Judge: Melvin D. Sandvig, Case: 23CHCV03811, Date: 2024-05-06 Tentative Ruling

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Case Number: 23CHCV03811    Hearing Date: May 6, 2024    Dept: F47

Dept. F47

Date: 5/2/24

Case #23CHCV03811

 

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 2/26/24.

 

MOVING PARTY: Defendant Saint Anthanasius Coptic Orthodox Church

RESPONDING PARTY: Plaintiff Ramiro Montoya, Jr.

NOTICE: ok

 

Demurrer is to the 4th and 6th causes of action:

            1.  Breach of Implied Warranty of Habitability

            2.  Tortious Breach of Implied Warranty of Habitability

            3.  Negligence

            4.  Intentional Infliction of Emotional Distress

            5.  Private Nuisance

            6.  Violation of Business & Professions Code 17200, et seq.

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking the 4th cause of action (¶¶49-53), the 6th cause of action (¶¶62-68) and the prayers for relief related to the 4th and 6th causes of action (Prayer ¶¶9-11, 15).

 

RULING: The demurrer is sustained with 30 days leave to amend.  The motion to strike is placed off calendar as moot. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY 

 

This action arises out of Plaintiff Ramiro Montoya, Jr.’s (Plaintiff) tenancy in property owned by Defendant Saint Anthanasius Coptic Orthodox Church (Defendant).  Plaintiff contends that the unit Plaintiff resided in experienced plumbing problems, water leaks and mold.

 

On 12/14/23, Plaintiff filed this action against Defendant for: (1) Breach of Implied Warranty of Habitability, (2) Tortious Breach of Implied Warranty of Habitability, (3) Negligence, (4) Intentional Infliction of Emotional Distress, (5) Private Nuisance and (6) Violation of Business & Professions Code 17200, et seq. 

 

After meet and confer efforts failed to resolve the issues Defendant had with the complaint, on 2/26/24, Defendant filed and served the instant demurrer to the 4th and 6th causes of action and motion to strike which seeks to strike the 4th cause of action (¶¶49-53), the 6th cause of action (¶¶62-68) and the prayers for relief related to the 4th and 6th causes of action (Prayer ¶¶9-11, 15).  Plaintiff has opposed the demurrer and motion to strike and Defendant has filed and served replies to the oppositions. 

 

ANALYSIS

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

 

4th cause of action – Intentional Infliction of Emotional Distress

 

The elements of cause of action for intentional infliction of mental distress are: (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of emotional distress.  Stoiber (1980) 101 CA3d 903, 921.  In determining whether a defendant’s conduct is outrageous, it is not enough that the defendant acted with an intent which is tortious or even criminal, or that the defendant intended to inflict emotional distress, or that the defendant’s conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.   McMahon (2009) 176 CA4th 1502, 1517.  Liability for intentional infliction of emotional distress lies only where the defendant’s conduct is so outrageous and extreme so as to go beyond all possible bounds of decency and which is intolerable in a civilized community.  Id.; See also Hughes (2009) 46 C4th 1035, 1050-1051; Christensen (1991) 54 C3d 868, 904-905.

 

The facts that Defendant’s management agent yelled at Plaintiff; told Plaintiff that nothing would be done about the water-damaged areas and black mold; and that someone allegedly entered Plaintiff’s unit without permission when Plaintiff was not there and painted the walls are insufficient to satisfy the type of outrageous conduct necessary to support a claim for intentional infliction of emotional distress.  (Complaint ¶22).  Similarly, Plaintiff merely concludes that Defendant was aware that the conduct would cause Plaintiff bodily injury and severe emotional distress without any factual support.  (Complaint ¶50).

 

6th cause of action – Violation of Business & Professions Code 17200, et seq.

 

California Business and Professions Code 17200 et seq. targets "unfair competition," which is defined as "any unlawful, unfair or fraudulent business act or practice. . . ." and "unfair, deceptive, untrue, or misleading advertising. . . ." including any act prohibited by Business and Professions Code Section 17500 et. seq.  The unfair competition law is intended to include anything that can properly be called a business practice and that at the same time is forbidden by law.  See Cel-Tech Communications, Inc. (1999) 20 C4th 163, 180.  Any business practice that is unlawful in the sense that it violates a specific statute may be enjoined under Business and Professions Code 17203.  See Barquis (1972) 7 C3d 94.

 

The Court finds that Plaintiff has sufficiently alleged what the he claims constitutes a business practice, the rental of an apartment.  (Complaint ¶63).  However, in the complaint and opposition to the demurrer, Plaintiff seems to conflate unfair and unlawful conduct.  (Complaint ¶¶63-64).  While Plaintiff claims that Defendant’s conduct was illegal, it is not clear which statutes Plaintiff claims Defendant violated as the basis of this cause of action.  In the general allegations of the complaint, Plaintiff references “violations of the Civil Code, Health & Safety Code, California Code of Regulations, the Los Angeles County Code and other statutes and regulations and ordinances designed and intended to regulate the habitability, health and safety of rental property.”  (Complaint ¶23).  In the 2nd and 3rd causes of action, Plaintiff refers to Civil Code 1941, Civil Code 1941.1 and Health & Safety Code 17920.3.  (Complaint ¶¶34, 44).  However, in the 6th cause of action, Plaintiff does not cite any specific statute.  (See Complaint ¶¶63-68).  As such, it is not clear what unfair and/or unlawful conduct forms the basis of this cause of action. 

 

CONCLUSION

 

The demurrer is sustained.  Due to the liberal policy of allowing leave to amend and because this is only the original complaint, Plaintiff is given the opportunity to try to cure the defects in the 4th and 6th causes of action. 

 

Since the motion to strike seeks to strike the 4th and 6th causes of action and the prayers for relief in relation to those causes of action, it is placed off calendar as moot due to the ruling on the demurrer. 

 

A First Amended Complaint is due to be filed and served within 30 days.