Judge: John J. Kralik, Case: 22BBCV00200, Date: 2022-12-16 Tentative Ruling
Counsel who wish to submit on the tentative ruling may do so by emailing BURDeptB@lacourt.org
PLEASE WRITE THE CASE NUMBER AND PARTY YOU REPRESENT. YOU MAY ONLY SUBMIT ON BEHALF OF THE PARTY YOU REPRESENT. YOU MAY NOT SUBMIT ON BEHALF OF ANOTHER PARTY.Counsel are directed to cc all other counsel if you are submitting on the tentative ruling.
IF YOU HAVE QUESTIONS OR NEED CLARIFICATION ON THE TENTATIVE, YOU MUST APPEAR AND ADDRESS YOUR QUESTIONS TO THE COURT.
IF BOTH SIDES SUBMIT ON THE TENTATIVE RULING, THE TENTATIVE RULING THEN BECOMES THE ORDER OF THE COURT ON THE MOTION DATE AND NO APPEARANCES ARE NECESSARY.
THERE WILL BE NO RESPONSES TO ANY INQUIRIES SUBMITTED THROUGH THIS SITE.
THANK YOU!
Case Number: 22BBCV00200 Hearing Date: December 16, 2022 Dept: NCB
North Central District
NOEMI VILLALOBOS, Plaintiff, v.
OMRA LOERA, et al., Defendants. |
Case No.: 22BBCV00200
Hearing Date: December 9, 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. She alleges that prior to, but specifically since March 30, 2019, she was paying money to Defendant for use of the property. Plaintiff alleges Defendant Oasis Builders is the alter alias of Defendant Omar Loera (“Loera”) and the manager of the property. Loera is alleged to be the legal owner 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. (FAC, ¶12.) Plaintiff alleges she notified Loera about the violations. She alleges that unbeknownst to her until 2021, the property lacked any permitting or certificates of occupancy. She also alleges that the property 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 personally use the property. Plaintiff alleges that after vacating the property, the property was advertised for rent at a higher rate.
The first amended complaint (“FAC”), filed August 25, 2022, alleges causes of action for: (1) tortious breach of warranty of habitability; (2) breach of covenant of quiet enjoyment; (3) nuisance; (4) negligence; (5) breach of contract; and (6) intentional interference with estate (Civ. Code, § 789.3).
B. Motions on Calendar
On October 3, 2022, Defendant Loera filed a demurrer to each cause of action alleged in the FAC. Concurrently, Loera filed a motion to strike portions of the FAC.
On November 28, 2022, Plaintiff filed an opposition brief to the demurrer.
On December 5, 2022, Defendant filed a reply brief to the demurrer. Defendant also filed a notice of non-opposition to the motion to strike, stating that Defendant was not in receipt of an opposition brief from Plaintiff.
DISCUSSION RE DEMURRER
A. 1st cause of action – tortious breach of warranty of habitability
In the Court’s prior ruling on the demurrer to the complaint, the Court sustained the demurrer to the 1st cause of action, finding that Plaintiff had not alleged sufficient facts showing when she provided notices of the alleged defects in the property to Loera.
Loera again demurs to the 1st cause of action, arguing that Plaintiff has not alleged sufficient facts stating when she provided notice of any defects to Defendant. At most, the FAC alleges that Defendant had actual and constructive notice of the defective conditions because “[s]pecifically on multiple dates and times throughout 2019, 2020, 2021, and as recently as March 2, 2022, Plaintiff and/or code enforcement of Los Angeles notified Defendant Loera of these defective conditions.” (FAC, ¶23.) (The Court notes that the initial complaint was filed on March 28, 2022.)
Again, the allegations of when notice was provided is vague. Plaintiff generally alleges that notice of defective conditions was provided in 2019 to 2022, but fails to allege which violation corresponded to a date, so that Loera is on notice of whether he had a reasonable time to remedy the defective condition. Further facts should be alleged to support this cause of action.
The demurrer to the 1st cause of action is sustained with leave to amend.
B. 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. This refusal was after and despite Defendant Loera being notified of the conditions by Plaintiff and/or 3rd parties on multiple occasions throughout the lease, from 2014 through 2019, and multiple occasions in 2019, 2020, 2021 and as recently as March 3, 2022.” (FAC, ¶30 [new allegations italicized].) 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 argues that the FAC shows facts that the possession of the property “involved everything but quiet enjoyment,” which is evidenced by complaints to city officials that were never remedied by Loera. (Opp. at p.5.)
Similar to the Court’s prior ruling on the demurrer to the initial complaint, the allegations of the 2nd cause of action lack facts showing there was a substantial interference. The addition of a sentence in paragraph 30 (quoted and italicized above) does not cure the defect previously raised regarding whether the interference was “substantial.”
