Judge: Mark A. Young, Case: 21SMCV00944, Date: 2022-07-27 Tentative Ruling

Case Number: 21SMCV00944    Hearing Date: July 27, 2022    Dept: M

CASE NAME:           Kablika, et al., v. Shores Barrington LLC, et al.

CASE NO.:                21SMCV00944

MOTION:                  Demurrer and Motion to Strike the Complaint

HEARING DATE:   7/27/2022

BACKGROUND

On May 24, 2021, Plaintiffs filed the instant nuisance/habitability action against Defendants. Plaintiffs allege that they are long-time tenants at defendants’ 17-story apartment building. Plaintiffs allege that in November of 2020, workers installed certain wireless broadband internet service equipment. Shortly after the equipment was installed, Plaintiffs started experiencing headaches, dizziness and fatigue while in their apartment. Defendants have failed to remedy the issue. The Complaint alleges five causes of action (1) private nuisance; (2) breach of warranty of habitability; (3) statutory violation; (4) negligent infliction of emotional distress; and (5) disability discrimination and violation of Government Code §§12940 et seq.

On August 23, 2021, Defendants filed a demurrer and motion to strike. Plaintiffs oppose the demurrer. No opposition was submitted as to the motion to strike.

Legal Standard

            A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

            A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

            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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

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’s declaration satisfies the meet and confer requirement. (Lee Decl.)

Analysis

Third Cause of Action: “Statutory Violation”

            As to the third cause of action, Plaintiff concedes that the cause of action should be dismissed. Accordingly, Defendants’ demurrer is SUSTAINED without leave as to the third cause of action.

Failure to Attach Contract

            Defendants contend that the first three causes of action (private nuisance, implied warranty of habitability, statutory habitability) are all based on the existence of a written contract. They argue that since Plaintiffs’ neither attached a copy of the contract nor recited the terms of the contract, the causes are vulnerable to demurrer. However, the existence of a valid, written contract is not an element of any of the cited causes of action. Defendants’ cited authorities are inapposite, as they only dealt with breach of contract claims which were not decided on demurrer or in the habitability context. (See Perry v Robertson (1988) 201 Cal.App.3d 333, 341; Scolinos v. Kolts (1995) 37 Cal.App.4th 635, 640.) In any event, Plaintiffs plead the relevant terms of the residential lease. (Compl., ¶ 2.) More specific terms of the contract are unnecessary at this juncture.

Substantial Interference

            Plaintiffs identify “the equipment on the rooftop directly above and adjacent to Plaintiffs’ living and sleeping quarters” as the maintained nuisance. (Compl., ¶ 31.) The equipment uses 5G fixed wireless broadband in the 37 GHz frequency band and emits RF (radio frequency) radiation as well as electromagnetic field (EMF) radiation. (Id., ¶¶ 14-15.)

             Defendants argue that the complaint fails to allege that the frequency is at a level that violates or exceeds the reasonable industry standards of such wireless/internet broadband services. Defendants reason that, without such an allegation, the complaint only states generalized and vague allegations in support of the first three causes. Defendants fail to support this theory with appropriate authority.

            Moreover, nuisance has no such pleading requirement. “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 . . . is a nuisance.” (Civ. Code, § 3479.) Virtually any disturbance of the enjoyment of property may amount to a nuisance, so long as the interference is substantial and unreasonable. (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.) Thus, to state a cause of action for private nuisance, a plaintiff must allege a non-trespassory interference with the private use and enjoyment of property, which is substantial and unreasonable as to its nature, duration, frequency or amount. (Civ. Code, §§ 3479-3481; San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.) Whether the interference is substantial and unreasonable is a question of fact requiring determination of all the circumstances of the case. (Mendez v. Rancho Valencia Partners, LLC (2016) 3 Cal.App.5th 248, 263-64.)

            Accordingly, Plaintiffs are not required to allege that the equipment specifically exceeds “industry” standards of such devices. Instead, this would be one fact for a fact finder to consider whether the interference is reasonable. Otherwise, the complaint alleges that the interference is substantial and unreasonable in duration. (Compl., ¶¶ 16-27.) Defendants do not challenge the validity of this pled fact.

