Judge: Melvin D. Sandvig, Case: 23CHCV01561, Date: 2023-12-11 Tentative Ruling

Case Number: 23CHCV01561    Hearing Date: December 11, 2023    Dept: F47

Dept. F47

Date: 12/11/23

Case #23CHCV01561

 

DEMURRER TO THE FIRST AMENDED COMPLAINT

 

Demurrer filed 7/26/23.

 

MOVING PARTY: Defendants Stewart Silver and Oceans 11 RV Park, LLC dba Cali Lake RV Resort

RESPONDING PARTY: Plaintiff Peter Farkas

NOTICE: ok

 

Demurrer is to the entire First Amended Complaint:

            1.  Breach of Implied Warranty of Habitability

            2.  Negligence

            3.  Negligent Hiring

            4.  Intentional Infliction of Emotional Distress

            5.  Negligent Infliction of Emotional Distress

            6.  Violation of Bane Act (Civil Code 52.1)

            7.  Private Nuisance

 

RULING: The demurrer is overruled, in part, and sustained with 30 days leave to amend, in part. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiff Peter Farkas’ (Plaintiff) rental of the recreational room (Room) at an RV park owned by Defendants Stewart Silver (Silver) and Oceans 11 RV Park, LLC dba Cali Lake RV Resort (CLRR) (collectively, Defendants).  Plaintiff contends that Defendants improperly converted the room into a dwelling unit and he rented it as such.  In the demurrer, Defendants contend that they rented the Room to Farkas for storage purposes only and he and his friend began to reside in the unit in violation of the agreement. 

 

On 5/26/23, Plaintiff filed this action against Defendants.  On 6/22/23, Plaintiff filed the operative First Amended Complaint against Defendants alleging causes of action for: (1) Breach of Implied Warranty of Habitability; (2) Negligence; (3) Negligent Hiring; (4) Intentional Infliction of Emotional Distress; (5) Negligent Infliction of Emotional Distress; (6) Violation of Bane Act (Civil Code 52.1) and (7) Private Nuisance.

 

On 7/26/23, Defendants filed the instant demurrer to the entire First Amended Complaint.  No proof of service for the demurer has been filed; however, on 10/16/23, Plaintiff filed and served an opposition to the demurrer which cured any defect in notice.  There is also no evidence before the Court that Defendants met and conferred with Plaintiff before filing the instant demurrer as is required.  See CCP 430.41(a).  Since the failure to meet and confer is not grounds to overrule a demurrer and because the demurrer is opposed, the Court will rule on the merits at this time.  See CCP 430.41(a)(4).

ANALYSIS

 

A demurrer may be based on the grounds that a complaint fails to allege sufficient facts to state a cause of action and/or is uncertain, among other things.  See CCP 430.10(e), (f). 

 

Defendants’ claim that the entire First Amended Complaint is uncertain because there is no distinction between the defendants in the causes of action is without merit.  Each cause of action is alleged against “All Defendants.”  The allegations against the only two named Defendants, Silver and CLRR, are not so uncertain that these Defendants cannot respond. 

 

1st cause of action – Breach of Implied Warranty of Habitability

 

Defendants’ only argument as to the Breach of Implied Warranty of Habitability cause of action is that such a claim will fail because the property is commercial, not residential.  The material facts alleged in the First Amended Complaint must be accepted as true on demurrer.  Serrano (1971) 5 C3d 584, 591; 290 Division (EAT), LLC (2022) 86 CA5th 439, 452.  The First Amended Complaint alleges sufficient facts, which must be accepted as true at this stage in the proceedings, to support a finding that Defendants improperly converted the Room into a dwelling unit and rented it to Plaintiff as such.  (See FAC ¶¶7-11, 20-22).  The foregoing coupled with the other allegations in the First Amended Complaint are sufficient to state a claim for breach of implied warranty of habitability.    

 

2nd cause of action – Negligence

 

The elements of a negligence cause of action are: (2) defendant owed a duty of care to plaintiff, (3) defendant breached such duty and (4) the breached caused injury or damage to plaintiff.  See Civil Code 1714(a).  With regard to the negligence cause of action, Defendants argue that the claim fails because the allegations of damages are conclusory and contradict other allegations in the First Amended Complaint, without specifying the other allegations which are purportedly contradicted.  A negligence claim may be generally pled.  The Rutter Group California Practice Guide: Civil Procedure Before Trial, Pleadings, Section 6:129.  The allegations in the First Amended Complaint are sufficient to put Defendants on notice of the basis of Plaintiffs’ negligence claim against them.  Doe (2007) 42 C4th 531, 549-550. 

