Judge: John J. Kralik, Case: 21BBCV00200, Date: 2022-08-05 Tentative Ruling
Case Number: 21BBCV00200 Hearing Date: August 5, 2022 Dept: NCB
North Central District
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noemi villalobos, Plaintiff, v. omra LOERA, et al., Defendants. |
Case
No.: 22BBCV00200 Hearing Date: August 5, 2022 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Noemi Villalobos (“Plaintiff”)
alleges that she is a tenant of residential property located at 1236 N. Orchard
Dr., Burbank, CA 91506. She alleges that
she took possession in 2012 and paid rent and lived at the property without
issue for 10 years. Plaintiff alleges Defendant
Oasis Builders is the alter alias of Defendant Omar Loera (“Loera”) and the
manager of the property. Plaintiff
alleges that Defendants breached the minimum California State requirements
because the property had non-functional or lack of adequate heating, unimproved
and illegal construction, rubbish, electrical wiring not up to code, filth,
intentional interference with estate, lack of hot water and water/leaking plumbing,
and general non-maintenance. Plaintiff
alleges she notified Defendants about the violations. She alleges that unbeknownst to her until
2021, the property lacked any permitting or certificates of occupancy and did
not contain functioning smoke or carbon monoxide detectors.
In October 2021, Defendants told Plaintiff
that she must vacate the property on February 15, 2022 so he could use the
property. Plaintiff alleges that after
vacating the property, the property was advertised for rent at a higher rate.
The complaint, filed March 28, 2022, alleges
causes of action for: (1) tortious breach of warranty of habitability; (2)
breach of covenant of quiet enjoyment; (3) conversion; (4) nuisance; (5)
negligence; (6) breach of contract; and (7) intentional interference with
estate (Civ. Code, § 789.3).
B. Motions on Calendar
On June 7, 2022, Defendant
Loera filed a demurrer to each cause of action alleged in the complaint. That same day, Loera filed a motion to strike
portions of the complaint.
On June 24, 2022, Plaintiff
filed an opposition brief to the demurrer.
DISCUSSION RE DEMURRER
A. 1st to 6th causes of action – Statute of
Limitations
Loera demurs to the 1st to 6th
causes of action, arguing they are time barred because Plaintiff alleges that
the conditions affecting habitability occurred at the onset of her lease in
2012.
In opposition, Plaintiff argues that she
suffered the violations throughout her tenancy and that the statute of
limitations would still allow her to bring for the ongoing violations—or at a
minimum 3 years from the latest date of suffering (i.e., 2019-2022). (Opp. at p.3.)
Here, it appears that Plaintiff is conceding
that while some of her claims may be time-barred (i.e., claims from 2012 to
2018), she may still bring claims that are within the statute of limitations
for the past 2-3 years of violations that occurred. While the statute of limitations may bar some
portion of Plaintiff’s recovery, she still has timely claims that may be
brought. As such, the demurrer to the 1st to 6th causes
of action on the basis that the claims are time-barred is overruled.
B. 1st cause of action – tortious breach of warranty of
habitability
Loera demurs to the 1st cause of
action, arguing that there is no private right of action for violation of Civil
Code, § 1941.1, Health & Safety Code, §§ 17920.3 and 17920.10, etc.
In the complaint, Plaintiff alleges various
violations of the Civil Code, Health & Safety Code, and LAMC Municipal
Code. (Compl., ¶12.) However, Plaintiff is not bringing separate
causes of action for damages on these code violations, but is bringing a cause
of action for breach of the implied warranty of habitability, which is a
recognized cause of action. Minimum
standards regarding the habitability of a residential property provided in code
by the State is appropriate to allege.
Next, Loera argues that Plaintiff has not
alleged any facts regarding notice of the alleged defects. At most, Plaintiff alleges that she notified
Defendant about the violations. (Compl.,
¶13.) However, Plaintiff has not alleged when such notice was provided to
Defendant.
As such, the demurrer to the 1st
cause of action is sustained with leave to amend.
