Judge: John J. Kralik, Case: 23BBCV01301, Date: 2024-01-26 Tentative Ruling

Case Number: 23BBCV01301    Hearing Date: January 26, 2024    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

andreas george, et al.,

 

                        Plaintiffs,

            v.

 

jia lun shao, et al.,

 

                        Defendants.

  Case No.: 23BBCV01301

 

  Hearing Date:  January 26, 2024

 

[TENTATIVE] ORDER:

demurrer; motion to strike

 

BACKGROUND

A.    Allegations

Plaintiffs Andreas George, McKenna Warde, and Jaxon Eddy (collectively, “Plaintiffs”) allege that they were tenants of 6173 Cleon Ave., North Hollywood, CA 91606 beginning on December 1, 2022 pursuant to a written lease agreement with Defendant Jia Lun Shao (“Shao”) and/or his predecessors/successors-in-interest.  Plaintiff alleges that Defendants Shao and Eya “Rei” Hua (“Rei”) are the landlords and/or owners of the subject property. 

Plaintiffs allege that there were defective conditions on the property including mold/mildew, pest infestation, faulty plumbing structures, lack of/improper waterproofing, lack of/faulty insulation and heating apparatuses, inoperable stove and appliances, lack of hot and cold running water, lack of/faulty HVAC equipment, missing/faulty carbon monoxide detectors, faulty broken kitchen and bathroom fixtures, and unsafe common areas.  (Compl., ¶25.)  They allege that they notified and followed-up with Defendants on multiple occasions from December 11, 2022 to April 9, 2023 about different issues with the premise, but Defendants addressed only some issues but not others and/or delayed providing repair/remedial services.  (See Compl., ¶¶26-56.)

The complaint, filed June 9, 2023, alleges causes of action for: (1) breach of contract; (2) statutory breach of the warranty of habitability (Civ. Code, §§ 1941 and 1941.1); (3) tortious breach of the warranty of habitability; (4) violation of Business & Professions Code, § 17200 et seq.: (5) private nuisance; (6) negligence; (7) breach of the covenant of quiet enjoyment; (8) IIED; (9) NIED; (10) breach of the covenant of good faith and fair dealing; (11) violation of LAMC § 45.33; and (12) constructive eviction.   

B.     Cross-Complaint

On August 22, 2023, Cross-Complainant Jia Lun Shao (a self-represented litigant) filed a cross-complaint against Cross-Defendants Andreas George and McKenna Warde for: (1) breach of contract; (2) negligence; (3) IIED; and (4) nonpayment of rent.  This cross-complaint was ordered void on October 3, 2023. 

On October 5, 2023, Shao filed another cross-complaint against George and Warde for the same causes of action.  

C.     Motions on Calendar

On October 25, 2023, Cross-Defendants George and Warde filed a motion to strike portions of Shao’s cross-complaint.  On October 26, 2023, they filed a demurrer to the cross-complaint.

The Court is not in receipt of an opposition brief.

DISCUSSION RE DEMURRER

            Cross-Defendants George and Warde demur to the 1st to 4th causes of action alleged in Shao’s cross-complaint.  

A.    1st cause of action for 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.) 

      In the 1st cause of action, Cross-Complainant alleges that Cross-Defendants had the responsibility to but failed to inform landlord or his agent about the conditions of the property and unsuccessful repairs, which caused further damage to the premises.  (XC, ¶18.)  He alleges that Cross-Complainants/Plaintiffs allege in their own complaint that they informed Rei about issues to the property, but they did not inform him about issues, which amounts to a breach of the lease agreement.  (Id., ¶19.)  He also alleges that Cross-Defendants were aware of the failed repairs but did not inform Shao or his agent and that they did not accept the repairs that were done on the property.  (Id., ¶¶20-21.) 

            Cross-Defendants George and Warde demur to the 1st cause of action, arguing that Shao failed to attach a copy of the lease agreement to the cross-complaint.  However, a copy of the lease agreement is attached to their complaint, such that the Court is in receipt of the lease agreement and may take judicial notice of the complaint and its exhibits. 

            Next, Cross-Defendants argue that the cross-complaint includes inconsistencies because Shao alleges that they were neglectful and failed to inform Shao of issues with the property, but then also alleges facts that Cross-Defendants notified Rei about certain issues.  While it may be that in some instances Cross-Defendants communicated issues with the property to Shao and/or his agent Rei and may have chosen not to do so in other instances, the allegations are somewhat confusing in how they are alleged.  For example, Shao alleges that he was never informed about a faulty outlet in the bathroom though Rei was notified, which he alleges amounts to a breach (XC, ¶19), but then it appears that notification could be made to both Shao (landlord) or his agent (XC, ¶20).  Shao should clarify the pleadings so as to allege the contractual term regarding notice (or cite to the lease agreement) and how Cross-Defendants breached this term by failing to provide Shao notice (as opposed to providing notice to his agent Rei).

            The demurrer to the 1st cause of action is sustained with leave to amend.

