Judge: Lynette Gridiron Winston, Case: 23PSCV03795, Date: 2024-03-04 Tentative Ruling

Case Number: 23PSCV03795    Hearing Date: March 4, 2024    Dept: 6

CASE NAME:  Gabriela Ordorica, et al. v. Hui Zhang, et al. 

Defendant Alexandra Yeung’s Demurrer to the Complaint 

TENTATIVE RULING 

The Court SUSTAINS Defendant Yeung’s demurrer to the First, Third, Fourth, Fifth and Seventh Causes of Action without leave to amend. The Court OVERRULES the demurrer to the Second and Sixth Causes of Action. 

Defendant Yeung must file and serve an Answer to the Complaint within 20 days of the Court’s order. 

              Defendant Yeung is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a habitability action. On December 7, 2023, plaintiffs Gabriela Ordorica and Martha Verduzco (collectively, Plaintiffs) filed this action against defendants Hui Zhang (Zhang), Ying Zhu, Alexandra Yeung (Yeung) (collectively, Defendants), and Does 1 through 10, alleging causes of action for breach of contract, negligence, tortious breach of implied warranty of habitability, breach of the covenant of quiet use and enjoyment, breach of Civil Code 1942.4 [sic], retaliation under Civil Code Section 1942.5, and constructive eviction. 

On January 31, 2024, Defendant Yeung filed a demurrer to the complaint. On February 20, 2024, Plaintiffs filed an opposition. On February 26, 2024, Defendant Yeung filed a reply. 

LEGAL STANDARD 

            A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) 

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]) 

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

PRELIMINARY ISSUES 

“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320, subd. (a).) The Court notes that Defendant Yeung’s demurrer is combined into one paragraph with respect to the Third and Fourth Causes of Action and then with respect to the Fifth and Sixth Causes of Action, in violation of Rule 3.1320, subdivision (a), of the California Rules of Court. (See Id.) The Court admonishes Defendant Yeung to comply with the California Rules of Court going forward. 

REQUESTS FOR JUDICIAL NOTICE 

            The Court DENIES Defendant Yeung’s request for judicial notice. (Evid. Code § 452, subd. (d).) The prior small claims dispute between Plaintiffs and Defendant Zhang over wrongful retention of a rent deposit is irrelevant to the issues raised in this demurrer. (See Id., § 352.) 

DISCUSSION 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a)(1), Defendant Yeung was required to meet and confer with Plaintiffs before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a)(1).) The Court finds Yeung’s meet-and-confer efforts sufficient. (Jung Decl., ¶ 4.) 

First Cause of Action – Breach of Contract 

“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. [Citation.] A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) 

Defendant Yeung demurs to the First Cause of Action for breach of contract on the grounds that it fails to state a cause of action because Plaintiffs have not adequately pleaded the existence of a contract between them. Yeung also demurs on grounds that Plaintiffs lack standing, and on grounds of misjoinder and uncertainty. Plaintiffs’ opposition did not address these arguments. The Court agrees that the Complaint does not adequately allege the existence of a contract between Plaintiffs and Yeung. 

Plaintiffs attached a copy of the subject lease agreement (the Lease) to the Complaint. (Compl., Ex. A.) The Lease does not identify Yeung as a party to it. (See generally Id.) The Complaint otherwise fails to allege facts demonstrating that Yeung was a party to the Lease. (See generally Compl.) Moreover, merely alleging that Yeung acted on behalf of Defendant Zhang does not make Yeung a party to the Lease for purposes of a breach of contract claim. “[A]n agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal [citation].” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929.) The Complaint does not allege facts evidencing the parties intended for Yeung to be bound personally. (See Hering v. Schumacher (1928) 88 Cal.App. 349, 354.) Additionally, the Court notes that Plaintiffs’ opposition did not respond to Yeung’s argument regarding Yeung not being a party to the Lease, which the Court construes as a tacit admission that Yeung’s argument on this point is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) Therefore, the Court finds that the Complaint fails to allege a cause of action for breach of contract against Yeung. 

