Judge: Melvin D. Sandvig, Case: 22CHCV00773, Date: 2023-10-19 Tentative Ruling

Case Number: 22CHCV00773    Hearing Date: October 19, 2023    Dept: F47

Dept. F47

Date: 10/19/23

Case #22CHCV00773

 

DEMURRER & MOTION TO STRIKE TO THE SECOND AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 8/4/23.

 

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 Second 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, in part, and without leave to amend, in part.  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 “at the apartment in 12960 Dronefield Avenue, #OU, Sylmar, CA 91342” (the Property).   (See Second Amended Complaint (SAC) ¶3).  Plaintiffs allege that an enforceable tenancy was created between them and Defendant Pavilion Mountain View LLC (PMV) through an agreement dated November 1, 2018 (the Lease) which they have attached to the Second Amended Complaint as Exhibit 101.  Id.  However, Exhibit 101 to the Second Amended Complaint is a Lease Agreement between Mountain View Manor Apartments and Michel Zamora and Rocio Mejia.  (SAC, Ex.101).  Plaintiffs allege, on information and belief, that PMV “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.”  (SAC ¶9). 

 

Plaintiffs allege that during their tenancy, the Property was “owned, managed and/or controlled by the Defendants” and suffered from various habitability issues.  (SAC ¶¶6-7).  Plaintiffs allege that “[t]he habitability conditions in this complaint occurred from January 2019 to present date.”  (SAC ¶¶4, 20).  However, Plaintiffs also allege that such conditions existed soon after their tenancy began.  (SAC ¶¶69, 79, 105).

 

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; PMV; 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 4/28/23, this Court sustained PMV’s demurrer to the entire First Amended Complaint and granted Plaintiffs’ 30 days leave to amend.  (See 4/28/23 Minute Order).  On 5/30/23, Plaintiffs filed the subject Second Amended Complaint against PMV, Mountain View Manor Sylmar LP and Does 1-10.  After meet and confer efforts failed to resolve the issues PMV had with the Second Amended Complaint, on 8/4/23, PMV filed and served the instant demurrer to the entire Second Amended Complaint and motion to strike allegations relating to and claims for punitive damages and attorney’s fees.  (See Pouladian Decl. ¶5, Ex.A).  On 10/6/23, Plaintiffs filed oppositions to the demurrer and motions to strike.  Although the proofs of service attached to the oppositions indicate that they were served by email on PMV’s counsel on 10/6/23, the reply indicates that the replies were never served on PMV.  (See Reply Supp. Pouladian Decl. ¶¶2-4).  On 10/12/23, PMV filed and served replies to the oppositions. 

 

The Court has considered the oppositions in ruling on the demurrer.

 

ANALYSIS

 

Among other grounds, 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 Second Amended Complaint, like the First Amended Complaint, arise out of or are related to an alleged tenancy agreement/Lease Agreement for the Property.  (See SAC ¶¶3, 15, 67, 71, 78, 84, 86, 99, 108, 110, 112, 114, 115, 117, 119, 143, 150, 157; FAC ¶¶15, 27, 37, 44, 77, 81, 82, 84, 89, 101, 108, 113, 115, 116, 118, 120, 123, 144, 145, 152, 155). 

 

As noted above, Plaintiffs allege that a Lease Agreement dated 11/1/18 was entered between Plaintiffs and PMV and reference Exhibit 101 to the Second Amended Complaint.  (SAC ¶3).  However, Exhibit 101 to the Second Amended Complaint is a Lease Agreement between Mountain View Manor Apartments and Michel Zamora and Rocio Mejia.  (SAC, Ex.101).  The Second Amended Complaint fails to adequately explain the relationship between PMV and Mountain View Manor Apartments. 

 

The opposition cites Civil Code 823 and contends that PMV is liable as the successor to the previous owner of the Property.  (See Opposition, p.9:1-21).  However, the Second Amended Complaint does not include facts to establish PMV’s relationship to the party, Mountain View Manor Apartments, that entered the Lease Agreement with Plaintiffs.  Nor have Plaintiffs alleged sufficient facts to establish PMV liability as an assignee.      

