Judge: John J. Kralik, Case: 22BBCV00200, Date: 2023-04-28 Tentative Ruling
Case Number: 22BBCV00200 Hearing Date: April 28, 2023 Dept: NCB
North Central District
|
noemi villalobos, Plaintiff, v. omra LOERA, et al., Defendants. |
Case
No.: 22BBCV00200 Hearing Date: April 28, 2023 [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 until she vacated the property in March 2022. 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 she was renting an
illegal and unpermitted converted backhouse at the property zoned for single
family residency. She alleges that the
backhouse did not have a certificate of occupancy. She alleges that she discovered water damage throughout
the interior and exterior walls of the property in September 2021. She alleges that in 2019 to 2022, she
sustained injuries in connection with the water intrusion and subsequent mold
and mildew. (SAC, ¶¶9-13.) 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. (Id., ¶14.) Plaintiff alleges she notified Loera about
the violations. She alleges that
unbeknownst to her until October 2021, the property lacked any permitting or
certificates of occupancy. (Id.,
¶17.) She also alleges that the property
did not contain functioning smoke or carbon monoxide detectors. (Id., ¶18.) In October 2021, Defendants told Plaintiff
that she must vacate the property on February 15, 2022 so he could personally use
the property. (Id., ¶19.) Plaintiff alleges that after vacating the
property, the property was advertised for rent at a higher rate. (Id., ¶20.)
The second amended complaint (“SAC”), filed January
9, 2023, 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 February 15, 2023, Defendant Loera filed a
demurrer to the 1st, 2nd, and 5th causes of action
alleged in the SAC. Concurrently, Loera
filed a motion to strike portions of the SAC.
On April 17, 2023, Plaintiff filed an
opposition brief to the demurrer only.
On April 24, 2023, 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. In its ruling on
the demurrer to the FAC, the Court again found that Plaintiff failed to allege
when she gave notice about the defective conditions (sometime in 2019 to
2022).
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 him.
The SAC alleges that she lived at the
premises from 2019 to 2022 and she documented and noticed the violations from 2019
to 2022. (SAC, ¶¶13-14.) She alleges she
directly notified Loera about the violations and that code enforcement for Los
Angeles notified Loera of the violations in writing in October 2021. (Id., ¶15.) She alleges that through notices to him in
2021 and the notice from city agencies, Defendants 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.” (SAC, ¶25.) (The Court notes that the initial complaint
was filed on March 28, 2022.)
Here, Plaintiff has now alleged that she
notified Loera about the violations throughout 2021, sometime in October 2021,
and on March 2, 2022. Plaintiff has put
Defendant on notice in the pleading of when she provided notice of the
substandard conditions at the property. While specifics have not been provided as to
when Plaintiff provided notice as to each and every violation alleged in the
SAC, she has at least alleged viable cause of action as to some of her claims. Further, specific dates of when she provided
notice of a violation at the property will be better left for discovery. As such, the Court overrules the demurrer to
the 1st cause of action.
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.” (SAC, ¶32.)
Plaintiff alleges that Defendants’ refusal to repair and abate the
multiple issues was made after and despite being notified of the conditions by
Plaintiff and/or third parties on multiple occasions throughout the lease, from
2014 through 2019, and on multiple occasions in 2019, 2020, 2021 and as recently
as March 3 2022, although Plaintiff did not understand the breadth of the
illegality until about October 2021. (Id., ¶¶33-34.) Plaintiff
also alleges that Defendants breached the implied covenant by failing to
address the concerns. (Id., ¶35.)
Plaintiff alleges that she incorrectly
claimed she was unaware of these issues when in fact she was aware and made
Defendant aware of the issues throughout the tenancy; what she was unaware of
until October 2021 was the lack of certificate of occupancy and otherwise
illegal and unpermitted conditions at the property. (Id., ¶36.)
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 involved issues that were
never corrected and which ultimately led to 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 and the
FAC, the allegations of the 2nd cause of action lack facts showing
there was a substantial interference.
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. In the SAC,
Plaintiff adds paragraph 36, alleging that she incorrectly claimed she was
unaware of the issues as a whole, but that she meant to state that she was in
fact aware of the issues and gave Defendants notice thereof throughout the
tenancy, but that she was only unaware of the lack of certificate of occupancy
and illegal/unpermitted structures until October 2021. (SAC, ¶36.)
