Judge: Mark A. Young, Case: 22SMCV02217, Date: 2023-08-16 Tentative Ruling
Case Number: 22SMCV02217 Hearing Date: August 16, 2023 Dept: M
CASE NAME: Porsandeh, v. Pittiemum
Properties LLC, et al.
CASE NO.: 22SMCV02217
MOTION: Demurrer
to the Cross-Complaint
HEARING DATE: 8/16/2023
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
Plaintiff/Cross-Defendant Cameron
Porsendeh demurs to each cause of action of Defendants/Cross-Complainants
Pittiemum Properties LLC and Kira Patel’s Cross-Complaint. Cross-Defendant also
moves to strike the entirety of the Cross-Complaint, each cause of action of
the Cross-Complaint, certain supporting paragraphs, and the request for
punitive damages and attorneys’ fees.
Breach of
Contract/Waste
Privity/Standing
Cross-Defendant Porsandeh argues
that the claim by Pittiemum and Patel fails to demonstrate the existence of an
agreement between the parties because the attached lease shows no contractual
agreement between Cross-Complainants and Cross-Defendant. Cross-Defendant Porsandeh
also contends that because Pittiemum and Patel do not own the property,
Cross-Defendant could not owe Cross-Complainants any duty. Cross-Defendant
asserts that leave to amend should be denied because Cross-Complainants cannot
cure the lack of privity.
“The standard elements of a claim
for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or
excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff
therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1178.) “A written contract may be pleaded by its terms—set
out verbatim in the complaint or a copy of the contract attached to the
complaint and incorporated therein by reference—or by its legal effect.” (McKell
v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) “In order to
plead a contract by its legal effect, plaintiff must allege the substance of
its relevant terms.” (Id.) Additionally, a person who is not a party to
a contract has no standing to enforce the contract or to recover damages for
wrongful withholding of benefits to the contracting party. (Republic
Indemnity Co. v. Schofield (1996) 47 Cal.App.4th 220, 227.)
Waste is “an unlawful act or omission of
duty on the part of a tenant, resulting in permanent injury to the [property].”
(Avalon Pacific-Santa Ana, L.P. v. HD Supply Repair & Remodel, LLC
(2011) 192 Cal.App.4th 1183, 1211.) To state a cause of action for waste, a
plaintiff must allege that the defendant was under a duty to preserve and
protect the property involved. (Id. at 1212.)
The Cross-Complaint alleges that on
June 14, 2012, Cross-Defendant Porsandeh leased the Subject Property located at
40 24th Avenue, Unit 3, Venice, California 90291. (CC ¶ 8.) Paragraph 11 of the
lease required Cross-Defendant to keep the Venice Property clean, sanitary and
in good condition. (CC¶ 10.) In late February 2022, Pittiemum purchased the
real property and gave notice to the Cross-Defendant of the change of
ownership. (¶11.) Thus, as a matter of fact, the Cross-Complaints allege that the
Lease was assigned to Pittiemum, and there is therefore privity of contract
between Cross-Defendant and Pittiemum.
Further, the record contains
unequivocal admissions by Cross-Defendant Porsandeh that Cross-Complainants are
parties to the Lease. “Judicial estoppel prevents a party from asserting a
position in a legal proceeding that is contrary to a position previously taken
in the same or some earlier proceeding.” (Jackson v. County of Los Angeles
(1997) 60 Cal.App.4th 171, 181; see MW Erectors, Inc. v. Niederhauser
Ornamental and Metal Works Co., Inc. (2005) 36 Cal.4th 412, 422 [the party
must take two totally inconsistent positions].) Cross-Defendant has taken two
completely inconsistent positions regarding the lease at issue. Cross-Defendant’s
First Amended Complaint (FAC) states several contract-based causes of action
against Cross-Complainants Pittiemum and Patel, including breach of implied
warranties of habitability, breach of contract, and breach of covenant of quiet
enjoyment. The FAC alleges that Cross-Defendants are owners and landlords of
the Subject Property. (FAC ¶¶ 3-4.) The FAC expressly alleges that
Cross-Defendants leased the Subject Property to Plaintiff (and Cross-Defendant)
Porsandeh. (FAC ¶¶ 9, 67, 126.) Both the FAC and the Cross-Complaint attach the
same written lease agreement. (Compare FAC, Ex. A; CC, Ex. 1.) Cross-Defendant
sued Cross-Complainants for breach of the lease, expressly alleging that
Cross-Complainants were parties to the lease and breached the lease.
