Judge: Mark H. Epstein, Case: 23SMCV05190, Date: 2024-02-07 Tentative Ruling

Case Number: 23SMCV05190    Hearing Date: February 28, 2024    Dept: I

The demurrers to the seventh and eighth causes of action are SUSTAINED WITH LEAVE TO AMEND.  The demurrer as to the property damage cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.  The motion to strike is GRANTED IN PART.  Plaintiffs have 30 days’ leave to amend.

Plaintiffs Richard Cortijo and Cesar Madera (collectively “plaintiffs”) filed this landlord-tenant action against defendants 727 Westbourne Vila B, LP (727), Moss Management Services Inc. (Moss), and Beach Front Property Management, Inc. (Beach Front, and collectively “defendants”).  According to the operative complaint, plaintiffs entered into a written rental agreement with defendant 727 on or around January 10, 2014.  (Compl., ¶11.)  Defendants Moss and Beach Front are property managers for the property.  (Id. at ¶12.)  Plaintiffs allege that defendants have engaged in unauthorized and unsafe construction in the property from November 2022 to the present. (Id. at ¶14.)  Among other things, defendants allegedly failed to obtain permits and notify tenants of the construction when it started, and failed to comply with safety and air safety standards concerning asbestos.  (Id. at ¶¶15-16.)  Plaintiffs contend that these activities were meant to force tenants to leave—in essence a constructive eviction in the rent controlled apartments.  (Id. at ¶17.)  Plaintiffs assert that the property is unfit for human occupation, contains water damage, has surface asbestos, and is riddled with mold spores.  (Id. at ¶18.)  Plaintiffs state they told defendants about the construction debris and their ongoing health issues, including continuous migraines, body aches, vomiting, diarrhea, and fatigue, for which they have been receiving treatment since January 2023.  (Id. at ¶20.)  Further, the workers at the property allegedly made homophobic and derogatory statements to plaintiffs, to the point where it became so bad that plaintiffs had to call the Sheriff’s Department.  (Id. at ¶¶21-22.)

Currently before the court is defendants’ demurrer and motion to strike the complaint.  Plaintiffs filed oppositions limited to certain arguments.

Defendants’ request for judicial notice is GRANTED. Exhibit A is the grant deed, which is the proper subject of judicial notice.  Exhibits B and C are the property management contracts between the other defendants and 727.  A contract between private parties is usually not subject to judicial notice.  (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)  However, a court can take judicial notice of a contract when there is no dispute regarding its authenticity and enforceability.  (Pastoria v. Nationwide Ins. (2003) 112 Cal.App.4th 1490, 1495 fn. 4; see also Ascherman v. Gen. Reinsurance Corp. (1986) 183 Cal.App.3d 307, 310-311; StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.)  Judicial notice may be taken of facts that clearly derive from a contract’s legal effect.  (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754.)  Here, the opposition does not take issue with the contracts’ authenticity and enforceability.  Judicial notice is GRANTED.

Defendants demur to the seventh, eighth, and ninth 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 defendants pertain to the ground of failure to state sufficient facts.  Thus, the demurrers for uncertainty are unsubstantiated and OVERRULED.

The demurrer to the seventh cause of action for intentional infliction of emotional distress is SUSTAINED WITH LEAVE TO AMEND.  Defendants argue that their failure to the repair the property does not qualify as outrageous conduct.  One of the requisite elements of an intentional infliction of mental distress claim is that a defendant’s conduct must be outrageous.  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533.)  “ ‘In order to meet the first requirement of the tort, the alleged conduct “ ‘ . . . must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’  [Citation.] Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”’ (Rest.2d Torts, § 46, com. d.)”  [Citation.]’  (Ibid.)  [¶] Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)”  (Id. at pp. 533–534, citing Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 in part.)

The court agrees. The claim is predicated solely on defendants’ failure to repair the property and respond to plaintiffs’ concerns.  In particular, plaintiffs allege that “Defendants’ failure to repair the Property into a safe living condition and repeated failures to remedy the defect after Plaintiff’s continuous requests were knowing, intentional and willfully done with disregard to Plaintiff’s safety, causing Plaintiffs severe emotional distress.”  (Compl., ¶59.)  The court does not believe that construction work and failure to remedy defects, standing alone, constitutes outrageous behavior.  But that does not mean that plaintiffs will be unable to elaborate further in a way that will cure the problem, and they have leave to so attempt.

