Judge: John J. Kralik, Case: 20STCV33270, Date: 2023-02-03 Tentative Ruling
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Case Number: 20STCV33270 Hearing Date: February 3, 2023 Dept: NCB
North
Central District
|
carla
appleberry, et al., Plaintiffs, v. THE PLAZA AT SHERMAN
OAKS, et al., Defendants. |
Case No.: 20STCV33270 Hearing Date: February 3, 2023 [TENTATIVE] order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiffs Carla Appleberry,
Florence Mirsky, and Scarlette Storch (“Plaintiffs”) allege that they signed a
lease at Defendant The Plaza at Sherman Oaks (“The Plaza”) located at 4500
Woodman Ave., Sherman Oaks, CA 91423 on July 1, 2018 for Apartment #E209. They allege that on September 1, 2018, they grew
concerned as they began noticing bug bites on their bodies and suspected bedbugs. (Compl., ¶16.) On December 1, 2018, Ms. Appleberry found a bedbug
on her sheets. (Id., ¶17.) After finding the bedbugs in their unit, Ms.
Mirsky spoke with the manager of the apartment regarding the bedbug infestation,
but the manager believed the bites were from mosquitos and stated that they would
have someone check the unit. (Id.,
¶18.) Plaintiffs allege that no inspection
was conducted. (Id.) On December 17, 2018, Plaintiffs each sought
medical treatment for the bedbug bites.
(Id., ¶20.) On December
21, 2018, Ms. Mirsky paid for a Terminex inspector to examine the apartment,
which revealed bedbugs. (Id.,
¶21.) Plaintiffs allege the bedbug problem
became worse and management did not aid Plaintiffs, and so Plaintiffs decided
to move out on January 9, 2019. (Id.,
¶22.)
Defendants Cirrus Asset Management,
Inc. and Lori Cohen are alleged to be the persons that operate and manage The
Plaza. Defendant Victoria Hagarty is
alleged to own, operate, and manage The Plaza.
The complaint, filed August 31, 2020,
alleges causes of action for: (1) battery; (2) negligence; (3) IIED; (4) breach
of implied warranty of habitability; (5) breach of covenant of quiet enjoyment;
(6) violation of Civil Code, § 1942.4; (7) private nuisance; and (8) public
nuisance.
On August 12, 2022, Plaintiff filed
an Amendment to the Complaint, naming Raintree Plaza Sherman Oaks LLC as Doe
1.
B.
Motions on Calendar
On September 26, 2022, Defendants Raintree
Plaza Sherman Oaks LLC, Cirrus Asset Management, Inc., Lori Cohen, and Victoria
Hagerty (“Defendants”) filed a demurrer to the entirety of the complaint and
specifically to the 1st, 3rd, 7th, and 8th
causes of action. Concurrently,
Defendants filed a motion to strike portions of the complaint alleging punitive
damages.
On October 10, 2022, Plaintiffs filed
opposition briefs.
On October 14, 2022, Defendants filed
reply briefs.
DISCUSSION
Re Demurrer
A.
Individual Defendants
Defendants demur to the complaint in its
entirety, arguing that it fails to allege facts against the individual
defendants. Defendants argue that Lori Cohen and Victoria Hagerty are alleged
to own, operate, and/or manage The Plaza, but there are no direct allegations
against these individual defendants.
Further, Defendants point out that there are no allegations in the
complaint regarding alter ego liability on the part of the individual
defendants over the corporate defendants.
There are no allegations that
Plaintiffs contacted these individual defendants to inform them about any
issues regarding the property and that they declined to cure any of the defects
at the property.
The Court notes that Plaintiffs do not
address the demurrer raised by the individual defendants in the opposition
brief. As such, Plaintiffs have not
shown how, upon amendment, they will be able to allege additional facts to
address this issue. However, as this is Plaintiffs’ first attempt at the
pleadings, the Court will allow leave to amend.
B.
