Judge: Mark A. Young, Case: 21SMCV01493, Date: 2023-02-01 Tentative Ruling
Case Number: 21SMCV01493 Hearing Date: February 1, 2023 Dept: M
CASE NAME: Nkowane, et
al., v. Soofer
CASE NO.: 21SMCV01493
MOTION: Demurrer
with Motion to Strike the Complaint
HEARING DATE: 2/1/2023
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 this
obligation. (Harwell Decl., ¶¶ 4-5.)
Analysis
This
action arises from a landlord-tenant dispute. The complaint alleges five causes
of action for negligence, tortious breach of the warranty of habitability,
breach of the covenant of quiet enjoyment, violation of Business & Professions
Code § 17200; and 5) intentional infliction of emotional distress (IIED). Defendant demurs to the IIED cause of action
and moves to strike the requests for punitive damages and attorneys’ fees.
Demurrer to the IIED Cause of Action
The elements for a cause of action for intentional infliction of
emotional distress 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) an actual and proximate causal link between the tortious
conduct and the emotional distress. (Hughes
v. Pair (2009) 46 Cal.4th 1035, 1050.) A defendant’s conduct is
“outrageous” when it is so extreme as to exceed all bounds of that usually
tolerated in a civilized community. (Ibid.) The defendant must
either intend his or her conduct to inflict injury or engaged in it with the
realization that injury will result. Liability for intentional infliction of
emotional distress does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.
The complaint alleges that Plaintiffs leased Defendant’s apartment
unit located at 1007 20th Street, Apt. 6 Santa Monica, CA 90403. The Premises
had poor air quality and flow which made it hard for Plaintiffs to breathe, was
unbearably hot night and day, and had a lingering, putrid smell. (Compl., ¶¶
8-11.) This caused respiratory health issues. (Compl., ¶ 12.) Due to this
smell, Plaintiffs retained experts to inspect the property and tried other
remedial measures to no avail. (Compl., ¶¶ 13-15.) Plaintiff sought to
terminate the lease, but Defendants refused. (Compl., ¶¶16-24, 26-28.)
After testing, Plaintiffs received
a final report from Forensic Analytics (FACS), which found that “(1) There is a
malodor throughout the property which the expert noticed on both of her visits;
(2) The malodor was present on items of clothing; (3) The malodor was present
on the rug by the fireplace; (4) One of the potential sources of the malodor is
the fireplace or the area behind the fireplace; (5) There is positive pressure
that blows air into the property from the fireplace which facilitates the
spread of the malodor in the property; (6) The elevated compounds in the VOC
tests are compounds associated with gasoline and they are not usually found in
residential properties; (7) The source of the malodor is not identified, but
the suspected origin based on the VOCs is the underground carport and the fumes
that may emanate from there through the wall; (8) The mold inspection report
showed that the outside wall which is the fireplace was water damaged which
could facilitate the circulation of the malodor from the carport into the
property.” (Compl., ¶25.)
“Defendant failed to properly
inform Plaintiffs of the actual condition and habitability of the Leased
Property prior to the execution of the lease contract and Plaintiffs’ actual
move in onto the Leased Property.” (Compl., ¶ 59.) Even after Plaintiffs
already informed Defendant on the serious habitability issue in the Leased
Property, the latter failed to implement corrective actions, and merely
provided excuses and misrepresentation to Plaintiffs. (Id.) The Complaint
contends that Defendant’s conduct was “clearly outrageous, given the level of
trust and confidence that was accorder to him by herein Plaintiffs as their
landlord. (Compl., ¶ 60.)
The
Court concurs with Defendants that such allegations do not arise to the
level of outrageous conduct. Generally, the question
of whether the conduct is in fact outrageous is a question of fact to be
determined beyond the pleading stage. (So v. Shin (2013) 212 Cal.App.4th 652; Spinks v.
Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th
1004.) Nonetheless, “[w]hile those cases say that it is ‘usually’ a question of fact,
several cases have dismissed intentional infliction of emotional distress
claims on demurrer, concluding that the facts alleged did not amount to
outrageous conduct as a matter of law.” (Barker v. Fox & Associates
(2015) 240 Cal.App.4th 333, 355-356; see, e.g., Mintz v. Blue Cross of
California (2009) 172 Cal.App.4th 1594, 1608–1609; Coleman v. Republic
Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416–417; see also CACI 1600,
et seq.)
