Judge Malcolm Mackey, Case Number: 22STCV38101, Date: 2023-08-03 Tentative Ruling

Judge: Malcolm Mackey, Case: 22STCV38101, Date: 2023-08-03 Tentative Ruling

Case Number: 22STCV38101 Hearing Date: August 3, 2023 Dept: 55

PINTO v. MORENO, 22STCV38101

Hearing Date: 8/3/23, Dept. 55.

#11: DEMURRER TO COMPLAINT. MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT.

Notice: Okay

Opposition

MP: Defendant CARMEN MORENO.

RP: Plaintiff

Summary

On 12/6/22, Plaintiff filed a Complaint alleging that, in September 2015, plaintiffs entered an oral lease, with owner Defendant CARMEN MORENO, of an unpermitted portion of the single-family dwelling at 13501 West Terra Bella Street, Pacoima, having various uninhabitable conditions, and the Los Angeles Housing Department repeatedly instructed Defendant to cease tenant harassment such as attempted evictions without paying relocation assistance, which was done in apparent retaliation for tenants’ complaints,

The causes of action are:

1. VIOLATION OF LOS ANGELES MUNICIPAL CODE (“LAMC”) CHAPTER XV, ARTICLE 1, § 151.05.A;

2. VIOLATION OF BUSINESS AND PROFESSIONS CODE§ 17200 ET SEQ;

3. VIOLATION OF LAMC CHAPTER XV, ARTICLE 1, § 151.09.G;

4. VIOLATION OF LAMC CHAPTER IV, ARTICLE 5.3, § 45.35;

5. VIOLATION OF LOS ANGELES COUNTY CODE TITLE 8, DIVISION 3, CHAPTER 8.52, § 130;

6. VIOLATION OF CIVIL CODE § 1940.2;

7. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;

8. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS;

9. PRIVATE NUISANCE;

10. BREACH OF THE WARRANTY OF HABITABILITY;

11. BREACH OF THE COVENANT OF QUIET ENJOYMENT; and

12. NEGLIGENCE.

MP Positions

Moving party requests an order sustaining the demurrer to the Complaint, and granting the motion to strike, on grounds including the following:

· Demurrer: Plaintiffs failed to allege facts sufficient to plead causes of action for: (1) Violation of Los Angeles Municipal Code (LAMC) Chapter XV, Article 1, section 151.05.A; (2) Violation of LAMC Chapter XV, Article 1; section 151.09.G; (3) Violation of LAMC Chapter IV, Article 5.3, section 45.35; (4) Violation of Business and Professions Code § 17200, et. seq. and (5) Intentional Infliction of Emotional Distress.

· Motion to Strike: Plaintiffs’ Complaint does not indicate any facts pertaining to violations of the Los Angeles Rent Stabilization Ordinance (LARSO) and Los Angeles Tenant-Anti Harassment Ordinance (TAHO). As to punitive damages, the Complaint does not spell out an intentional tort involving a conscious, deliberate intent to injure the Plaintiffs.

RP Positions

Opposing party advocates overruling and denying, for reasons including the following:

· Unpermitted and unregistered dwelling units, like the subject Illegal Dwelling, are subject to the Rent Stabilization Ordinance (RSO). Carter v. Cohen, 188 Cal.App.4th 1038, 1051 (2010) (“the broad language of the RSO definition of ‘rental unit’ encompasses dwelling units such as the guesthouse that lack a certificate of occupancy.”)

· The City of Los Angeles has sent at least 3 notices and 1 citation to Defendant, for her misconduct at the Illegal Dwelling. [Exs. 8, 9, 12, and 29].

· The LAMC applies to the Illegal Dwelling located in the City of Los Angeles, and violation of local ordinances support an Unfair Competition Claim. Hewlett v. Squaw Valley Ski Corp., 54 Cal.App.4th 499, 532 (1997) (zoning ordinance supports Unfair Competition Claim); City & County of San Francisco v. Sainez, 77 Cal.App.4th 1302 (2000) (building and housing code violations support Unfair Competition Claim).