As for lack of standing, misjoinder, and uncertainty, the Court does not find these grounds for demurrer to be persuasive or availing. “Standing is a party’s right to make a legal claim and is a threshold issue to be resolved before reaching the merits of an action.” (Dent v. Wolf (2017) 15 Cal.App.5th 230, 233-234, internal quotation marks omitted.) A plaintiff’s right to make a legal claim is not the same as a defendant’s lack of liability, (see Id.), which Yeung appears to be arguing here. Whether Defendant Yeung was a party to the Lease or involved in the underlying action does not mean Plaintiffs lack standing to bring this action. 

Moreover, misjoinder is not a basis for demurrer where the plaintiffs assert rights to relief arising out of the same transaction or occurrence, or that there is no common question of law or fact to the parties in the action. (See Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231-234.) The Complaint alleges sufficient facts demonstrating a relationship between the underlying events or a common question of law or fact between the parties. (See Compl., ¶¶ 2-29.) 

Furthermore, the Court also does not find the Complaint to be ambiguous or unintelligible, as would be required for a demurrer based on uncertainty. (See Code Civ. Proc., § 430.10, subd. (f); “ ‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’ ” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) 

Based on the foregoing, the Court SUSTAINS the demurrer to the First Cause of Action without leave to amend. Plaintiffs do not offer any facts that can be alleged to show a contract between Plaintiffs and Yeung or that Yeung was a party to the Lease. 

Second Cause of Action – Negligence 

To state a cause of action for negligence, the plaintiff must allege facts demonstrating “(1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. [Citation].” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) A landlord may be liable for negligent failure to maintain habitable premises. (Stoiber, supra, 101 Cal.App.3d at pp. 916-917.) 

Defendant Yeung demurs to the Second Cause of Action for negligence on the grounds that it fails to state facts sufficient to support a cause of action, and on grounds for lack of standing, misjoinder of parties, and uncertainty. More specifically, Yeung reiterates that the Complaint does not allege Yeung was a party to the Lease and is not the owner or landlord here. In opposition, Plaintiffs contend that an agent can be liable for wrongful actions undertaken on behalf of the principal, citing the Stoiber case for support. The Court agrees with Plaintiffs here. 

The Court of Appeal in Stoiber stated the following: 

[B]ecause the tenant's remedies against the landlord are not limited to breach of the warranty of habitability and he may also plead tort actions, it necessarily follows that the agent may also be held liable on any properly pleaded tort causes of action. For example, since appellant can plead a cause of action in negligence against the landlord, such a cause of action could also be pleaded against the agent defendants. The fact that an agent owes a duty to his principal does not preclude him from also owing a duty to third parties foreseeably injured by his conduct.

(Stoiber, supra, 101 Cal.App.3d at pp. 929-930, italics added.) 

            The Complaint alleges facts demonstrating a landlord-tenant relationship between Plaintiffs on the one hand and Defendant Zhang on the other, thus imposing a duty of care on Defendant Zhang. (See Compl., ¶¶ 3, 5, 12.) The Complaint alleges that Defendant Yeung acted on Zhang’s behalf in managing the subject property. (Compl., ¶¶ 14-15, 17-24, 27.) The Complaint then alleges that the Defendants failed to properly maintain the subject property in a habitable condition by failing to, among other things, address issues with electricity and power in a timely manner, lack of hot water in the bathroom, a water leak, issues with receiving mail, flooding, a backed-up sink, plumbing problems, problems with the toilet and being told it would not be resolved for a month, and a problem with the thermostat meter which made the subject property extremely hot. (Compl., ¶¶ 12-24.) The Complaint contains multiple allegations of Yeung’s involvement with these problems. (Compl., ¶¶ 14-15, 17-24, 27.) The Court therefore finds these allegations sufficient to state a cause of action for negligence against Defendant Yeung. 

            With respect to the arguments regarding lack of standing, misjoinder, and uncertainty, these arguments fail for the same reasons set forth above. 

