Judge: Malcolm Mackey, Case: 21STCV46577, Date: 2022-08-09 Tentative Ruling
Case Number: 21STCV46577 Hearing Date: August 9, 2022 Dept: 55
BARRIOS
v. FORGET 21STCV46577
Hearing Date: 8/9/22,
Dept. 55
#6: DEMURRER
TO COMPLAINT; MOTION TO STRIKE PORTIONS
OF | COMPLAINT.
Notice: Okay
Opposition
MP:
Defendants ARNOLD FORGET, ARNIE’S PROPERTIES,
LLC and CAROLINA AYALA.
RP:
Plaintiffs
Summary
On 12/21/21, plaintiffs filed a Complaint alleging that,
since 2016, they resided as low-income housing tenants of 8539 Fontana Street,
Apartment D, in Downey, where defendants owned and managed the property, and,
in order to profit off of low-income tenants, and to pressure them to vacate, notwithstanding
the tenants’ repeated complaints to them and government, defendants
intentionally refrained from sufficiently repairing dangerous conditions
including cockroach infestation, black widow infestation, mold contamination,
dysfunctional plumbing systems, deteriorated carpeting, inoperable heater,
improper weatherproofing, and missing fire-protection systems (e.g., Complaint, ¶¶ 18 - 68).
The causes of action are:
1. VIOLATION OF
CALIFORNIA CIVIL CODE § 1942.4
2. TORTIOUS BREACH OF THE
WARRANTY OF HABITABILITY
3. PRIVATE NUISANCE
4. BUSINESS AND
PROFESSIONS CODE
5. NEGLIGENCE
6. BREACH OF COVENANT OF
QUIET ENJOYMENT
7. INTENTIONAL INFLUENCE
TO VACATE
8. INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS
9. CALIFORNIA FAIR
EMPLOYMENT AND HOUSING ACT, CAL. GOV. C. §
12955, ET SEQ.
10. NEGLIGENT HIRING,
RETENTION, AND SUPERVISION
11. NEGLIGENCE PER SE.
MP
Positions
Moving party requests an order sustaining the demurrer
to the Complaint, and granting the motion to strike punitive and statutory
damages, and attorney fees, on grounds including the following:
·
Violation of California Civil Code
1942.4: Plaintiffs did not allege that Defendants demanded or collected rent,
et cetera. The Complaint also fails to
plead that a governmental notice and order was made which would oblige
Defendant to make the repairs or 35 days beyond the receipt of such notice or
that any delay was made without good cause.
·
Nuisance:
Nuisance is not a cognizable cause of action. The conclusions are not sufficiently
supported by facts.
·
Unfair Business Practices: There is no indication as to how any of the
conduct alleged of was an unlawful business practice or that it
offended/violated any public policy, legislature, or constitutional provision.
·
Negligence: Unless Plaintiffs provide facts to support
any sort of malicious, oppressive, or intentionally deceitful conduct then this
cause of action, Defendant’s demurrer to Plaintiff’s fifth cause of action for
Negligence should be sustained without leave to amend.
·
Intentional Influence to Vacate: Plaintiffs’ allegations are devoid of any
facts demonstrating that Defendants partook in any menacing conduct used
threaten Plaintiffs. Civil Code
1940.2(a)(3).
·
Intentional Infliction of Emotional
Distress: Plaintiff’s complaint is
barren of supporting facts to validate outrageous, intentional, willful, or
oppressive conduct on part of Defendants.
·
Motion to Strike: Defendants move to strike the following:
1. Plaintiff’s Claims for
statutory damages and reasonable attorney’s fees pursuant to California Civil
Code §1942.4(b)(1).
2. Plaintiff’s Claim for
punitive and exemplary damages for Intentional Influence to Vacate and
Intentional Infliction of Emotional Distress.
3. Prayer for relief for
punitive damages.
4. Prayer for special
damages pursuant to Civil Code §1940.2.
5. Prayer for special
damages pursuant to Civil Code §1942.4(b)(1)
6. Prayer for
compensatory damages, reasonable attorney’s fees, and the imposition of civil
penalties pursuant to Los Angeles Municipal Code §45.35.
(Notice of motion, p. 2.)