Cross-Defendant now argues that Cross-Complainants lack privity with him and
cannot sue to enforce the lease. These two positions cannot both be true. Therefore,
Cross-Defendant Porsandeh is estopped from asserting that there is no lease
between himself and Cross-Complainants Pittiemum and Patel.
Damages
Cross-Defendant Porsandeh also
asserts that the damages allegations are lacking. He argues that
Cross-Complainants have not pled anything beyond normal wear and tear and have
not elaborated on what improper use means.
The Cross-Complaint alleges that
Cross-Defendant caused damage to the Property including: “Damage to walls as a
result of leaving windows open during rain; • Damage to the toilet as a result
of improper use; • Damage to the dishwasher as a result of improper use; •
Damage to washer dryer combo as a result of improper use; • Damage to floors as
a result of abnormal wear and tear; [and] • Damage to balcony[.]” (CC ¶ 13.) Cross-Defendant
has caused damage to the Venice Property and has failed to reimburse the
Cross-Complainant for said damage. (CC ¶¶ 20, 23.) Such conduct constitutes
waste and has permanently diminished and depreciated the market value of the
Property. (CC ¶ 24.) Cross-Defendant provides no authority that further
allegations are required to support the element of damages.
The attached lease also shows that
Cross-Defendant was under a duty to preserve the premises as follows: “Clause
11. Lessee's Maintenance Responsibilities [¶] Lessee will: (1) keep the
Premises clean, sanitary and in good condition and, upon termination of the
tenancy, return the Premises to Lessor in a condition identical to that
which existed when Lessee took occupancy, except for ordinary wear and tear;
(2) immediately notify Lessor of any defects or dangerous conditions in and
about the Premises of which any Lessee becomes aware; and (3) reimburse
Lessor, on demand by Lessor, for the cost of any repairs to the Premises
damaged by any Lessee or Lessee's guests or business invitees through misuse or
neglect. […] Lessee is responsible for maintaining the appliances in good
working order…” (CC, Ex. 1, ¶ 9.) The CC alleges that the above damage goes
beyond ordinary wear and tear. (CC ¶ 13.) Whether the alleged damage truly goes
beyond normal wear and tear would be an issue of fact to be determined beyond
the pleading stage.
Accordingly, Cross-Defendant’s
demurrer is OVERRULED as to this cause of action.
Assault and Battery
Cross-Defendant Porsandeh argues that
the purported cause of action for Assault and Battery is technically two causes
of action, improperly pled together. Cross-Defendant argues that this renders
the pleading fatally uncertain. However, Cross-Defendant cites no authority for
this position. The stated causes of action, even if stated together, are not so poorly drafted that Cross-Defendant cannot
reasonably respond. Thus, the claims are not uncertain.
Further, Cross-Defendant does not explain how the causes would fail to
state a claim. The legal definitions of “assault” and “battery” are
well-defined under California law. Under
the Penal Code, “assault” is defined as “an unlawful attempt, coupled with a
present ability, to commit a violent injury on the person of another” (Pen.
Code, § 240), whereas “battery” is defined as “any willful and unlawful use of
force or violence upon the person of another” (id., § 242.) These crimes are
actionable as intentional torts in a civil proceeding. (Bartosh v. Banning (1967) 251
Cal.App.2d 378, 385.) “The essential elements of a
cause of action for assault are: (1) defendant acted with intent to cause
harmful or offensive contact, or threatened to touch plaintiff in a harmful or
offensive manner; (2) plaintiff reasonably believed she was about to be touched
in a harmful or offensive manner or it reasonably appeared to plaintiff that
defendant was about to carry out the threat; (3) plaintiff did not consent to
defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was
a substantial factor in causing plaintiff's harm.” (So v. Shin
(2013) 212 Cal.App.4th 652, 668-69.) “The essential elements of a cause of
action for battery are: (1) defendant touched plaintiff, or caused plaintiff to
be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (Id. at 669.)
The Cross-Complaint alleges sufficient facts to support either theory. On
June 29, 2022, while Patel was in the common areas surrounding the Venice
Property taping updated notices for the building, Cross-Defendant came down the
staircase from his second-floor apartment, pushed Patel on her back,
causing her to fall and injure her thigh and eye. (CC ¶ 14.) Further,
Cross-Defendant Porsandeh has verbally attacked Ms. Patel whenever she is
lawfully on the common areas, intimidating her for posting notices at the
property and for doing her management responsibilities. (CC ¶ 15.) Cross-Defendant intentionally pushed
the Cross-Complainant on the back thereby making harmful or offensive contact. (CC
¶ 28.) Patel did not consent to Cross-Defendant pushing her on the back. (CC ¶
29.) A reasonable person in Patel’s position would be offended by the unlawful
conduct. (Id.) Patel was harmed and injured by said conduct. (CC ¶ 30.) Cross-Defendant’s
actions were intentional, malicious, oppressive, and done with reckless and
wanton disregard for the consequences. (CC ¶ 31.) These allegations establish
that Cross-Defendant intended to cause harmful or
offensive contact. At a minimum, this states a cause of action for battery. Further,
it may be reasonably inferred from the allegations that Patel reasonably
believed she was about to be touched in a harmful or offensive manner or it
reasonably appeared that Cross-Defendant was about to carry out an offensive
touching prior to the assault.