 

3rd cause of action – Negligent Hiring, Retention and Supervision

 

The elements of a negligent hiring, retention and supervision cause of action are: (1) defendant hired an employee, (2) the employee was unfit or incompetent to perform the work for which they were hired, (3) defendants knew or should have known that the employee was unfit or incompetent and that their unfitness or incompetence created a particular risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff; and (5) the employer defendant’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing plaintiff’s harm.  CACI 426.

 

Plaintiff has failed to allege sufficient facts to support each of the elements of the claim.  Plaintiff  alleges that in responding to certain of Plaintiff’s requests for maintenance “Defendants sent unlicensed individuals to attempt to make repairs.  The unlicensed individuals failed to make any of the needed repairs.”  (FAC¶11).  Plaintiff has failed to allege facts to show that a license was required to meet his maintenance requests, that the unlicensed individuals were Defendants’ employees, that an employee for Defendants was unfit or incompetent to perform the work for which they were hired, that Defendants knew of should have known that an employee/individual was unfit or incompetent and that their unfitness or incompetence created a particular risk to others; the employee’s unfitness or incompetence harmed plaintiff; and/or Defendants’ alleged negligence in hiring, supervising, or retaining the employee was a substantial factor in causing plaintiff’s harm. 

 

Plaintiff also makes vague allegations regarding Defendants’ alleged failure to “properly hire, screen, train, and/or supervise those members of their team to carry out their duties in a manner that was well-trained, orderly, and/or competent.”  (FAC ¶33).  Plaintiffs fail to specify which “members” of Defendants’ “team” committed any offensive conduct to support this cause of action.  As such, the 3rd cause of action is insufficiently pled. 

 

4th cause of action – Intentional Infliction of Emotional Distress

 

The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant's outrageous conduct.  Berkley (2007) 152 CA4th 518, 533.

 

Plaintiff’s allegation that Silver, who is alleged to be an agent of CLRR, sent “an armed individual, acting as his agent, to the Subject Property in an attempt to cause fear and intimidation” in response to Plaintiff’s complaints about the property are sufficiently outrageous to support the claim.  (See FAC ¶¶13, 38).  However, Plaintiff has not pled any facts to support the conclusion that he suffered the type of severe or extreme emotional distress to support the cause of action.  (FAC ¶40).    

 

5th cause of action – Negligent Infliction of Emotional Distress

 

Negligent infliction of emotional distress is not a separate tort, but rather a species of negligence.  Marlene F. (1989) 48 C3d 583, 588; Barker (2015) 240 CA4th 333, 356-357.  Plaintiff has failed to establish that he may plead this claim separately from his negligence cause of action. 

 

6th cause of action – Violation of the Bane Act (Civil Code 52.1)

 

To state a claim under the Bane Act, a plaintiff must allege: (1) that by threats, intimidation or coercion, the defendant caused plaintiff to reasonably believe that if they exercised a right, defendant would commit violence against them or their property and that defendant had the apparent ability carry out the threats or that the defendant acted violently against the plaintiff and plaintiff’s property to prevent them from exercising a right and/or to retaliate against plaintiff for having exercised their right; (2) that the defendant intended to deprive plaintiff of their enjoyment of the interests protected by the right; (3) that the plaintiff was harmed; and (4) that the defendant’s conduct was a substantial factor in causing plaintiff's harm.  See Civil Code 52.1.

 

Plaintiff has alleged that in response to his complaints about the property Defendant Silver sent “an armed individual, acting as his agent, to the Subject Property in an attempt to cause fear and intimidation.”  (FAC ¶13).  Plaintiff has also alleged the defendants were agents of one another.  (FAC ¶5).  Such allegations, which must be accepted as true on demurrer, are incorporated into the 6th cause of action.  (FAC ¶47).  As such, the claim is sufficiently pled. 

 

7th cause of action – Private Nuisance

 

A private nuisance interferes with the use and enjoyment of plaintiff’s private property.  Friends of H Street (1993) 20 CA4th 152-162; Adams 224 CA4th 610.  The elements of a nuisance claim are: (1) interference with use and enjoyment of plaintiff's property that is (2) substantial and (3) unreasonable.  Mendez (2016) 3 CA5th 248, 262-263.  Plaintiff has failed to allege what specific conduct of Defendants allegedly constitutes a private nuisance.  (FAC ¶53).     

 

CONCLUSION

 

The demurrer is overruled as to the 1st, 2nd, and 6th causes of action and sustained with 30 days leave to amend as to the 3rd, 4th, 5th and 7th causes of action.