTAINED with 20 days leave to amend.
BRE’s demurrer
to Plaintiff’s second and fourth causes of action is OVERRULED.
BRE’s
motion to strike is GRANTED with 20 days leave to amend.
Moving
Party to give notice.
Dated: February 28,
2023 ___________________________________
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