C. 2nd cause of action – breach of covenant of quiet enjoyment
“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.” (Andrews
v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.) Substantial interference of the tenant’s right to use and
enjoy the premises for the purposes contemplated by the tenancy (as opposed to
minor inconveniences and annoyances) is required to establish a breach of quiet
enjoyment. (Id. at 589.)
In the 2nd cause of action,
Plaintiff alleges that: “Defendants
have breached the implied covenant of quiet enjoyment as alleged herein,
including, but not limited to: failure and refusal to repair the alleged
habitability violations and to maintain The Property in a habitable condition
and in a condition consistent with the purpose for which it was rented.” (Compl., ¶30.) Plaintiff also alleges that Defendants breached
the implied covenant by failing to address the concerns. (Id., ¶31.)
Loera
argues that the 2nd cause of action lacks facts that there was a
substantial interference. In opposition,
Plaintiff addresses the 2nd cause of action, but mainly provides the
law regarding quiet enjoyment without actually addressing Loera’s demurrer
argument.
The
allegations of the 2nd cause of action lack facts showing there was
a substantial interference. Rather, it
appears that Plaintiff “lived without issue for over 10 years,” but was only
made aware of the violations in 2021 around the time when she received notice
to vacate the property. (Compl., ¶¶2,
15, 17.)
As
such, the Court sustains the demurrer to the 2nd cause of action
with leave to amend.
D. 3rd cause of action – conversion
The elements
of a conversion claim are the following: (1) the plaintiff’s ownership or right
to possession of the property; (2) the defendant’s conversion by a wrongful act
or disposition of property rights, interfering with plaintiff’s possession; and
(3) damages. (Lee v. Hanley (2015) 61
Cal.4th 1225, 1240; PCO,
Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007)
150 Cal.App.4th 384, 395.) “Money cannot be the subject of a cause of action for conversion
unless there is a specific, identifiable sum involved, such as where an agent
accepts a sum of money to be paid to another and fails to make the
payment.” (PCO, Inc. v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395.) The sum must be capable of identification; a
generalized claim of money is not actionable.
(Id. at 395-96.)
Loera demurs to the 3rd cause of
action arguing that Plaintiff has not pled damages and that her allegation that
she paid “over $148,000 over the course of her tenancy” is not sufficient. (Compl., ¶14.) In opposition, Plaintiff does not address
this element of damages. The allegation
of “over $148,000” is generalized and is not a specific, identifiable sum. (See Vu v. California Commerce Club, Inc. (1997)
58 Cal.App.4th 229, 231, 235-236 [finding that allegations for “approximately
$1.4 million” and “approximately $120,000” were not specific, identifiable
sums, which rendered the generalized claim for money not actionable as
conversion].) Here, the amount that
might be “converted,” can only be identified after a determination of the
amount by which the rental payments, which are themselves somewhat vaguely
described, were overpaid for the premises at issue. This is not a conversion
case.
The demurrer to the 3rd cause of
action is sustained without leave to amend.
E. 4th cause of action – 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.)
Loera
argues that the 4th cause of action fails to allege facts that the
interference was substantial and unreasonable and that it is merely a “clone”
of her other causes of action.
In the 4th
cause of action, Plaintiff alleges that the conditions of the property
constituted a nuisance and the nuisance was ongoing and caused her to suffer
damages. (Compl., ¶¶40-42.) The allegations of this cause of action are
conclusory at best and fail to allege facts supporting the elements. There are no facts showing that Defendants’
interference was substantial or unreasonable.
The
demurrer to the 4th cause of action is sustained with leave to
amend.
F. 5th cause of action – negligence
The elements
of a negligence cause of action are “duty, breach of duty, proximate cause, and
damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)
Loera demurs to the 5th
cause of action, arguing that Plaintiff has not alleged sufficient facts
regarding the elements of duty and breach thereof. In the 5th cause of action,
Plaintiff alleges that Defendants owed Plaintiff a duty to exercise reasonable
care in their ownership, management, and control of the property, such as not
interfering with her use and quiet enjoyment of the property, to comply with
all applicable state and local laws, to maintain the premises in a safe
condition, etc. (Compl., ¶¶47-48.) Plaintiff alleges Defendants breached their
duties and caused Plaintiff to suffer damages.
