Judge: Mark H. Epstein, Case: 22SMCV00383, Date: 2023-05-01 Tentative Ruling

Case Number: 22SMCV00383    Hearing Date: May 1, 2023    Dept: R

The demurrer as to Negligent Infliction of Emotional Distress is SUSTAINED WITHOUT LEAVE TO AMEND.  The demurrer to “Nuisance—maliciously inflicted” is SUSTAINED WITHOUT LEAVE TO AMEND.  The demurrer as to other causes of action is OVERRULED.  The motion to strike is DENIED.

Plaintiffs Beverly Drive One, LLC filed this breach of lease agreement action against defendants Peggy Kohannim and Darren Saville for their purported failure to pay rent.  Peggy and Darren (“cross-complainants”) thereafter filed a cross-complaint against Beverly Drive One and Sina Akhtarzad (collectively “cross-defendants”).  According to the operative First Amended Cross-Complaint (“FAXC”), cross-complainants leased a property from cross-defendants on June 26, 2018. (FAXC, ¶13.)  Cross-complainants contend they agreed to pay $16,000 per month and after the original one-year lease expired, they continued to remain in possession as month-to-month tenants.  (Id. at ¶19.)  They purportedly voluntarily moved out at some point in June 2022. (Ibid.)

Cross-complainants assert that the premises suffered from habitability issues throughout their tenancy, including damp or leaking ceilings, broken smoke detectors, vermin and bug infestation, human and/or pigeon feces in the common areas and backyard, among other things.  (FAXC, ¶14.) The property also purportedly suffered from flooding and stagnant sewage water.  (Id. at ¶¶14-16.)  Cross-complainants claim there was a yearly flea infestation though they did not own any pets, rats often infested the property, and the yard was unusable because visibly toxic sewage was strewn across the lawns.  (Id. at ¶¶14-18.)  Cross-complainants claim that they sent pictures of these conditions to the cross-defendants but cross-defendants did not address these conditions.  (Id. at ¶27.)

Currently before the court is cross-defendants’ demurrer to and motion to strike the FAXC.  Cross-complainants oppose.

Cross-defendants’ request for judicial notice is GRANTED.  However, the court does not take judicial notice of the truth of the matters stated therein.  Further, while the court notices the fact that no habitability defense was raised in the unlawful detainer matter, the court does not infer that cross-complainants therefore had no such defense.

Cross-defendants demur to the fifth, seventh, and eighth causes of action on the grounds of failure to state sufficient facts and uncertainty.  (See Code Civ. Proc., § 430.10, subds. (e)-(f).)  “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Fin. Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  A demurrer for uncertainty does not address whether the pleading fails to “incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.”  (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.)  Rather, a demurrer is intended to address whether a pleading is so incomprehensible that a defendant cannot understand the allegations actually made.  (Id. at p. 146.)  The only arguments asserted by cross-defendants pertain to the ground of failure to state sufficient facts.  Thus, the demurrers for uncertainty are unsubstantiated and OVERRULED.

Cross-defendants claim that cross-complainants fail to allege any specific facts whatsoever to support the intentional tort claims.  They essentially argue that the pleading standard for punitive damages is not met here.  But it does not need to be met in order to plead a claim. Cross-defendants keep confusing the pleading standards for punitive damages with the pleading standards for the substantive claim.  There is no reason articulated why the punitive damages standards for malice, oppression, and fraud should apply to the elements of tort claims.  Without authority stating as much, the court disagrees.  Further, the court believes that even if cross-defendants were correct as to the standard that the allegations are insufficient.  Allowing feces and sewage to be visibly present in the back yard without doing anything about it creates a dangerous condition, not just an unpleasant one.  A landlord has a duty to address that issue; deliberately ignoring it puts the tenants’ health and safety at risk and would, if true, potentially warrant punitive damages.  To be clear, the court is not making a finding that any of the allegations in the cross-complaint are true.  The court is merely saying that if one accepts those allegations as true (which it must on demurrer), they are sufficient.

On the IIED claim, cross-defendants contend cross-complainants must allege the timing and sequence of the alleged defective conditions.  That statement is made without support because there is no such requirement.  They again claim that cross-defendants have not met the pleading standard for malice.  They do not have to for the elements of an IIED claim.  “ ‘ “[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”  [Citation.]’  (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)”  (McClintock v. West (2013) 219 Cal.App.4th 540, 556, parallel citations omitted.)  Cross-defendants assert cross-complainants have not alleged specific facts related to cross-defendants’ knowledge of the defective conditions, their responses, their intent to injure cross-complainants, or what severe emotional distress cross-complainants’ suffered.  The court disagrees that IIED must be pled specifically to a similar extent as fraud and the cases cited by cross-defendants do not state as much.  Instead, general factual allegations will suffice.  Here, the allegations indicate cross-defendants knew of the defective conditions and failed to remedy them, which leads to a reasonable inference of intent to harm (at least for pleading purposes).  As for emotional distress, cross-complainants assert they suffered emotional distress, anger, frustration, fear, and inconvenience.  Whether this rises to the level of actionable emotional distress can be tested in discovery.

The court generally is sympathetic to the notion that “Nuisance—maliciously inflicted” is not a recognized cause of action.  The cause of action is for nuisance, and it is elsewhere pled.  As such, this cause of action adds nothing and the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.  To be clear, though, the court is not holding that the nuisance was not in fact malicious, nor does the court mean to limit damages to those that might be recoverable for an intentional nuisance.

Finally, the existence of the lease agreement does not preclude an IIED claim or at least cross-defendants have not substantiated the argument.  Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928-931, cited by plaintiffs in opposition, supports the proposition that an IIED claim can be stated against landlord/property manager for failure to correct defective conditions.  The demurrer is OVERRULED.

Plaintiffs concede that the NIED cause of action should be dismissed.  The demurrer as to that cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Cross-defendants have 30 days to answer.