The Court finds that Plaintiff has explained this inconsistency in the
pleadings by way of this clarification.
However,
Plaintiff has not included additional facts regarding the interference by Defendant. Her allegations appear to remain unchanged on
this element, though the Court has informed Plaintiff on numerous occasions
that additional facts were necessary.
As
such, the demurrer to the 2nd cause of action is sustained. Plaintiff has
the burden of showing the manner in which Plaintiff can amend the pleadings to
correct this defect and how that amendment will change the legal effect of the
pleading. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.) Thus,
the Court will hear oral arguments on whether leave to amend is proper.
C. 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 agreement is in the
possession of Defendant and is no longer in her possession, but that it constitutes
valid contracts in writing between Plaintiff and Defendant(s). (SAC, ¶58.)
Plaintiff alleges she performed in good faith on her respective
obligations by paying rent in exchange for the quiet enjoyment of a legal and
permitted property. (Id., ¶59.) Plaintiff alleges that Defendants’
obligations and promises included keeping the property in a legally tenable and
habitable state, providing hot water and functional heat, and other mandatory
amenities, as well as not interfering with her exclusive use and enjoyment of
the property. (Id., ¶60.) Plaintiff alleges that Defendants rented an
illegal unit that lacked a certificate of occupancy and was illegal, thereby breaching
the terms of the lease agreement. (Id.,
¶61.)
In the
Court’s prior order on the demurrer to the FAC, the Court sustained the
demurrer to this cause of action, finding that the FAC failed to allege
sufficient facts regarding the material terms of the lease, such as Plaintiff’s
failure to allege facts regarding when the lease was entered, rental payments, the
term of the lease, etc. The Court also
noted that the Plaintiff interchanged between lease agreements (plural) and a
lease agreement (singular), such that it was unclear how many lease agreements were
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 did not specify if the lease
agreement or agreements were entered between Plaintiff and Defendants Loera and
Oasis Builders or just Plaintiff and Loera.
The same
defects persist in the 5th cause of action in the SAC. Again, Plaintiff alleges “Lease Agreement,”
“valid contracts,” “Lease Agreements,” etc. in her 5th cause of
action, such that the Court cannot ascertain whether there is only one or
multiple lease agreements/contracts at issue.
Next, Plaintiff still has not alleged who the contract(s) were entered
between, as the SAC alleges that it was entered between “Plaintiff, and
Defendant(s).” (SAC, ¶58.) While Plaintiff alleges that contract(s) are
in writing and that she lacks the contract(s), she still has not alleged its
material terms despite the Court’s prior demurrer orders.
The demurrer to the 5th
cause of action is sustained. The Court
will determine at the hearing whether it will allow amendment on this cause of
action.
DISCUSSION RE MOTION TO STRIKE
Loera moves to strike portions of
the SAC seeking punitive damages at paragraph 55 (page 8, line 24, “punitive”)
and the Prayer for Damages at item 4 (page 10, line 20).
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.
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. (SAC, ¶55.)
The Court previously found in its ruling on
the motion to strike punitive damages in the FAC and still finds in the SAC
that 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. At most, they allege the words of the statute in
a conclusory manner.
The Court has given Plaintiff the
opportunity to amend the punitive damages request against Loera, but it does
not appear that further facts were provided to support a request for punitive
damages. Punitive damages must be
alleged with particularity and the SAC does not rise to this level. Further, the motion to strike is not opposed,
such that Plaintiff has not shown how, upon amendment, the punitive damages
could be supported by further facts. As
such, the motion to strike the allegations for punitive damages is granted
without leave to amend.
CONCLUSION AND ORDER
Defendant Omar Loera’s demurrer to the second amended complaint is overruled
as to the 1st cause of action.
The demurrer is sustained as to the 2nd and 5th causes
of action and the Court will hear oral argument regarding whether amendment is
proper. If both parties submit to the
tentative order prior to the hearing, the demurrer to the 2nd and 5th
causes of action will be sustained without leave to amend.
Defendant Omar Loera’s motion to strike is granted without leave to
amend as to the allegations for punitive damages.
Defendant shall provide notice of this order.