Judge: Mark A. Young, Case: 22SMCV01887, Date: 2023-09-12 Tentative Ruling
Case Number: 22SMCV01887 Hearing Date: September 12, 2023 Dept: M
CASE NAME: Khoshnood, et
al., v. Salih
CASE NO.: 22SMCV01887
MOTION: Demurrer
and Motion to Strike the First Amended Complaint
HEARING DATE: 9/12/2023
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.)
Analysis
Defendant demurs to the fifth cause of action in the first amended complaint
(FAC) for intentional infliction of emotional distress (IIED) on the grounds
that Plaintiffs fail to allege outrageous conduct or sufficient emotional
distress. The elements of an IIED cause of action are: (1) extreme
and outrageous conduct by the defendant; (2) intention to cause or reckless
disregard of the probability of causing emotional distress; (3) severe
emotional suffering; and (4) actual and proximate causation of the emotional
distress. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th
768, 780.) To satisfy the element of extreme and outrageous conduct,
defendant’s conduct “‘must be so extreme as to exceed all bounds of that
usually tolerated in a civilized society.’” (Ibid.)
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.) 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.)¿For instance,¿inaction, absent an intent to
injure, is insufficient to constitute extreme and outrageous behavior for
intentional infliction of emotional distress liability.¿(Davidson v. City of
Westminster (1982) 32 Cal.3d 197, 210.) When reasonable persons may differ, it is
for the jury to determine whether the conduct in a particular case has been sufficiently
extreme and outrageous to result in liability.¿ (Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493, 499.)
¿¿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, supra, 101 Cal.App.3d at 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.) In Stoiber,
the plaintiff complained of numerous persistent uninhabitable conditions that
she repeatedly notified the defendants of. (Id. at 912-913.) These
included: 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 hazard. (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.)¿¿
¿
Later, in Erlach, the Court of Appeal found the alleged facts could support
an IIED claim when the landlord-defendant acted outrageously turning off tenant's
utilities to prevent the tenant from returning to the property. (Erlach¿v. Sierra
Asset Servicing, LLC¿(2014) 226 Cal.App.4th 1281, 1299.)
Here, Plaintiffs allege that they are residential tenants of an
apartment property located at 1645 Malcolm Avenue (“Subject Property”), which
is owned and managed by Defendant. (FAC ¶ 4.) Plaintiffs allege that throughout
their tenancy, their “unit has been infested with visible water leaks, water
intrusion, mold, vermin, dust mites and other related allergens. As a result of
ongoing water leaks in Plaintiffs’ unit, Plaintiffs’ unit was plagued and
continue to be plagued with serious mold infestations. The mold has caused
serious illness and allergies to Plaintiffs.” (FAC ¶ 2.) Plaintiffs
“repeatedly” notified Defendant of water leaks and intrusion, mold, and the
presence of vermin and dust mites in Plaintiffs’ unit, but Defendant failed to
“timely remediate” the problem. (FAC ¶¶ 3, 20.)
According to the FAC, Defendant had
notice of the issues as early as October 2020. Defendants first conducted a
mold survey which indicated unacceptable spore count levels and visible mold
growth, and recommended remediation. (FAC ¶ 21.) Further, Defendant also had
notice of these issues from both Plaintiffs and the City of Los Angeles. In addition,
Plaintiffs notified Defendant of the hazardous conditions several times, but
Defendant failed to remediate all the issues. On July 30, 2021, Defendant hired
a plumber to assess the various issues in the Subject Premises. (FAC ¶ 24.) The
plumber ripped up the carpet, opened walls, and cleaned mold while Plaintiffs
remained inside the Premises. (FAC ¶ 24.) At this time, Defendant ignored
Plaintiffs’ relocation requests. (FAC ¶24.)
On several occasions, the Los
Angeles Department of Building and Safety (“LADBS”) cited Defendant for code
violations and ordered that the apartment be remediated and repaired. (FAC ¶¶
22-23, 25-26, 34.) Defendant received notices to abate the issues but failed to
make necessary repairs to fully bring the apartment up to habitable condition.
(FAC at ¶¶ 3, 25-26, -56.) This includes notices from LADBS or the City
Attorney on October 7, 2021, January 21, 2022, and April 18, 2022. (FAC ¶¶ 26,
34, 40.)
Plaintiffs also provide details of
Defendant’s remediation efforts. On November 8, 2021, Plaintiffs notified Defendant
of the continued mold exposure and damages caused by the hazardous conditions. (FAC
¶ 27.) In response, on November 10, 2021, Defendant had another mold assessment
report created, which found visible mold growth and spore samples that were
considered a health hazard. (FAC ¶ 28.) During an exchange regarding this
report, Plaintiffs again notified Defendant of the issues of significant water leaks,
water intrusion, mold, vermin, dust mites and other related allergens in the
Subject Property. (FAC ¶¶ 29-30.) On December 15, 2021, Defendant hired a
restoration specialist to view and evaluate the Subject Property but failed to
provide relocation or plans to remediate the hazardous condition. (FAC ¶ 31.) On
January 9, 2022, Plaintiffs reiterated their need for further remediation, as
the bathroom remained in a hazardous condition and the master bedroom remained
torn up since Defendant hired the restoration company to evaluate the premises.