B.     2nd cause of action for 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.) 

In the 2nd cause of action, Cross-Complainant Shao alleges that Cross-Defendants occupied, operated, took care of, and maintained the property during their tenancy and that they owed a duty of care of the subject property to pay monthly rent and perform routine maintenance, such as taking care of the landscaping and immediately reporting issues and repair requests to the owner.  (XC, ¶¶27-28.)  Shao alleges that in early 2023, Cross-Defendants were aware of roof leaks and potential signs of mold but did not immediately disclose the issues and the substandard repair attempts to Shao, which caused further damage.  (Id., ¶29.) 

Cross-Defendants argue that they timely and promptly disclosed issues regarding the property.  They cited to paragraphs 3, 6, 7, and 10-12 in the cross-complaint.  In the general allegations, Shao alleges that Cross-Defendants notified him about a leaky light fixture on December 11, 2022 and he spoke with a contractor named Rei the same day to schedule a repair.  (XC., ¶3.)  Shao alleges he called Rei to follow up about the repair status on December 20, 2022 and told it was completed. (Id., ¶5.)  He alleges that Cross-Defendants contacted him and Rei on January 5, 2023 about a leaky light fixture, Shao contacted Rei the same day to ask about repairs, and Rei responded that she would schedule a time for a repair.  (Id., ¶6.)  On February 13, 2023, Cross-Defendants texted Rei thanking her for the roof repair, but reminding her about the mold in the bathroom; Shao also reached out to Rei to schedule repairs.  (Id., ¶7.)  On April 5, 2023, Rei informed Shao that Cross-Defendants wanted a mold inspection, he retained a mold specialist who came on April 8, 2023, and had the premises repaired.  (Id., ¶¶10-12.)  The cross-complaint alleges facts showing that Cross-Defendants informed Shao about issues with the property.  Shao has not alleged facts that the issues on the property persisted for a long time period before they contacted him for repairs.  The allegations are also devoid of facts showing that Cross-Defendants undertook actions to do repairs themselves that caused further damage to the property.

Cross-Complainant Shao should provide further allegations to support the cause of action for negligence.  The demurrer to the 2nd cause of action is sustained with 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 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 3rd cause of action, Shao alleges that other than the December 2022 reporting of the roof leak, Cross-Defendants never fulfilled their responsibility to immediately report damages and repair requests to Shao.  (XC, ¶32.)  He alleges that he discovered issues himself in April 2023 and attempted to fix a leaky wall, which resulted in having the entire wall replaced.  (Id., ¶33.)  He alleges that due to Cross-Defendants’ failure to act immediately and notify Shao of issues, their failure to pay monthly rent, and their destruction of landscaping, he has suffered emotional and financial distress and losses.  (Id., ¶¶35-36.)

Cross-Defendants argue that Shao has not alleged sufficient facts regarding outrageous conduct.  Indeed, the alleged failure to report issues or repair requests does not rise to the level of outrageous conduct necessary for an IIED cause of action.  He has not alleged facts that the acts that Cross-Defendants engaged in are so extreme as to exceed all bounds of behavior usually tolerated in a civilized community.

As such, the demurrer to the 3rd cause of action is sustained with leave to amend.

D.    4th cause of action for nonpayment of rent

In the 4th cause of action, Shao alleges that Cross-Defendants were under a lease agreement and had a responsibility to pay rent.  (XC, ¶38.)  He alleges that more than $15,000 is due for repairs to the walls and landscaping and missing rent.  (Id.) 

            Cross-Defendants argue that this cause of action is superfluous and duplicative of the other causes of action. 

            The 4th cause of action is essentially a claim for breach of contract for failure to pay rent, which is a term of the lease agreement.  As such, this cause of action is duplicative and should be alleged in the 1st cause of action. 

            The demurrer to the 4th cause of action.  The Court will allow limited leave such that Shao may allege the facts regarding nonpayment of rent in the 1st cause of action for breach of the lease agreement. 

DISCUSSION RE MOTION TO STRIKE

Cross-Defendants move to strike the prayer for damages at page 9, paragraphs 1 and 2. 

Paragraph 1 of the prayer for damages asks that Cross-Defendants take nothing by way of their original complaint.  The motion to strike this request is granted.  The cross-complaint should only seek relief with respect to the cross-claims and not seek relief regarding Cross-Defendants/Plaintiff’s initial complaint.  The motion to strike paragraph 1 is granted without leave to amend.

Paragraph 2 of the prayer for damages requests attorney’s fees and costs.  Cross-Defendants argue that Shao has not pled any contractual or statutory basis for attorney’s fees.  However, the lease agreement on page 3 (in the first full paragraph entitled, “ATTORNEY’S FEES”) includes an attorney’s fees provision for reasonable attorney’s fees and costs.  (See Compl., Ex. Residential Lease.)  Thus, the motion to strike is denied as to paragraph 2. 

CONCLUSION AND ORDER

            Cross-Defendants Andreas George and McKenna Warde’s demurrer to the cross-complaint is sustained with 20 days leave to amend.

            Cross-Defendants Andreas George and McKenna Warde’s motion to strike portions of the cross-complaint is granted without leave to amend as to the prayer for damages at paragraph 1 and denied as to the prayer for damages at paragraph 2.   

            Cross-Defendants shall provide notice.

 

 

DATED: January 26, 2024                                         ______________________

                                                                              John J. Kralik

                                                                              Judge of the Superior Court