Judge: Mark C. Kim, Case: 22LBCV00019, Date: 2023-05-09 Tentative Ruling
Case Number: 22LBCV00019 Hearing Date: May 9, 2023 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 a
demurrer and motion to strike on 7/01/22, and the Court sustained the demurrer
and granted the motion to strike with leave to amend on 11/14/22. Plaintiff filed the operative First Amended
Complaint on 12/12/22. The FAC includes
causes of action for:
·
Violation
of Civil Code §1940.2 – Breach of Covenant of Quiet Enjoyment (all defendants);
·
Violation
of Civil Code §1942.5 (all defendants);
·
Tortious
Failure to Provide Habitable Premises (all defendants);
·
Negligence
(all defendants);
·
Nuisance
(all defendants);
·
Assault
(Henry Perry);
·
IIED
(all defendants);
·
Breach
of Written Contract (all defendants).
2.
Demurrer to FAC
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).)
i.
Two Causes
of Action in One
As an initial note, Defendant correctly notes that Plaintiff’s first cause
of action seems to include claims for breach of the covenant of quiet enjoyment
and Violation of Civil Code §1940.2 into one cause of action. Plaintiff does not meaningfully address this
in opposition to the demurrer. The
Rutter Guide on Landlord-Tenant issues, Chapter 4, §4:97.5, explains that a
violation of §1940.2 is a separate and distinct civil penalty cause of
action. Thus, at a minimum, Plaintiff must
divide her first cause of action into two separate causes of action.
ii.
Quiet
Enjoyment
To the extent this is a cause of action for breach of the covenant of
quiet enjoyment, Plaintiff alleges Defendants violated the covenant of quiet
enjoyment by conducting twice-monthly exterminations for roach infestation
where Plaintiff was required to completely empty her bathroom and kitchen for
each extermination, and by placing Plaintiff in constant fear of imminent harm
and eviction.
Landlords have a limited statutory right to enter their tenants' units
during business hours—e.g., to make necessary repairs—upon the giving of proper
notice. Civil Code §1954. If the
statutory procedures are followed, the landlord's entry does not breach the
covenant of quiet enjoyment. Similarly, so long as the landlord acts reasonably
in fulfilling the statutory duty to make repairs pursuant to Civil Code §1941, interference
with a tenant's use of the premises in order to make the repairs does not
breach the covenant. Groh v. Kover's
Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 615.
On the other hand, a landlord who enters the unit without complying with
§1954 or who performs repair work in an unreasonable manner, thus unnecessarily
disturbing the tenant's beneficial use and enjoyment of the premises, may be
liable for breaching the covenant. Pierce
v. Nash (1954) 126 Cal.App.2d 606, 614;
Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 848.
The Court cannot say, at the pleading stage, that entering the house
twice a month was not “unreasonable”; at ¶13, Plaintiff alleges the problem has
been ongoing for many years and has required exterminations twice per month,
and every time she has to move her belongings out of the kitchen and
bathroom. It will be up to the trier of
fact to determine if this rises to the level of “unreasonable” contemplated by
case law such that the covenant of quiet enjoyment was breached. Thus, to the extent the first cause of action
is premised on a violation of the covenant of quiet enjoyment, the Court finds
it is adequately pled.
iii.
Civil
Code §1940.2
Plaintiff’s complaint merely cites the language of the statute, then
declares that Defendants have breached the statute by “committing the
above-described acts.” It is not clear
which acts are violating which portions of the statute. Plaintiff’s opposition to the demurrer does
nothing to clarify. The Court therefore
finds that, to the extent the first cause of action is premised on a violation
of §1940.2, it is not adequately pled.
iv.
Conclusion
Plaintiff must split the first cause of action into its two
sub-parts. The first sub-part is adequately
pled, but Plaintiff must clarify her allegations re: the second sub-part.
Plaintiff’s second cause of action is for violation of Civil Code
§1942.5. §1942.5 precludes landlord
retaliation for a tenant’s exercise of her rights under the chapter or due to a
tenant’s complaint to an appropriate agency as to tenantability of her
dwelling. Plaintiff’s second cause of
action fails to specify what protected acts she took or what steps Defendants
took to retaliate against her as a result of her taking those steps. Plaintiff’s opposition to the demurrer is entirely
silent concerning the basis of this cause of action. Plaintiff briefly argues that her complaint
states a claim for harassment by Defendant Perry as Moving Defendants’ agent;
the cause of action, however, is not for harassment, it is for
retaliation. Plaintiff fails to clarify
the basis of her claims for retaliation.
The demurrer to the §1942.5 cause of action is therefore sustained
without leave to amend.
Defendants contend Plaintiff’s allegation that the property had a roach
infestation and received routine pest control treatment is insufficient to state
a claim for breach of the warranty of habitability, as the breach must be substantial
and must materially affect health and safety.
Smith v. David (1981) 120 Cal.App.3d 101, 109.
Plaintiff’s opposition does not meaningfully address this argument. Plaintiff merely states, in opposition to the
demurrer, that her claims are sufficiently pled.
The only case the Court was able to find concerning the presence of roaches
in an apartment is McNairy v. C.K. Realty (2007) 150 Cal.App.4th
1500, wherein the court of appeals affirmed a jury verdict finding that ongoing
cockroach problems coupled with unsanitary water in an apartment building was sufficient
to support the verdict in the plaintiffs’ favor re: their habitability
claims. The opinion did not separate out
the cockroach infestation from the unsanitary water conditions, but found the
two things, put together, were sufficient.
