Judge: Margaret L. Oldendorf, Case: 23AHCV00960, Date: 2023-10-30 Tentative Ruling
Case Number: 23AHCV00960 Hearing Date: October 30, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This is an action for injuries arising from a
landlord-tenant dispute. In the complaint, Glenn D. Cunanan, Glenn E. Cunanan,
and Gabriella M. Cunanan (collectively Plaintiffs) allege that they rented a
residence from landlord Green Trees Trust (Defendant). Plaintiffs allege that
they had to perform repairs themselves upon move-in to make the residence
habitable, and when they complained to the landlord about subsequent issues,
repairs were not performed. Plaintiffs also allege intimidation tactics by
landlord to recoup the rent.
Before the Court is a demurrer and motion to strike filed by Defendant
to the complaint. Defendant argues that (1) the negligence claim fails for
failure to state a cause of action, (2) the CC section 789.3 claims fail for
failure to state a cause of action, (3) the violation of Business and
Professions Code section 17200 cause of action fails for failure to state a
cause of action and (4) the intentional infliction of emotional distress cause
of action fails for failure to state a cause of action.
For the reasons set forth below, the demurrer is granted in
part, and the motion to strike is granted in part.
IV. MEET AND CONFER
Before filing a demurrer or motion to strike, the
moving party must meet and confer in person or by telephone with the party who
filed the pleading to attempt to reach an agreement that would resolve the
objections to the pleading. (CCP §§ 430.41, 435.5.)
Counsel for Defendant declares she met and conferred
with counsel for Plaintiffs. (Chun Decl. ¶ 2.) She details that she
communicated with Plaintiffs’ counsel over the phone on June 20, 2023. (Id.)
She declares that parties discussed all issues raised on the demurrer. She also
sent an email to plaintiff’s counsel on June 8, 2023. She declares that parties
were unable to reach a resolution. (Id. at ¶3.) Counsel’s declaration
satisfies CCP section¿430.41(a).
VI. 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 admits, provisionally for purposes
of testing the pleading, all material facts properly pleaded. (Tindell v. Murphy (2018) 22 Cal.App.5th
1239, 1247.) A demurrer tests the legal sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004)
116 Cal.App.4th 968, 994.) Pleadings are to
be broadly construed (CCP § 452), and demurrers are to be overruled where the
facts are sufficient to state any cause of action. (Quelimane Co. v. Stewart
Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
B. Third Cause of Action for Nuisance
“Anything which is injurious to
health, including, but not limited to, the illegal sale of controlled
substances, or is indecent or offensive to the senses, or an obstruction to the
free use of property, so as to interfere with the comfortable enjoyment of life
or property, or unlawfully obstructs the free passage or use, in the customary
manner, of any navigable lake, or river, bay, stream, canal, or basin, or any
public park, square, street, or highway, is a nuisance.” (CC § 3479.) Nuisance
is a type of tort liability, not a type of tortious conduct. (Van Zyl v.
Spiegelberg (1969) 2 Cal.App.3d 367, 373.)
Here, Defendant urges that plaintiffs
cannot allege both nuisance and negligence. (Motion p. 6: 24-25.) Citing El Escorial Owners' Ass'n v. DLC
Plastering, Inc.,
Movsesian urges that if the causes of action for negligence and nuisance depend
on the same underlying facts, the nuisance claim is really one for negligence.
(El Escorial Owners’ Ass’n v. DLC Plastering, Inc. (2007) 154
Cal.App.1337, 1349.) El Escorial notes that courts have allowed
plaintiffs to pursue nuisance claims for housing conditions. (Id. at
1348.) The analysis of whether the nuisance claim is really a second claim for
negligence depends on whether the nuisance claim is viable, evaluated on a case-by-case
basis. (Id.) In concluding that the cause of action for nuisance was duplicative of
the negligence cause of action, the Court noted “Escorial neither alleged facts
to describe the nuisance nor did it show how this cause of action differed from
the first cause of action. A cause of action alleging a continuing nuisance is
usually accompanied by a request for an injunction. But Escorial only sought
the same monetary relief that it requested in its first cause of action.” (Id.
at 1349.)