For the above stated reasons, the Court OVERRULES the demurrer to the Second Cause of Action. 

Third Cause of Action – Tortious Breach of Implied Warranty of Habitability 

To plead a cause of action for breach of the implied warranty of habitability, the plaintiff must allege facts demonstrating, “’the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.’ [Citation.]” (Peviani v. Arbors at California Oaks Prop. Owner, LLC (2021) 62 Cal.App.5th 874, 891.) “An action by a tenant alleging a breach of the warranty of habitability is an action on the contract….” (Fairchild v. Park (2001) 90 Cal.App.4th 919, 924-925). 

Defendant Yeung demurs to the Third Cause of Action on the same grounds as before, namely failure to state a cause of action, lack of standing, misjoinder, and uncertainty. Defendant Yeung argues here that she cannot be liable because there is no contract between her and Plaintiffs from which the implied warranty of habitability can arise. Defendant Yeung further argues that she cannot be liable as an agent because acting on behalf of Zhang does not mean she personally assumed the obligations of Zhang. Plaintiffs’ argument in opposition does not really address these arguments. The Court agrees with Defendant Yeung here. 

As already discussed above, the Complaint does not allege facts demonstrating that Defendant Yeung is a party to the Lease. (See Compl., Ex. A.) Since it does not allege that she is a party to the Lease, there is not only no claim for breach of contract, but there also is no claim for breach of the implied warranty of habitability. (See Fairchild, supra, 90 Cal.App.4th at pp. 924-925; see also Stoiber, supra, 101 Cal.App.3d at p. 929 [“Since the suit for breach of the implied warranty is essentially a contractual one, the trial court correctly ruled the agents could not be held liable on the breach of warranty because an agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal (see generally, 1 Witkin, Summary of Cal. Law (8th ed. 1973) Agency and Employment, § 185, pp. 780-781).”) Also, the Court construes Plaintiffs’ lack of opposition to these arguments as a tacit admission that they are meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) 

As for the arguments regarding lack of standing, misjoinder, and uncertainty, these arguments fail for the same reasons set forth above. 

Based on the foregoing, the Court SUSTAINS the demurrer to the Third Cause of Action without leave to amend. 

Fourth Cause of Action – Breach of the Covenant of Quiet Use and Enjoyment 

            “In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. The covenant of quiet enjoyment ‘insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy.’” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 (internal citations omitted).) 

            To plead a cause of action for breach of the covenant of quiet enjoyment, the plaintiff must allege facts demonstrating: (1) A lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which substantially interferes with a tenant’s right to use and enjoy the premises for purposes contemplated; and (4) an applicable remedy, such as the tenant remains in possession and was damaged, or the tenant surrendered possession and is relieved of obligation to pay rent. (See Mobile Aire Estates, 125 Cal.App.4th at 588-591.) 

            The implied covenant is partially codified in Civil Code section 1927, which provides: “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.” (Civ. Code, § 1927; Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 [“every lease includes a covenant of quiet possession and enjoyment.”]) “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.” (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896.) 

Defendant Yeung demurs to the Fourth Cause of Action on the same grounds as those for the Third Cause of Action, and makes the same arguments here. Plaintiff similarly fails to oppose these arguments. The Court again agrees with Yeung here. Since there is no agreement between Plaintiffs and Yeung alleged in the Complaint, Plaintiffs cannot hold Yeung liable for any alleged breach of the implied covenant. 

Based on the foregoing, the Court SUSTAINS the demurrer to the Fourth Cause of Action without leave to amend. 

Fifth Cause of Action – Breach of Civil Code 1942.4 

To plead a cause of action for violation of Civil Code section 1942.4, the plaintiff must allege facts demonstrating:  (1) a substandard dwelling; (2) notification from a public officer or employee to the landlord regarding the substandard housing; (3) failure to abate the substandard conditions 35 days after receiving the notice; and (4) the tenant did not cause the violation. (See Civ. Code, § 1942.4, subd. (a).) 