1st cause of action for battery
“The elements of a cause of action for battery are: (1) the defendant touched
the plaintiff, or caused the plaintiff to be touched, with the intent to harm
or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3)
the plaintiff was harmed or offended by the defendant's conduct; and (4) a
reasonable person in the plaintiff's position would have been offended by the
touching.” (Carlsen v.
Koivumaki (2014)
227 Cal.App.4th 879, 890.)
In the 1st cause of action,
Plaintiffs allege that Defendants intentionally and recklessly did acts that
were unconsented to by Plaintiffs and therefore resulted in offensive contact
with their persons, including Defendants’ choice not to eradicate the
infestation, their deliberate choice not to inspect or ensure the apartment was
free of bugs immediately after Plaintiffs complained to management, Defendants’
reckless choice not to inspect the bed skirts in the apartment, Defendants’
willful disregard of the infestation and failure to notify Plaintiffs of the
bugs’ presence in surrounding apartments.
(Compl., ¶35.) Plaintiffs allege
that Defendants acted with intent to cause harmful or offensive contact with
Plaintiffs’ body. (Id.,
¶36.) Plaintiffs allege that Defendants
ratified the conduct of apartment employees.
(Id., ¶37.)
The allegations
of the 1st cause of action lack facts showing that Defendants
intended to harm or offend Plaintiffs.
There are no allegations that Defendants placed the bedbugs at Plaintiffs’ apartment unit so that they
would be touched and harmed. At most, Plaintiffs’
allegations are that Defendants failed to act (i.e., failed to remedy the issue
after being informed about the bedbugs).
However, such allegations are better asserted as a negligence claim,
such as in the 2nd cause of action for negligence. The
intentionality element for a claim of battery is lacking in the complaint.
Thus, the
demurrer to the 1st cause of action is sustained. As this is Plaintiffs’ first attempt at the
pleadings, the Court will allow leave to amend.
C.
3rd cause of action for IIED
The elements of intentional infliction of
emotional distress are: (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 suffered severe or extreme
emotional distress; and (4) the plaintiff’s injuries were actually and
proximately caused by the defendant’s outrageous conduct. (Vasquez
v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,
832.) In order to avoid a demurrer, the
plaintiff must allege with great specificity, the acts which she believes are
so extreme as to exceed all bounds of that usually tolerated in a civilized
community. (Id.)
Conduct to be outrageous must be so
extreme as to exceed all bounds of that usually tolerated in a civilized
community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be
of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind. (Id.)
“Although emotional distress may consist of
any highly unpleasant mental reaction such as fright, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment or worry [citation],
to make out a claim, the plaintiff must prove that emotional distress was
severe and not trivial or transient.” (Wong v. Tai Jing (2010)
189 Cal.App.4th 1354, 1376.) Such distress must be “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.)
In the 3rd cause of
action, Plaintiffs allege that Defendants’ conduct was intentional, extreme,
and outrageous for the similar reasons stated in paragraph 35. (Compl., ¶¶35, 59-60.) Plaintiffs allege that Defendants’ actions
were done with the intent to cause serious emotional distress to
Plaintiffs. (Id., ¶61.) Plaintiffs allege that as a result of
Defendants’ actions, Plaintiffs suffered severe emotional distress. (Id., ¶62.)
Defendants demur to the 3rd
cause of action, arguing that Plaintiffs fail to allege any supporting facts to
show that their conduct was extreme or outrageous and that Plaintiffs’
allegations are conclusory.
An IIED claim must be alleged with
specificity to avoid a demurrer. The
allegations are conclusory regarding the elements of IIED. As discussed above, the intentionality aspect
by Defendants is not adequately pled.
Further, Plaintiffs have not shown that Defendants’ conduct was so
extreme or outrageous that would warrant a claim for IIED. As currently pled, the allegations at most
arise to the level of negligence, but not that of an intentional tort.
Finally, Plaintiffs have not pled
sufficient facts regarding severe emotional distress. “[M]ere allegation
that the plaintiffs suffered severe emotional distress, without facts
indicating the nature or extent of any mental suffering incurred as a result of
the defendant's alleged outrageous conduct, fail[s] to state a cause of action
for intentional infliction of emotional distress.” (Pitman
v. City of Oakland (1988) 197
Cal.App.3d 1037, 1047.) “The allegation that plaintiff suffered shame,
humiliation and embarrassment without further factual explanation does not meet
the requirement of specificity….” (Id.)
