Judge: Kevin C. Brazile, Case: 22STCV12841, Date: 2023-01-04 Tentative Ruling

Hearing Date: January 4, 2023

Case Name: Konopisos, et al. v. Wong, et al.

Case No.: 22STCV06312

Matter: Demurrer; Motion to Strike

Moving Party: Defendant Ark Wong

Responding Party: Plaintiffs Jason Konopisos and Tara Norris

Notice: OK

Ruling: The Demurrer is overruled.

The Motion to Strike is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On February 22, 2022, Plaintiffs Jason Konopisos and Tara Norris filed the operative Complaint against Defendant Ark Wong for (1) private nuisance, (2) negligence, (3) breach of warranty of habitability, (4) breach of covenant of good faith and fair dealing, (5) breach of implied covenant of quiet enjoyment, (6) violation of Civil Code § 1942.4, (7) violation of Civil Code § 1942.5, and (8) intentional infliction of emotional distress (“IIED”).

1. Demurrer

Defendant Ark Wong demurs to the first, sixth, and eighth causes of action for failure to state sufficient facts. 

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “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. 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 v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Defendant first argues the nuisance claim fails because it is duplicative of the negligence claim.  

Defendant, however, fails to recognize that the nuisance claim also relates to intentional conduct.  (See Compl. ¶¶ 32, 45, 70.)

Defendant next argues that a violation of Civil Code § 1942.4 has not been pled because (a) any habitability notices were issued as to the whole building and not Plaintiffs’ unit and (b) no condition was unabated for more than 35 days.  

Civil Code § 1942.4(a) states, “A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice: (1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling. (2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions. (3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail. (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.”

The 35+-day period is sufficiently described (Compl. ¶¶ 36-40), and the Complaint states that the violations were for the “Premises”, which is defined as Plaintiffs’ unit.  Therefore, Defendant’s argument is rejected as merely raising factual issues.  Defendant attaches a website screenshot from the LA Department of Public Health to support its arguments, but fails to request judicial notice or explain the propriety of judicial notice.  This Exhibit is otherwise inappropriate extrinsic evidence.  Further, the Complaint also relates to LA HCID.

Defendant lastly argues that the IIED claim fails because Plaintiffs fail to plead intentional, extreme and outrageous conduct.  

The elements of the tort of IIED are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903, internal quotations omitted.)  Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.  (Molko v. Holy Spirit Assn. (1986) 46 Cal.3d 1092, 1122.)

Plaintiffs allege that Defendant intentionally chose not to repair the premises, including holes in the walls and the continued presence of rats, despite numerous notices from both Plaintiffs and various public agencies.  Due to this, Plaintiffs could not sleep.  If the facts of the Complaint are accepted as true, this is sufficient.  (See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922.)

In sum, the Demurrer is overruled.  An answer is to be filed within twenty days.

2. Motion to Strike 

Defendant seeks to strike the Complaint’s references to punitive damages and attorneys’ fees. 

The Motion is denied as to punitive damages because the Complaint implies that Defendant intentionally chose not to repair Plaintiffs’ unit to save money, despite knowing Plaintiffs would suffer injuries.  

The Motion is denied as to fees, which are contemplated under Civil Code § 1942.4.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.