The Court notes that in the initial complaint, Plaintiff had alleged that she “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.) This allegation was omitted from the FAC without explanation. Although Loera did not raise sham pleading in his demurrer papers, the Court noted this as an issue in its ruling on the demurrer to the 2nd cause of action in the initial complaint. (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal.App.4th 1035, 1044 [“[W]hen a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. [Citations.] Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint, rendering it vulnerable to demurrer again.”].) The Court takes judicial notice of the prior pleading and requires Plaintiff to explain this inconsistency; failure to do so may result in a finding that the pleading is a sham and the Court may disregard the inconsistent allegations. (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1390.) This omission of facts from the operative complaint should be explained upon amendment.
The demurrer to the 2nd cause of action is sustained with leave to amend.
C. 3rd 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.)
In the 3rd cause of action, Plaintiff alleges that the conditions of the property that Defendant negligently and intentionally caused constituted a nuisance. (FAC, ¶35.) Plaintiff alleges that the conduct was intentional, injurious to Plaintiff’s health and safety, and indecent and offensive to her senses, and interfered substantially with her comfortable enjoyment of the property. (Id.) Plaintiff alleges the conditions include but are not limited to: non-functional or lack of adequate heating, causing Plaintiff suffering and illness, unapproved and illegal construction, subjecting Plaintiff to conditions substantially below the requirements of properties in the State of California, electrical wiring not up to code subjecting Plaintiff to electrical outages and risks of electrocution and possibly death; rubbish, which subjected plaintiff to foul and offenses smells of trash and rot, and the visual injury of piled and rancid mess; lack of hot water! water & leaking plumbing which caused Plaintiff to have to not wash, and/or wash with freezing and painfully cold water, also causing a sanitary hazard for cleaning.” (Id., ¶36.) She alleges the nuisances were ongoing throughout the lease from 2019 to 2021 and as recently as March 3, 2022. (Id., ¶37.)
In the Court’s prior ruling on the demurrer to the nuisance cause of action alleged in the initial complaint, the Court found that the allegations were conclusory and failed to allege facts that Defendants’ interference was substantial or unreasonable.
Here, the addition of paragraph 36 is sufficient to allege facts inferring that the interference with the leasehold as a result of the aforementioned violations was substantial and unreasonable. As such, the demurrer to the 3rd cause of action is overruled.
D. 4th 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 4th cause of action, arguing that Plaintiff has not alleged sufficient facts regarding each of the elements of negligence.
In the 4th 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. (FAC, ¶¶43-44.) Plaintiff added the allegation that a property owner must repair all deteriorations or injuries thereto occasioned by his want of ordinary care pursuant to laws dealing with property ownership and management. (Id., ¶45.) Plaintiff alleges Defendants breached their duties and caused Plaintiff to suffer damages. (Id., ¶¶46-47.)
The Court previously sustained the demurrer to the negligence cause of action, finding that it appeared to be duplicative of the breach of the warranty of habitability cause of action. The Court had found that Plaintiff’s allegations only showed a duty based on habitability requirements and Defendants’ violations thereof.
At this time, the Court will allow the allegations regarding duty to go forward at the pleading stage. In the amended pleading, Plaintiff includes an additional allegation that property owners must repair all deteriorations to the property. “A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises.” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.) Taking the allegations of the FAC as a whole, Plaintiff has pled sufficient facts for a negligence claim.
The demurrer to the 4th cause of action is overruled.
E. 5th 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.)
In the 5th cause of action, Plaintiff alleges that the lease agreements constitute valid written contracts between Plaintiff and Defendant(s). (FAC, ¶52.) Plaintiff alleges she has performed her obligations and duties as a tenant under the lease agreements, such as by paying rent for the exclusive use and quiet enjoyment of a legal and permitted property. (Id., ¶53.) Plaintiff alleges that Defendants’ obligations included keeping the property in a legally tenable and habitable state, providing state-required hot water, functional heat, and other mandatory amenities. (Id., ¶55.) Plaintiff alleges that Defendants knowingly rented an illegal, substandard unit, failed to respond to any complaints or notice, and breached the terms of the lease agreement. (Id., ¶56.)
The FAC fails to allege sufficient facts regarding the lease. For example, Plaintiff has not alleged facts regarding when the lease was entered, rental payments, the term of the lease, etc. Thus, the material terms of the contract or a copy of the lease agreement are still not provided.