Defendant Yeung demurs to the Fifth Cause of Action on the grounds of failure to state a cause of action, lack of standing, misjoinder, and uncertainty. Yeung contends this cause of action fails because Yeung is not a landlord or lessor. Plaintiffs’ opposition does not directly respond to this argument, but did argue, as discussed above, that an agent’s unlawful acts do not shield the agent from liability. 

"A violation of a state statute does not necessarily give rise to a private cause of action. Instead, whether a party has a right to sue depends on whether the Legislature has 'manifested an intent to create such a private cause of action' under the statute.”  (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596 (internal citations omitted.) "A statute creates a private right of action only if the enacting body so intended." (Farmers Ins. Exchange v. Superior Court (2006) 137 Cal.App.4th 842, 849-50, quoting Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 305.) 

Civil Code section 1942.4 provides: “A landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000).” (Civ. Code § 1942.4(b).) Since there are no facts alleged in the Complaint showing that Yeung is the landlord, Plaintiff fails to state a cause of action against Yeung for violation of Civil Code section 1942.4. 

Accordingly, the Court SUSTAINS the demurrer to the Fifth Cause of Action without leave to amend. 

Sixth Cause of Action – Retaliation under Civil Code Section 1942.5 

To plead a cause of action for violation of Civil Code section 1942.5, the plaintiff must allege facts demonstrating that the landlord retaliated against the tenant for exercising the tenant’s rights or because of the tenant’s complaint to an appropriate agency regarding the tenantability of the subject property within 180 days of such actions. (See Civ. Code § 1942.5, subd. (a).) 

Yeung demurs to the Sixth Cause of Action on the same grounds set forth above with respect to the Fifth Cause of Action, and asserts the same arguments again here as to why the Sixth Cause of Action fails. Plaintiffs’ opposition again does not directly respond to this argument, but did argue, as discussed above, that an agent’s unlawful acts do not shield the agent from liability. 

Section 1942.5(h) states that "[a]ny lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action…." (Civ. Code § 1942.5, subd. (h).) Thus, Yeung, as the landlord’s agent, can be held liable for violating section 1942.5. The Court finds that the Complaint alleges sufficient facts to state a cause of action for violation of Civil Code section 1942.5. 

Accordingly, the Court OVERRULES the demurrer to the Sixth Cause of Action. 

Seventh Cause of Action – Constructive Eviction 

To plead a cause of action for wrongful eviction, the plaintiff must allege facts demonstrating the acts or omissions of a landlord, or any disturbance or interference with the tenant's possession by the landlord, renders the premises, or a substantial portion of them, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises. Abandonment of the premises by the tenant within a reasonable time after the wrongful act of the landlord is essential to enable the tenant to claim a constructive eviction. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 911; Groh v. Kover's Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614.) 

Defendant Yeung demurs to the Seventh Cause of Action on the grounds of failure to state a cause of action, lack of standing, misjoinder, and uncertainty. Yeung contends again she cannot be held liable for constructive eviction because it arises from the Lease, to which she was not a party. Plaintiffs’ opposition does not directly address this argument, but it does, as noted above, raise the argument that agents are not shielded from liability for their wrongful conduct. The Court agrees with Yeung. 

The claim for constructive eviction arises from the lease and is not a tort claim. (See Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1169.) Since the Complaint fails to allege facts showing that Yeung was a party to the lease or the landlord, Plaintiff cannot hold Yeung liable for constructive eviction. 

            Accordingly, the Court SUSTAINS the demurrer to the Seventh Cause of Action without leave to amend. 

CONCLUSION 

The Court SUSTAINS Defendant Yeung’s demurrer to the First, Third, Fourth, Fifth and Seventh Causes of Action without leave to amend. The Court OVERRULES the demurrer to the Second and Sixth Causes of Action. 

Defendant Yeung must file and serve an Answer to the Complaint within 20 days of the Court’s order. 

              Defendant Yeung is ordered to give notice of the Court’s ruling within five calendar days of this order.