Here, the cause of action for nuisance
describes the nuisance in detail. (Complaint ¶ 58.) However, the description of
the nuisance relies on the same underlying facts as the negligence claim.
(Complaint ¶ 49.) Defendant urges that the “[the plaintiff’s cause of action
for negligence] and their nuisance causes of action rely on the same facts and
seek the same recovery.” (Demurrer, p.7: 5-6.) However, the cause of action for
nuisance seeks a different recovery. The cause of action for nuisance pleads
for punitive damages, whereas the cause of action for negligence requests
general and special damages. (Complaint ¶¶¶ 52, 53, 64.) Pleadings are
broadly construed on demurrer, so the fact that the nuisance cause of action requests
different damages than the negligence cause of action might be enough to
distinguish it. (See CCP § 452.)
However, the crux of the analysis
rests on whether the negligence and nuisance claims rely on the same facts, for
“where negligence
and nuisance causes of action rely on the same facts about lack of due care,
the nuisance claim is a negligence claim.” (El Escorial, supra, at 1349,
citing City of San Diego v. U.S. Gypsum Co., supra, 30 Cal.App.4th at p.
587, 35 Cal.Rptr.2d 876; Martinez v. Pacific Bell (1990) 225 Cal.App.3d
1557, 1565; Atherton Condominium Apartment–Owners Assn. Bd. of Directors v.
Blume Development Co. (Wash.1990) 115 Wash.2d 506, 527 [“where the alleged
nuisance is the result of the defendant's alleged negligent conduct, rules of
negligence are applied”].) As this is the case in the operative complaint, the
cause of action for nuisance is essentially one for negligence.
In sum, Defendant meets his burden on
demurrer.
In opposition, Plaintiffs try to
distinguish their complaint from El Escorial. Plaintiffs argue that
their complaint is more robust than the one analyzed in El Escorial.
(Opposition to Demurrer, p. 3: 22-23.) Plaintiffs also assert that they request
different damages for nuisance as compared to their negligence cause of action.
(Opposition to Demurrer, p. 5:17-26.) Plaintiffs do not distinguish on the
ultimate dispositive point of El Escorial, however; whether the
negligence and nuisance claim rely on the same underlying facts. As such,
plaintiffs have not shown that the facts are sufficient to state a nuisance
cause of action.
D. Fifth and Seventh
Cause of Action for Violation of CC Section 789.3
Civil Code section 789.3 provides that “A landlord shall not
with intent to terminate the occupancy under any lease … of property used by a
tenant as his residence willfully cause, directly or indirectly, the
interruption or termination of any utility service furnished the tenant,
including, but not limited to, water, heat, light, electricity, gas, telephone,
elevator, or refrigeration, whether or not the utility service is under the
control of the landlord.”
(CC § 789.3(a).) To allege constructive eviction, a plaintiff must allege a
disturbance of their possession by the lessor, which “has the effect of “depriving the tenant of the beneficial enjoyment
of the premises, provided the tenant vacates the premises within a reasonable
time.” (Nativi v. Deutsche Bank Nat'l Tr. Co. (2014) 223 Cal.App.4th
261, 292 [citations omitted].)
Here, Defendant urges that the fifth and seventh
causes of action fail as Plaintiffs fail
to state facts sufficient for a cause of action. (Demurrer, p.7: 13-15.) Defendant
then urges that “Plaintiff’s third
cause of action for Intentional Infliction of Emotional Distress (“IIED”) fails
to state a cause of action as a matter of law because the Complaint lacks facts
regarding abandon the premises after a reasonable time after the discovery of
the alleged condition.” (Demurrer,
p.7: 16-18.) To the extent that this is a typo, the Court considers the
argument with respect to the seventh cause of action. The fifth cause of action
does not allege constructive eviction but rather alleges the elements of Civ.
