Judge: Melvin D. Sandvig, Case: 22CHCV00773, Date: 2023-04-28 Tentative Ruling

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Case Number: 22CHCV00773    Hearing Date: April 28, 2023    Dept: F47

Dept. F47

Date: 4/28/23

Case #22CHCV00773

 

DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 2/23/23.

 

MOVING PARTY: Defendant Pavilion Mountain View, LLC

RESPONDING PARTY: Plaintiffs Rocio Mejia Zamora, Michael Zamora, Anthony Mejia, Iberson Ortega by and through his guardian ad litem, Rocio Mejia Zamora

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Warranty of Habitability

            2.  Negligent Maintenance of Premises

            3.  Nuisance

            4.  Breach of Quiet Enjoyment

            5.  Intentional Infliction of Emotional Distress

            6.  Unruh Civil Rights Act (Civil Code 51)

            7.  Unfair Competition (Business & Professions Code 17200-17210)

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking all allegations relating to and claims for punitive damages and attorney’s fees without leave to amend.

 

RULING:  The demurer is sustained with 20 days leave to amend.  The motion to strike is placed off calendar. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out Plaintiffs Rocio Mejia Zamora, Michael Zamora, Anthony Mejia and  Iberson Ortega’s (Plaintiffs) tenancy in “various apartments in 12960 Dronefield Avenue, #OU, Sylmar, CA 91342” (the Property).   (See First Amended Complaint (FAC) ¶15).  Plaintiffs allege that during their tenancy, which began in 2013, the Property suffered from various habitability issues.  (FAC ¶¶15-16, 18).  Plaintiffs allege that the habitability issues in this action occurred “from January 2019 to date” and caused Plaintiffs damages and injuries, but also reference to defects which began soon after they moved into the Property.  (See FAC ¶¶16-18,  36, 39, 41, 68, 79, 84).  Plaintiffs also allege that they were discriminated against because they are Latino and families with children.  (FAC ¶¶4-7).

 

Plaintiffs allege, on information and belief, that each of the named defendants including, Defendant Pavilion Mountain View, LLC (PVM) “are the administrators, owners, joint owners, agents, trustees and managers of the subject property and a resident of and/or carrying business in the State of California.”  (See FAC ¶¶19-21).

 

On 9/20/22, Plaintiffs filed their original complaint for: (1) Breach of Warranty of Habitability; (2) Negligent Maintenance of Premises; (3) Nuisance; (4) Breach of Quiet Enjoyment; (5) Intentional Infliction of Emotional Distress; (6) Unruh Civil Rights Act, Civil Code 51; (7) Unfair Competition, Business & Professions 17200-17210 against Defendants Mountain View Manor Sylmar LP; Pavilion Mountain View LLC; MVM Limited Partnership; Bertram Partners Inc.; and Does 1-10.  On 9/22/22, Plaintiffs filed their First Amended Complaint alleging the same seven causes of action against the same defendants. 

 

On 10/27/22, Plaintiffs dismissed Defendant MVM Limited Partnership (MVM) without prejudice purportedly due to the mistaken belief that MVM did not own the property at any time relevant to their claims (Plaintiffs attorney was informed that MVM had sold the property in January 2019).  Thereafter, Plaintiffs claimed that “upon inquiry” they discovered “that [the] actual effective date of the violation is January 2018 and continuing to date.”  (See Oronsaye Decl. ¶5 attached to Motion to Vacate Dismissal filed on 1/17/23 (Oronsaye Decl.)).  Plaintiffs allege that the habitability conditions complained of occurred from January 2019 to date, but then claimed they began in January 2018.  (See Oronsaye Decl. ¶¶4-7).  On 2/16/23, this Court denied Plaintiffs’ Motion to Vacate the Dismissal of MVM.  (See 2/16/23 Minute Order).   

 

On 2/23/23, PVM filed and served the instant demurrer to the entire First Amended Complaint and motion to strike which seeks to strike all allegations relating to and claims for punitive damages and attorney’s fees without leave to amend.  On 4/18/23, 8 court days before the hearing, Plaintiffs filed and served late oppositions to the demurrer and motion to strike.  See CCP 1005(b).  The opposition to the demurrer exceeds the page limits set forth in CRC 3.1113(d) without prior court approval.  See CRC 3.1113(e), (g); CRC 3.1300(d).  Despite the late filings and the excessive opposition to the demurrer, the oppositions were considered by the Court in ruling on the merits.  On 4/21/23, PVM filed and served replies to the oppositions.