The opposition argues that IIED claims are properly brought against landlords by tenants raising habitability issues.  One of the requisite elements of an intentional infliction of mental distress claim is that a defendant’s conduct must be outrageous.  (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, disapproved of on another ground by Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 740, fn. 9.)  For the purposes of a claim for intentional infliction of emotional distress, “[b]ehavior 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.”  (Ibid.)  Courts have stated there is a special relationship between residential landlords and tenants when considering whether the landlord’s conduct was outrageous.  (Ibid.)  And “[I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress.”  (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922.)  But the existence of a special relationship does not mean that the actions are outrageous. That is the missing issue here for plaintiffs.  On the other hand, it could be that plaintiffs are trying to allege that the habitability issues were more than just inattention to complaints but rather were a deliberate attempt by the landlord to make things so bad that plaintiffs would be compelled to move out.  That is different.  If that is what plaintiffs contend, they will need to say so clearly, but if they do, that would be enough.  Failing to fix problems might be actionable, but it is hard to see that alone as an IIED cause of action.  But deliberately letting things get so bad that the tenant is forced to leave irrespective of the health and other effects those issues have on a tenant is another.  Similarly, things like failing to get a permit would not qualify as outrageous conduct, but a claim that the conditions were so bad as to be life-threatening (or were likely to cause severe injury) could be enough if defendants were aware of that risk and chose to subject plaintiffs to it.  Leave to amend will be granted to allow plaintiffs to so allege if that is what they are trying to say.  If they do, the court would not expect to see a renewed demurrer.  The demurrer is therefore SUSTAINED WITH LEAVE TO AMEND.

The demurrer to the promissory estoppel claim is also SUSTAINED WITH LEAVE TO AMEND.  “ ‘ “The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3)[the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ ” ‘  (Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1672.)”  (Aceves v. U.S. Bank, N.A. (2011) 192 Cal.App.4th 218, 225, parallel citations omitted.)  “To be enforceable, a promise need only be ‘ “definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” ’  (Bustamante v. Intuit, Inc., supra, 141 Cal.App.4th at p. 209, quoting Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.)”  (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1045, parallel citations omitted.)  “ ‘Estoppel cannot be established from . . . preliminary discussions and negotiations.’  (National Dollar Stores v. Wagnon (1950) 97 Cal.App.2d 915, 919.)”  (Id. at p. 1044, parallel citations omitted.)  Rather, the discussions must mature to a point of a clear and certain promise.

Plaintiffs’ promissory estoppel claim revolves around promises made when they moved into the property.  “Defendants made a clear and unambiguous promise to Plaintiffs that the Property had been rid of toxic mold and toxic mold spores prior to Plaintiffs moving into the Property.  [¶] Plaintiffs reasonably and justifiably relied on Defendants’ promise that the Property was safe and habitable prior to moving into the Property as Defendants were thought to be a respected physician and to be in a place to know whether the home was rid of poisonous toxins.  As such, Plaintiffs did not conduct any investigation into the potential presence of toxic mold and/or toxic mold spores, because it had been purportedly done by Defendants.”  (Compl., ¶¶66-67.)  Defendant 727 establishes that it could not have made any such promise because it became the owner of the properly in May 2022. (RJN, Exh. A.)  Plaintiffs allege they moved into the property in 2014.  That temporal irregularity dooms the cause of action, at least as to those promises.

Defendants further argue there is no clear and ambiguous promise.   The court agrees. The promise, as alleged, does not set out the parties’ respective duties or provide the limit of performance so the court can determine damages.  There is no opposition to the demurrer to this cause of action.  Plaintiffs will be given an opportunity to cure this problem.  If plaintiffs want to try and amend, they may do so, but they must comply with the tort’s requirements.

Finally, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the ninth cause of action for “property damages.”  The court does not know what this is and a request for relief is not a separate cause of action.  The request can be incorporated in other causes of action.

Turning to the motion to strike, it is GRANTED IN PART and DENIED IN PART.  Defendants move to strike plaintiffs’ requests for punitive damages and attorneys’ fees.  The motion is MOOT as to paragraphs 64 and 70 because the demurrers to the seventh and eighth causes of action were sustained.  The motion is GRANTED as to paragraphs 33 (negligence per se), and 40 (negligent failure to perform covenant to repair).  Paragraphs 33 and 40 sound in negligence and are not a proper basis for punitive damages.  “Mere spite or ill will is not sufficient; and mere negligence, even gross negligence is not sufficient to justify an award of punitive damages.”  (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894, emphasis in original.)

The breach of implied warranty and nuisance claims arise out of the construction issues and health concerns plaintiffs faced.  These allegations also do not rise to the level of malice, oppression, or fraud.  Further, the punitive damages allegations in general do not satisfy Civil Code section 3294 subdivision (b).  Plaintiffs seek punitive damages against three entities, but there are no allegations of advance knowledge, personal involvement by an officer or director, or ratification.  There is nothing for the court to make even an inference off of on this issue.  “Subdivision (b) thus authorizes the imposition of punitive damages on an employer in three situations: (1) when an employee was guilty of oppression, fraud or malice, and the employer with advance knowledge of the unfitness of the employee employed him or her with a conscious disregard of the rights or safety of others, (2) when an employee was guilty of oppression, fraud or malice, and the employer authorized or ratified the wrongful conduct, or (3) when the employer was itself guilty of the oppression, fraud or malice.”  (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151.)  As such, the motion is GRANTED in this regard.  Plaintiffs have 30 days’ leave to amend.

The motion is DENIED as to attorneys’ fees. That can be decided via noticed motion should the need arise.  The court notes, though, that it will not award attorneys’ fees absent a legal basis to do so.