Judge: Joseph Lipner, Case: 19STCV11738, Date: 2023-10-19 Tentative Ruling

Case Number: 19STCV11738    Hearing Date: October 19, 2023    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Tentative Ruling -

Defendants’ Demurrer to the Fourth Amended Complaint is OVERRULED as to all causes of action except for the twelfth cause of action. Defendants’ Demurrer is SUSTAINED as to the twelfth cause of action with leave to amend.  Plaintiffs shall amend the twelfth cause of action within five days.

Defendants’ Motion to Strike is DENIED.

Defendants shall give notice.    

Background -

This action arises out of allegations of uninhabitable renal units. Hamid Mirghambari and several plaintiffs (collectively, “Plaintiffs”) filed suit against Peyman Jacob Yadegar, Tarzana Five Properties LLC, Sergio Romero, Tarzana Five LLC, and Fachoy LLC (collectively, “Defendants”.) The operative complaint here is the Fourth Amended Complaint (“FAC”) where Plaintiffs state that since 2014, Plaintiffs have complained to Defendants regarding unsafe and uninhabitable conditions in four separate buildings located in Los Angeles, California:

1.     6150 Reseda Blvd.

2.     6170 Reseda Blvd.

3.     6210 Reseda Blvd.

4.     6230 Reseda Blvd.

The Complaints pertain to issues involving mold growth, mites, water leaks, water damage, inadequate plumbing, nonoperating elevators, stray cats, and vermin. (FAC, ¶ 46.) Plaintiffs state despite these habitability issues, Defendants refused to remediate, even after several citations from the Los Angeles City Planning website is the Housing + Community Investment Department or (“HCIDLA”). (FAC, ¶ 51.) The FAC includes twelve causes of action:

1.     Breach Of Contract

2.     Breach Of Implied Warranty Of Habitability

3.     Breach Of Covenant Of Quiet Enjoyment

4.     Negligence

5.     Collection Of Excessive Rent In Violation Of LAMC Sections 151.04, 151.05, And 151.10

6.     Retaliation (Civil Code § 1942.5)

7.     Violation Of Civil Code 1942.4

8.     Fraud

9.     Negligent Misrepresentation

10.  Constructive Eviction

11.  Violation Of Cal. Gov't Code §§ 12955, Et Seq.

12.  Violation Of Unruh Civil Rights Act Civil Code § 51

Defendants filed a Demurrer to the FAC on June 6, 2023. The Demurrer demurs to the fifth, eighth, ninth, eleventh, and twelfth causes of action. Defendants filed a Motion to Strike (“MTS”) on the same day.  Plaintiffs filed Oppositions (“Opposition Papers”) to both on July 12, 2023. Defendants filed Replies (“Reply Papers”) on October 12, 2023.   

Meet and Confer

“Before filing a demurrer…the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).) Defendants state that they met and conferred with Plaintiff’s counsel regarding the deficiencies in the FAC but did not arrive at any agreement. Therefore, the requirements of CCP § 430.41(a) and § 435.5 have been satisfied.

Discussion -

Legal Standard for Demurrer

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Analysis for Demurrer

1. Fifth Cause of Action - Collection Of Excessive Rent In Violation Of LAMC Sections 151.04, 151.05, And 151.10

The Demurrer to the fifth cause of action is overruled. Defendants argue that the fifth cause of action fails because (1) Plaintiffs fail to show they are authorized to enforce LAMC § 151.05 (Demurrer, 1:20-22) and (2) because the FAC fails to state what the minimum or maximum rent was. (Reply Papers, 2:17-20.) As to Defendants’ first contention, there is nothing in the relevant LAMC section that prohibits the enforcement of this provision by Plaintiffs. As to Defendants’ second contention, the FAC does not fail for lack of detail concerning the minimum and maximum rent. There is a policy of liberal construction of pleadings that is invoked, with few exceptions. (See Dieckmannn v. Superior Court (1985) 175 Cal.App.3d 345, 352.) Plaintiffs allege that, in addition to failing to obtain and post a valid written registration statement pursuant to LAMC § 151.05(a), Defendants collected more rent than they should have. (FAC,¶ 146-147.) Moreover, according to the allegations, Defendants had already been cited by the HCIDLA for multiple violations of the Health and Safety Code, which led the HCIDLA to state that Plaintiffs from the subject premises located at 6150 Reseda Blvd. were entitled to rent reductions. (FAC, ¶ 58.)  The fifth cause of action survives demurrer.           