 

In the replies, PVM complains that the oppositions were improperly served via email only because PVM has not agreed to e-service in this case.  CCP 1010.6(b) provides:

 

“(1) This subdivision applies to mandatory electronic service. The court may order electronic service on a person represented by counsel who has appeared in an action or proceeding.

(2) A person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(3) Before first serving a represented person electronically, the person effecting service shall confirm the appropriate electronic service address for the counsel being served.

(4) A person represented by counsel shall, upon the request of any person who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting person with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.”

 

(emphasis added)

 

Since PVM is represented by counsel and one of the electronic service addresses where the oppositions were served on PVM is its email address of record (i.e., the email address listed in eCourt), the Court finds that the service of the oppositions by email was appropriate. 

 

 ANALYSIS

 

Among others, a demurrer may be based on the grounds that a complaint does not state facts sufficient to constitute a cause of action, the pleading is uncertain and/or when an action is founded upon a contract, that it cannot be ascertained from the pleading whether the contract is written, oral or implied by conduct.  See CCP 430.10(e), (f), (g).

 

All of the causes of action in the First Amended Complaint arise out of the alleged rental agreement(s) and/or lease for the Property.  (See FAC ¶¶15, 27, 37, 44, 77, 81, 82, 84, 89, 101, 108, 113, 115, 116, 118, 120, 123, 144, 145, 152, 155).  However, Plaintiffs have not alleged whether such contracts were written, oral or implied by conduct.  Nor have Plaintiffs attached copies of any written agreements to their pleading or pled the specific terms of any such agreement.  As such, each of the causes of action is subject to demurrer.  CCP 430.10(g).

 

The failure to adequately allege the terms of the rental agreements also renders Plaintiffs’ pleading uncertain as the parties to the agreements cannot be ascertained and it cannot be determined which of the various apartments Plaintiffs’ occupied at the Property suffered from which defects and/or when.  As noted above, Plaintiffs allege that they resided “at various apartments” in the Property from 2013 to present.  (See FAC ¶¶15-16).  Adding to the uncertainty, at one point, Plaintiffs allege that “[t]he habitability conditions in this complaint occurred from January 2019 to date,” but later Plaintiffs allege:

 

“At all relevant period of times stated herein (during which time Plaintiffs occupied the apartment in the subject property and performed the obligations under the rental agreement), within days of moving into the Property in the subject property and becoming aware of some the defective conditions, Plaintiffs made repeated demands that the Defendants make repairs to the defective conditions in Plaintiffs’ Property. At first, Defendants will promise to do some repairs and when such repairs will eventually be done, it will be performed incompletely and made inadequately.” (emphasis added)

 

(See FAC ¶¶16, 36, 39, 41, 68, 79, 84)

 

As such, it is not clear if Plaintiffs are complaining about conditions that existed in 2013 and/or which apartment or apartments of the various apartments Plaintiffs resided in at the property are at issue.

 

Plaintiffs’ allegations are also uncertain because they lump all of the defendants together without specifying which defendant or defendants are responsible for which actions.  See Arce (2012) 211 CA4th 1455, 1467; (See FAC, generally).  Plaintiffs allege:

“Effective January 2019 to date (the Complaint Period) during Plaintiff’s residency at the Property, and while Defendants owned and operated it, the Property was generally unsafe, unsanitary, unhealthy, uninhabitable, untenable, in a serious state of disrepair, and in gross violation of building, health and safety laws.” (emphasis in original)

 

(FAC  ¶32)

 

Plaintiffs fail to adequately explain the relationship between the remaining named defendants in the action.  Plaintiffs allege that “the Defendants” “owned, managed and/or controlled” the Property during the time Plaintiffs occupied the premises.  (FAC ¶17).  Plaintiffs also include boilerplate agency allegations included in the First Amended Complaint.  (See FAC ¶¶19-25).  As such, it is not clear what role Plaintiffs claim PVM played with regard to the property and when (i.e. is PVM an owner, manager, or did PVM have some sort of other unspecified control over the property?).  Again, because none of the rental agreements and/or lease agreements have been provided, it cannot be determined who owed duties to Plaintiffs under such contracts and/or when. 