Code section 789.3, so Defendant has not met his burden to demonstrate that the
fifth cause of action fails for lack of facts demonstrating constructive
eviction.
However, the seventh cause of action for violation of
Civ. Code Section 789.3 does allege constructive eviction. (Complaint ¶ 89.)
The complaint alleges “LANDLORD
and DOES 1-15 willful and intentional interference with PLAINTIFFS’ access to
PREMISES constitutes constructive eviction.” (Id.) As stated, this is
not enough to plead constructive eviction, as constructive eviction requires
tenants to quit the premises within a reasonable time. The complaint does not
allege this. In fact, the complaint alleges that plaintiffs are still in
possession of the premises. (Complaint ¶ 87.)
Therefore,
Defendant has not met its burden demonstrating that facts are not sufficient to
demonstrate a cause of action for violation of 789.3 as to the fifth cause of
action.
In opposition, Plaintiffs assert that they remain in “legal”
possession of the subject property but have actually vacated and live
elsewhere. (Opposition to Demurrer, p.7: 7-10.) As such, facts exist to state a
cause of action, and the demurrer should be overruled as to both the fifth and
seventh causes of action.
E. Eighth Cause of Action for Violation of B and P
Code 17200 et seq.
Business and Professions Code section 17200 prohibits
unfair competition, including the use of unlawful, unfair, or fraudulent
business practices. (BPC § 17200 et seq.) Unlawful business practices under BPC section 17200 are “violations of
other laws…and makes those unlawful practices actionable under the UCL." (Lazar
v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1505). Therefore, to allege a
violation of section 17200, a violation of another law must be alleged. (Berryman
v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554). The
complaint must allege facts showing that the practice violates the law. (People
v. McKale (1979) 25 Cal.3d 626, 635). Without supporting facts
demonstrating the illegality of a rule or regulation, an allegation that the
practice is in violation of a specific statute is purely conclusory and
insufficient to withstand demurrer. (Id.)
Defendant argues that plaintiffs have “failed to sufficiently allege that the conduct engaged
in by Defendants constitutes a ‘business practice’ for purposes of Section
17200.” (Demurrer, p.8:
22-23.) However, residential leases give rise to a business relationship and thus
practices alleged with respect to the residential lease are business practices.
(People ex rel. City of Santa
Monica v. Gabriel (2010) 186
Cal.App.4th 882, 888.) The
complaint alleges defendant’s conduct and then alleges that defendant’s conduct
is in violation of section 17200 because it is in violation of Civil Code sections 1940.2, 1946, 3491, and 3493. (Complaint ¶¶ 94, 98.) The complaint
then alleges that defendant’s practices are unlawful business practices based
on the violation of these statutes. (Complaint ¶¶ 99, 100.)
As such, the defendant did not meet his burden on
demurrer with respect to the eighth cause of action for violation of BPC
section 17200.
F. Ninth Cause of Action for Intentional Infliction of
Emotional Distress
“The elements of a prima
facie case for the tort of intentional infliction of emotional distress (IIED) are:
(1) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional
distress; (2) the plaintiff’s suffering severe or extreme emotional distress;
and (3) actual and proximate causation of the emotional distress by the
defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as
to exceed all bounds of that usually tolerated in a civilized community.” (Wilson
v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
Defendant urges that the cause of action for IIED
fails because plaintiffs failed to allege any intent to cause emotional
distress. (Demurrer p. 9: 16-18.) However, the complaint alleges that “Defendants’ acts and omissions as set forth above were
intentional or were committed in reckless disregard for the resulting emotional
strain and anxiety suffered by each Plaintiff.” (Complaint ¶ 106.) This is
enough to allege intent.
Secondly,
defendant urges that the complaint fails to allege extreme and outrageous conduct. (Demurrer, p.