RP
Positions
Opposing parties advocate overruling and denying, or
leave to amend, for reasons including the following:
·
The paragraphs through number 46 are
incorporated by reference into the subsequent causes of action, and suffice to
allege the claim elements.
·
Tortious breach of the implied warranty of
habitability supports punitive damages. Erlach v. Sierra Asset Servicing, LLC
(2014) 226 CA4th 1281, 1299.
·
Statutory damages and attorney fees are
available. Civ. C. §
1942.4.
·
The motion to strike fails to specify
allegations to be stricken. CRC Rule
3.1322.
Tentative
Ruling
The demurrer is overruled.
The motion is denied.
Twenty days to answer.
Procedure
When considering demurrers, courts read the
allegations liberally, reasonably and in context. MKB Management, Inc. v. Melikian
(2010) 184 Cal.App.4th 796, 802; McKenney
v. Purepac Pharmaceutical Co. (2008)
167 Cal.App.4th 72, 77; Taylor v.
City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th
1216, 1228, disapproved of on other grounds by Jones v. Lodge at Torrey Pines
Partnership (2008) 42 Cal.4th 1158, 1173.
In ruling upon demurrers, courts treat as being true “not only the
complaint's material factual allegations, but also facts that may be implied or
inferred from those expressly alleged.” Poseidon
Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th
1106, 1111-12. Accord Schauer v.
Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 953.
In ruling upon demurrers, courts consider whether any
cause of action has been alleged sufficiently, notwithstanding that a cause of
action is labeled otherwise. Arce ex
rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471,
482; Berkley v. Dowds
(2007) 152 Cal.App.4th 518,
525; McBride v. Boughton
(2004) 123 Cal. App. 4th 379, 387; Lovejoy v. AT&T Corp. (2001) 92 Cal. App. 4th 85, 98. “[T]he allegations in the body of the
complaint, not the caption, constitute the cause of action against the
defendant.” Davaloo v. State Farm
Ins. Co. (2005) 135 Cal.App.4th 409, 418.
Habitability
The Complaint is based both on common law and
statutory law in alleging untenantable conditions that can encompass many types
of claims, such that the Court considers whether there is any viable claim
alleged, notwithstanding the label for the claim (e.g., Complaint, ¶¶ 69, 75).
Defendants allegedly collected rent during
untenantable conditions (e.g., Complaint
¶¶ 7, 80).
The Complaint infers governmental notices to repair
untenantable conditions (e.g.,
Complaint, ¶¶ 46 (“forcing Plaintiffs to
abandon their legal recourses by vacating their rent-controlled apartments and/or accepting substandard premises
without further complaints to relevant governmental agencies, ….”), 132
(“in retaliation for having made complaints to government agencies….”)).
Quevedo v. Braga
(1977) 72 Cal. App. 3d Supp. 1, 7-8, overruled
on other grounds by Knight v.
Hallsthammar (1981) 29 Cal. 3d 46, 53.
See also Erlach
v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1298 (applying Civ. C. §1942.4, and holding “there
is a statutory cause of action available to the residential tenant where the
premises are untenantable and other circumstances exist.”); McNairy v. C.K. Realty (2007) 150 Cal.
App. 4th 1500, 1502 (emotional distress
available under Civil Code Section 1942.4.);
Hjelm v. Prometheus Real Estate Grp., Inc. (2016) 3 Cal. App. 5th
1155, 1169 (“[T]he warranty of
habitability claim can take many forms,...”);
Guttman v. Chiazor (2017) 15 Cal. App. 5th Supp. 57, 61 (“[U]nder the common law, a landlord has an
implied duty to render residential premises habitable,…”); Erlach v. Sierra Asset Servicing, LLC
(2014) 226 Cal.App.4th 1281, 1298 (per
Civil Code Section 1942.4, residential landlord may not demand, collect,
increase rent, if (1) dwelling is untenantable per Section 1941.1, violates H.
& S. Section 17920.10, or declared substandard under Section 17920.3; (2) a public officer inspected and gave
landlord written notice to abate nuisance or repair property; (3) conditions
were not remedied within 35 days of notice; and (4) substandard conditions were
not caused by tenant.).