Accordingly,
Defendant’s demurrer is OVERRULED.
Intentional Infliction of
Emotional Distress
The
elements of an intentional infliction of emotional distress (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.’” (Id. at 780.)
“Behavior may be considered outrageous if a defendant (1) abuses a relation or
position which gives him power to damage the plaintiff’s interest; (2) knows
the plaintiff is susceptible to injuries through mental distress; or (3) acts
intentionally or unreasonably with the recognition that the acts are likely to
result in illness through mental distress.” (McDaniel v. Gile (1991) 230
Cal.App.3d 363, 372.) “[I]t is not enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended to inflict
emotional distress, or even that his conduct has been characterized by
‘malice,’ or a degree of aggravation which would entitle the plaintiff to
punitive damages for another tort.” (Cochran v. Cochran (1998) 65
Cal.App.4th 488, 496.) “Liability has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.” (Id.) While there is no
bright-line as to what constitutes outrageous conduct and thus this involves a
case-by-case analysis, courts can determine whether conduct was sufficiently
outrageous at the demurrer stage. (Id. at 494.) When reasonable persons
may differ, it is for the jury, subject to the control of the Court, to
determine whether, in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.¿ (Alcorn v. Anbro
Engineering, Inc. (1970) 2 Cal.3d 493, 499.)
Although
Patel alleges severe emotional distress, Patel does not allege sufficient facts
supporting outrageous conduct. Patel provides generalized and conclusory
allegations of the outrageous conduct. She alleges that Cross-Defendant intentionally
engaged in the above conduct in order to cause financial and mental anguish.
(CC¶ 34.) Cross-Defendant caused enough stress to Patel that she sought assistance
from a mental health specialist and started taking prescription medication. For
example, Patel cannot sleep, eat, or spend quality time with her family because
of the severe stress caused by Cross-Defendant. (CC ¶ 35.) Notably, the
Cross-Complaint does not allege even conclusory allegations that any conduct
was so extreme as to exceed all bounds of that
usually tolerated in a civilized society. Thus, the cause of action would
necessarily fail to establish outrageous conduct as a matter of fact. Even
examining the substance of the allegations, the Cross-Complaint merely establishes
that Cross-Defendant Porsandeh engaged in the following conduct: 1) has not paid
rent since February 2022; 2) caused damage to the Property; and 3) intentionally
insulted, assaulted and battered Patel.
First, a mere breach of contract,
such as a failure to pay rent, cannot be a basis for this tort. Second, as
alleged, the Cross-Complaint does not establish specific conduct regarding
Cross-Defendant’s damage to the Property. Further facts would be needed to show
the way Cross-Defendant damaged the property to establish outrageous conduct. Finally,
an intentional battery might be considered outrageous, depending on the facts. Here,
however, the Cross-Complaint pled generalized allegations regarding the
battery. Even read liberally, Patel only alleges that Cross-Defendant pushed
her on her back and insulted her. (CC ¶¶ 14, 28-29.) The Court cannot consider
the simple battery alleged as outrageous conduct without further facts showing extenuating
circumstances.
Accordingly, Cross-Defendants’
demurrer is SUSTAINED with leave to amend as to the IIED cause of action.
Motion to Strike
The motion to strike punitive
damages is MOOT. Leave to amend was granted to allow additional facts
supporting the IIED claim, which would tend to support the punitive damages
claim as well. To the extent that the motion would not be moot, the Court
concurs that the battery does not provide sufficient facts showing malice under
the heighted pleading standard for punitive damages.
The motion
to strike the request for attorneys’ fees is GRANTED without leave to amend.
Cross-Complainants concede there is no basis for fees.
The remainder of the motion to
strike duplicates the arguments on demurrer. The Court has already rejected
such arguments. Additionally, Cross-Defendant does not adequately explain why
any of the cited paragraphs could be considered false or improper. Accordingly,
the motion to strike is DENIED as to the remaining issues.