The Court cannot, at the pleading stage, determine that an ongoing
cockroach infestation for many years is insufficient to state a claim for
breach of the warranty of habitability. The
demurrer is therefore overruled.
Defendants demur to the fourth cause of action for negligence on two
grounds. First, they contend the
individual defendants, Robert Louis Wood and Jacqueline Wood, did not owe
Plaintiff any duty of care in their individual capacity, as they were not
owners of the property. Second, they
contend Plaintiff failed to allege duty, breach, causation, and damages in
connection with the cause of action.
Jacqueline Wood is not named in the FAC as a defendant. Plaintiff fails to address how Robert Louis
Wood, who is named as a defendant in the FAC, can be liable for negligence in
his individual capacity. His demurrer is
therefore sustained without leave to amend.
Plaintiff, in opposition to the demurrer, purports to set forth authorities
concerning the pleading standard for negligence, but the only citation Plaintiff
gives is “Id.” Id. is not a
citation. Plaintiff also argues Defendants
acted negligently by not keeping the property up to code and by not curing
defects identified in prior inspections.
Plaintiff’s FAC, however, is silent concerning any code violations and/or
prior inspections and results. The only
mention of any inspection at all is found at ¶74 of the FAC, which is in the
IIED cause of action, and it fails to state when the inspection occurred or
what violations were found.
The demurrer to the cause of action for negligence is sustained. Plaintiff must clarify any allegations of
negligence by way of a Second Amended Complaint.
Defendants argue an ongoing roach problem is not sufficient to plead
nuisance. Plaintiff argues it is. Neither party cites on point authority. Because Defendants have the burden to show
the cause of action is deficiently pled, and because they failed to cite any on
point authority, the demurrer is overruled.
The Court cannot find, at the pleading stage and as a matter of law,
that an ongoing roach infestation does not constitute a private nuisance.
Plaintiff alleges Defendants are
liable for intentional infliction of emotional distress both because they
allowed the roach infestation to occur and because they failed to stop their
agent, Co-Defendant Perry, from harassing her and engaging in offensive
behavior toward her. As Defendants
correctly note in their demurrer, IIED can only be pled when the offending
conduct is so extreme and outrageous as to be intolerable in a civilized society. Plaintiff alleges an ongoing roach problem,
but also alleges ongoing attempts to remedy the problem. She fails to show how or why Moving
Defendants would be liable for Perry’s intentional behavior, as the behavior
was committed solely by Perry. Plaintiff
has pled no extreme and outrageous conduct by Moving Defendants, and therefore the
demurrer is sustained. Because it does
not appear Plaintiff could plead more if given leave to do so, leave to amend
is denied.
Defendants demur to the cause of
action for breach of contract on the ground that Robert Wood only rented the property
to Plaintiff in his capacity as a trustee, and therefore he should not be named
in the cause of action as an individual defendant. It is not clear whether the Trust is
demurring to the FAC; to the extent it is, the demurrer is overruled, as there
is no argument advanced.
Plaintiff, in opposition to the demurrer,
argues the parties’ lease expressly identifies the landlord as “Robert L. Wood.” The Court has reviewed the lease, attached as
Exhibit A to the FAC, and finds that it does, consistently, refer to Robert L.
Wood as the landlord. There is no
mention of a trust anywhere in the lease.
Wood’s demurrer to the breach of contract cause of action is therefore overruled.
3. Motion
to Strike
a. Allegations
re: Knowledge and Direction
Plaintiff repeatedly alleges that
Moving Defendants had knowledge of Perry’s harassing and wrongful conduct, and
also that they directed the conduct. Defendants
move to strike these allegations, correctly noting that they are purely conclusions
without any factual support. The motion
to strike these allegations is stricken.
Leave to amend is granted if and only if Plaintiff can allege facts, as opposed
to conclusion, showing Moving Defendants knew of and/or directed Perry’s
conduct.
b. Punitive
Damages
Defendants move to strike Plaintiff’s
prayer for punitive damages against them.
The motion is granted. Plaintiff
failed to plead facts showing fraud, malice, or oppression for the reasons
stated above in connection with the demurrer to the IIED cause of action.
c. Statutory
Damages
Defendants move to strike Plaintiff’s
prayer for statutory damages pursuant to Civil Code §§1940.2 and 1942.5. The motion is moot in light of the ruling
above sustaining the demurrer to each of these causes of action.
d. Additional
Allegations
Defendants’ notice of motion
details myriad additional allegations they seek to have stricken. Their points and authorities fail to discuss
the remaining allegations subject to the motion. The motion is therefore otherwise denied.
4. Conclusion
Defendants’ demurrer and motion to strike
are sustained and granted in part as detailed fully above. Plaintiff is ordered to file a Second Amended
Complaint within twenty days. If Defendants
wish to challenge the SAC, the parties must meet and confer in good faith. If a pleading challenge is filed, the parties
are ordered to provide on point authority and discussion of the allegations of the
facts that support each cause of action pled.
5. OSC
re: Sanctions
The Court set an OSC re: sanctions
because Plaintiff failed to timely oppose the demurrer. The Court also noted an ongoing pattern of
conduct on the part of Plaintiff’s attorney in failing to timely and fully
participate in this litigation. Plaintiff’s
attorney filed a declaration in opposition to the OSC wherein he explains that
he miscalendared the due date for the opposition because the hearing date
changed. The OSC is discharged. The Court does, however, admonish Plaintiff’s
attorney that he must fully participate in this litigation if he wishes to
avoid adverse rulings and/or sanctions in the future.
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.