Judge: Joel L. Lofton, Case: 22STCV04899, Date: 2024-01-16 Tentative Ruling
Case Number: 22STCV04899 Hearing Date: January 16, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: January
16, 2024 TRIAL
DATE: No date set.
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: Defendants BRE Silver MF North
Hollywood CA LLC (“BRE”), Regency General Contractors, Inc. (“RGC”), and
Greystar Real Estate Partners (“Greystar”)
RESPONDING PARTY: Plaintiff Rosemary Jenkins
RELIEF
REQUESTED
BRE demurrers to Plaintiff’s, third, fifth, sixth, seventh, and eighth
causes of action.
RGC demurrers to Plaintiff’s
third, fourth, sixth, and eighth causes of action.
Greystar demurrers to
Plaintiff’s first, second, third, fourth, fifth, sixth, seventh, and eighth
causes of action.
BRE, RGC, and Greystar
also move to strike portions of Plaintiff’s complaint.
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 a first amended
complaint (“FAC”) on March 20, 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, RGC, and
Greystar’s demurrers to Plaintiff’s third cause of action are SUSTAINED WITHOUT leave to amend.
BRE and Greystar’s demurrers to
Plaintiff’s fifth cause of action are SUSTAINED with leave to amend.
BRE, RGC, and Greystar’s demurrers
to Plaintiff’s sixth and eighth causes of action are SUSTAINED with
leave to amend. The court warns Plaintiff against attempting to amend a cause
of action by including only the same allegations previously alleged.
Greystar’s
demurrer to Plaintiff’s first and second causes of action is OVERRULED.
RGC and
Greystar’s demurrers to Plaintiff’s fourth cause of action are OVERRULED.
BRE, RGC, and
Greystar’s demurrers to Plaintiff’s seventh cause of action are OVERRULED.
BRE, RGC, and Greystar’s motions to
strike Plaintiff’s prayer for punitive damages are GRANTED WITHOUT leave to
amend.
RGC and Greystar’s motions to strike
Plaintiff’s prayer for attorney’s fees are denied.
LEGAL STANDARD
Demurrer
A general
demurrer may be taken to a complaint where “[t]he pleading does not state facts sufficient to
constitute a cuse 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
First
Cause of Action for General Negligence/Premises Liability
Greystar demurrers to Plaintiff’s first cause of action for
general negligence.
“The elements of a cause of action
for negligence are duty, breach, causation, and damages.” (Melton v.
Boustred (2010) 183 Cal.App.4th 521, 529.) “The
elements of a cause of action for premises liability are the same as those for
negligence: duty, breach, causation, and damages.” (McIntyre v. The
Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
Greystar demurrers to Plaintiff’s first cause of action on the
grounds that Plaintiff has failed to specifically allege which facts are
alleged against each Defendant. However, Greystar fails to cite legal authority
to challenge the sufficiency of Plaintiff’s allegations. “As against a
general demurrer, plaintiff need only plead facts which, liberally interpreted,
disclose that he is entitled to some relief.” (Cameron v. Wernick (1967)
251 Cal.App.2d 890, 892.) “ ‘[T]he complaint ordinarily is sufficient if it
alleges ultimate rather than evidentiary facts.’ ” (Thomas v. Regents of
University of California (2023) 97 Cal.App.5th 587, 641.) Greystar has
failed to demonstrate that Plaintiff’s first cause of action fails to state a
claim. Greystar’s demurrer to Plaintiff’s first cause of action is overruled.
Second Cause of Action for Breach of the
Implied Warranty of Habitability
Greystar
demurrer to Plaintiff’s second cause of action for breach of the implied
warranty of habitability.
“[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.)
Greystar asserts
that Plaintiff’s second cause of action fails to state a claim because
Plaintiff fails to allege what inhabitable conditions existed on the property
within the cause of action. However, Plaintiff’s second cause of action incorporates
all preceding allegations. (FAC ¶ 23.) Plaintiff also alleges a variety of dangerous conditions. (Id.
¶ 14.) Greystar’s demurrer to Plaintiff’s second cause of action is
overruled.
Third
Cause of Action for Negligence Per Se
BRE, RGC,
and Greystar demurrer 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.)
Plaintiff’s
attempt to allege a separate cause of action for negligence per se fails as a
matter of law. “The doctrine of negligence per se does not provide a private
right of action for violation of a statute.” (Johnson v. Honeywell Internat.
Inc. (2009) 179 Cal.App.4th 549, 556.) Plaintiff argues she is not trying
to allege a separate private right for violation of statute and merely
attempting to reduce confusion. However, Plaintiff’s third cause of action is
encapsulated within her negligence claim and all preceding allegations. Her
attempt to add a separate cause of action based on the same facts and same law
creates more confusion. Lastly and most importantly, Plaintiff’s negligence
cause of action is not recognized as a separate claim by California courts.
BRE, RGC,
and Greystar’s demurrers to Plaintiff’s third cause of action for negligence
per se are sustained without leave to amend.
Fourth
Cause of Action for Negligent Maintenance of Premises
RGC and
Greystar demurrer to Plaintiff’s fourth cause of action on the grounds that it is
duplicative of her negligence claim and fails to state a 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.)
As
previously stated by this court, 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. Further, Plaintiff alleges a
duty (FAC ¶ 51), a breach (id. ¶
52), causation (id. ¶ 58) and damages (id. ¶ 60). RGC and
Greystar’s demurrers to Plaintiff’s fourth cause of action aree overruled.
Fifth
Cause of Action for Breach of the Covenant of Quiet Enjoyment
BRE
and Greystar demurrer to Plaintiff’s fifth cause of action for breach of the
covenant of quiet enjoyment. Both parties argue that Plaintiff’s fifth cause of
action fails 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”. (FAC ¶ 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. She does not plead any of the legal effects of
the contract other than the fact that she was a tenant. She does not allege any
terms or the parties and has failed to allege the existence of a contract.
BRE and Greystar’s demurrer to Plaintiff’s fifth cause of
action is sustained with leave to amend.
Sixth Cause of Action for Private Nuisance
BRE, RGC, and
Greystar demurrer to Plaintiff’s sixth cause of action for private nuisance.
Previously, this court sustained BRE’s demurrer to this cause of action on the
grounds that it was duplicative and a claim sounding in nuisance. In reviewing
Plaintiff’s FAC, it appears to this court that Plaintiff did not amend her
cause of action other than to change one paragraph pertaining to remedies.
The elements of a claim for private
nuisance are as follows: “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.)
Plaintiff’s
cause of action is duplicative to her negligence claim and left unchanged from
her previous complaint. Further, Plaintiff fails to allege a substantial
interference. BRE, RGC, and Greystar’s demurrers to Plaintiff’s sixth cause of
action for private nuisance are sustained.
Seventh
Cause of Action for Violation of Civil Code section 1941.1
BRE, RGC, and
Greystar demurrer to Plaintiff’s seventh cause of action for violation of Civil
Code section 1941.1. The parties argues that Plaintiff’s seventh cause of
action for violation of Civil Code section 1941.1 is duplicative.
“Of great
importance to the decision which we reach today is the express holding in Green
that the statutory remedies provided a tenant under Civil Code sections 1941 et seq. were not intended by the Legislature as the
tenant's exclusive remedy for the landlord's failure to repair. . . . Thus, ‘ .
. . The statutory framework of section 1941 et
seq. has never been viewed as a curtailment of the growth of the common
law in this field.’ ” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 915.)
Plaintiff’s seventh cause of action
is duplicative of her first and second causes of action. However, given the
distinction stated by the Court in Stoiber between common law
habitability claims and statutory ones, the court does not find that
Plaintiff’s seventh cause of action fails solely for being duplicative.
BRE, RGC, and Greystar’s demurrers
to Plaintiff’s seventh cause of action for violation of Civil Code section 1941
are overruled.
Eighth
Cause of Action for Gross Negligence
BRE, RGC, and Greystar demurrer to Plaintiff’s
eighth cause of action for gross negligence. The parties argue 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. “In determining the merits of a
demurrer, all material facts pleaded in the complaint and those that arise by reasonable
implication, but not conclusions of fact or law, are deemed admitted by the
demurring party.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) Plaintiff
has failed to allege facts sufficient to allege gross negligence. BRE, RGC, and
Greystar demurrers to Plaintiff’s eighth cause of action are sustained.
Motion
to Strike
BRE, RGC, and Greystar
move to strike Plaintiff’s prayer for punitive damages.
RGC and
Greystar also move to strike Plaintiff’s prayer for 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.)
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 facts sufficient to
establish a claim under which punitive damages would be recoverable. BRE, RGC,
and Greystar’s motions to strike Plaintiff’s prayer for punitive damages are
granted. If Plaintiff learns new facts in
the future that support punitive damages they may seek permission to amend
their complaint.
Civil Code
section 1942.4, subdivision (b), provides: “The prevailing party shall be
entitled to recovery of reasonable attorney’s fees and costs of the suit in an
amount fixed by the court.” Thus, RGC and Greystar’s motions to strike are denied.
CONCLUSION
BRE, RGC, and
Greystar’s demurrers to Plaintiff’s third cause of action are SUSTAINED
without leave to amend.
BRE and Greystar’s demurrers to
Plaintiff’s fifth cause of action are SUSTAINED with leave to amend.
BRE, RGC, and Greystar’s demurrers
to Plaintiff’s sixth and eighth causes of action are SUSTAINED with
leave to amend. The court warns Plaintiff against attempting to amend a cause
of action by including only the same allegations previously alleged.
Greystar’s
demurrer to Plaintiff’s first and second causes of action is OVERRULED.
RGC and
Greystar’s demurrers to Plaintiff’s fourth cause of action are OVERRULED.
BRE, RGC, and
Greystar’s demurrers to Plaintiff’s seventh cause of action are OVERRULED.
BRE, RGC, and Greystar’s motions to
strike Plaintiff’s prayer for punitive damages are GRANTED WITHOUT leave to
amend.
RGC and Greystar’s motions to strike
Plaintiff’s prayer for attorney’s fees are denied.
Plaintiff to file any amended
complaint within 10 days’ notice of this ruling.
Moving party to give notice.
Dated: January 16,
2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court