Judge Kerry Bensinger, Case Number: 24STCV03072, Date: 2024-08-01 Tentative Ruling

Plaintiff Hadas Dimentstein is a tenant of the property located at 1820 N. Park Avenue, Unit #5, Los Angeles, CA 90026 (“Subject Unit”). In 2012, Defendant Echo Park Investment, LLC became the owner of the Subject Unit and assumed performance of Plaintiff’s lease agreement. On February 6, 2024, Plaintiff filed a verified Complaint against Defendant for:

2. Violation of Cal. Civ. Code §§ 1941, 1941.1, and 1942.4 (Statutory Breach of the Implied Warranty of Habitability);

7. Violation of California Civil Code § 1940.2 (Influencing a Wrongful Eviction);

9. Violation of Bus. & Prof. Code § 17200 Et Seq. Unfair, Unlawful, and Deceptive Business Practices;

10. Violation of Cal. Welf. & Inst. Code § 15610.30 (Financial Abuse of Elders and Disabled Persons);

14. Violation of the Fair Employment and Housing Act (Cal. Gov. Code § 12900, et seq.).

Defendant now demurs to all causes of action (with the exception of the 12^th and 13^th causes of action) and seeks an order striking punitive damages from the Complaint.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3d 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference 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.”¿ (Code Civ. Proc., § 430.41, subd. (a).) Defense counsel has satisfied this requirement. (See Declaration of Parisa Saleki, ¶¶ 3-5.)

Defendant demurs to the first through the eleventh and the fourteenth causes of action. The court addresses each cause of action in turn.

The first two causes of action are (1) Contractual and Tortious Breach of Implied Warranty of Habitability and (2) Violation of Cal. Civ. Code §§ 1941, 1941.1, and 1942.4 (Statutory Breach of the Implied Warranty of Habitability). The causes of action are based upon inadequate heating, improperly sealed and/or rotting window frames, dilapidated flooring which presented tripping hazards, and clogged drains. (Complaint, ¶¶ 17-26.) Plaintiff seeks punitive damages for each of these claims.

Defendant argues these causes of action fail for two reasons: (1) the claims are uncertain because the Complaint references dates beyond the relevant statute of limitations; and (2) Plaintiff improperly attempts to convert contract claims into tort claims.[1]

First, the statute of limitations for claims arising out of a contract is four years after the breach. (Civ. Proc. Code §§ 337.2, 339.5.) Here, Plaintiff alleges that she notified Defendant of the inadequate heating and window issues in 2013 and 2019. (Complaint, ¶¶ 17, 18.) In 2019, Defendant refused to repair or upgrade the heater in the Subject Unit, or to conduct an inspection for damaged windows. (Id. at ¶ 18.) As to the drainage issue, Plaintiff requested repair in 2019 and Defendant insisted that Plaintiff pay for the repair. The Complaint is silent on the time period of the flooring issue. Using the later of the two dates, 2019, Plaintiff’s claims accrued more than four years ago. Under a strict application of the statute of limitations, the first two causes of action appear to be time-barred.

In opposition, Plaintiff argues that Defendant “is liable for all violations mentioned from the date Plaintiff moved into the unit as long as they continued unabated through to a period within the applicable statute of limitations,” so long as they constitute a continuing pattern and course of conduct as opposed to unrelated discrete acts. (Opp., p. 8:16-20.) Plaintiff articulates an equitable exception of accrual known as the continuing violation doctrine. Under that doctrine, “[a]llegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period.” (Aryeh v. Canon Bus. Sols., Inc. (2013) 55 Cal.4th 1185, 1198.) “The continuing violation doctrine serves a number of equitable purposes. Some injuries are the product of a series of small harms, any one of which may not be actionable on its own. [Citation.] Those injured in such a fashion should not be handicapped by the inability to identify with certainty when harm has occurred or has risen to a level sufficient to warrant action.” (Id. at pp. 1197-98.)

Here, however, Plaintiff does not allege a “series of discrete acts” that warrants application of the continuing violation doctrine. Rather, Plaintiff alleges one violation: failing to remedy inhabitable conditions. Plaintiff recognized Defendant’s breach as early as 2013.

