Judge: Jon R. Takasugi, Case: 23STCV12769, Date: 2023-10-09 Tentative Ruling

Case Number: 23STCV12769    Hearing Date: February 9, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant FPI’s demurrer is SUSTAINED, WITH 10 DAYS LEAVE TO AMEND, as to the second, sixth, eighth, ninth, tenth, and twelfth causes of action.

            Accordingly, Defendant’s motion to strike is MOOT.

On 6/5/2023, Plaintiff Timothy Kinman (Plaintiff) filed suit against 12 distinct Defendants alleging: (1) violation of Civil Code section 1942.4; (2) tortious breach of the warranty of habitability; (3) private nuisance; (4) business and professions Code section 17200; (5) negligence; (6) breach of the covenant of quiet enjoyment; (7) intentional infliction of emotional distress; (8) negligence per se; (9) violation of Consumer Legal Remedies Act (CLRA); (10) toxic environmental mold tort; (11) violation of tenant anti-harassment ordinance; (12) California Welfare and Institutions Code section 15600; and (13) false advertising

On 10/26/2023, Plaintiff filed a first amended complaint (FAC) asserting the same causes of action.

            Now, Defendant FPI Management (Defendant) demurs to the FAC’s second, sixth, seventh, eighth, ninth, tenth, and twelfth causes of action.

Discussion

            Defendant argues that Plaintiff has failed to state a claim as to his second, sixth, seventh, eighth, ninth, tenth, and twelfth causes of action.

            As for the contractual causes of action (2^nd and 6^th COAs), Plaintiff’s verified FAC alleges that “[t]he Defendants, including FPI, are in a contractual relationship with the Plaintiff, and the terms included that they pay rent to FPI…The contract is in the possession of the Defendant, FPI, and not in the immediate possession of the Plaintiff.” (FAC ¶111) In its motion, Defendant argues that this is indisputably false:

Plaintiff produced in response to discovery requests, the March 2022 lease agreement identifying the landlord as “Manhattan Loft, LLC”. (RJN, ¶2, Exhibit B). Further, Plaintiff produced the May 2023 lease agreement. The lease itself was signed by FPI, however, that signature was as a designated agent for the disclosed owner, 600 S Spring Owner, LLC. (RJN ¶3, Exhibit C). An entity that signs a lease as a designated agent for a disclosed principal does not personally assume the obligations of that principal. (Barrett v. Hammer Builders, Inc. (1961) 195 Cal.App.2d 305, 317; see also Hacker Pipe & Supply Co. v. Chapman Valve Mfg. Co. (1936) 17 Cal.App.2d 265, 276.) The document, produced by Plaintiff, on its face speaks for itself and identifies the parties to the lease agreement; Plaintiff, Timothy Kinman and 600 S Spring Owner, LLC.

            (4: 5-6.)

            A court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) 

Here, Plaintiff’s own discovery production identifies Manhattan Loft, LLC and the landlord under the March 2022 agreement, and the 2023 lease agreement identifies him and 600 S Spring Owner, LLC to be the parties to the lease. While the lease itself was signed by FPI, that signature was as a designated agent for the disclosed owner, 600 S Spring Owner, LLC. (RJN ¶3, Exhibit C). An entity that signs a lease as a designated agent for a disclosed principal does not personally assume the obligations of that principal. (Barrett v. Hammer Builders, Inc. (1961) 195 Cal.App.2d 305, 317; see also Hacker Pipe & Supply Co. v. Chapman Valve Mfg. Co. (1936) 17 Cal.App.2d 265, 276.)

As such, without additional facts, the Court finds uncontroverted evidence, produced by Plaintiff himself, that Defendant FPI here was not in landlord/tenant relationship with him. Plaintiff must allege facts which could show that they are in such a relationship, or which could show that Defendant assumed obligations as a designated agent. Leave to amend will be afforded to allow Plaintiff the opportunity to allege these facts.

As for the seventh cause of action, the Court previously sustained Defendant’s demurrer to this claim based on a conclusion that Plaintiff had not alleged sufficient facts to show emotional distress. Now, Plaintiff alleges: “The Plaintiffs [sic] have suffered severe emotional distress as a direct and proximate result of the Defendants’ conduct, as alleged above herein. The Plaintiffs [sic] experienced prolonged, overpowering fearfulness, sadness, anxiety, depression, hopelessness, despair and other related emotions. The Plaintiffs lived in constant fear that their health would take a turn for the worse because the Subject Property was not suited their health and safety…The Plaintiffs’ emotional distress was severe in that it was long-lasting, burdened their day to day life, and was based in serious concern for their health and safety.” (FAC ¶188) While Defendant contends that these allegations are verbatim and cited in at least 10 other cases by Plaintiff’s counsel, the Court accepts well-pled allegations as true at the pleading stage. Frivolous allegations can be sanctioned in other ways, and the Court may not make factual determinations at this stage. These allegations are sufficient at this stage in that they could show that he suffered emotional distress.

As for the eighth cause of action, negligence per se is not, “a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1611, fn. 2.) Negligence per se does not provide a private right of action for violation of a statute. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) Plaintiff’s cause of action for negligence per se still does not set out further facts which are distinct and establish a cause of action separate from negligence. 

As for the ninth cause of action, the CLRA protects against enumerated unfair methods of competition and unfair or deceptive acts or practices undertaken by an person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer. (Civil Code §1770, et seq.) Plaintiff’s FAC makes it clear that Plaintiff’s transaction does not allege the lease of a “good” and therefore CLRA does not apply and the cause of action fails against FPI.

As for the tenth cause of action, the Court previously sustained Defendant’s demurrer to this claim because the Court could not identify any statute or case law that creates such a cause of action for “Toxic Environmental Mold Tort. Now, in an effort to address this deficiency, Plaintiff adds the following in support of his Toxic Mold cause of action: “…such citation was because of the dangerous and high levels of mold found within the property. Furthermore, the products liability issue is the ceiling and within the unit, which were installed, owned and operated by the Defendant which would frequently leak water, and such water was the originating factor in the mold development...” (FAC ¶230). However, this only creates further uncertainty. As argued by Defendants “Is Plaintiff now bringing a products liability/strict liability action? Why has the manufacturer of the ceiling fan or the retailer who sold the ceiling fan not been added as defendants?” (Motion, 8: 3-4.) Plaintiff must allege facts which could resolve this uncertainty.

Finally, as for the twelfth cause of action, the Court previously sustained Defendant’s demurrer to this claim for elder abuse because “Plaintiff does not allege that Defendant knew Plaintiff was a dependent adult, and Plaintiff’s alleged conditions—heart issues and a nerve disorder—are not readily visually apparent. Moreover, Plaintiff does not allege any facts which could that Defendant, a management company, was somehow responsible for providing Plaintiff’s basic needs. Finally, Plaintiff alleges habitability violations against “Defendants” collectively, which, again, is insufficiently specific.” (Minute Order,10/9/2023.)

Now, Plaintiff alleges that he has a “distinct and noticeable gait, which placed the Defendants, including FPI Management on notice of.” (FAC ¶251) However, this still falls far short of the requirement that FPI have knowledge of conditions which made the dependent adult “unable to provide for his or her own basic needs,” or that FPI was responsible “for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care.”

Based on the foregoing, Defendant’s demurrer is sustained as to the second, sixth, eighth, ninth, tenth, and twelfth causes of action, with 10 days leave to amend. Plaintiff will be afforded a final opportunity to address the deficiencies now identified in two successive rounds of demurrers.

It is so ordered.

Dated:  February    , 2024

   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.  For more information, please contact the court clerk at (213) 633-0517.