Judge Lynne M. Hobbs, Case Number: 24STCV03749, Date: 2024-12-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV03749, Date: 2024-12-09 Tentative Ruling

Case Number: 24STCV03749 Hearing Date: December 9, 2024 Dept: 61

PRITZELA RODRIGUEZ, AN INDIVIDUAL, et al. vs WYVERNWOOD GARDEN APARTMENTS, et al.

TENTATIVE

Defendant Thurman Interim California’s Demurrer and Motion to Strike Portions of the First Amended Complaint are SUSTAINED as to the third cause of action for nuisance, with leave to amend within 20 days, and GRANTED as to the prayer for punitive damages, with leave to amend within 20 days. The motions are otherwise OVERRULED and DENIED.

Moving party to provide 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 Thurman Interim California, LLC (Defendant) demurrers to the First Amended Complaint (FAC) of Plaintiffs Pritzela Rodriguez, Alejandro Avila, and minors Melanie Aguirre Rodriguez, Isaac Aguirre, Jaylen Aguirre, Aubrey Aguirre, Kaeden Aguirre (Plaintiffs) on the grounds that the demurrer is uncertain and that insufficient facts are stated in the FAC to support any of the six causes of action. (Demurrer at pp. 10–21.)

All but one of these arguments are meritless. Defendant assesses each cause of action notsomuch by identifying any element that Plaintiffs have failed to plead, but by acknowledging that the elements are pleaded while contending that Plaintiffs have failed to add extraneous evidentiary details that Defendant now demands. Defendant claims the demurrer is uncertain because allegations are pleaded jointly against it and its co-defendant Avenue5 Residential, Inc. (Demurrer at p. 10.) Yet both Defendants are alleged to have contributed to the habitability issues because both are alleged to be owners or managers of the property. (FAC ¶¶ 8–9, 12.) Defendant objects that it is not specified whether the lease is written or oral, neglecting the allegation specifically stating that it is written. (FAC ¶ 15; Demurrer at pp. 10–12.) Defendant contends Plaintiffs have not attached the lease or pleaded its terms verbatim, neglecting that Plaintiffs plead they are not in possession of the lease (FAC ¶ 15), and further neglecting that a contract may be pleaded by reference to its “legal effect.” (See Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 401–02.)

Defendants’ objections to the fifth and sixth causes of action for negligence and violation of Civil Code § 1942.4 consist of nothing more than assertions that Plaintiffs cannot allege that the defective conditions existed “throughout the time of the tenancy” without pleadings specifically when the defects arose, when Defendants were notified, and the names of the agents who received notice. (Demurrer at pp. 18–20.) Defendant presents no authority for this argument.

Defendant’s argument against Plaintiffs’ claim for intentional infliction of emotional distress (IIED) is more substantive, but equally unpersuasive. The elements of an IIED claim are: (1) extreme and outrageous conduct by defendant; (2) made with intent to cause, or with reckless disregard of the probability of causing, emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Bogard v. Employers Casualty Company (1985) 164 Cal.App.3d 602, 616.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

The FAC’s allegations of outrageous conduct are well-pleaded, and are sufficient to maintain the IIED claim against demurrer. Plaintiff alleges that the premises suffered from severe defects, including mold, vermin infestation, defective plumbing and ventilation, and defective electrical systems. (FAC ¶ 17.) It is alleged that Plaintiff repeatedly complained of the defects, to no avail. (FAC ¶ 20.) As a consequence of Defendant’s failure to act, Plaintiff suffered not only damage to their property, but damages to their health, which Defendants knew of. (FAC ¶ 23.) Similar allegations have been held sufficient to constitute outrageous conduct in an IIED claim, at least against the challenge of demurrer. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922 [holding , in a habitability case, that whether similar facts constitute outrageous conduct “presents a factual question” and “it cannot be said as a matter of law that appellant has not stated a cause of action”].) The case that Defendant cites to the contrary, McDonnell v. American Trust Co. (1955) 130 Cal.app.2d 296, does not address a claim for intentional infliction of emotional distress. (Demurrer at pp. 17–18.)

Defendant’s sole meritorious argument is addressed to the third cause of action for nuisance and the fact that it is duplicative of the fifth cause of action for negligence. (Demurrer at pp. 14–15.) A nuisance claim alleged on the same facts as a negligence claim is duplicative of the negligence claim and subject to demurrer. (See El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 [“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”].) Plaintiffs in opposition argue that nuisance is an intentional tort for which punitive damages are available. (Opposition at pp. 4–5.) Yet such damages are also available on negligence claims where malice or oppression are present. (Civ. Code § 3294, subd. (c); See CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1264.)

The demurrer is therefore SUSTAINED as to the third cause of action for nuisance, with leave to amend. The demurrer is otherwise OVERRULED.

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 the prayer for punitive damages alleged against it on the grounds that insufficient facts are stated to justify an award of such damages, and further that no facts are alleged that are necessary to establish liability against a corporate employer. (Motion at pp. 4–7.)

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

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”).)

As discussed in relation to Defendant’s demurrer, the same facts that support the existence of a claim for IIED also support the allegations of malice, oppression, and fraud here.

However, Defendant is correct that the FAC does not plead facts to support application of liability against a corporate employer.

(b) 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 FAC does not allege advance direction or ratification of the wrongdoing by an officer or managing agent of Defendant.

Defendant’s arguments as to the FAC’s prayer for attorney fees, meanwhile, rest upon the substantive arguments made against Plaintiffs’ breach of contract and Civil Code § 1942.4 claims, which are addressed above in relation to Defendant’s demurrer. (Motion at pp. 8–9.) As such they are not subject to strike.

The motion to strike is therefore GRANTED as to the prayer for punitive damages, with leave to amend, and DENIED as to the prayer for attorney fees.