Judge: John J. Kralik, Case: 24NNCV00873, Date: 2024-08-09 Tentative Ruling
Case Number: 24NNCV00873 Hearing Date: August 9, 2024 Dept: NCB
North
Central District
|
naomi
burks,
Plaintiff, v. peter coeler
dba p.a.c. properties, Defendant. |
Case No.:
24NNCV00873 Hearing Date: August 9, 2024 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
Plaintiff Naomi Burks (in pro per,
“Plaintiff”) alleges that she rented an apartment at 12255 Burbank Blvd., Unit
103 in Valley Village from Defendant Peter Coeler dba P.A.C Properties
(“Defendant”). Plaintiff alleges that Defendant owns and manages the subject
apartment building. Plaintiff alleges
that on March 18, 2022, she signed a one-year lease agreement to rent the
subject unit from Defendant. Plaintiff
alleges that prior to signing the lease, she raised concerns about 10 terms in
the lease, including the bed bug addendum.
She alleges that Defendant’s leasing manager stated that the language
was standard in leases and that she should not be concerned. Plaintiff alleges that after she moved in, on
April 14, 2022, she began seeing roaches in her apartment. She notified
Defendant no fewer than 6 separate times, and Defendant ignored her
notifications. On May 13, 2022,
Defendant had a pest control agent treat the subject apartment, but Plaintiff
alleges she continued to see roaches and notified Defendant on May 22, 2022 and
July 28, 2022. In response to her
complaints of roaches and gnats coming through a large gap between the wall and
air conditioning unit, Defendant sent someone to seal the gap around her air
conditioning unit, but ignored the roach problem. Plaintiff alleges that although Defendant
sent pest control agents, none of the treatments were effective. She alleges that Defendant sent another agent
on September 14, 2022, but the treatment was ineffective. Plaintiff alleges that Defendant sent an
offer on October 10, 2022 to allow Plaintiff to break her lease without penalty
or transfer to another available unit and on November 5, 2022, she notified
Defendant that she would be breaking the lease and moving out.
The complaint, filed on April 9, 2024,
alleges causes of action for: (1) negligence – breach of duty to provide and
maintain a habitable dwelling; (2) nuisance; (3) fraud by suppression; and (4)
NIED.
On May 28, 2024, Plaintiff dismissed with
prejudice the 4th cause of action for NIED as to all
Defendants.
B.
Motion on Calendar
On June 27, 2024, Defendant filed a
demurrer and motion to strike portions of the complaint.
On July 23, 2024, Plaintiff filed
opposition briefs.
On August 2, 2024, Defendant file reply
briefs.
DISCUSSION
RE DEMURRER
Defendant demurs to the 2nd
and 3rd causes of action in the complaint.
A.
2nd cause of action for 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.) Unlike public nuisance (which is an interference with
the rights of the community at large), private nuisance is a civil wrong based
on disturbance of rights in land whereby the plaintiff must prove an injury
specifically referable to the use and enjoyment of his or her land; however,
this injury need not be different in kind from that suffered by the general
public. (Id. at 262.)
In the 2nd cause of action,
Plaintiff alleges that when Defendant rented Plaintiff the apartment infested
with roaches, and subsequently failed to remedy the infestation and ignored her
multiple complaints, Defendant created and/or maintained an actionable
nuisance. (Compl., ¶38.) She alleges that Defendant had a pattern of
business of only spot-treating the known roach infestation, blaming the tenant
for the infestation, and re-renting infested units to other unsuspecting
tenants for higher rent. (Id.,
¶39.) Plaintiff alleges that Defendant
knew about the infestation prior to renting the unit to Plaintiff, which was
despicable and carried out with a willful and conscious disregard for her
rights and safety. (Id.,
¶40.) Plaintiff alleges that she
suffered skin irritations/rashes, the unit was indecent and offensive to the
senses, and the infestation and ineffective treatment substantially obstructed
her free use of the apartment and interfered with her enjoyment. (Id., ¶43.)
Defendant argues that Plaintiff has only
alleged legal conclusions in paragraphs 1-38 of her complaint, has not alleged
how Defendant created a nuisance in the form of the roach infestation, and has
not alleged that Defendant acted intentionally, unreasonably, negligently, or
recklessly by continuing to hire pest control agents to handle the
situation.
Taking the allegations of the complaint as
true, the Court finds that Plaintiff has alleged sufficient facts for a private
nuisance cause of action. Plaintiff has
alleged facts that Defendant created and/or maintained the nuisance condition
with respect to the roaches by failing to treat and remedy the issue. She has alleged facts that her interests in
the use and enjoyment of her unit were invaded and that she sustained damages
in the form of skin irritations/rashes and inability to use her apartment. The allegations at the pleading stage are
sufficient to provide notice to Defendant regarding the nuisance claim.
Defendant also argues that the 2nd
cause of action is also duplicative of the 1st cause of action for negligence
– breach of duty to provide and maintain a habitable dwelling. Each cause of action has distinct
elements. The Court will allow both to
proceed at this time and will not prematurely strike the 2nd cause
of action, though the number of causes of action may be re-evaluated at the
time of jury selection.
As such, the demurrer to the 2nd
cause of action is overruled.
B.
3rd cause of action
for fraud
To allege a cause of action for fraud, the
requisite elements are: (1) a representation,
usually of fact, which is false; (2) knowledge of its falsity; (3) intent to defraud; (4) justifiable reliance upon the misrepresentation;
and (5) damage resulting from that justifiable reliance. (Stansfield
v. Starkey (1990) 220 Cal. App. 3d 59, 72-73.) This cause of action is a tort of
deceit and the facts constituting each element must be alleged with
particularity; the claim cannot be saved by referring to the policy favoring
liberal construction of pleadings. (Committee on Children's Television, Inc. v. General Foods Corp.
(1983) 35 Cal.3d 197, 216.) Since
the claim must be pleaded with particularity, the cause of action based on
misrepresentations must allege facts showing how, when, where, to whom, and by
what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
In the 3rd cause of
action, Plaintiff alleges that Defendant’s leasing manager’s statement
regarding the lack of a bed bug infestation while failing to mention a known
roach infestation, constituted fraudulent deceit. (Compl., ¶45.) Plaintiff alleges that Defendant was aware of
an ongoing roach issue, which was material to the unit’s habitability, but
failed to disclose the roach infestation in order to profit by Plaintiff’s
signing of the lease. (Id.,
¶46.) Plaintiff alleges that she
reasonably relied on the manager’s misleading representation, and she would not
have leased the unit had she known about the roach infestation. (Id.)
Defendant
argues that Plaintiff has not alleged any facts regarding a misrepresentation
about a roach infestation.
Based on
the allegations of the complaint, Plaintiff has not alleged facts showing that
Defendant, through its agents, made representations about whether there was a
roach infestation. At most, the
complaint alleges that Plaintiff raised 10 (unidentified) issues with
Defendant’s leasing department and that she had asked Defendant’s leasing
manager about a bed bug addendum.
(Compl., ¶¶11-12.) She alleges
that the manager assured her not to worry about the bed bug addendum as there
were no indications of a bed bug infestation, which induced her to sign the
lease. (Id., ¶¶12-14.)
While she asked questions about the bed bug addendum, she did not ask
any questions about, nor hear representations regarding, a roach infestation
from Defendant or its agents. Plaintiff
has not alleged specific facts regarding misrepresentations (or concealments)
regarding any roach infestation.
As such,
the demurrer to the 3rd cause of action is sustained with leave to
amend.
DISCUSSION
RE MOTION TO STRIKE
Defendant moves to strike paragraphs
12, 13, 14, 21, 40, 41, 42, 45, 46 (at page 11, lines 12-16), 47, and 48, and
the prayer for damages at Item 3.
Defendant moves to strike Plaintiff’s request for punitive damages and
related allegations.
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.
Further, when the punitive damages are sought against
an employer, Civil Code §
3294(b) requires the plaintiff to establish the following:
(1)
the
employer had advance knowledge of the unfitness of the employee and employed
him or her with a conscious disregard of the rights or safety of others or
authorized,
(2)
the
employer ratified the wrongful conduct for which the damages are awarded, or
(3)
the
employer was personally guilty of oppression, fraud, or malice.
The Court has reviewed the allegations of
the complaint. The allegations for
punitive damages are currently lacking the particularity required to request
such damages. Plaintiff alleges in a
conclusory fashion that Defendant knew of the roach infestation such that its
conduct was despicable and carried out with willful and conscious disregard for
others’ rights and safety. However, the
allegations also show that when Plaintiff notified Defendant of the issues,
Defendant responded by having pest control agents spray her unit on multiple
occasions and even offered to allow her to break her lease without penalty or
transfer units. While there may have
been a roach infestation during Plaintiff’s residency at the subject unit, the
allegations show that Defendant did not ignore her requests and instead
Defendant attempted to remedy the situation or provide her alternatives.
Next, Plaintiff has not alleged facts
against Defendant’s agents and whether Defendant ratified its agents (alleged)
wrongful conduct.
As such, the motion to strike the
allegations for punitive damages is granted.
Plaintiff may move at a later date to amend the complaint to allege
further facts, if such facts appear and are sufficient to establish a right to
punitive damages.
CONCLUSION AND
ORDER
Defendant Peter Coeler dba P.A.C
Properties’ demurrer to the 2nd cause of action is overruled. The demurrer to the 3rd cause of
action is sustained with 20 days leave to amend.
Defendant Peter Coeler dba P.A.C
Properties’ motion to strike is granted without leave to amend.
Defendant shall provide notice of this
order.
DATED: August 9, 2024 ___________________________
John
Kralik
Judge
of the Superior Court