Judge Lynne M. Hobbs, Case Number: 24STCV08446, Date: 2024-08-07 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 24STCV08446, Date: 2024-08-07 Tentative Ruling

Case Number: 24STCV08446 Hearing Date: August 7, 2024 Dept: 61

VIRGINIA BUSTAMANTE vs AMPARO CHAVEZ, et al.

TENTATIVE:

Defendants Amparo Chavez and Pak Properties Demurrer and Motion to Strike Portions of the Complaint are OVERRULED and DENIED.

Plaintiff to give notice.

DISCUSSION:

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 Amparo Chavez (Defendant) demurrers to the fifth cause of action for intentional infliction of emotional distress (IIED) and the eighth cause of action for fraud/deceit. (Demurrer at pp. 6–8.) Defendant argues that Plaintiff Virginia Bustamante (Plaintiff) has failed to allege facts constituting outrageous conduct to support an IIED claim, and that she has failed to allege fraud with the requisite particularity. (Ibid.)

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.) The level of distress required to state a claim for IIED is distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “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 Complaint’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 toxic mold, cockroach infestations and sewage backups. (Complaint ¶¶ 5, 112.) It is alleged that Defendants knew of these defects prior to Plaintiff’s entry into the premises, and new of other tenant complaints regarding the same defects, but did not disclose them to Plaintiff. (Complaint ¶ 5.) Plaintiff repeatedly complained of the defects, to no avail. (Complaint ¶¶ 8–9.) As a consequence of Defendant’s failure to act, Plaintiff suffered not only damage to her property, but health issues she had not previously experienced. (Complaint ¶ 12.) 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”].)

This leaves Defendant’s argument on the fraud claim. The elements of fraud are: (1) misrepresentation or concealment, (2) knowledge of its falsity, (3) intent to defraud, (4) justifiable reliance and (5) resulting damage. (Gil v. Bank of America, Nat. Ass'n (2006) 138 Cal. App. 4th 1371, 1381; Barbara A. v. John G. (1983) 145 C.A.3d 369, 376.) Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiff has alleged these details. The concealments at issue in the fraud claim were made by Defendant Amparo Chavez on April 8, April 21, June 10, and in August 2022, while addressing Plaintiff’s complaints about the subject property, in which Defendant concealed the existence of other tenant complaints about the same defects. (Complaint ¶ 152.) Plaintiff alleges that Defendant knew of these other complaints and failed to disclose them in order to induce Plaintiff to forebear any legal action and endure the housing defects alleged for a longer period of time. (Complaint ¶¶ 152–159.) The court must accept these allegations as true for the purposes of this demurrer. (See Blank, supra, 39 Cal.3d at p. 318.)

The demurrer is therefore 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.)

Defendants move to strike the prayer for punitive damages contained in the Complaint, on the grounds that insufficient facts supporting malice, oppression, or fraud are alleged. (Motion at pp. 5–8.)

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 and for fraud likewise support the allegations of malice, oppression, and fraud here. Fraud is an express basis for seeking punitive damages, and the allegations of concealment of defects and deliberate failure to remediate them, even as they caused injury to the health of Plaintiff and other tenants, suffice to state a claim for punitive damages.

The motion to strike is DENIED.