 

As noted in the ruling sustaining PMV’s demurrer to the First Amended Complaint, Plaintiffs’ allegations in the Second Amended Complaint remain uncertain as Plaintiffs continue to lump the defendants together without specifying which defendant or defendants are responsible for which actions.  See Arce (2012) 211 CA4th 1455, 1467; (See 4/28/23 Minute Order; SAC, generally). 

 

The Second Amended Complaint, like the First Amended Complaint, is uncertain as to what time period is covered by its allegations.  (See 4/28/23 Minute Order).  In paragraph 4, Plaintiffs allege “[t]he habitability conditions in this complaint occurred from January 2019 to present date.”  In paragraph 7, Plaintiffs claim issues started two weeks after moving into the Property.  In paragraph 27, Plaintiffs allege that they began to suffer symptoms “immediately [when] their tenancy commenced.”  Plaintiffs also allege that by way of the Second Amended Complaint, they are seeking damages for uninhabitable conditions of the subject property “since they began residing in the property.”  (SAC ¶¶61, 79, 105).  In the First Amended Complaint, Plaintiffs alleged that their tenancy began in 2013 and Plaintiffs confirm such in their opposition to the demurrer.  (FAC ¶16; Opposition, p.9:15-16).   

 

In addition to the foregoing, each of the causes of action in the Second 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 PMV.  See Green (1974) 10 C3d 616, 623-630.  As noted above, Plaintiffs rely on a Lease Agreement entered between two of the Plaintiffs and Mountain View Manor Apartments, not PMV, and have failed to allege sufficient facts to establish a relationship between Mountain View Manor Apartments and PMV.  Additionally, based on the uncertain allegations noted above regarding the time period for which Plaintiffs are making claims, Plaintiffs have failed to show that PMV owned or managed the Property during the relevant time periods and/or that PMV had notice of the alleged uninhabitable conditions at the Property. 

 

As noted in the ruling on the demurrer to the First Amended Complaint, it is not 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 and appears to be subsumed in those claims.  (See 4/28/23 Minute Order).  The Second Amended Complaint does nothing to clarify the basis for the cause of action and it is not addressed in the opposition. 

 

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 the defendants together, they have failed to allege any specific facts as to how PMV interfered with their use and enjoyment of the Property.  It also appears that the claim dates back to when Plaintiffs first occupied the Property in 2013.  (SAC ¶105).  Here, Plaintiffs concede that PMV did not own the Property until 2019.  (See Opposition, p.9:13) 

 

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 between them and PMV.    

 

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.

 

In sustaining the demurrer to the First Amended Complaint, the Court noted with regard to the intentional infliction of emotional distress cause of action, that because Plaintiffs lumped all of the defendants together, Plaintiffs failed to allege sufficient facts to show that PMV committed any extreme and outrageous conduct with the intent to cause, or with reckless disregard of the probability of causing, Plaintiffs emotional distress.  (See 4/28/23 Minute Order).  Plaintiffs have, again, failed to allege facts to show how PMV, specifically, committed outrageous conduct sufficient to support an intentional infliction of emotional distress claim.  The Second Amended Complaint, like the First Amended Complaint, still fails to adequately allege that Plaintiffs have suffered severe emotional distress as a result of the alleged conduct and still lumps all Plaintiffs  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.”  (SAC ¶152).  Again, Plaintiffs have lumped the defendants together and have failed to allege any specific discriminatory conduct committed by PMV.  (SAC ¶¶152-156).

 

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 still failed to plead the claim with sufficient factual specificity as against PMV because all of the alleged misconduct was purportedly committed by defendants collectively.

 

CONCLUSION

 

Based on the foregoing, the demurrer is sustained with 20 days leave to amend as to the 1st, 3rd, 4th, 5th, 6th and 7th causes of action and without leave to amend as to the 2nd cause of action.  Due to the liberal policy of allowing leave to amend and because this is only the second time Plaintiffs’ pleading has come before the Court, Plaintiffs are given one more opportunity to try to cure the defects in their pleading.  Leave to amend is not granted as to the 2nd cause of action because Plaintiffs have failed to show how it is not subsumed within the other claims.    

 

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