9: 16-18.) This point is not well-taken.
The complaint does allege extreme and outrageous conduct on defendant’s part.
(Complaint ¶¶ 22, 24, 25, 29 and 30.)
Accordingly,
the defendant did not
meet its burden on demurrer with respect to the ninth cause of action for IIED.
VII. 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.” (CCP § 436.)
Code Civ. Proc. §431.10:
“(a) A material allegation in a pleading is one essential to
the claim or defense and which could not be stricken from the pleading without
leaving it insufficient as to that claim or defense.
(b) An immaterial allegation in a pleading is any of the
following:
(1) An
allegation that is not essential to the statement of a claim or defense.
(2) An
allegation that is neither pertinent to nor supported by an otherwise
sufficient claim or defense.
(3) A
demand for judgment requesting relief not supported by the allegations of the
complaint or cross-complaint.
(c) An ‘immaterial allegation’ means irrelevant matter’ as
that term is used in Section 436.” (CCP § 431.10.)
Civ. Code §3294: “(a) In an action
for the breach of an obligation not arising from contract, where it is proven
by clear and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice, the plaintiff, in addition to the actual damages,
may recover damages for the sake of example and by way of punishing the
defendant.”
“(c) As used in this section, the following definitions shall
apply:
(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.” (CC § 3294.)
B.
Portions of the Complaint at Issue
Defendant seeks to strike the
following lines from the operative Complaint as not supported by a sufficient
claim:
(1) Plaintiffs' Complaint, p.
4, ¶ 12, Lines 25-26;
(2) Plaintiffs' Complaint, p.
12-13, ¶ 44, Lines 26-5;
(3) Plaintiffs' Complaint, p.
13, ¶ 47, Lines 16-21;
(4) Plaintiffs' Complaint, p.
16, ¶ 64, Lines 6-10;
(5) Plaintiffs' Complaint, p.
18, ¶ 73, Lines 7-12;
(6) Plaintiffs' Complaint, p.
20, ¶ 89, Lines 16-19;
(7) Plaintiffs' Complaint, p. 21, ¶ 93, Lines
2-5;
(8) Plaintiffs' Complaint, p.
23, ¶ 106, Lines 4-6;
(9) Plaintiffs' Complaint, p.
23 Line 24;
(10) Plaintiffs' Complaint,
p. 24 Line 14;
(11) Plaintiffs' Complaint,
p. 24 Line 23-24;
(12) Plaintiffs' Complaint,
p. 25 Line 17;
(13) Plaintiffs' Complaint,
p. 25 Line 28;
(14) Plaintiffs' Complaint,
p. 26 Line 12;
(15) Plaintiffs' Complaint, p. 27 Line 4.
The language sought to be stricken
relates to the prayer for punitive damages and attorney fees.
C. Attorney Fees
Defendant
argues that plaintiffs fail to provide any statutory or contractual basis for
their seeking attorney fees as to all causes of action. However, plaintiffs
aver that they are seeking attorney fees with respect to the first cause of
action for breach of the implied warranty of habitability. (Opposition, p. 6:
3-8.) Plaintiffs cite Civil Code section 1942.4(b)(2) as the basis for their request
for attorney fees under the first cause of action. Civil Code section
1942.4(b)(2) properly provides a statutory basis for attorney fees for the
first cause of action.
Plaintiffs assert that “in the Fourth Cause of Action they
allege a Violation of Rent Stabilization Ordinance.” (Opposition, p. 6: 3-5.)
To that point, plaintiffs urge that they have a statutory basis for seeking
attorney fees under their fourth cause of action. (Opposition, p.6: 19-21.)