            Likewise, the warranty of habitability cause of action does not require a heightened pleading standard. A tenant may sue a landlord for damages resulting from a landlord’s breach of the warranty of habitability. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) “The elements of such an affirmative claim are [1] the existence of a material defective condition affecting the premises' habitability; [2] notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition; [3] the landlord was given a reasonable time to correct the deficiency, and [4] resulting damages.” (Id.) The warranty is implied by law in residential leases in California. (Green v. Superior Court (1974) 10 Cal.3d 616, 635-37.) “This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements' must be maintained.” (Id.) Through the covenant, a tenant can reasonably expect that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy. (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1205-26.) 

            Thus, it is irrelevant whether the equipment is at a level that violates or exceeds unpled industry standards of such wireless/internet broadband devices. The only issue is whether there was a “material” defective condition affecting habitability. Plaintiffs plead that the condition materially affects their ability to live at the premises. (Compl., ¶ 20.) Thus, Defendants’ demurrer misses the mark.

            Accordingly, Defendants’ demurrer is OVERRULED.

Fourth Cause of Action for NEID

            Defendants contend that “there is no independent tort of negligent infliction of emotional distress.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 984l Lawson v. Superior Court (2010) 180 Cal. App. 4th 1372.) Indeed, there is only the tort of negligence. However, this would not necessarily justify the demurrer. Defendants fail to show how the cause of action would fail on such a negligence theory. Defendants do not contend that the complaint fails to state facts sufficient to constitute a cause of action for the recovery of emotional distress damages under a negligence theory.  Moreover, the claim for nuisance sounds in negligence, and therefore also supports this alternative legal theory. (See Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372; El Escorial Owners’ Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 [nuisance and negligence claims are the same as the plaintiff failed to allege facts showing how the nuisance claim differed from the negligence claim].) 

Accordingly, Defendants’ demurrer is OVERRULED.

Fifth Cause of Action for FEHA Disability Discrimination

Defendants argue that the fifth cause of action fails because it did not allege facts: i) concerning the disability; ii) concerning the acceptable industry standard for maintenance of the wireless/internet broadband services; and iii) concerning the notice to defendants (whom, when, or what was purportedly said).

Government Code section 12955, et seq. makes it unlawful to discriminate and deny reasonable accommodations, privileges, or services to tenants on the basis of certain protected characteristics. It is unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the race color, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person. (Gov. Code, § 12955(a).)  

To qualify as a member of a protected class under the FEHA, a plaintiff must demonstrate his physical impairment constitutes a disability according to the statutory definition. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 257.) It is insufficient for plaintiff to simply allege a disability or to identify an injury or physical condition. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 47.) A “physical disability” includes, but is not limited to, having any anatomical loss, cosmetic disfigurement, physiological disease, disorder, or condition that: (1) affects an enumerated body system, such as the nervous system; and (2) limits a major life activity.  (Gov. Code § 12926(m).)

Here, Plaintiffs allege the existence of their disability with the requisite level of detail. Plaintiffs suffer from a disability of “sensitivity to RF and EMF radiation.” The alleged disability affects enumerated systems (including neurological systems) and limits their ability to sleep, which is naturally a major life activity. (Compl., ¶ 49.) Defendants were repeatedly made aware of this disability in the fact that Plaintiffs had, for months, been notifying, and complaining to, Defendants, that the equipment installed on the rooftop in November of 2020 and placed immediately above Plaintiffs’ dwelling unit was having severe adverse effects. (Id., ¶ 51, see ¶¶ 16-20.) Defendants do not provide authority that their awareness of the disability needs to be more specifically pled. Again, Defendants do not explain why Plaintiffs would have to plead that the equipment did not meet acceptable industry standard for maintenance of the wireless/internet broadband services

Accordingly, Defendants’ demurrer is OVERRULED.

Motion to Strike

The motion to strike is DENIED. Defendants filed a notice of motion to strike on August 25, 2021. The notice requests that the Court strike the following:

1. All references to

2. All references to

3. All references to

4. Prayer 4 for “punitive and exemplary damages”

5. Prayer 6 for “attorney’s fees.”

Defendants failed to append or otherwise file a memorandum of points and authorities. Accordingly, the Court denies the motion. (CRC Rule 3.1113(a).)