· In support of Intentional Infliction of Emotional Distress, Plaintiffs allege that Defendants:

o Attempted to trick Plaintiffs into vacating the Illegal Dwelling under the false premise that she is selling the property. Cplt. ¿¿ 25–34.

o Served Plaintiffs eight invalid eviction notices, Cplt ¿¿ 24, 28, 31, 41, 54, 84, 85, 90;

o Vandalized Plaintiffs’ car in an attempt to frighten Plaintiffs off the property, Cplt ¿ 48;

o Targeted Plaintiff’s children for harassment by (i) peeping in Plaintiffs’ minor daughter’s bedroom at night with a flashlight, Cplt ¿ 49; and (ii) hammering on the walls of Plaintiffs’ minor son’s bedroom, frightening him and destroying his property, Cplt ¿¿ 80. As a result, Plaintiff’s children refuse to go outside to play or do homework. Cplt ¿ 49;

o Repeatedly issued improper notices to enter the Illegal Dwelling, to harass Plaintiffs, which required Plaintiffs to take time off work to protect their property during Defendants’ entry, Cplt ¿¿ 47, 50, 55, 56; and

o Drove Pineda into needing therapy to deal with Defendant’s constant harassment of herself, her husband, and her two minor children, Cplt ¿ 82.

· Allegations regarding Intentional Infliction of Emotional Distress suffice also to support punitive damages.

Tentative Ruling

The demurrer is overruled.

The unopposed motion to strike is denied.

Twenty days to answer.

The subject rental property is allegedly in the City of Los Angeles in an area known as “Pacoima” (e.g., Complaint, Ex. 8). See, e.g., Chew v. Gates (9th Cir. 1994) 27 F.3d 1432, 1436 (“a part of the City of Los Angeles known as Pacoima.”). Facts in complaint exhibits will be accepted as true and will be given precedence as to any contrary factual allegations in the pleading. Moran v. Prime Healthcare Management, Inc. (2016) 3 Cal.App.5th 1131, 1145-46.

The Complaint alleges some violations of the LAMC, and uninhabitable conditions, which also support the claim for Unfair Business Practices (e.g., Complaint, ¶ 36 (“The second LAHD letter, also dated October 29, 2021, warned Moreno that no-fault evictions are prohibited by LAMC section 49.99.2(B) during the Local Emergency related to COVID-19 in Los Angeles City.”); and [Ex. 9]). “Courts interpret ordinances in the same way as they construe statutes.” Stolman v. City of Los Angeles (2003) 114 Cal. App. 4th 916, 928. Accord H.N. & Frances C. Berger Found. v. City of Escondido (2005) 127 Cal.App.4th 1, 12 (“The construction of an ordinance is a pure question of law for the court.”). 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. “Any tenant personally aggrieved by the act of ‘unfair competition’ … may bring a UCL suit for injunctive relief and/or restitution….” Cal. Prac. Guide: Landlord and Tenant (The Rutter Group 2023) §3:135 (citing, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928). Cf. People v. McKale (1979) 25 Cal.3d 626, 634 (allegations re mobile home park operators’ failures to maintain sanitary and safe conditions sufficiently stated claims for unfair competition under Section 17200 et seq.).

The allegedly uninhabitable and potentially dangerous conditions support Intentional Infliction of Emotional Distress and punitive damages (e.g., Complaint, ¶ 12 (“Since Plaintiffs’ late 2015 move-in, Moreno fails to: (i) install smoke detectors or air conditioning in the Illegal Dwelling; (ii) provide heat; (iii) remedy gas leaks; and (iv) effectively address the cockroach and other insect infestations, despite Plaintiffs’ repeated complaints. Ultimately, cold weather forces Plaintiffs to purchase four (4) space heaters.”)). 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 uninhabitable 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). See also generally Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2023) §3:103. Further, unlawful eviction efforts can support a claim for Intentional Infliction of Emotional Distress. Aweeka v. Bonds (1971) 20 Cal.App.3d 278, 281.

Finally, 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 2023) §3:102 (citing, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 916–917, 922; 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.”); and Erlach v. Sierra Asset Servicing, LLC (2014) 226 CA4th 1281, 1299 (tortious violation of breach of warranty of habitability against former landlord that cut off all utilities.)).