2. Eighth and Ninth Cause of Action for Fraud and Negligent Misrepresentation

The Demurrer to the eighth and ninth causes of action for fraud and negligence misrepresentation is overruled.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

As to the eighth cause of action, the FAC alleges facts that fulfill all the necessary elements of fraud. One example is when on approximately December of 2019, an office manager acting on behalf of Defendants, allegedly informed Plaintiff Hamid Mirghanbari that the dryers on the third floor of the 6150 premises would be repaired, but they were never repaired. (FAC, ¶ 177.)  Plaintiffs make similar allegations about other repairs.  (FAC, ¶¶ 175-176, 178-179.)  Plaintiffs fulfill the third element of inducement by stating that the intent was for this statement to be conveyed to other Plaintiffs and to be relied upon so that Plaintiffs would continue occupying and renting. The reliance is justifiable because the statement came from an office manager, a person Plaintiffs could reasonably presume was permitted to speak on behalf of Defendants, the landlords. Finally, Plaintiffs have made clear the damages sustained from both this incident as well as the failure to repair elevators and issues within individual units. (See FAC ¶¶ 175-193.) Because negligent misrepresentation shares elements with fraud, the Court need not repeat the analysis for the ninth cause of action. Both the eighth and ninth causes of action survive demurrer.

3.     Eleventh Cause of Action - Violation Of Cal. Gov't Code §§ 12955, Et Seq.

Government Code § 12955 prohibits the owner of any housing accommodation from discriminating based on the protected classes of race, religion, sex, gender, gender identity, sexual orientation, disability, and a host of other immutable characteristics. (See GOV § 12955(a).) The FAC alleges that failing to repair the elevators when they were inoperable, and additionally, failing to provide reasonable accommodations to those with disabilities constituted a violation of GOV § 12955. (FAC, ¶ 215.) Defendants argue that failure to repair the elevator does not constitute a violation as it was not a targeted action based on a protected class, however, Defendants’ fail to address Plaintiffs’ accommodation argument. Therefore, the cause of action stands, and the Demurrer fails.     

4.     Twelfth Cause of Action – Violation of Unruh Civil Rights Act Civil Code § 51, Et Seq.

Plaintiffs agree that they left out an allegation in the twelfth cause of action and state that they did so inadvertently.  Accordingly, the Court sustains the demurrer as to the twelfth cause of action and grants Plaintiffs five days to amend the twelfth cause of action.

Legal Standard for Motion to Strike

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. [CCP § 435(b)(1)]. This does not affect the court's power to strike sua sponte. Courts are specifically authorized to strike a pleading upon a motion or at any time in the court's discretion. (CCP § 436)

Analysis for Motion to Strike

Defendants argue in their Motion to Strike that the acts as alleged in the FAC do not amount to malice, oppression, nor fraud as demanded by CCP § 3294. As noted above in addressing the eighth and ninth causes of action, the Court determines that Plaintiffs have alleged fraud.  There were statements made that were false, with the intent to induce reliance. The reliance was justifiable, and Plaintiffs have alleged damages. Defendants attempt to argue that even if certain repairs did not occur, these violations are based on contractual breaches, which are not subject to punitive damages. The Court agrees that contractual breaches are not subject to punitive damages.  However, the fraud allegations are sufficient here, and they support a request of punitive damages per CCP § 3294. The Motion to Strike is denied.