Judge: Mark C. Kim, Case: 22LBCV00019, Date: 2022-09-08 Tentative Ruling

Case Number: 22LBCV00019    Hearing Date: September 8, 2022    Dept: S27

1.     Background Facts

Plaintiff, Ariel Knight filed this action against Defendants, Robert Louis Wood, Jacqueline Amy Wood, The Wood Family Trust, Robert Louis Wood and Jacqueline Amy Wood as Trustees, and Henry Perry for damages arising out of the parties’ landlord-tenant relationship. 

Plaintiff filed her complaint on 1/18/22.  Perry filed an answer and cross-complaint on 5/23/22.  The Wood Defendants filed this demurrer and motion to strike on 7/01/22. 

2.     Demurrer to Complaint

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

Defendants support their demurrer with the declaration of their attorney, Jennifer Voley.  Voley declares that, after failing to reach Plaintiff’s attorney by telephone, she mailed a letter, attached as Exhibit A, in an attempt to meet and confer.  She declares she did not hear back from Plaintiff’s attorney, and thereafter filed the demurrer.

Voley does not specify her attempts to meet and confer by telephone, as required by § 430.41(a).  Additionally, the Court is disappointed that Plaintiff’s attorney did not respond to the meet and confer letter.  The Court believes many issues presented by way of this demurrer could have been resolved if the attorneys had met and conferred in good faith. 

The Court is continuing the hearing on the demurrer for six weeks to require Counsel to meet and confer in good faith.  The Court will provide guidance, below, to assist Counsel in doing so.  The hearing on the demurrer is continued to Tuesday, 9/20/22 at 8:30 a.m. in Department S27 of the Long Beach Courthouse. 

c.     Guidance

i.              Individual Defendants

Robert and Jacqueline Wood, in their individual capacities, demur to the entire complaint against them on the ground that the Trust, not them as individuals, owns the subject property.  In support of their contention, they seek judicial notice of the Deed to the subject property, which shows it is owned by the Trust.  Defendants ignore the numerous agency allegations found in the complaint in their demurrer.  Plaintiff, in opposition to the demurrer, argues the Trust can only be sued through its trustees. 

Plaintiff has sued the trustees both in their individual capacity and also in their capacity as trustees.  The parties must meet and confer concerning whether suing the individual defendants in their individual, as opposed to trustee, capacity is warranted in this case.  If so, Plaintiff must clarify allegations against the individual defendants in their individual capacities to show the nature of their relationship with the other defendants and the nature of their responsibility for the other defendants’ acts. 

ii.             Fumigation

Plaintiff bases numerous causes of action on her allegation, found at ¶14, wherein she avers, “For many years, the building has had an ongoing roach problem, requiring exterminations twice per month.”  Plaintiff should clarify this allegation to show more specifically when and how often these exterminations were occurring.  Plaintiff alleges these allegations constitute a breach of warranty, nuisance, etc., and the Court cannot determine if exterminations could rise to the level required by way of these claims without more information about the duration and frequency of the exterminations. 

iii.            Perry’s Conduct

Plaintiff also bases numerous claims on Co-Defendant, Perry’s conduct.  Plaintiff alleges Perry was the agent of the other defendants.  Defendants argue they are not responsible for Perry’s conduct, contending there are no allegations that they directed or encouraged his conduct. 

Plaintiff fails to cite authority concerning whether and when a principal is liable for an agent’s intentional misconduct.  To guide the parties’ meet and confer communications, the Court provides the following discussion of the issue:

Whether an employee's wrongful acts were committed during the scope of employment is judged by a two-prong, alternative “test”:

•       Whether the act was either required by the employer or “incidental” to the employee's duties (“nexus” test); or

•       Whether the employee's misconduct was reasonably foreseeable by the employer (even if not “required” or “incidental”). [See Crouch v. Trinity Christian Ctr. of Santa Ana, Inc. (2019) 39 CA5th 995, 1015, 253 CR3d 1, 19; Montague v. AMN Healthcare, Inc. (2014) 223 CA4th 1515, 1521, 168 CR3d 123, 127; Yamaguchi v. Harnsmut (2003) 106 CA4th 472, 482, 130 CR2d 706, 713; CACI 3720]

If the employee's conduct meets either test, the employer is vicariously liable even though the employee acted maliciously and/or intentionally. [Crouch v. Trinity Christian Ctr. of Santa Ana, Inc., supra; Alma W. v. Oakland Unified School Dist. (1981) 123 CA3d 133, 139, 176 CR 287, 289].

The parties must meet and confer in light of the above standard to determine which causes of action can be stated against the co-defendants based on Perry’s alleged conduct. 

iv.            Retaliation

  Defendants cite Civil Code §1942.5, which creates a cause of action for retaliation if the plaintiff exercises her rights under the chapter or complains to an appropriate agency about habitability.  Defendants note that Plaintiff does not allege she has done so.  Plaintiff completely ignores this argument in opposition to the demurrer, and instead lumps her retaliation and harassment claims together, contending both are adequately pled.  If Plaintiff wishes to maintain this cause of action, she must clarify what protected behavior she engaged in that can support the claim.

v.         IIED

Plaintiff is reminded that this cause of action must be based on extreme and outrageous conduct.  She must meet and confer in good faith concerning whether that standard has been and/or can be met in connection with this case. 

3.     Motion to Strike

Defendants move to strike 21 allegations and elements of Plaintiff’s prayer from her complaint.  Most of the allegations relate to Defendants’ alleged ratification of Perry’s intentional misconduct.  If Plaintiff believes Defendants ratified Perry’s misconduct, Plaintiff must plead specific facts so showing; all facts in support of a claim for punitive damages must be pled with specificity.  See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7. 

Notably, Plaintiff specifically seeks punitive damages in the amount of $2 million, which is improper per Civil Code § 3295(e). 

The remainder of the motion to strike rises and falls with the demurrer, and the parties must meet and confer in good faith as detailed above.

4.     Conclusion

The hearing on the demurrer and motion to strike is continued to 9/20/22 for the reasons detailed above.  The Court is hopeful the parties can resolve all issues relating to the demurrer and motion to strike prior to that time.  If the parties are unable to resolve their issues, they must file briefs and declarations at least two weeks prior to the continued hearing date.  The declarations must set forth their efforts to meet and confer in good faith.  The briefs must detail which arguments remain unresolved and provide authority for the parties’ positions concerning why the pleading is or is not sufficient. 

Defendants are ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.