Although not discussed by the parties, a better fit to the present facts is the theory of continuous accrual. “The theory [of continuous accrual] is a response to the inequities that would arise if the expiration of the limitations period following a first breach of duty or instance of misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct; parties engaged in long-standing misfeasance would thereby obtain immunity in perpetuity from suit even for recent and ongoing misfeasance. In addition, where misfeasance is ongoing, a defendant's claim to repose, the principal justification underlying the limitations defense, is vitiated. (Aryeh, at p. 1198.) Under this theory, Plaintiff may be able to recover for ongoing breaches from February 7, 2020 to February 6, 2024 (the filing of the Complaint). The Complaint alleges breaches that fall within this applicable period. Although not the model of clarity,[2] the court finds that the first two causes of action do not fail for a lack of certainty.

Defendant next argues that Plaintiff improperly seeks tort damages for contract claims. “[T]here is a warranty of habitability implied in residential leases in California[.]” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1296.) “Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law. ‘The law imposes the obligation that “every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights.” ( [Civ. Code, § 1708].) This duty is independent of the contract.... “[A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty.” ’ [Citation.] [¶].... [¶] “... [P]unitive or exemplary damages, which are designed to punish and deter statutorily defined types of wrongful conduct, are available only in actions ‘for breach of an obligation not arising from contract.’ (Civ. Code, § 3294, subd. (a).) In the absence of an independent tort, punitive damages may not be awarded for breach of contract ‘even where the defendant's conduct in breaching the contract was willful, fraudulent, or malicious.’ [Citations.]” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515-16.)

Here, Plaintiff does not allege any independent duty that Defendant owed to her beyond any obligations arising from the lease agreement. Plaintiff is not entitled to recover punitive damages for these claims. However, Defendant’s argument is meritorious insofar as it entitles Defendant to an order striking punitive damages in connection to these claims. Defendant does not demonstrate that the first two causes of action are otherwise deficiently pleaded.

Accordingly, the Demurrer to the First and Second Causes of Action is OVERRULED.

2. Third Cause of Action for Breach of the Implied Covenant of Quiet Enjoyment

The Third Cause of Action is based upon Defendant’s failure to maintain basic conditions of habitability and provisions stated in the Lease Agreement, such as laundry facilities, harassing Plaintiff with unwarranted surveillance, inspections, notices of lease violations, entry without proper notice, discrimination against her disability and refusal to provide reasonable accommodations, illegal attempts to increase rent, and multiple wrongful attempts at eviction. (Complaint, ¶¶ 30-47, 66.)

Defendant argues this cause of action fails for two reasons: (1) the claim is uncertain because the Complaint references dates beyond the relevant statute of limitations; and (2) Plaintiff improperly attempts to convert contract claims into tort claims.

First, Plaintiff properly invokes the continuing violation doctrine as to the quiet enjoyment claim. Plaintiff alleges conduct which has occurred within and beyond the statute of limitations, including in July 2020 (accusations of falsifying disability), late 2020 (entering the Subject Unit without proper notice) until present, and 2022 (entering without proper notice and filing unlawful detainer actions). (Complaint, ¶¶ 30-32, 36, 46.) The claim is not uncertain.

Second, the court agrees with Defendant that punitive damages cannot be obtained on a quiet enjoyment claim. “The implied covenant of quiet enjoyment implies a term in a contract, and a breach of the covenant gives rise to an action in contract. As such, the damages available for a breach of the covenant are contract damages.” (Ginsberg, 205 Cal.App.4th at pp. 896–97.) But as discussed above, Plaintiff’s punitive damages claim is subject to strike, not demurrer. Defendant does not demonstrate how Plaintiff’s quiet enjoyment claim is insufficiently pleaded.

Civil Code section 3479 defines “nuisance” as “[a]nything which is injurious to health, including, but not limited to … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, …..”

Plaintiff’s nuisance claim is based on the same substandard conditions described above, as well as Defendant’s harassment, unwarranted inspections, surveillance, attempts at eviction, refusal to provide access to the laundry machine, and accusations of falsifying her disability. (Complaint, ¶¶ 80-81.)

Defendant argues that the nuisance claims fails because it is uncertain and duplicative of the Sixth Cause of Action for negligence.

The nuisance claim is uncertain. The claim is based, in part, on Defendant’s conduct which occurred in 2022, including entry into the Subject Unit without providing the requisite 24 hour notice or obtaining her permission; serving an improper 3-Day Notice to Quit; and filing an unlawful detainer action which was ultimately dismissed with prejudice. (Complaint, ¶¶ 32-36.) Further, this alleged conduct occurred within the statute of limitations. Nuisance claims must be brought within three years. (Civ. Proc. Code § 338.) The nuisance does not fail on these grounds.