As to statutory claims, parties must plead facts
demonstrating a right to recover under the particular statute. G.H.I.I. v. MTS, Inc. (1983) 147
Cal.App.3d 256, 273. Complainants need
only allege a prima facie violation of a statute, and need not address the
statutory exceptions. See Ribas
v. Clark (1985) 38 Cal. 3d 355, 362.
Nuisance
The negligence claim does not entirely duplicate the
nuisance claim, but more broadly asserts duties beyond just avoiding nuisance conditions (e.g., Complaint, ¶¶ 112 – 115).
Additionally, the factual allegations are incorporated by reference into
subsequent causes of action, in support of omissions to perform various duties
of real property owners and managers to maintain habitable and quiet-enjoyment
conditions for tenants.
Modernly, nuisance is a stand-alone cause of action,
having the elements:
San Diego Gas & Electric Co. v. Sup.
Ct. (1996) 13 Cal.4th 893, 938; CC 3479;
CACI 2021. See also Birke v. Oakwood Worldwide (2009) 169
Cal. App. 4th 1540, 1552 (nuisance includes omissions to perform duties, in
addition to affirmative actions); Melton
v. Boustred (2010) 183 Cal.App.4th 521, 542
(“ ‘Where negligence and nuisance causes of action rely on the same
facts about lack of due care, the nuisance claim is a negligence claim.’ ”).
Lessors can be liable based upon nuisance claims. E.g., Civ.C. § 3479;
Cal. Practice Guide: Landlord and
Tenant (The Rutter Group 2022) §§6:53.1, 6:79.
Unfair
Business Practices
The pleading is loaded with references to law
provisions in support of the few elements to allege of Unfair Business
Practices, which are:
Bus. & Prof. Code § 17200; Paulus v. Bob Lynch Ford, Inc. (2006)
139 Cal.App.4th 659, 676. See also
People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes
(2006) 139 Cal. App. 4th 1006, 1016 (“An ‘unlawful’ practice requires violation of another statute, and a
business practice may be ‘unfair’ even if not otherwise proscribed by statute
as long as the practice is not expressly authorized by law.”); Bank of the West v. Sup. Ct. (1992) 2
Cal.4th 1254, 1266 (“The Unfair Business Practices Act defines ‘unfair
competition’ as any ‘unlawful, unfair or fraudulent business practice and
unfair, deceptive, untrue or misleading advertising….’ (§ 17200.) The
Legislature intended this ‘sweeping language’ to include ‘anything that
can properly be called a business
practice and that at the same time is forbidden by law.’”);
Negligence:
The superfluous allegations of punitive damages are
not a required part of the negligence claim, which has the elements:
County of Santa Clara v. Atlantic
Richfield Co. (2006) 137 Cal. App. 4th 292, 318; Ladd v. County of San Mateo (1996) 12
Cal.4th 913, 917; McGarry v. Sax
(2008) 158 Cal.App.4th 983, 994 (focusing upon duty to avoid causing
unreasonable risk of injury). See
also Donnelly v. Southern Pac. Co. (1941) 18
Cal.2d 863, 869 (“Negligence is an
unintentional tort, a failure to exercise the degree of care in a given
situation….”).
Intentional
Influence to Vacate.
Sufficient facts are alleged to infer that defendants
pressured plaintiffs to vacate the premises, by maintaining painfully uninhabitable
conditions, in a way that interferes with quiet enjoyment that creates a
reasonable apprehension of harm, such as cockroach-related illness, threats of accidental
fire without alarms, and disease caused by mold or overflowing toilet
water. Civil Code 1940.2.
Intentional
Infliction of Emotional Distress
When incorporated allegations are considered, the
Complaint plentifully alleges factual conditions long causing tenants’
suffering, intentionally without correction.
A court concluded that a tenant sufficiently stated a cause of action
for intentional infliction of emotional distress, by alleging extreme emotional
distress as a result of a landlord's and property manager's intentional
failures to correct defective conditions of the premises. See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069 (quoting Stoiber v. Honeychuck (1980)
101 Cal.App.3d 903, 921).
Housing
Discrimination
“FEHA authorizes the filing of suit by ‘[a]n aggrieved
person’ to seek relief for a discriminatory housing practice or a breach of a
conciliation agreement. (§ 12989.1.) The act defines ‘aggrieved person’ as
‘includ[ing] any person who claims to have been injured by a discriminatory
housing practice or believes that the person will be injured by a
discriminatory housing practice that is about to occur.’” Sisemore v. Master Financial, Inc.
(2007) 151 Cal. App. 4th 1386, 1392, 1424 (standing found as to entity employee
posing as daycare operator, testing for defendant’s discrimination in lending
based on a disparate impact against females and families with children, where
the injury was diversion of scarce resources).
The elements of a claim
for housing discrimination generally
are:
1.
Plaintiff was a member of a protected
class;
2.
applied for and was qualified for a
housing accommodation;
3.
was denied a housing accommodation; and
4.
circumstantial evidence of discriminatory
motive, such as similarly situated individuals applied for and obtained
housing.
Department of Fair Employment and Housing
v. Sup. Ct. (2002) 99 Cal.App.4th 896, 902. See
also Gov. C. §12955(f) (unlawful to retaliate against complaining
tenants).
Punitive
Damages
“In order to survive a motion to strike an allegation
of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff.” Clauson
v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. Accord
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th
1004, 1055; Blegen v. Sup. Ct.
(1981) 125 Cal.App.3d 959, 962.
Depending on the circumstances, tenants may recover
punitive damages related to breach of the warranty of habitability. Cal. Prac. Guide: Cal. Landlord and Tenants
(The Rutter Group 2022) §3:102 (citing Stoiber v. Honeychuck (1980) 101
Cal.App.3d 903, 916–917, 922; and Rivera
v. Sassoon (1995) 39 Cal.App.4th 1045, 1046-47 (allowing punitive damages,
and stating: “The building and health
code violations found on the property included hazardous electrical wiring,
seepage of raw sewage under the buildings due to broken plumbing, infestation
of rats, termites and other vermin, broken and deteriorated doors and windows,
lack of hot and cold running water, lack of heat, leaking roofs and leaking
plumbing fixtures.”)). In contrast,
allegations of refusal to repair defective conditions amounting to negligence,
where injuries might occur, but are not probable, do not support a claim of
punitive damages against a lessor. McDonell
v Amer. Trust Co. (1955) 130 Cal.App.2d 296, 300.
“A nuisance may be either a negligent or an
intentional tort. If the latter, then exemplary damages are recoverable….” Stoiber v. Honeychuck (1980) 101 Cal.
App. 3d 903, 920 (Appellant has pleaded sufficient facts to support ..
exemplary damages. She alleged that defendant had actual knowledge of defective
conditions in the premises including leaking sewage…” and alleged acting with
full knowledge of the consequences of damage being caused to plaintiff).
A tort involving negligence, together with conduct or
omissions that one knows or should know probably will result in harm, can
support an award of punitive damages. Nolin
v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286-88
(defendant's inattention to danger showed a complete lack of concern for the
likelihood of personal injuries at defendant’s premises).
“[P]unitive damages are recoverable for intentional
infliction of emotional distress and breach of fiduciary duty.” Heller v. Pillsbury Madison & Sutro
(1996) 50 Cal. App. 4th 1367, 1390.
Statutory
Penalties
Statutory penalties are supportable under Civil Code
Sections 1940.2 et seq., or Los Angeles Municipal Code sections 45.33 et seq.
The Court is not authorized to strike compound prayer
items overly broadly. “‘Where a motion to strike is so broad as to include
relevant matters, the motion should be denied in its entirety.’” Triodyne, Inc. v. Sup. Ct. (1966) 240
Cal. App. 2d 536, 542. Accord
Hill v. Wrather (1958) 158 Cal. App. 2d 818, 823.
The motion cannot be based upon insufficiency of the
underlying claim. A motion to strike cannot be based upon the grounds that a
complaint fails to state facts sufficient to constitute a cause of action, but
instead is properly based on grounds of superfluous or abusive allegations, or
improprieties in form or procedure. Ferraro
v. Camarlinghi (2008) 161
Cal.App.4th 509, 528-29.
“Defects in pleadings must operate to the prejudice of
the opposite party; otherwise, denial of a motion to strike presents no cause
for reversal.” Starkweather v. Eddy
(1927) 87 Cal.App. 92, 96.
Attorney
Fees