(FAC ¶ 32.) On January 13, 2022, Defendant offered to send a plumber to the premises,
ignoring Plaintiffs’ requests for proper remediation or relocation to
comparable accommodations. (FAC ¶ 33.) On January 28, 2022, Plaintiffs again
demanded Defendant properly remediate pursuant to the mold assessments. (FAC ¶
35.) On February 14, 2022, Defendant instructed Plaintiff to move out, stating
that they do not care if Plaintiffs are “dead or alive.” (FAC ¶ 36.) On
February 25, 2022, Defendant hired workers to install new carpeting in the
master bedroom, but failed to timely address necessary repairs to the master
bedroom and Subject Property as a whole. (FAC ¶ 37.)
On April 7, 2022, Plaintiffs
informed Defendant of a bug infestation and faulty garbage disposal and
requested that Defendant hire an exterminator. (FAC ¶ 38.) However, Defendant
failed to hire an exterminator. (Id.) On April 15, 2022, Plaintiffs again contacted
Defendant to address the ongoing infestation, and were told the infestation was
a result of the fungus growth due to ongoing water leaks, water damage, mold,
and other related allergens. (FAC ¶39.) Plaintiffs again requested that an
exterminator be hired, that the necessary plumbing repairs be made, and that
the Subject Premises be free of mold, mites, and any other related allergens.
(Id.) Defendant blamed Plaintiffs for a leak in another tenant’s secondary
bathroom and demanded that they cease use of both their bathrooms, however,
Plaintiffs’ primary bathroom has already been out of use since August 2021.
(FAC ¶ 41.) On May 19, 2022, Plaintiffs again asked Defendant to address the
ongoing bug infestation and elevated water and moisture levels. (FAC ¶ 42.) On
May 31, 2022, Defendant’s plumber failed to properly inspect and determine the
source of the leak. (FAC ¶43.) On June 24, 2022, Defendants harassed Plaintiffs
via email by threatening to end the tenancy. (FAC ¶ 44.) On July 5, 2022,
Plaintiffs asked Defendant to address the needed repairs for the Subject
Premises. (FAC ¶ 45.) On July 19, 2022, Plaintiffs once again informed Defendant
that their secondary bathroom was still leaking and inoperative. (FAC ¶46.) On July
26, 2022, Defendant hired a restoration company to sanitize the water damage
and areas of the Subject Premises containing mold, but failed to remediate the
issue because they did not follow the specialist’s recommendation to remove
and/or open the contaminated walls. (FAC ¶ 47.) The sanitization failed to
properly remediate water leaks, water intrusion, mold, vermin, dust mites and
other related allergens. (FAC ¶48.) Defendant continued to ignore Plaintiffs request
for an exterminator. (Id.)
On September 13, 2022, Plaintiffs
corresponded with Defendant once more regarding their failure to maintain AC
Units and contact an exterminator. (FAC ¶ 50.) On September 23, 2022, Defendant
confirmed that they would send a plumber to assess new leaks, but proceeded to
verbally harass Plaintiffs. (FAC ¶51.) Defendant stated that they did not care
whether Plaintiffs were dying or on their death bed, and denied that the issues
were her fault and responsibility. (Id.)
The FAC claims that Defendant allegedly
acted outrageously and with intent to cause injury or, at a minimum, reckless
disregard for the probability of causing injury to Plaintiffs. (FAC ¶¶ 84-86.) Plaintiffs
argue that from the above facts, Defendant engaged in a pattern of threatening
and harassing conduct toward Plaintiffs as a response to Plaintiffs asking
Defendant to fix the problems that were seriously impacting Plaintiffs’ health.
(FAC ¶¶ 36, 44, 51, 57, 88.) Defendant failed to make repairs to the property
necessary to render the premises habitable, despite actual knowledge and notice
of the defects, causing Plaintiffs severe emotional distress. (FAC ¶¶ 87, 89.) Defendant
intentionally failed to address these issues even after independent third
parties confirmed the presence of these conditions. (FAC ¶ 90.) When Plaintiffs
showed Defendant documentation of how the defects were causing Plaintiffs
serious health problems, Defendant still refused to make repairs. (FAC ¶ 90.)
The Court concurs that the above
allegations establish, for pleading purposes, that Defendant acted
“outrageously” in intentionally failing to repair the known, persistent habitability conditions. Defendant knew that the defects,
such as the mold and spores, were causing negative health effects to
Plaintiffs. Defendant refused to make repairs, or attempted ineffective repairs
that would not address the underlying root causes of the mold. At times,
instead of making repairs, Defendant ordered Plaintiffs to not use parts of
their home and then threatened to evict Plaintiffs for asking for repairs to
correct the health hazards in the unit. Thus, the element of outrageous conduct
is met.
That said, the FAC fails to provide factual allegations regarding
Plaintiffs’ severe emotional distress. Severe emotional distress means
emotional distress of such substantial quality or enduring quality that no
reasonable person in civilized society should be expected to endure it. (Potter
v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) The FAC provides
details of the physical damages Plaintiffs suffered, including congestion,
upper respiratory issues, sneezing, breathing difficulties, itching and
watering eyes and that Ms. Khoshnood now suffers from fibromyalgia. (FAC ¶ 71.) In contrast, the FAC only generally alleges
that Plaintiffs suffered “severe emotional distress,” including “fear,
extreme stress and anxiety, and embarrassment” without providing specific facts
of the fear, stress, anxiety and embarrassment that Plaintiffs experienced due
to Defendants’ intentional failure to repair. (FAC ¶ 89.) These conclusions do
not show that Plaintiffs suffered emotional distress of such substantial
quality that no reasonable person should be expected to endure. Therefore,
Plaintiffs must provide further facts showing such distress.
Accordingly, the demurrer is SUSTAINED with 10 days leave to amend.
Motion to Strike