Judge: Mark C. Kim, Case: 21LBCV00668, Date: 2022-07-28 Tentative Ruling
Case Number: 21LBCV00668 Hearing Date: July 28, 2022 Dept: S27
Plaintiffs, Anicia Maria Espinoza
Reyes and Benigno Enriquez Espinosa filed this action against Defendants, Ana
Canjura and Deysi Camarena for negligence, breach of warranty of habitability,
breach of covenant of quiet enjoyment, premises liability, nuisance, and
IIED.
a. Legal
Standard on Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge
the truthfulness of the complaint; and for purpose of the ruling on the demurrer,
all facts pleaded in the complaint are assumed to be true, however improbable
they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support
the cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot
reasonably respond. CCP §
430.10(f).
However, in construing the allegations,
the court is to give effect to specific factual allegations that may modify or
limit inconsistent general or conclusory allegations. Financial Corporation of
America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in
the complaint are inconsistent with facts which are incorporated by reference
from exhibits attached to the complaint, the facts in the incorporated exhibits
control. Further, irrespective of the name or label given to a cause of action
by the plaintiff, a general demurrer must be overruled if the facts as pled in
the body of the complaint state some valid claim for relief. Special demurrers
are not allowed in limited jurisdiction courts. (CCP § 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §
430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration
detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
b. Meet
and Confer
Defense Counsel declares he sent a
letter to Plaintiff’s attorney to meet and confer, and then the attorneys
emailed back and forth without resolution.
§430.41(a) requires Counsel to meet and confer in person or by telephone. The Court will therefore continue the hearing
to require a proper meet and confer, and will offer guidance in the hope that the
parties can resolve their differences without the need for an additional
hearing.
c. Nuisance
Defendants argue the nuisance claim
is duplicative of the negligence claim and therefore fails to state a cause of
action. In El Escorial Owners’ Association
v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349, the Court held that the
plaintiff’s nuisance and negligence claims were the same because the plaintiff
failed to allege facts showing how the nuisance claim differed from the
negligence claim and the plaintiff only sought the same monetary relief as
requested under the negligence claim.
Plaintiffs’ claims are based on the
same set of facts. However, they seek punitive
damages in connection with the nuisance cause of action and not the negligence
cause of action. Thus, to the extent the
punitive damages prayer survives, it seems the causes of action can be pled separately. See also Stoiber v. Honeychuck (1980) 101
Cal.App.3d 903, 920-921, explaining that nuisance can be pled in connection with
a habitability claim when the claims are sufficiently egregious.
d. IIED
Defendants argue the cause of
action for IIED fails because (a) there is no extreme and outrageous conduct, (b)
Plaintiffs did not allege they suffered severe emotional distress, and (c) there
is no allegation that Defendants intended to cause Plaintiffs emotional
distress.
Pursuant to Stoiber v. Honeychuck,
supra, a habitability action can give rise to an IIED claim if the conduct at issue
is sufficiently severe. Counsel are
ordered to meet and confer concerning how this case is similar to or different
from Stoiber.
Defendants move to strike the
prayer for punitive damages and all related allegations. If IIED is well-pled, then the prayer and
related allegations will stand. Again, Counsel
must meet and confer concerning whether the allegations of this case are similar
to or distinguishable from the allegations of Stoiber. They must discuss specific allegations in each
case when they meet and confer.
The hearing on the demurrer and
motion to strike is continued for six weeks, to Thursday, 9/08/22 at 8:30 a.m.
in Department S27 of the Long Beach Courthouse.
Within the next week, Counsel must meet and confer in connection with the
above discussion. They must first determine
whether IIED is well-pled. If it is, the
claim for punitive damages will stand. If
the claim for punitive damages is sufficiently pled, then the cause of action
for nuisance may also be maintained.
The Court is hopeful the parties
can resolve these issues without the need for a further hearing. If the parties resolve the issues, Defendants
must take the continued hearing date off calendar. If they do not do so, they must file further
briefs and declarations concerning their attempts to meet and confer, as well
as a full analysis of Stoiber and any related case law, at least two weeks
prior to the continued hearing date.
The parties are reminded there is a
CMC on calendar concurrently with the hearing on this demurrer and motion to
strike. The Court asks Counsel to make
arrangements to appear remotely at the hearing on the demurrer, motion to
strike, and CMC.