Judge: Margaret L. Oldendorf, Case: 22AHCV01417, Date: 2023-09-19 Tentative Ruling

Case Number: 22AHCV01417    Hearing Date: September 19, 2023    Dept: P

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

          I.        INTRODUCTION

          This is a lawsuit by a tenant against his landlords. The lawsuit alleges deplorable living conditions including heavy bedbug infestation. In addition to alleging habitability and contract claims, Martin Tokich (Plaintiff) alleges causes of action for intentional infliction of emotional distress (IIED) and fraudulent concealment. A prior demurrer by Andrew Dang, Melvin Dang, and Northstar Real Estate Group, Inc. (Defendants) to these causes of action was sustained with leave to amend.

          Plaintiff’s First Amended Complaint contains relatively few new facts. But broadly construing those new facts, the IIED cause of action is now sufficient. The fraud claim contains no new facts, and the demurrer to that claim is therefore sustained.

          Defendants also previously moved to strike the prayer for attorney fees pursuant to Code Civ. Proc. §1021.5.  Inasmuch as the FAC still does not allege a basis for the recovery of such fees, the motion to strike is also granted.

II.       SUMMARY OF FACTS IN THE FIRST AMENDED COMPLAINT

Plaintiff seeks damages from Defendants for their alleged wanton failure to properly maintain, control, or repair Plaintiff’s rented premises located at 2841 W. Main St., Alhambra. Complaint, ¶2. Plaintiff resided at the premises pursuant to a Rental Agreement with Defendants, which is attached as Exhibit A; if he had known about the infestation he would not have occupied or continued to stay at the premises. ¶10. Sometime in February 2007, Plaintiff entered into the Rental Agreement. ¶29. Sometime in February 2022, Plaintiff noticed the bed bugs and immediately notified Defendants. ¶30.

The complaint alleges “slum” housing conditions including bed bug infestation and other deplorable living conditions in violation of Civ. Code §§1941, 1941.1, 1942, 1942.4 and Health and Safety Code §§17920, 17920.3 and related subsections; as well as the Los Angeles Rent Stabilization Ordinance (RSO). ¶3. As a result of Defendants’ failure to maintain pest control resulting in bed bug infestation, Plaintiff has suffered financial loss, property loss, personal injury, and ongoing mental and emotional distress. ¶4. Plaintiff had to seek medical care for his bed bug injuries. ¶31. Plaintiff incurred the cost for inspection and extermination of the bed bug infestation; and despite his many requests, Defendants have not reimbursed him for this expense or for the cost of relocation and replacement. ¶33.

As a direct and proximate result of Defendants’ failure to maintain the Premises in a safe and habitable condition, Plaintiff has allegedly suffered and continues to suffer ongoing mental and emotional distress, and physical injuries, including, but not limited to: (a) Painful bed bug bites, severe skin rash, allergic reaction, scarring and personal injuries over the entirety of his body caused by bed bugs; (b) Property damage to bed, mattress, bedding, furniture, clothing, and personal belongings, as a result of the bed bug infestation; (c) Relocation expenses, pest control fees, loss of earnings, and attorney fees; (d) Plaintiff became ill several times while living in the Subject Property, experiencing ongoing insect bites, sleeplessness, inconvenience, humiliation, grief, anxiety, and other symptoms.  ¶7.

Plaintiff incurred out-of-pocket expenses to remediate the premises. ¶8.

Plaintiff also allegedly spent considerable time communicating with Defendants, trying to resolve these issues; but Defendants allegedly ignored and did not adequately address Plaintiff’s repeated complaints. ¶9. Defendants allegedly intentionally and willfully failed to remedy the issues raised by Plaintiff, and maintained a policy of apathy and denial. ¶31.

The complaint sets forth the following causes of action:

1. Breach of Implied Warranty of Habitability

2. Habitability (H&S Code §17920.3)

3. Violation of Civ. Code §1942.4

4. Negligence/Premises Liability/Negligence Per Se

5. Nuisance

6. IIED

7. Breach of Contract

8. Violation of Bus. & Prof. Code §17200

9. Fraudulent Concealment.

III.     DEMURRER

A. Legal Standard

Code Civ. Proc. §430.10(e) provides for a demurrer on the basis that a complaint fails to state a cause of action. A demurrer tests the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4^th 968, 994. 