Thus, the demurrer to the 3rd
cause of action is sustained with leave to amend.
D.
7th cause of action for private nuisance
The elements for a private nuisance claim
are: (1) interference with the plaintiff’s use and enjoyment of his property;
(2) the invasion of the plaintiff’s interests in the use and enjoyment of the
land must be substantial (i.e., causes the plaintiff to suffer substantial
actual damages); (3) the interference with the protected interest must not only
be substantial, but 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). (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262–263.) Unlike public nuisance (which is an interference with the rights of the community at
large), private nuisance is a civil wrong based on disturbance of rights in
land whereby the plaintiff must prove an injury specifically referable to the
use and enjoyment of his or her land; however, this injury need not be
different in kind from that suffered by the general public. (Id.
at 262.)
Defendants demur to the 7th
cause of action, arguing it is duplicative of the 2nd cause of
action for negligence.
In the 2nd cause of
action for negligence, Plaintiffs allege that Defendants had a duty to exercise
reasonable care in the operation and maintenance of the apartment, which
included keeping the apartment in a safe and habitable condition and free of
insect infestations. (Compl., ¶42.) Plaintiffs allege that Defendants breached
this duty by allowing the infestation, failing to eradicate the infestation,
choosing not to inspect the apartment to verify it was free of bedbugs, and failing
to have an exterminator inspect the apartment.
(Id., ¶43.) Plaintiffs allege
that they were proximately injured by suffering bedbug bites as a result of
Defendants’ breach of duty. (Id.,
¶45.) (The complaint also alleges facts
that Defendants owed duties relating to the maintenance of a motel, but it is
unclear from the allegations if the apartment was a motel. [Id.,
¶49.])
In the 7th cause of
action for private nuisance, Plaintiffs allege that Defendants negligently and intentionally
caused a bedbug infestation to exist at the apartment, constituting a nuisance
which was injurious to Plaintiffs’ health and safety. (Compl., ¶97.) Plaintiffs allege that the nuisance caused
Plaintiffs to suffer harm. (Id.,
¶98.)
Defendants
argue that Plaintiffs essentially seek to recover damages under the same set of
facts under different theories of recovery.
They cite to Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367. The Court of Appeal in Van Zyl stated:
We also observe, initially, that although the complaint in the instant
action purports to state two causes of action, that is, one based on nuisance
and the other on negligence, it actually states one cause of action in two
counts. The gist of each count is that defendants “constructed and/or
maintained” the subject driveway in such a manner as to obstruct the channel
and divert the water from said channel onto plaintiff's property to plaintiff's
damage. In the first count it is alleged that conduct constituted a private
nuisance; in the second, that such conduct constituted negligence in the
construction, design and maintenance of said driveway. The complaint thus
alleges only one cause of action because it alleges one primary right, that is,
plaintiff's right to the unimpaired ownership and undisturbed enjoyment of his
premises; a corresponding duty, that is, an obligation on the part of
defendants not to interfere with that right; and a breach of that duty by
defendants. (See Frost
v. Witter,
132 Cal. 421, 426 [64 P. 705, 84 Am.St.Rep. 53]84
Am.St.Rep. 53]; Smith
v. Minnesota Mut. Life Ins. Co., 86 Cal.App.2d 581, 590 [195 P.2d 457]; Work v. County Nat. Bank etc. Co., 4 Cal.2d 532, 540 [51
P.2d 90].) Accordingly, what plaintiff seeks is to
recover in damages under the same state of facts but under different theories
of recovery, that is, private nuisance and negligence. In such a case there is
but one cause of action. (See Shell v. Schmidt, 126 Cal.App.2d 279, 291
[272 P.2d 82].)
(Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372 [emphasis added];
see also El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007)
154 Cal.App.4th 1337, 1349 [“Where negligence
and nuisance causes of action rely on the same facts about lack of due care,
the nuisance claim is a negligence claim.”].)