 

Similarly, the allegations in the First Amended Complaint are uncertain because all of the Plaintiffs are lumped together.  As such, it is not clear what damages and/or physical and/or emotional injuries each Plaintiff allegedly suffered.  (See FAC ¶¶6, 16, 17, 18, 67, 68, 79).

 

In addition to the foregoing, each of the causes of action in the First Amended Complaint fail to allege sufficient facts to state a cause of action. 

 

To establish the 1st cause of action for breach of warranty of habitability under a residential lease, Plaintiffs must establish that a lease agreement existed between them and PVM.  See Green (1974) 10 C3d 616, 623-630.  Similarly, to establish their 4th cause of action for breach of warranty of quiet enjoyment which is implied in all residential rental agreements, Plaintiffs must establish that the landlord’s acts or omissions substantially affected their enjoyment of a material part of the premises.  Civil Code 1927; Marchese (1977) 74 CA3d 142, 147.  As noted above, Plaintiffs have failed to allege sufficient facts to support a finding that such an agreement exists, or existed, between them and PVM. 

 

It is not entirely clear what claim Plaintiffs intend to make in their 2nd cause of action for negligent maintenance of premises as it is based the same facts as their other claims.  As such, it appears to be subsumed in those claims.

 

To state their 3rd cause of action for nuisance, Plaintiffs must allege: (1) interference with their  use and enjoyment of property; (2) invasion of the Plaintiffs’ interest in the use and enjoyment of the land must be substantial, that is, that it causes Plaintiffs to suffer substantial actual damage; (3) interference with the protected interest must not only be substantial, but it must also be unreasonable, that is, it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.  Civil Code 3481.  Again, because Plaintiffs lump all of the defendants together, they have failed to allege any specific facts as to how PVM interfered with their use and enjoyment of the Property. 

 

To state their 5th cause of action for intentional infliction of emotional distress, Plaintiffs must allege: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) plaintiff’s suffering or severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by defendant’s outrageous conduct.  See Christensen (1991) 54 C3d 868, 903.  Liability has only been found when the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and be regarded as atrocious and utterly intolerable in a civilized community. Id.

 

Again, because Plaintiffs have lumped all of the defendants together, they have failed to allege sufficient facts to show that PVM committed any extreme and outrageous conduct with the intent to cause, or with reckless disregard of the probability of causing, Plaintiffs emotional distress.  Plaintiffs have also failed to adequately allege that they have suffered severe emotional distress as a result of the alleged conduct.  As noted above, Plaintiffs are also lumped together without any indication of the severity of each Plaintiff’s claimed injury. 

 

The Unruh Civil Rights Act prohibits intentional discrimination based on a person’s membership on a particular class of person, in the provision of business services to all persons.  Civil Code 51; Cloutier  (N.D. California 1997) 964 F.Supp. 299, 304; Munson (2009) 46 C4th 661, 665.  Here, in their 6th cause of action, Plaintiffs claim that they were discriminated against because they are “Hispanic American with disability.”  (FAC ¶153).  Again, Plaintiffs have failed to allege any specific discriminatory conduct committed by PVM.

 

A statutory claim for unfair business practices, such as Plaintiffs’ 7th cause of action for unfair competition under Business and Professions Code 17200-17210 must be pled with factual specificity.  Khoury (1993) 14 CA4th 612, 619.  Here, Plaintiffs have failed to plead the claim with sufficient factual specificity as against PVM because all of the alleged misconduct was purportedly committed by defendants collectively.

 

CONCLUSION

 

Based on the foregoing, the demurrer is sustained.  Because this is only the First Amended Complaint, this is the first time Plaintiffs’ pleading has come before the Court, and due to the liberal policy of allowing leave to amend, Plaintiffs are given the opportunity to try to cure the defects in their pleading. 

 

Due to the ruling on the demurrer, the motion to strike is placed off calendar as moot.