Judge Lynne M. Hobbs, Case Number: 24STCV00292, Date: 2024-08-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV00292, Date: 2024-08-09 Tentative Ruling

Case Number: 24STCV00292 Hearing Date: August 9, 2024 Dept: 61

ANDREI STETSYK vs ESSEX MANAGEMENT CORPORATION, CALIFORNIA CORPORATION

TENTATIVE

Defendant Essex Management Corporation’s Demurrer and Motion to Strike Portions of the Complaint is SUSTAINED as to the eleventh cause of action with leave to amend. The motion to strike is GRANTED as to the prayer for punitive damages in connection with the breach of contract claim without leave to amend, and GRANTED as to the prayer for investigative costs and attorney fees in connection with the negligence claim with leave to amend. The motion is otherwise DENIED.

Defendant to give notice.

DISCUSSION

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“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 Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Essex Management Corporation (Defendant) demurrers to the eleventh cause of action for FEHA housing discrimination contained in Plaintiff Andrei Stetsyk’s (Plaintiff) Complaint. (Demurrer at pp. 2–4.) Defendant reasons that Plaintiff has not pleaded any facts suggesting discriminatory motive based on national origin, as Plaintiff has alleged. (Ibid.)

It is unlawful “[f]or the owner of any housing accommodation to discriminate against or harass any person because of the . . . national origin . . . of that person.” (Gov. Code § 12955, subd. (a).) “To establish a prima facie case in a FEHA claim, [plaintiff] would be required to show she was a member of a protected class, applied for and was qualified for a housing accommodation, was denied a housing accommodation, and that similarly situated individuals either applied for and obtained housing, or provide other circumstantial evidence of discriminatory motive in refusing her the housing accommodation.” (Department of Fair Employment and Housing v. Superior Court (2002) 99 Cal.App.4th 896, 902.)

The Complaint here alleges that Defendant failed to maintain the property in a habitable condition despite numerous complaints. (Complaint ¶¶ 15–25.) The eleventh cause of action for housing discrimination and harassment alleges that Plaintiff is an immigrant, and that Defendant “[i]n failing to provide a vermin and mold-free accommodation, Defendants failed to provide full and equal accommodation to immigrant Plaintiffs. Therefore Defendants discriminated against Immigrant Plaintiffs.” (Complaint ¶ 121.)

Plaintiff has not alleged housing discrimination because he has not alleged that similarly situated tenants were treated differently, or that there exists “other circumstantial evidence of discriminatory motive.” (Department of Fair Employment and Housing, supra 99 Cal.App.4th at p. 902.) Plaintiff alleges only that the failure to remedy habitability issues was discriminatory in origin. Yet as Defendant points out, Plaintiff also alleges that the habitability issues permeate the entire premises, not just Plaintiff’s unit. (Opposition at p. 4; Complaint ¶¶ 16, 20.)

Plaintiff in opposition argues that his allegation of discrimination must be taken as true on demurrer. (Opposition at pp. 3–4.) However, a FEHA plaintiff “must plead a prima facie case in order to survive demurrer.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 fn. 7.) And discriminatory motive is not an ultimate fact that may be pleaded alone; it must, as indicated above, be supported by allegations of different treatment for similarly situated individuals or other circumstances evidencing discriminatory motive. (Department of Fair Employment and Housing, supra 99 Cal.App.4th at p. 902.) Plaintiff has not done so here.

The demurrer is therefore SUSTAINED as to the eleventh cause of action, with leave to amend.

II. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendant moves to strike from the Complaint Plaintiff’s prayer for emotional distress damages and punitive damages for his breach of contract claim. (Motion at pp. 3–5.) Defendant also argues that the facts alleged to support a prayer for punitive damages are insufficient as to Plaintiff’s tort claims. (Motion at pp. 5–9.) Defendant argues that Plaintiff cannot recover “investigative costs” and attorney fees in connection with his negligence claim. (Motion at pp. 9–10.) Defendant finally argues that Plaintiff is not entitled to attorney fees in connection with his FEHA claims.

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294, subd. (b).) The terms are defined as:

1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code § 3294, subd. (c)(1)–(3).)

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The Complaint here adequately alleges a prayer for punitive damages with respect to Plaintiff’s tort claims. Plaintiff alleges not merely continuing habitability issues with the premises, for which Defendant was repeatedly put on notice but failed to remedy, but also health issues personal to Plaintiff arising from the habitability issues — such as sneezing, difficulty breathing, itching, watering eyes — and that Defendant has not taken these complaints seriously, in fact “purposefully failed to address all complaints,” denying that they have ever been made.(Complaint ¶¶ 16, 18, 64.) These allegations, if proven, are sufficient to establish malice and oppression for the purpose of claiming punitive damages. The motion is therefore DENIED as to the prayer for punitive damages associated with Plaintiff’s tort claims.

However, Plaintiff’s prayer for punitive damages in association with his contract claim is infirm. Punitive damages are available “[i]n an action for the breach of an obligation not arising from contract.” (Civ. Code § 3294, subd. (a).) They are therefore not available for Plaintiff’s contract claim, despite the request made for same in the Complaint. (Complaint ¶ 38.) The motion to strike is GRANTED as to the prayer for punitive damages with Plaintiff’s contract claim, without leave to amend.

However, Plaintiff has pleaded entitlement to emotional distress damages with his contract claim. Although emotional distress damages are generally not available for breaches of contract, an exception exists “when the emotional distress caused by the breach is accompanied by physical injury.” (Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 214.) Here, the same allegations of physical injury that support the prayer for punitive damages also support the claim for emotional distress damages, which arise from the same habitability concerns.

(Complaint ¶ 31.) The motion is therefore DENIED as to the prayer for emotional distress damages made with the contract claim.

Plaintiff is not entitled, however, to “investigative costs” and attorney fees in connection with his negligence cause of action. (Complaint ¶ 65.) “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc. § 1021.) Plaintiff alleges no agreement or statute that would entitle him to attorney fees on his negligence claim. Likewise, his prayer for “investigative costs” is specifically prohibited as an allowable cost under Code of Civil Procedure § 1033.5, subd. (b)(2) [disallowing as costs “[i]nvestigative expenses in preparing the case for trial”].) Defendant's motion is therefore GRANTED as to these requests, with leave to amend.

Defendant’s final argument as to the unavailability of attorney fees in FEHA is made moot by this court’s ruling on demurrer, but is also incorrect, as prevailing plaintiffs in housing discrimination claims are generally entitled to attorney fees under Government Code § 12965, subd. (c)(6).

Accordingly, the motion to strike is GRANTED as to the prayer for punitive damages in connection with the breach of contract claim, without leave to amend, and GRANTED as to the prayer for investigative costs and attorney fees in connection with the negligence claim, with leave to amend. The motion is otherwise DENIED.