However, the court agrees with Defendant’s second observation. The nuisance claim is duplicative of the negligence claim. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Plaintiff relies on paragraph 81 to distinguish the nuisance and negligence claims, but succeeds only in showing the claims are twins. Paragraph 81 states, “Defendants’ harassment, unwarranted inspections, surveillance, attempts at eviction, refusal to provide access to the laundry machine, accusations of falsifying her disability continued despite Plaintiff’s repeated efforts to enforce her rights and notify Defendants of the impropriety of their actions.” These allegations appear in some form or fashion in support of Plaintiff’s negligence claims. (See Complaint, ¶¶ 92-94.)

4. Fifth Cause of Action for Intentional Infliction of Emotional Distress (IIED)

The elements of an IIED cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, 221 Cal.App.4th at p. 780, quoting Tererice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)¿¿¿

Plaintiff’s IIED claim is based on the following allegations: “Defendants repeatedly and regularly attempted to cite or punish Plaintiff for actions well within her rights as a tenant and as a party to the Lease Agreement, entered her residence without proper notice, attempted to wrongfully evict her, accused her of falsifying a physical disability, and surveilled her and her guests. Defendants filed a frivolous unlawful detainer action against Plaintiff and the Court dismissed the matter for nonsuit for lack of evidence. Defendants intended to cause Plaintiff emotional distress and influence her to vacate the premises, as dealing with accusations, inspections, surveillance, and a jury trial with potential eviction was extraordinarily stressful for Plaintiff.” (Complaint, ¶ 87.)

Defendant argues that the IIED claim fails to allege conduct that is extreme or outrageous or that Defendant, through its agents or employees, acted with the intent to cause Plaintiff emotional distress. Moreover, Defendant argues that there are no allegations showing Plaintiff suffered severe emotional distress. However, at the demurrer stage, the court accepts as true all well-pleaded facts. (See Mitchell, supra, 1 Cal.App.5th at p. 1007.)

Here, Plaintiff provides sufficient allegations to support an allegation that Defendant’s conduct was extreme or outrageous. (See Complaint, ¶ 87.) That conduct includes attempting to wrongfully evict Plaintiff, repeatedly citing or punishing Plaintiff for taking actions afforded her as a tenant, among others, with the intent to cause Plaintiff to vacate the Subject Unit. As a result, Plaintiff suffered severe emotional distress. (Complaint, ¶ 88.) Further, these allegations, as well as the allegations common to all causes of action (Complaint, ¶¶ 10-47), are sufficiently specific to allow the parties to ascertain during discovery which of Defendant’s agents or employees, if any, committed the complained-of conduct.

“‘The elements for a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The negligence claim is based upon Defendant’s failure to ensure the Subject Unit was safe for habitation, not repairing substandard or hazardous conditions, discriminating against Plaintiff, unlawfully entering the Subject Unit, retaliating against her, unlawfully trying to evict Plaintiff, and for failing to provide basic systems that worked properly, or were provided at all. (Complaint, ¶¶ 92-94.)

Defendant argues the Sixth Cause of Action is uncertain because it is unclear when the alleged breaches occurred. However, as discussed above, Plaintiff alleges sufficiently the dates to apprise Defendant of the relevant time periods. (See Complaint, ¶¶ 17, 18, 30-32, 36, 46.) The Sixth Cause of Action is not uncertain.

6. The Seventh Cause of Action for Violation of California Civil Code § 1940.2 (Influencing a Wrongful Eviction)

Civil Code section 1940.2 provides, “It is unlawful for a landlord to, for the purpose of influencing a tenant to vacate a dwelling:

(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code.

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.

(5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief.

Plaintiff alleges that Defendants engaged in unlawful conduct in an effort to influence Plaintiff to vacate the Subject Unit by entering Plaintiff’s residence without proper notice, surveilling Plaintiff, accusing her of faking a disability, and filing a frivolous Unlawful Detainer case. (Complaint, ¶ 99.)

Defendant argues the Seventh Cause of Action is devoid of allegations showing that Defendant used extortion, theft, or threats of any kind that would create an apprehension of harm in a reasonable person. Further, there are no allegations showing that Defendant threatened to disclose information relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. The court agrees. There are no factual allegations of the kind to state a claim for violation of Civil Code section 1940.2.