The
allegations of the negligence and private nuisance causes of action appear to
be based on the same facts. In
opposition, Plaintiff argues that “it is only reasonable for the County of
Riverside to consider its invited guests, whom the State offers protection to
under the California Health and Safety Code for nuisances, to be part of the
relevant community for the time they are visiting.” (Opp. at p.16.) Plaintiffs also argue that the bedbug
infestation in “Defendants’ hotel” should be likened
to a single outbreak of smallpox, irrespective of what county in which the
affected person ultimately resides. (Id.) Plaintiffs’ arguments in opposition are not
responsive to the arguments raised by Defendants in the demurrer. It appears that Plaintiffs’ arguments may be
responsive to a different pleading that is not at issue before the Court, as
the property at issue is not located in the County of Riverside.
As
such, the demurrer to the 7th cause of action is sustained. The Court is inclined to sustain this cause
of action without leave to amend, but as this is Plaintiff’s first attempt at
the pleading, the Court will allow an opportunity to amend this cause of action.
E.
8th cause of action for public nuisance
“A
nuisance is considered a ‘public nuisance’ when it ‘affects at
the same time an entire community or neighborhood, or any considerable number
of persons, although the extent of the annoyance or damage inflicted upon
individuals may be unequal.’” (Mendez v. Rancho Valencia Resort Partners, LLC (2016)
3 Cal.App.5th 248, 261 [citing Civ. Code,
§3480].)
In the 8th cause of action, Plaintiffs
allege that the infestation that Defendants negligently and intentionally
caused to exist at the apartment constituted a nuisance that was injuries to Plaintiffs
and their comfortable enjoyment of the apartment. (Compl., ¶102.) Plaintiffs also allege that the infestation
affected the community at large. (Id.,
¶103.) They allege their use and
enjoyment of the room was greatly affected, which is separate from the harm suffered
by the general public. (Id.,
¶104.)
Plaintiffs have not alleged sufficient facts to
show how the bedbug infestation in their
apartment unit affected the entire community or neighborhood, or a
consideration number of persons. As
discussed above, Plaintiffs’ arguments in opposition regarding nuisance are
regarding the County of Riverside and a bedbug infestation at
Defendants’ hotel. However, the
allegations of the complaint do not allege that Defendants leased a hotel room
to Plaintiffs.
As such, the demurrer to the 8th cause
of action is sustained. The Court is
inclined to sustain this cause of action without leave to amend, but will
provide Plaintiffs the opportunity at the hearing to show whether this cause of
action can be amended.
F.
Plaintiffs’ opposition to the remaining causes of
action
The Court notes that Plaintiffs’
opposition to the demurrer addresses the 2nd cause of action for
negligence, 4th cause of action for breach of implied warranty of
habitability, 5th cause of action for breach of covenant of quiet
enjoyment, and 6th cause of action for violation of Civil Code, §
19424.4. However, these causes of action
were not raised in Defendants’ demurrer to the complaint. As such, Plaintiffs’ additional arguments
regarding the 2nd, 4th, 5th, and 6th
causes of action do not apply to the merits of this demurrer.
DISCUSSION RE
MOTION TO STRIKE
Defendants
move to strike allegations for punitive damages, attorney’s fees, and
references to “bedding” regulations in the complaint.
A.
Punitive Damages
A complaint including a request for
punitive damages must include allegations showing that the plaintiff is
entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
1255.) A claim for punitive damages cannot be pleaded generally and
allegations that a defendant acted "with oppression, fraud and
malice" toward plaintiff are insufficient legal conclusions to show that
the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73
Cal.App.3d 864, 872.) Specific factual allegations are required to
support a claim for punitive damages. (Id.)
Civil Code § 3294
authorizes a plaintiff to obtain an award of punitive damages when there is
clear and convincing evidence that the defendant engaged in malice, oppression,
or fraud. Section 3294(c) defines the terms in the following manner:
(1)
"Malic
means conduct which is 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.
(2)
"Oppressio
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
(3)
"Frau
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.