Further, Plaintiff interchanges between lease agreements (plural) and a lease agreement (singular), such that it is unclear how many lease agreements are at issue. In addition, it is unclear who the lease was entered between. Plaintiff alleges that the lease agreements were entered between “Plaintiff and Defendant(s),” but does not specify if the lease agreement or agreements were entered between Plaintiff and Defendants Loera and Oasis Builders or just Plaintiff and Loera.
The demurrer to the 5th cause of action is sustained with leave to amend.
F. 6th 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 6th cause of action, Plaintiff alleges that Defendants willfully interfered with her quiet enjoyment and interrupted/terminated utility services (such as a functioning stove) with the intent to terminate the occupancy. (FAC, ¶59.) Plaintiff alleges that Defendant intentionally disrupted services in 2019-2021 and as recently as March 3, 2022, including gas, electricity, and hot water. (Id., ¶60.) Plaintiff alleges that Defendants willfully prevented her from living in habitable conditions, without her prior consent. (Id., ¶61.)
The Court previously sustained with leave to amend the demurrer to Plaintiff’s cause of action for intentional interference with estate, finding that Plaintiff generally alleged that Defendants terminated her utility services, but failed to state what services were terminated and when they were terminated.
Upon amendment, Plaintiff alleges that Defendants interrupted her utilities, including but not limited to a functioning stove, gas, electricity, and hot water. (FAC, ¶¶59-60.) Here, Plaintiff has alleged what utility services were terminated without her written consent and with Loera’s intent to terminate the tenancy.
The demurrer to the 6th cause of action is overruled.
DISCUSSION RE MOTION TO STRIKE
Loera moves to strike portions of the FAC, including allegations for special and punitive damages, penalties, allegations supporting attorney’s fees, and allegations seeking an injunction.
A. Special Damages and Penalties
Loera moves to strike all references to “special” damages and “penalties” from the FAC as irrelevant, false, and improper matters.
Other than citing the general CCP section for motions to strike, Loera does not provide any legal arguments on why “special” damages and “penalties” should be stricken from the FAC. As no discussion is provided by Loera as to the irrelevant or impropriety of the request for “special” damages and/or “penalties,” the Court denies the motion to strike references to special damages and penalties.
B. 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) "Malice" 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) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
(3) "Fraud" 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.
In the complaint, Plaintiff seeks punitive damages in connection with the 4th cause of action for negligence. Plaintiff alleges that Defendants’ actions constituted malice, oppression, or fraud under Civil Code, § 3294. (FAC, ¶49.)
The allegations seeking punitive damages are conclusory and are not alleged with the requisite particularity. “To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the defendant's oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.) For example, the complaint in Brousseau v. Jarrett, which the court held was “a patently insufficient statement of ‘oppression, fraud, or malice, express or implied’”, as it stated:
Defendant engaged in the conduct described in the second count ‘intentionally, wilfully, fraudulently, and with a wanton, reckless disregard for the possible injuries [sic] consequences ... and as a result of ... said intentional, wilful, wanton, reckless, oppressive, and fraudulent conduct, plaintiff is entitled to exemplary damages. . . .
(Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 869 & 872.) Here, the facts fail to meet the requisite particularity to allege a claim for punitive damages.
The motion to strike the allegations for punitive damages is granted with leave to amend.
C. Attorney’s Fees
CCP § 1021 states that attorney’s fees are recoverable if allowed under statute and/or by agreement.
The FAC does not state the statute or contractual basis for Plaintiff’s request for attorney’s fees. Plaintiff has not filed an opposition and therefore has not provided any additional facts showing that attorney’s fees are appropriate.
Thus, the motion to strike the allegations for attorney’s fees is granted without leave to amend. If Plaintiff finds a basis for fees in the future, she may bring a motion to amend the pleadings to include a request for attorney’s fees with factual support.
D. Injunctive Relief
The prayer for damages at paragraph 2 includes a request for injunctive relief.
It is unclear what the nature of the injunctive relief would be. Further, as pointed out by Loera and as alleged in the FAC, Plaintiff no longer resides at the property, such that any request for injunctive relief would be moot. Plaintiff has not filed an opposition to the motion to strike and has not shown how, upon amendment, facts could be alleged to support this request for damages.
The motion to strike the request for injunctive relief from the FAC is granted without leave to amend.
CONCLUSION AND ORDER
Defendant Omar Loera’s demurrer to the complaint is sustained with 20 days leave to amend as to the 1st, 2nd, and 5th causes of action. The demurrer to the 3rd, 4th, and 6th causes of action is overruled.
Defendant Omar Loera’s motion to strike is granted without leave to amend as to allegations for attorney’s fees and injunctive relief. The motion is granted with leave to amend as to the request for punitive damages. The remainder of the motion is denied.Defendant shall provide notice of this order.
Defendant shall provide notice of this order.