Plaintiff argues that the allegations that Defendant (1) entered her residence without permission, (2) persistently surveilled her, (3) levied baseless accusations, and (4) pursued unwarranted legal actions would commonly create apprehension in reasonable people. This generally might be true, but the Complaint does not allege that any of the foregoing conduct created in Plaintiff a reasonable apprehension of harm. The Complaint is silent on this point.

7. The Eighth Cause of Action for Violation of Code of Code Procedure § 1159 (Forcible Entry)

Code of Civil Procedure section 1159 states that every person is guilty of a forcible entry who either: (1) by breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property, or (2) who, after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession. (Code Civ. Proc., § 1159, subd. (a).) Any unauthorized opening of a closed door is a breaking open of the door within the meaning of section 1159. (Jordan v. Talbot (1961) 55 Cal.2d 597, 606.)

Plaintiff’s Eighth Cause of Action is based on the allegation that Defendant entered Plaintiff’s residence on October 27, 2022, without providing 24-hour notice and to address a non-emergency. (Complaint, ¶¶ 31, 105.) Further, Plaintiff notified Defendant that she needed sufficient notice. (Id.)

Defendant argues this claim fails because Plaintiff admits Defendant entered her unit for repairs and she was given advance notice of the entry. The thrust of Plaintiff’s claim is that Defendant entered the Subject Unit without authorization. In other words, it does not matter that Defendant gave Plaintiff advance notice of the entry given Plaintiff did not consent to the entry. The Complaint sufficiently alleges facts to state a violation of Code of Civil Procedure section 1159.

8. The Ninth Cause of Action for Violation of Bus. & Prof. Code § 17200 Et Seq. Unfair, Unlawful, and Deceptive Business Practices

The Unfair Competition Law (UCL) is codified at Business and Professions Code section 17200 et seq.¿ Section 17204 of the UCL provides that a private person “who has suffered injury in fact and has lost money or property as a result of the unfair competition” may bring a 17200 action.¿ (Bus. & Prof. Code, § 17204.)¿ “To bring a UCL claim, a plaintiff must show either an (1) unlawful, unfair, or fraudulent business act or practice, or (2) unfair, deceptive, untrue or misleading advertising. [Citation.]¿ Because the UCL is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.”¿ (Adhav v. Midway Rent A Car, Inc. (2019) 37 Cal.App.5th 954, 970, citations and quotations omitted.)¿

Plaintiff alleges that in leasing residential property that was unfit for occupancy by Plaintiff, Defendant engaged in unlawful, unfair and deceptive business practices. Defendant leased the Subject Unit without having prepared, cleaned, or repaired it to place it in a habitable condition. (Complaint, ¶ 111.) Further, Defendant knowingly collected and demanded more money from Plaintiff than Plaintiff was lawfully required to tender to Defendant. Defendant’s unlawful demands and collections of monies from Plaintiff constitute an unfair and unlawful business practice as Plaintiff paid Defendant more than the reasonable fair market value of the Subject Property. (Complaint, ¶ 112.) Additionally, in light of the uninhabitable conditions of the Subject Unit, Defendant’s decision to lease the Subject Unit and collect revenues in the form of rental payments constitutes an unfair and unlawful business practice. (Complaint, ¶ 114.) The acts of Defendant as alleged throughout the Complaint, and in each cause of action above, constitute unlawful, unfair, and fraudulent business practices. (Complaint, ¶ 115.)

Defendant argues that the UCL claim is uncertain and fails to state a claim because the allegations do not detail sufficiently severe conduct to state a UCL claim. Moreover, the Complaint readily admits that her rent is less than market value. (See Complaint, ¶ 16.)

Defendant’s demurrer misses the mark. As Plaintiff points out, the “unlawful” prong of the UCL borrows violations of other laws and makes those unlawful practices actionable under the UCL. (See Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) Here, Plaintiff has alleged that Defendant has violated numerous statutes, including Civil Code sections 1941, 1941.1, and 1942.4, and Welfare and Institutions Code section 15610.30 while being engaged in the business of landlording. (Complaint, ¶¶ 60-63, 110, 118-127.) Violations of these statutory provisions satisfy the unlawful prong of Plaintiff’s UCL claim.