In the habitability context, courts have held that a
tenant's emotional distress caused by landlord's alleged “knowing, intentional,
and willful” failure to correct defective conditions of the premises can form
the basis of an IIED claim. (Stoiber v. Honeychuck (1980)
101 Cal.App.3d 903, 921.) The Stoiber court held:
[I]t is
clear that the availability of a remedy for breach of implied warranty of
habitability does not preclude a tenant from suing his landlord for intentional
infliction of mental distress if the landlord's acts are extreme and outrageous
and result in severe mental distress. Whether this is so under the present
allegations, presents a factual question it cannot be said as a matter of law
that appellant has not stated a cause of action.
(Id. at 922; see also Erlach v. Sierra
Asset Servicing, LLC¿(2014) 226 Cal.App.4th 1281, 1299.)
For instance, in¿Stoiber, the plaintiff complained
of numerous persistent uninhabitable conditions of which she
repeatedly notified the defendants. (Id. 912-913.) These included
a heavy cockroach infestation, broken interior walls, broken deteriorated
flooring on front porch, falling ceiling, deteriorated,¿overfused¿electrical
wiring, lack of proper plumbing connection to sewage system in bathroom, sewage
under bathroom floor, leaking roof, broken windows, and fire hazards. (Ibid.)
Despite notice, the defendants knowingly, intentionally and willfully failed to
correct the defective conditions by not even attempting to repair the defects,
except on one occasion where they sent a plumber in response to a complaint
regarding the toilet. (Id.¿at 913.) In Erlach, the court held
that whether the defendant acted outrageously could not be resolved on
demurrer, where the complaint alleged that the landlord had¿turned off¿tenant's
utilities and prevented the tenant from returning to the property. (Erlach, supra,
226 Cal.App.4th at 1299.)
Here, further facts are required to support Plaintiffs’ allegations
of “outrageous” conduct. Plaintiff does not present any allegations that there
was a “knowing, intentional, and willful”
failure to correct as required by caselaw. The complaint requires further
allegations of Defendants’ refusal to remediate. Moreover, in contrast to the
above cases, Defendants failed to remedy a putrid smell and poor air
circulation. These are not comparable to the extreme conditions in which a
claim for emotional distress was upheld. The Court, therefore, cannot conclude
that such a failure was beyond the bounds of decency.
Accordingly, Defendants’ demurrer is SUSTAINED with leave
to amend.
Motion to Strike – Punitive Damages
Civil Code section 3294 authorizes the recovery of punitive
damages in non-contract cases where “the defendant has been guilty of
oppression, fraud, or malice . . ..”
(Civ. Code § 3294(a).) Punitive damages thus require more than the mere
commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890,
894-95.) Specific facts must be pleaded in support of punitive damages. (Hillard
v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)
“‘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.” (Civ. Code. § 3294(c)(1).) “‘Oppression’ means despicable
conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person’s rights.” (§
3294(c)(2).) “‘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.” (§
3294(c)(3).) Despicable is a powerful term used to describe
circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct.
(1994) 8 Cal.4th 704, 726.) The statute “plainly indicates that absent an
intent to injure the plaintiff, “malice” requires more than a “willful and
conscious” disregard of the plaintiffs' interests. The additional component of
“despicable conduct” must be found.”
A plaintiff must establish the defendant was aware of the
probable dangerous consequences of his conduct and that he willfully and
deliberately failed to avoid those consequences to support an award of punitive
damages based on conscious disregard of the safety of others. (Penner v.
Falk (1984) 153 Cal.App.3d 858, 867.)
For the same reasons that the
demurrer to the IIED cause was sustained, the motion to strike is be granted. The
cited conduct does not allege “malice, oppression or fraud” as required for
punitive damages. Specifically, there is no support for the assertion of
“despicable” conduct. Defendants’ motion to strike punitive damages is likewise
GRANTED on the same grounds.
Attorneys’ Fees
Defendants’ motion to strike
attorneys’ fees is GRANTED. The complaint does not state the basis for the
request. Plaintiff also does not explain the basis in opposition. Before leave
is granted as to these fees, Plaintiff needs to explain the basis for this
request. Otherwise, leave to amend will not be granted.
As set forth above, Plaintiff has
ten days to file an amended complaint.