Judge: Jon R. Takasugi, Case: 21STCV29722, Date: 2022-08-01 Tentative Ruling

Case Number: 21STCV29722    Hearing Date: August 1, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED IN PART, OVERRULED IN PART. Defendant’s demurrer is sustained, with 20 days leave to amend as to the fourth cause of action. Defendant’s demurrer is overruled as to the remaining three causes of action.

 Defendant’s motion to strike is DENIED.

On 8/12/2021, Plaintiff Courtney and Brian Gregory (collectively, Plaintiffs) filed suit against One Thousand Grand Avenue Holdings, LLC (Defendant). On 1/27/2022, Plaintiff filed a first amended complaint (FAC) alleging: (1) negligence; (2) negligent infliction of emotional distress; (3) breach of contract; and (4) malicious prosecution.

            Now, Defendant demurs to Plaintiffs’ FAC in its entirety. Defendant also moves to strike portions of Plaintiffs’ FAC.

Legal Standards

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal.App.4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿ (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”¿ (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)¿ “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”¿ (Hahn, supra, 147 Cal.App.4th at p. 747.) 

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See Code Civ Proc., §§ 435-437.)  A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court.  (§ 436.) 

Discussion

I.                   Negligence

Defendant argues that Plaintiff cannot state a claim for negligence because Plaintiffs have provided no evidence of breach, Plaintiffs prevented Defendant from performing any duty owed, and Plaintiffs materially breached the lease agreement. (Motion, 10:15-17.)

At the pleading stage, the Court must accept well-pled allegations as true. Here, Plaintiffs allege that feces, vermin, and blood soils were consistent and persisted every day during their tenancy, and that the lack of sanitary maintenance caused skin rashes to the Plaintiff and respiratory complications to their ESA pet Yorkie requiring surgery.” (Complaint, ¶ 6.)

While Defendant may contend that Plaintiff has not “proved” these allegations with admissible evidence, Plaintiffs have no burden to do so at the pleading stage. Moreover, while Defendant may argue that it has viable defenses to Plaintiffs’ cause of action, including Plaintiffs’ own breaches of duty, this is, once again, a factual determination not properly decided at this stage. 

Based on the foregoing, Defendant’s demurrer to the first cause of action is overruled.

II.               Negligent Infliction of Emotional Distress

Defendant’s demur to this cause of action is based on the same argument set forth above (i.e., insufficient proof to establish allegations), and the Court reaches the same conclusion for the same reasons.

Based on the foregoing, Defendant’s demurrer to the second cause of action is overruled.

III.            Breach of Contract

Defendant’s demur to this cause of action is based on the same argument set forth above (i.e., insufficient proof to establish allegations), and the Court reaches the same conclusion for the same reasons.

Based on the foregoing, Defendant’s demurrer to the third cause of action is overruled.

IV.            Malicious Prosecution

Defendant argues that Plaintiffs have failed to provide proof of malicious prosecution. While, again, Plaintiffs have no burden to prove their allegations at the pleading stage, the Court agrees that, even accepted as true, Plaintiffs allegations, as pled, could not state a claim for malicious prosecution.

“To prevail in a malicious prosecution action under California law, a malicious prosecution plaintiff (the defendant in the underlying action) must show that (1) the plaintiff in the underlying action pursued a claim with subjective malice, (2) the claim was brought without objective probable cause, and (3) the underlying action was terminated on the merits in favor of the defendant.” (Lane v. Bell (2018) 20 Cal. App. 5th 61, 63.)

Here, Plaintiffs’ allegations are uncertain as to whether an underlying eviction proceedings was ever conduct against them, and what the outcome of that proceeding was. If the proceeding was not terminated in Plaintiffs’ favor, they would not be able to state a claim for malicious prosecution. Plaintiff must clarify these issues.

Based on the foregoing, Defendant’s demurrer to the fourth cause of action is sustained, with 20 days leave to amend.   

Motion to Strike

            Defendant argues that Plaintiff cannot support a prayer for punitive damages and also move to strike Plaintiff’s request for costs.

            As to Defendant’s first contention, Plaintiffs have alleged that they lived in unhabitable conditions which resulted in emotional distress. While these allegations may ultimately be proven to be false, the Court must accept well-pled allegations as true at the pleading stage. Accepted as true, these allegations could show Defendant acted with a “willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).)  

            As to Defendant’s second point, a prevailing party is entitled to recover costs. (CCP §1032.) As such, Plaintiff’s request is not improper.

            Based on the foregoing, Defendant’s motion to strike is denied.  

It is so ordered.

Dated:  August    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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