9. The Tenth Cause of Action for Violation of Cal. Welf. & Inst. Code § 15610.30 (Financial Abuse of Elders and Disabled Persons)

To establish financial abuse of a dependent adult, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was a dependent adult; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See CACI No. 3100.)¿ Financial abuse of a dependent adult occurs when a person takes the property of a dependent adult for a wrongful use or with intent to defraud or by undue influence. (Welf. & Inst. Code §¿15610.30, subd. (a).) A person is deemed to have taken the property when he or she has deprived a dependent adult of any property right. (Welf. & Inst. Code §¿15610.30, subd. (c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley¿v. Litton Loan Servicing, LLP¿(2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person¿ . . . takes¿ . . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the … dependent adult.” (Welf. & Inst. Code ¿§¿15610.30, subd. (b).) “Dependent adult” means a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code ¿§¿15610.23.)

Plaintiff alleges that she is a dependent adult. (Complaint, ¶ 120.) Plaintiff further alleges that Defendant’s taking of Plaintiff’s rent money in exchange for the possession of uninhabitable property was a wrongful use. (Complaint, ¶ 121.) And, in taking Plaintiff’s rent money, Defendant deprived Plaintiff of the right to a habitable home and the right to quiet possession of one’s home. (Complaint, ¶ 122.)

Defendant argues the financial abuse claim fails because there are no allegations showing that Plaintiff is a dependent adult, or that Defendant took, secreted, appropriated, obtained, or retained Plaintiff’s real or personal property for a wrongful use or with intent to defraud.

Plaintiff alleges that her physical therapist issued a Certificate of Disability regarding the limits in Plaintiff’s ability to use her injured arm for daily chores such as carrying laundry. (See Complaint, p. 14.) Plaintiff also alleges that Defendant obtained Plaintiff’s rent money in exchange for possession of an uninhabitable unit. Plaintiff likewise alleges wrongful use. The financial abuse claim is sufficiently pleaded.

10. The Eleventh Cause of Action for Negligent Hiring, Training and Supervision

The elements of a claim for Negligent Hiring, Supervision, or Retention of an employee are: (1) that the defendant hired the employee; (2) that the employee was/became unfit to perform the work for which they were hired; (3) that the employer knew or should have known that the employee was/became unfit and that they created a particular risk to others; (4) that the employee’s unfitness harmed the plaintiff; and (5) that the employer’s negligence in hiring or retaining the employee was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 426.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ”¿ (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)¿

Plaintiff alleges that Defendant had a duty to Plaintiff to supervise their agents who were responsible for the maintenance of the Subject Unit and ensure that they were fit to perform their jobs and that they were properly trained in the laws governing the landlord tenant relationship. (Complaint, ¶ 129.)

Defendant argues that none of the elements of a negligent hiring claim have been pleaded. The court agrees. The Complaint is devoid of factual allegations that an employee whom Defendant hired was or became unfit or incompetent to perform a job, that Defendant knew or should have known the employee was unfit or incompetent and that the unfit or incompetent employee created a particular risk which ultimately harmed Plaintiff.

Plaintiff contends that the Complaint specifically references employees and agents of Defendant and that the violations and unlawful actions being perpetrated by “Defendants” (in the plural) are alleged throughout the Complaint. That may be so, but this general allegation fails to satisfy the elements of a negligent hiring claim. The Eleventh Cause of Action is factually deficient.

11. The Fourteenth Cause of Action for Violation of The Fair Employment and Housing Act (Cal. Gov. Code §12900, Et Seq.)

“In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation.” (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592; see also CACI No. 2548.)

Plaintiff’s FEHA claim is based on the following allegations: Defendant refused to consider, or to provide, the reasonable accommodations requested by Plaintiff (the use of her own laundry machine) and prevented Plaintiff from accessing the onsite laundry machine; refused to engage in a good faith interactive process to determine if the requested reasonable accommodations could be made; and harassed Plaintiff in retaliation for requesting accommodations by surveilling her and accusing her of faking her disability. (Complaint, ¶¶ 149-152.)

Defendant argues the FEHA claim fails because, as the Complaint acknowledges, (1) Defendant issued a Notice of Violation to Plaintiff for installing a laundry machine in her Unit without permission (Complaint, ¶ 39), and (2) Defendant gave Plaintiff credit to a “fluff and fold” laundry service (Complaint, ¶ 44). In other words, the Complaint demonstrates that Defendant engaged in an interactive process with Plaintiff and provided her with an accommodation.