Code Civ. Proc. §430.10(f) provides for a demurrer on the ground of uncertainty.  However, demurrers for uncertainty are disfavored and are only sustained where a pleading is so incomprehensible that a defendant cannot reasonably respond to it. A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

          B. The Demurrer to IIED Cause of Action

          The prior order on demurrer in this action contains a lengthy discussion regarding what is needed to allege an IIED cause of action in a landlord-tenant context. That discussion is incorporated here:

In brief, what is needed to state a claim for IIED is something like the following: (1) a direct threat of physical violence (Newby v. Alto Rivera Apartments (1976) 60 Cal.App.3d 288; (2) doubling the rent in response to lawful tenant conduct (Aweeka v. Bonds (1971) 20 Cal.App.3d 278); (3) eviction without legal process (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004; (4) a dwelling that is in such disrepair it is condemned by the health department (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903).

          The Court previously found that a “widespread bed bug infestation at the Subject Property that affected the entire complex,” and which Defendants “intentionally and willfully” failed to abate does not rise to the level of conduct that may be considered extreme or outrageous conduct intended to cause, or carried out with a reckless disregard for causing, Plaintiff severe emotional distress.  Therefore, the demurrer was sustained.

In amending, Plaintiff has added the following allegations: Plaintiff is disabled and suffers from pulmonary disease; Plaintiff’s home has never been treated for bed bugs since they were found 16 months ago; in March 2022, the LA Department of Health sent Defendants an inspection report about the property that includes beg bugs, but Defendants have never treated Plaintiff’s home since this inspection; Defendants’ blatant refusal to treat Plaintiff’s home is directly aimed at him since he is the one who lives there and is being daily attacked and bitten; Defendants’ refusal to treat is directly aimed at Plaintiff; Defendants know Plaintiff is disabled and is suffering because of the bed bugs yet they do nothing; Plaintiff has made multiple requests to Defendants (specifically to Dang) pursuant to the ADA to have the carpet removed, hotel accommodations, and heat treatment for the bed bugs, all of which were refused; Plaintiff has requested numerous times that Defendants treat his unit with non-chemical heat treatment due to his pulmonary disease but Defendants have refused to accommodate and to provide heat treatment. FAC, ¶¶156-165.

          One plausible inference to draw from these allegations is that Defendants treated other units with chemicals. If the reason Plaintiff’s unit has not been treated is that he requires a non-chemical treatment, this does differentiate Plaintiff from the other tenants in a way that may be viewed as conduct that is aimed at him. Accepting these allegations as true (and depending of course on what Plaintiff is able to establish at trial), a trier of fact could conclude that this conduct is outrageous, and that Defendants acted with reckless disregard for Plaintiff’s severe emotional distress. With these new allegations, the question is no longer one that can be decided on demurrer. The demurrer is therefore overruled.

          C. The Demurrer to the Fraudulent Concealment Cause of Action

The Court’s lengthy discussion in its prior order concerning the requirements for pleading fraudulent concealment are also incorporated by reference:

The demurrer to the original fraudulent concealment cause of action was sustained because the facts alleged do not give rise to a duty to disclose. This is so because no fiduciary relationship exists between landlord and tenant, and because to the extent there was a transaction during which parties had a duty to disclose, that occurred at the time the lease was negotiated in 2007. As the bedbug infestation is not alleged to have occurred until over a decade later, this is not information Defendants could have concealed at the time of the transaction. Plaintiff cannot reasonably have relied on information Defendants concealed in deciding to sign a lease, because the information did exist at the time.  

          The First Amended Complaint fails to allege facts sufficient to constitute fraudulent concealment.  It does not appear to the Court that further amendment could remedy this problem. The demurrer is therefore sustained without leave to amend as to fraudulent concealment.

IV.     MOTION TO STRIKE

          A. Legal Standard

          Code Civ. Proc. §436: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) 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.”

          B. The Motion to Strike CCP §1021.5 Attorney Fees is Granted

The discussion in the prior order regarding attorney fees is incorporated by reference:

The prayer for attorney fees pursuant to Code Civ. Proc. §1021.5 was stricken because the pleading does not demonstrate the potential for conferring a benefit on the general public or a large class of persons. No new facts have been alleged on this issue. The motion to strike is therefore granted.

V.       CONCLUSION AND ORDER

           The Defendants’ demurrer to the sixth cause of action for intentional infliction of emotional distress is overruled.

          The demurrer to the ninth cause of action for fraudulent concealment is sustained on the basis that the facts do not demonstrate the existence of a duty to disclose. As it does not appear that further amendment could allege such a duty, the demurrer is sustained without leave to amend.

          Defendants’ motion to strike Code Civ. Proc. §1021.5 attorney fees is also granted.

          Defendants are to answer the remaining claims within 10 days.

          Defendants are ordered to give notice of this ruling.

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT