Judge Joel R Wohlfeil, Case Number: 37-2024-00013020-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2024-00013020-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2024-00013020-CU-PO-CTL BURROWS VS CREEKSIDE MEADOWS APARTMENTS INC [IIMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/23/2024

1. The general Demurrer (ROA # 11) of Defendant CREEKSIDE MEADOWS APARTMENTS ('Defendant') to the Third Cause of Action for Breach of Warranty of Habitability (Violation of Civil Code 1942.4), Sixth Cause of Action for Intentional Infliction of Emotional Distress, Eighth Cause of Action for Unfair Business Practices (Violation of Business and Professions Code 17200, et seq.) and Ninth Cause of Action for Fraudulent Concealment in the Complaint by Plaintiffs GRETCHEN BURROWS ('Burrows') and DALTON BERRY ('Berry') (collectively 'Plaintiffs'), is SUSTAINED to cause of action 3, and OVERRULED to causes of action 6, 8 and 9.

Plaintiffs are permitted leave to file and serve a First Amended Complaint addressing the deficiencies in the eighth cause of action within twenty (20) days of this hearing.

This ruling is based on the following analysis.

3rd COA: Breach of Warranty of Habitability (Violation of Civil Code � 1942.4) Civil Code section 1942.4(a) provides: 'A landlord of a dwelling may not demand rent, [or] collect rent ... if all of the following conditions exist prior to the landlord's demand ...: (1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord's agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Calendar No.: Event ID: TENTATIVE RULINGS

3119735 CASE NUMBER: CASE TITLE: BURROWS VS CREEKSIDE MEADOWS APARTMENTS INC 37-2024-00013020-CU-PO-CTL Section 1929 or 1941.2.' The Complaint fails to allege any facts that a public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified Defendant of its obligations to abate the nuisance or repair the substandard condition. No facts are alleged that the condition was not abated for at least thirty-five (35) days beyond the date notice was provided. Simply quoting the language of the statue is not sufficient. The Demurrer is sustained on this basis.

6th COA: Intentional Infliction of Emotional Distress The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by Defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) Plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by Defendant's outrageous conduct. Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. Defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result. Id. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.

'The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity.' Pitman v. City of Oakland (1988) 197 Cal. App. 3d 1037, 1047; see also Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1070 (landlord and manager's failure to remedy mold condition was sufficient to state claim for IIED).

In this action, paragraphs 14, 18, 26 - 33 and 134 - 143 allege intentional and reckless conduct (failing to respond to complaints of bedbug infestation). This failure could be considered 'extreme and outrageous': living with a bedbug infestation is extreme and exceeds the bounds of what is usually tolerated in a civilized community. Plaintiffs' severe emotional distress is sufficiently alleged. The Demurrer is overruled.

8th COA: Unfair Business Practices (Business and Professions Code �17200) As alleged, Defendant is in the business of leasing and managing residential apartment units. As alleged, Defendant has a company policy of not addressing bedbug infestations. As alleged, this constitutes both an unfair business practice and an illegal business practice. These allegations are sufficient and the Demurrer is overruled.

9th COA: Fraudulent Concealment The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by Defendant with a duty to disclose the fact to Plaintiff; (3) Defendant intended to defraud Plaintiff by intentionally concealing or suppressing the fact; (4) Plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) Plaintiff sustained damage as a result of the concealment or suppression of the fact. Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal. App. 4th 124, 162.

Defendant argues the elements of knowledge, concealment and intent are not sufficiently alleged. This Calendar No.: Event ID: TENTATIVE RULINGS

3119735 CASE NUMBER: CASE TITLE: BURROWS VS CREEKSIDE MEADOWS APARTMENTS INC 37-2024-00013020-CU-PO-CTL argument is not persuasive. Paragraphs 164, 165 and 169 allege these facts. The Demurrer is overruled.

_____ 2. Defendant's Motion (ROA # 15) to strike portions of Plaintiff's Complaint, is DENIED.

A claim for punitive damages cannot be pled generally. It is not sufficient to allege merely that Defendant 'acted with oppression, fraud or malice.' Edmon & Karnow, Cal. Prac. Guide: Civ. Pro.

Before Trial (The Rutter Group 2023) at � 6:158 (citing Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041, 1042 and Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal. App. 4th 598, 643).

Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent or malicious (e.g., Defendant acted with the intent to inflict great bodily harm on Plaintiff or to destroy Plaintiff's property or reputation). Id. The only malice, contemplated by section 3294 is 'malice in fact': the motive and willingness to vex, harass, annoy, or injure. G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22, 29.

Malice is defined as intentional conduct causing injury, or Defendant's despicable conduct done with a willful and conscious disregard of the rights or safety of others. Civil Code 3294(c)(1).

The 'despicable conduct' standard is satisfied, and punitive damages are appropriate if Defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1051.

'An employer shall not be liable for [punitive] damages ... based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.' Civ. Code 3294(b).

Punitive damages are not assessed against employers on a pure respondeat superior basis. College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 724, fn. 11.

Rather, exemplary damages may be assessed directly against a principal only under specific statutory authority and in delineated circumstances. Rony v. Costa (2012) 210 Cal. App. 4th 746, 759.

Punitive damages liability requires that the wrongful act giving rise to the exemplary damages be committed by an 'officer, director, or managing agent.' White v. Ultramar, Inc. (1999) 21 Cal. 4th 563, 572.

In this action, punitive damages are sought only in relation to causes of action 1 (Breach of Warranty of Habitability -- Civil Code � 1941.1) and 5 (Nuisance). The allegations in the Complaint, when taken as a whole, support the potential imposition of punitive damages. Sufficiently detailed facts are alleged regarding conduct by Defendant's agents and employees that would rise to the level of malice, oppression or fraud. As alleged, these individuals implemented company policy to intentionally ignore, discount and deny bedbug complaints by tenants (including plaintiffs), even though they knew of the physical injuries and mental distress the infestation caused. As alleged, this was done, at least in part, to maximize revenue through the continued ability to lease units.

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3119735 CASE NUMBER: CASE TITLE: BURROWS VS CREEKSIDE MEADOWS APARTMENTS INC 37-2024-00013020-CU-PO-CTL In addition, paragraphs 47, 66, 83 and 84 sufficiently allege authorization and ratification. The Motion is denied on this basis.

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3119735