Judge: John J. Kralik, Case: 23BBCV00655, Date: 2023-12-01 Tentative Ruling

Case Number: 23BBCV00655    Hearing Date: December 1, 2023    Dept: NCB

P

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

shahrzad alvandian, et al.,

 

                        Plaintiffs,

            v.

 

select produce properties, llc, et al,

 

                        Defendants.

 

  Case No.:  23BBCV00655

 

Hearing Date:  December 1, 2023

 

 [TENTATIVE] order RE:

Demurrer; motion to strike; and motions to compel

 

 

BACKGROUND

A.    Allegations

Plaintiff Shahrzad Alvandian (“Alvandian”) alleges that on July 18, 2023, she entered into a written lease agreement with lessor Coldwater Court Apartments for the property located at 4526 Coldwater Canyon Avenue, #205, Los Angeles, CA 91604.  Alvandian alleges that through a series of transactions, Defendant Select Produce Properties, LLC (“SPP”) and Defendant SPI, LLC (“SPI”) became the present lessors of the property.  Alvandian alleges that she and her husband Plaintiff Masoud Ansari currently reside in Unit #205.   

Plaintiffs allege that commencing November 14, 2021, Defendants have created a nuisance at Unit #305 by allowing it to be used by others who make excessive noise day and night.  Plaintiffs allege that Defendants were repeatedly notified of the excessive noise, but they failed to take action to reduce the noise and sounds.

The first amended complaint (“FAC”), filed June 5, 2023, alleges causes of action for: (1) nuisance; (2) IIED; (3) breach of lease; (4) breach of implied covenant of quiet enjoyment; and (5) negligence in the caption of the FAC.  The body of the FAC alleges causes of action for: (1) nuisance; (2) breach of lease; (3) breach of implied covenant of quiet enjoyment; (4) IIED; and (5) negligence.

B.     Motions on Calendar

On July 5, 2023, Defendant SPP filed a demurrer to the 4th cause of action in the FAC and a motion to strike portions of the FAC.  On November 15, 2023, Plaintiffs filed opposition briefs.  On November 21, 2023, SPP filed reply briefs. 

On August 11, 2023, Defendant SPP filed 4 motions to compel discovery.  Two motions are directed against Plaintiff Alvandian for Form Interrogatories, set one (“FROG”) and Requests for Production of Documents, set one (“RPD”).  Two motions are directed against Plaintiff Ansari for FROG and RPDs.  On November 15, 2023, Plaintiffs filed an opposition brief.  On November 21, 2023, SPP filed a reply brief.

DISCUSSION RE DISCOVERY MOTIONS

            SPP moves to compel Alvandian and Ansari’s responses to FROGs and RPDs. 

On May 16, 2023, SPP served on Plaintiffs the discovery requests.  Defense counsel unilaterally provided an extension for Plaintiffs when no responses were provided such that responses were due by July 14, 2023.  As of the filing of the motions, SPP states that it has not received responses from Plaintiffs. 

In opposition, Plaintiffs state that the motions are well taken, but that there are extenuating circumstances that warrant a continuance of the motions.  Plaintiffs argue that their counsel Jay S. Bloom, Esq. had a stroke on July 27, 2023 and he was at Providence Tarzana Medical Center until August 1, 2023 and transferred to Providence Holy Cross until August 11, 2023.  Plaintiffs argue that counsel is currently in speech therapy.  They state that they do not plan to make any objections to discovery and that counsel has started preparing answers when he had the stroke.  Plaintiffs request that the motion be continued for 45 days so that Plaintiffs can prepare responses and properly oppose the motions. 

In reply, SPP states that it wants an assurance that responses without objection will be provided within 30 days.  SPP states that it is amenable to a continuance of the motion and will take the motion off-calendar if timely responses are received. 

To avoid further motion practice and delays, and in light of Plaintiffs’ agreement to provide responses without objection, the Court declines to continue the hearing on the discovery motions and will grant the motions to compel initial responses to the FROGs and RPDs.  The Court will provide sufficient time for Plaintiffs to provide responses in light of Plaintiffs’ counsel’s medical issues and the holidays.  The Court denies SPP’s request for sanctions. 

DISCUSSION RE DEMURRER

            SPP demurs to the 4th cause of action for IIED (labeled as to 2nd cause of action in the caption) on the grounds that it fails to allege sufficient facts to constitute a cause of action.

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 behavior usually tolerated in a civilized community.  (Id.)