With respect to a corporate employer, section 3294(b) requires that 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.
Defendants
argue that punitive damages have not been adequately alleged against a
corporation. The allegations for
punitive damages must be specific and alleged with particularity. A review of the complaint show that
Plaintiffs have not alleged regarding any particular person/employee/agent of
Defendants and their authority to act on Defendants’ behalf, in making certain
representations or undertaking certain actions against Plaintiffs, which the
corporate defendants allegedly ratified.
Further,
the allegations are conclusory regarding Defendant’s actions or inactions. Plaintiffs allege that Defendants
“deliberately and recklessly chose not to inspect” Plaintiffs’ apartment unit,
that they “willfully disregard[ed] knowledge of a bedbug infestation,”
“deliberately” chose not to remedy the bedbugs, “deliberately and recklessly”
chose to turn a blind eye to the infestation, etc. (See e.g., Compl., ¶¶45, 26, 27.) However, the allegations regarding
Defendants’ alleged willful and reckless behavior are conclusory. Specific facts to support these allegations
should be provided, as punitive damages must be alleged with the requisite
particularity.
As
such, the motion to strike punitive damages allegations is granted with leave
to amend.
B.
Attorney’s Fees
Defendants argue
that attorney’s fees pursuant to Civil Code, § 1021.5 are not available to
Plaintiffs where they primarily seek to vindicate their own personal rights or
economic interests.
The only
allegations for attorney’s fees in the complaint are in connection with the 6th
cause of action for violation of Civil Code, § 1942.4 and the prayer for
damages. (Compl., ¶94 and Prayer for
Damages, ¶4.)
Civil Code, §
1942.4 states that a landlord may not demand rent, collect rent, issue a notice
of rent increase, or issue a three-day notice to pay rent or quit if certain
conditions exist, such as if the dwelling substantially lacks certain
affirmative standard characteristics.
(Civ. Code, § 1942.4(a)(1).) If a
landlord violates the section, then the prevailing party shall be entitled to
the recovery of reasonable attorney’s fees and costs. (Civ. Code, § 1942.4(b)(2).)
While
Defendants argue that attorney’s fees are not appropriate pursuant to Civil
Code, § 1021.5, Plaintiffs are seeking attorney’s fees pursuant to Civil Code,
§ 1942.4. Defendants did not address
whether attorney’s fees were appropriate pursuant to section 1942.4. As such, the motion to strike the allegations
for attorney’s fees is denied.
C.
Irrelevant Allegations
Defendants move
to strike allegations regarding “bedding” allegations (25 C.C.R. § 40) from the complaint, arguing that bedding
regulations only apply to apartment houses or hotels that rent out and furnish
the premises with a bed and bedding.
(Compl., ¶61.) Defendants argue
that the complaint does not allege any facts that Defendants furnished the
apartment with a bed or bedding.
Based on the
allegations of the complaint, it appears that Defendants rented out a unit at
the apartment. The allegations do not
allege that the apartment complex was a hotel.
Further, there are no allegations that the apartment came furnished with
a bed or bedding. In opposition,
Plaintiffs do not provide a response to this argument raised in the motion to
strike and have not shown that they can amend the pleading to allege that the
apartment unit came with a bed or bedding.
As such, the
motion to strike allegations regarding bedding regulations is granted without
leave to amend.
CONCLUSION AND
ORDER
The
demurrer of Defendants Raintree Plaza Sherman Oaks LLC, Cirrus Asset Management,
Inc., Lori Cohen,
and Victoria Hagerty to the complaint as to the 1st, 3rd,
7, and 8th causes of action is sustained with 20 days leave to
amend. The demurrer to the complaint in
its entirety as alleged against Defendants Lori Cohen and Victorian Hagerty is
sustained with 20 days leave to amend.
Defendants’ motion to strike the
allegations for punitive damages is granted with 20 days leave to amend. The motion to strike the allegations for
attorney’s fees is denied. The motion to
strike the allegations for “bedding” regulations (25 C.C.R. § 40) is granted without
leave to amend.
Defendants shall
provide notice of this order.