(Id., ¶¶49-50.)
This cause of action appears to be duplicative of the breach of implied
warranty of habitability claim.
Plaintiff’s opposition does not apprise the Court how this cause of
action is any different from the 1st cause of action as the
negligence claim is based on the same “duties” regarding habitability and
Defendants’ violation thereof. Plaintiff’s
opposition is essentially just a recitation of the law on negligence but does
not provide any facts showing how this cause of action can be cured with
additional facts.
Thus, the Court sustains the demurrer to the 5th cause of
action. Plaintiff should consider
whether this cause of action is necessary or is duplicative of the 1st
cause of action. As this is the first
attempt at the pleading, the demurrer will be sustained with leave to amend.
G. 6th cause of action – breach of contract
The essential elements of a cause
of action for breach of contract are: “(1) the
existence of the contract, (2) plaintiff's performance or excuse for nonperformance,
(3) defendant's breach, and (4) the resulting damages to plaintiff.” (Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “A
written contract may be pleaded either by
its terms—set out verbatim in the complaint or a copy of the contract attached to
the complaint and incorporated therein by reference—or by its legal
effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
While the complaint alleges the
parties had a written lease agreement, the terms of the lease agreement are not
provided. (Compl., ¶55.) Plaintiff only alleges that there was a lease
agreement, that she performed, and Defendants breached the terms. (Id., ¶¶65-67.) The material terms of the contract or a copy
of the lease agreement are not provided.
The
demurrer to the 6th cause of action is sustained with leave to
amend.
H. 7th cause of action – intentional interference with estate
(Civ. Code, § 789.3)
Civil Code, § 789.3 states in relevant part:
(a) A landlord shall not with intent to terminate
the occupancy under any lease or other tenancy or estate at will, however
created, of property used by a tenant as his residence willfully cause,
directly or indirectly, the interruption or termination of any utility service
furnished the tenant, including, but not limited to, water, heat, light,
electricity, gas, telephone, elevator, or refrigeration, whether or not the
utility service is under the control of the landlord.
(b) In addition, a landlord shall not, with
intent to terminate the occupancy under any lease or other tenancy or estate at
will, however created, of property used by a tenant as his or her residence,
willfully:
(1) Prevent the tenant from gaining reasonable
access to the property by changing the locks or using a bootlock or by any
other similar method or device;
(2) Remove outside doors or windows; or
(3) Remove from the premises the tenant's
personal property, the furnishings, or any other items without the prior
written consent of the tenant, except when done pursuant to the procedure set
forth in Chapter 5 (commencing with Section 1980) of Title 5 of Part 4 of
Division 3.
(Civ. Code, §
789.3.)
In the 7th cause of action,
Plaintiff alleges that Defendants willfully interfered with her quiet enjoyment
and interrupted/terminated utility services with the intent to terminate the
occupancy. (Compl., ¶70.) Plaintiff alleges that Defendants willfully
prevented her from living in habitable conditions, without her prior
consent. (Id., ¶71.)
Plaintiff’s allegations allege generally that
Defendants terminated her utility services, but fail to state what services
were terminated and when they were terminated.
The allegations are conclusory as currently pled and should be supported
by facts.
The demurrer to the 7th cause of
action is sustained with leave to amend.
DISCUSSION RE MOTION TO STRIKE
In light of
the ruling on the demurrer, the Court takes the motion to strike off calendar.
CONCLUSION AND ORDER
Defendant Omar Loera’s demurrer to the complaint is sustained with 20
days leave to amend as to the 1st, 2d, 4th, 5th,
6th and 7th causes of action. The demurrer to the 3rd
cause of action is sustained without leave to amend.
Defendant Omar Loera’s motion to strike portions of the complaint is taken
off calendar.
Defendant shall provide notice of this order.