Conduct to be outrageous must be so extreme as to exceed all bounds of behavior 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 4th cause of action for IIED, commencing on November 14, 2021, Defendants intentionally made excessive noise and sounds and deliberately failed to take action to stop the excessive noise and sounds and thereby have intentionally acted to cause Plaintiffs to suffer severe emotional distress.  (FAC, ¶27.)  Plaintiffs allege Defendants’ conduct was outrageous.  (Id.)  Plaintiffs allege that as a proximate result of Defendants’ conduct, Plaintiffs have suffered severe emotional distress and are entitled to general damages, special damages, and damages for loss of use and enjoyment of their apartment and overpayment of rent.  (Id., ¶¶28-31.)  Plaintiffs allege that Defendants’ conduct was intentionally performed with oppression, fraud, or malice as they were aware of the excessive noise and sounds Plaintiffs were exposed to and were aware of Plaintiffs’ damages, but they ignored the complaints and failed to take any action.  (Id., ¶33.)

SPP demurs to the IIED cause of action, arguing that there are no specific allegations of Defendants’ wrongdoing or to show that the conduct is utterly intolerable in a civilized community.  SPP argues that the conduct alleged shows, at most, that it was negligent for its failures to alleviate the noise, but that its failure to do so was not extreme or outrageous conduct. While Plaintiffs allege that Defendants’ conduct was “intentional,” the allegations supporting a showing that SPP acted intentionally or that it engaged in outrageous conduct have not been adequately pled.  IIED must be pled with a degree of specificity and this pleading standard has not been met.

Further, the allegations regarding Plaintiffs’ severe emotional distress are conclusory and sparse.  The “mere 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.)  The FAC alleges that Plaintiffs suffered severe emotional distress in a conclusory fashion without any further supporting facts.  (See FAC, ¶¶27, 28.) 

The demurrer to the IIED cause of action is sustained with leave to amend.

DISCUSSION RE MOTION TO STRIKE

            SPP moves to strike the allegations for punitive damages (paragraphs 11 and 33, and the prayer for damages at paragraph 4) and the damages request in connection with the IIED cause of action (paragraphs 27-33).

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)   "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 FAC, Plaintiffs seek punitive damages in connection with the 1st cause of action for nuisance and 4th cause of action for IIED.  The allegations for punitive damages are similar: that Defendants’ conduct was intentionally performed with oppression, fraud, or malice as they were aware of the excessive noise and sounds Plaintiffs were exposed to and were aware of Plaintiffs’ damages, but they ignored the complaints and failed to take any action.  (FAC, ¶¶11, 33.)  As currently alleged, the FAC fails to allege sufficient facts to rise to the level of warranting punitive damages.  The conduct alleged to support a showing of oppression, malice, or fraud essentially rise to negligence.  Further, merely alleging that Defendants acted with oppression, malice, or fraud is not sufficient to allege punitive damages 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. 

Thus, the motion to strike the allegations for punitive damages is granted with leave to amend.

B.     IIED Damages

Next, SPP moves to strike the allegations for damages in connection with the IIED cause of action.  The motion is granted with leave to amend in light of the ruling on the demurrer to the IIED cause of action.

CONCLUSION AND ORDER

            Defendant Select Produce Properties, Inc.’s four motions to compel responses to the FROGs and RPDs directed against Plaintiffs are granted.  Plaintiffs are ordered to provide verified responses to Defendant’s discovery requests, without objections, within 45 days of notice of this order.  No sanctions will be awarded. 

            Defendant Select Produce Properties, Inc.’s demurrer to the IIED cause of action is sustained with 45 days leave to amend. Upon filing an amended pleading, Plaintiffs should make the numbered causes of action in the caption of their complaint consistent with the numbered causes of action in the body of the complaint.

            Defendant Select Produce Properties, Inc.’s motion to strike is granted with 45 days leave to amend.

Warning regarding electronic appearances:  All software for remote or electronic appearances is subject to malfunction based on system weakness and human error, which can originate from any of the multiple parties participating each morning. The seamless operation of the Court’s electronic appearance software is dependent on numerous inconstant and fluctuating factors that may impact whether you, or other counsel or the Court itself can be heard in a particular case. Not all these factors are within the control of the courtroom staff. For example, at times, the system traps participants in electronic purgatories where they cannot be heard and where the courtroom staff is not aware of their presence. If you call the courtroom, please be respectful of the fact that a court hearing is going on, and that the courtroom staff is doing their best to use an imperfect system. If it is truly important to you to be heard, please show up to the courtroom in the normal way. Parking is free or reasonable in Burbank.