To state a FEHA claim for discrimination in housing, a plaintiff must allege that the defendant refused an accommodation request that was necessary to afford an equal opportunity to use and enjoy the dwelling. Plaintiff alleges this very fact. Plaintiff had a disability which impaired her ability to do laundry. Plaintiff requested that she be permitted to use her own laundry machine, which was stored in the Subject Unit. Defendant refused and further, did not afford Plaintiff access to an on-site laundry facility. Plaintiff sufficiently pleads that Defendant denied a reasonable accommodation request that would have afforded Plaintiff equal opportunity to enjoy her dwelling.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)

Defendant moves to strike references to and requests for exemplary and punitive damages in the Complaint. Defendant cites two grounds for its motion: (1) there are no allegations demonstrating that Defendant acted with malice, oppression or fraud; (2) there are no allegations that an officer, director, or managing agent of Defendant had advance knowledge of or consciously disregarded, authorized, or ratified an act of oppression fraud or malice.

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless 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 or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

The court agrees in considerable part with Defendant’s second argument. Here, the Complaint does not allege that any officer director, or managing agent of Defendant, a corporation, “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 or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” Defendant is entitled to an order striking punitive damages from the Complaint.[3]

The demurrer to the First, Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Causes of Action is Overruled.

The demurrer to the Fourth, Seventh, and Eleventh Causes of Action is Sustained. Leave to amend is Granted.

The motion to strike exemplary and punitive damages is Granted. With the exception of the First and Third Causes of Action, leave to amend is granted.

Plaintiff is ordered to serve and file the First Amended Complaint within 30 days of the date of this order.

[1] Defendant raises the same arguments with respect to the Third Cause of Action. Because that cause of action is based upon additional factual allegations, the court addresses it separately.

[2] The court makes the following observations about the Complaint. Plaintiff employs a “chain letter” or cumulative pleading practice, as well as a shotgun pleading practice. These practices are disfavored. In Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, the court defined a pleading practice that it termed “chain letter” or cumulative pleading and explained that the practice should be avoided because it causes ambiguity and creates redundancy. “[The p]laintiff employs in part a ‘chain letter’ or cumulative type of pleading. That is, [the] plaintiff's cause of action for negligent infliction of emotional distress, the second cause of action in the second amended complaint, incorporates by reference the entire first cause of action. This type of pleading should be avoided as it tends to cause ambiguity and creates redundancy.” (Id. at p. 285.)

In Sollberger v. Wachovia Securities, LLC (C.D. Cal. June 30, 2010, No. SACV 09–0766 AG) 2010 U.S. Dist. LEXIS 66233 at *11–12, 2010 WL 2674456, the court defined a related pleading practice that it termed “shotgun ” pleading and explained why that practice should not be tolerated by trial courts. “Shotgun pleadings are pleadings that overwhelm defendants with an unclear mass of allegations and make it difficult or impossible for defendants to make informed responses to the plaintiff's allegations. They are unacceptable.... The Court has recognized that allowing shotgun pleadings would lead to many negative consequences. See Mason v. County of Orange, 251 F.R.D. 562, 563–64 (C.D. Cal. 2008) (quoting Anderson v. District Board of Trustees, 77 F.3d 364, 366–67 (11th Cir.1996)) (‘[E]xperience teaches that, unless cases are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court's docket becomes unmanageable, the litigants suffer, and society loses confidence in the court's ability to administer justice.’); see also Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 2001) (‘Cases framed by shotgun pleadings consume an inordinate amount of a court's time. As a result, justice is delayed, if not denied, for litigants who are standing in the queue waiting to be heard. Their impression of the court's ability to take care of its business can hardly be favorable. As the public becomes aware of the harm suffered by the victims of shotgun pleading, it, too, cannot help but lose respect for the system.’)”

[3] Plaintiff seeks punitive damages in connection with her First Cause of Action for Breach of the Implied Warranty of Habitability and Third Cause of Action for Breach of the Covenant of Quiet Enjoyment. These claims are based in contract. As discussed in Section II(B)(1)-(2) of this ruling, punitive damages are not recoverable for contract claims. Accordingly, the motion to strike punitive damages from the First and Third Causes of Action is meritorious on this separate ground.