Plaintiffs cite Los Angeles County Ordinance section 8.52.170. However, in their complaint, plaintiffs plead
violation of the COVID-19 Tenant Relief Act, not the Rent Stabilization
ordinance. (Complaint, p. 16:17-19.) Plaintiffs do not cite authority or argue
that the attorney fees due under the Rent Stabilization Act also apply to
violations of the COVID-19 Tenant Relief Act. Plaintiffs do recharacterize the
fourth cause of action as pursuant to the Rent Stabilization Ordinance in their
prayer, however. (Complaint, p. 24: 18-20.) Therefore, as plaintiffs did not
adequately allege a basis for attorney’s fees as to the fourth cause of action
as pleaded, the motion to strike is granted with respect to attorney’s fees
requested as to the fourth cause of action.
As
such, the Court GRANTS the motion to strike attorney fees as to the following
sections of Plaintiffs’ complaint: p.25, line 7.
D.
Punitive Damages
Defendant
argues that plaintiffs have not adequately supported their claim for punitive
damages as (1) the complaint alleges negligent conduct, not malicious conduct,
(2) punitive damages are not allowed for breach of contract and (3) the
complaint lacks the specificity a claim for punitive damages require. The Court
will address each argument in turn.
Defendant urges that punitive damages should be stricken
as its behavior at worst was negligent, but not malicious. (Motion to Strike, p.7:
3.) This point is well-taken. The complaint does not allege malice or
oppression. The complaint alleges negligent conduct on the part of Defendant,
but that is not enough. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891,
894-95.) Even if the Court found that Defendant was grossly negligent, that
alone is not sufficient for punitive damages. (Id.)
Punitive
damages cannot be sought for breach of contract unless there is an independent
tort in addition. (CC §§ 3294, 3300.) However, plaintiffs do not seek punitive
damages under a breach of contract cause of action. Indeed, plaintiffs do not
plead a cause of action for breach of contract at all. Defendant urges that “the
allegation of an implicit agreement is incorporated by reference into every
cause of action in the Complaint” and that therefore, punitive damages should
not be allowed. (Motion to Strike, p.8:15-16.) To the extent that defendant is
trying to strike punitive damages from the complaint, this argument is not
sufficient, as Defendant cites no authority or case law as to why the fact the
parties are in a contractual relationship prevents plaintiffs from suing on
matters outside the contract and seeking punitive damages as to those claims.
Defendant
also urges that punitive damages should be stricken as the complaint lacks the
requisite specificity for such relief. (Motion to Strike, p. 8: 22-24, see Lehto
v. Underground Construction Co. (1977) 69 Cal.App.3d 933, 944.) “The
plaintiff must plead the ultimate facts which give rise to liability,” from
which the Court can understand malice. (Blegen v. Superior Court (1981)
125 Cal.App.3d 959, 963.) Recitation of legal conclusions is not sufficient. (Cyrus
v. Haveson (1976) 65 Cal.App.3d 306, 317.) This argument is also well-taken.
In the complaint, it is alleged that defendant’s conduct meets the 3294
threshold definition simply by way of recitation of the definition. (Complaint
¶¶¶ 9, 47,64.) This is not sufficient for punitive damages under Blegen
or Cyrus. As such, the Court GRANTS the motion to strike punitive
damages as to the following sections of Plaintiffs’ complaint: ¶12, line 25-26;
¶ 44, line 4-5; ¶ 47, line 16-17; ¶ 64, line 13-15; ¶ 89, line 16; ¶ 93, line
5-7; line ¶ 106, line 5-6; p. 23 line 24; p. 24 line 14; p. 24 line 23-24; p.
25 line 17; p. 25 line 28; p.26, line 12; p. 27, line 3. The Court DENIES the
motion to strike with respect to ¶ 73 line 7-12.
Accordingly,
the motion to strike is granted in part and denied in part.
VIII. CONCLUSION
Defendant’s
demurrer is GRANTED IN PART as to the cause of action for nuisance. The motion
to strike is GRANTED and DENIED in part, as set forth above.
Plaintiffs have ten days’ leave to file an amended
complaint.
Defendant
Movsesian, as trustee for Green Trees Trust, is ordered to give notice of
ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT