Judge: Michael E. Whitaker, Case: 22SMCV01452, Date: 2024-01-10 Tentative Ruling

Case Number: 22SMCV01452    Hearing Date: January 10, 2024    Dept: 207

TENTATIVE RULING

MOTIONS

Plaintiff David Shaker (“Plaintiff”) brought suit alleging thirteen causes of action: (1) Intentional Infliction of Emotional Distress; (2) Nuisance; (3) Violation of the Fair Employment and Housing Act; (4) Violation of Civil Code § 51.9; (5) Breach of the Covenant of Quiet Enjoyment; (6) Negligence; (7) Statutory Breach of Warranty of Habitability (Civil Code §§ 1941 and 1941.1); (8) Tortious Breach of Implied Warranty of Habitability; (9) Violation of Business & Professions Code § 17200 et seq.; (10) Violation of Civil Code § 1942.4; (11) Violation of Civil Code § 1941.3; (12) Negligent Violation of Statutory Duty to Maintain Habitable Conditions; and (13) Wrongful Eviction; stemming from allegedly uninhabitable conditions in Plaintiff’s apartment.

Defendant Howard Management Group demurs to the seventh and tenth causes of action for failure to state facts sufficient to constitute a cause of action under Code of Civil Procedure section 430.10, subdivision (e).  Defendant also moves to strike requests for and reference to punitive damages in the complaint.

Plaintiff opposes both motions and Defendant replies.

ANALYSIS

1.      DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    FAILURE TO STATE A CAUSE OF ACTION

Defendant demurs to the seventh cause of action on the basis that Civil Code sections 1941 and 1941.1 merely list what constitutes uninhabitable conditions giving rise to an action under Civil Code section 1942.4, but such statutory provisions do not create a private right of action separate from the remedies available under Section 1942.4.

The Court notes that the caption under the seventh cause of action indicates it is brought pursuant Civil Code sections 1941, 1941.1, and 1942.4.  Therefore, the Court construes this as being brought pursuant to Section 1942.4 for violations of Sections 1941 and 1941.1.

Defendant has also demurred to the tenth cause of action for violation of Civil Code section 1942.4 on the basis that it fails to state facts sufficient to constitute a cause of action.  Section 1942.4 provides:

(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

(b) (1) A landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000).

(2) The prevailing party shall be entitled to recovery of reasonable attorney’s fees and costs of the suit in an amount fixed by the court.

(c) Any court that awards damages under this section may also order the landlord to abate any nuisance at the rental dwelling and to repair any substandard conditions of the rental dwelling, as defined in Section 1941.1, which significantly or materially affect the health or safety of the occupants of the rental dwelling and are uncorrected. If the court orders repairs or corrections, or both, the court’s jurisdiction continues over the matter for the purpose of ensuring compliance.

(d) The tenant or lessee shall be under no obligation to undertake any other remedy prior to exercising his or her rights under this section.

(e) Any action under this section may be maintained in small claims court if the claim does not exceed the jurisdictional limit of that court.

(f) The remedy provided by this section may be utilized in addition to any other remedy provided by this chapter, the rental agreement, lease, or other applicable statutory or common law. Nothing in this section shall require any landlord to comply with this section if he or she pursues his or her rights pursuant to Chapter 12.75 (commencing with Section 7060) of Division 7 of Title 1 of the Government Code.

The allegations under the “Seventh Cause of Action” heading provide as follows:

117.  Plaintiff realleges and incorporates by reference every allegation contained within this Complaint into this seventh cause of action as though each were fully set forth and stated within this paragraph.

118. Plaintiff and Defendants are in a landlord-tenant relationship created by written lease agreement entered into when Plaintiff moved into the Property since January 11, 2020. Defendants owned, managed, and operated the Property since then, and Plaintiff paid rent to the Defendants for each month he lived on the Property until the Property became uninhabitable.

119. Defendants actually and proximately caused the Property to become untenantable under California Civil Code §§1941 and 1941.1, by inter alia failing to put the Property into a condition fit for such occupation.

120. Throughout Plaintiffs tenancy, Defendants failed to put the Property into a condition fit for occupation.

121. The defective conditions alleged herein posed severe health, safety and fire hazards and breach the implied warranty of habitability.

122. Defendants had actual and constructive notice of the defective conditions alleged herein, but despite such notice, failed to adequately abate the conditions at the Property.

123. Plaintiff did not cause, create or contribute to the existence of the defective conditions.

124. Defendants knew or should have known that permitting said defective conditions to exist threatened the physical and emotional health and well-being of Plaintiff, and posed a serious threat and danger to his health and safety.

125. Defendants also knew, or reasonably should have known, that Plaintiff would suffer damages as a result of this breach. As a direct and proximate result of Defendants' breach, the value of the leasehold held by Plaintiff has been diminished. Consequently, Plaintiff has been damaged in an amount equal to the value of the tenancy, in an amount to be proven at trial.

126. As a proximate result of Defendants' actions and omissions alleged herein, Plaintiff was privileged to withhold rent from Defendants, and has been damaged thereby in amounts according to proof at trial, but not less than an amount equal to the rents paid by them during his tenancy.

127. Defendants individually and in concert, acted with recklessness and conscious disregard of the rights of Plaintiff. Defendants' conduct in tortuously putting the Property into an unfitting condition has been negligent, malicious and oppressive, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial.

Similarly, the allegations under the tenth cause of action provide:

151. Plaintiff realleges and incorporates by reference every allegation contained within this Complaint into this tenth cause of action as though each were fully set forth and stated within this paragraph.

152. At all relevant times, Plaintiff has held a leasehold interest in and has been a tenant of the Property while the Defendants named in this cause of action has owned and managed the Property.

153. The Landlord has a statute duty to maintain the leasehold premises and common areas in a good, safe, and healthful condition pursuant to Civil Code § 1941 et seq., and Health & Safety Code §§17920.3 and 17920.10.

154. The Landlord substantially breached this statutory duty by permitting the conditions set forth above.

155. Civil Code §1942.4(a) provides that a Landlord may note demand rent, collect rent, issue a notice of rent increase, or issue a 3-day notice to pay rent or quit if the dwelling unit of the tenant lacks any affirmative standard characteristics listed in Civil Code § 1941.1, the Landlord has been notified of his obligations to repair substandard conditions, the conditions have existed and not been abated 35 days beyond service of the notice and the delay is without good cause, and the conditions were not caused by any action or omission of the tenant.

156. Defendants, and Does 1 to 50, Inclusive were in violation of the conditions set forth above, yet demanded rent, issued notices of rent, collected rent, in direct violation of this code section. Accordingly, Plaintiff seeks damages consisting of rent improperly collected by Defendants and Does 1 to 50, Inclusive.

157. Furthermore, Defendants continued to maintain the building in an untenable condition throughout the entire term of the lease. Plaintiff herein demands return of the improperly collected rent.

            Further, in paragraph 4 of the complaint, Plaintiff alleges in pertinent part: Defendant “failed to maintain a habitable environment at the apartment complex with units rented to the general public, and once made aware of the numerous problems that plagued every comer of the edifice, failed to take reasonable and effective remedial action and also failed to warn subsequent tenants of the presence of the uninhabitable and hazardous conditions, including frequent flooding, ceiling and wall leaks, overflowing of trash and debris in the common areas and trash areas, animal urine in the common areas, vomit and human urination left uncleaned in common areas, lack of heat, lack of air conditioning, lack of ventilation, lack of clean water, lack of cold water, lack of hot water, lack of electricity, intrusion into the residence without permission and notice, vermin infestation, rodent infestation, insect infestation, bed bug infestation, rat infestation, roach infestation, spider infestation, termite infestation, raw sewage leaks, mold, black mold, mildew, lack of insulation, large holes in the walls, old poorly maintained flooring, broken security gates and fences, and disintegration of aging fixtures (hereinafter sometimes refer to as "Hazardous Conditions").”  (See Complaint, ¶ 4.)  Moreover, Plaintiff alleges that in particular he has been exposed to “black mold” in the residential unit which has not been remedied despite repeated requests.  (See Complaint, ¶¶ 36-52.) 

Therefore, the Tenth cause of action, incorporating the allegations under the Seventh Cause of Action, adequately alleges a cause of action under Civil Code section 1942.4 for failing to maintain the standards outlined in Civil Code sections 1941 and 1941.1.

Defendant’s issue may stem from the fact that Plaintiff has separately pleaded the seventh and tenth causes of action pursuant to Civil Code section 1942.4.  To sustain Defendant’s demurrer on this basis would improperly elevate form over substance.  (See Plumlee v. Poag (1984) 150 Cal.App.3d 541, 546 [“Courts under the reformed system of procedure look to the substance of things rather than to form”].)  When reading the allegations of the two causes of action together, Plaintiff has adequately pleaded causes of action pursuant to Section 1942.4.

Therefore, the Court overrules Defendant’s demurrers to the seventh and tenth causes of action.

2.      MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  Here, Chan moves to strike from the complaint, references to and claims for punitive damages.    

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

“[T]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)  Moreover,

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.  With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” 

(Civ. Code, § 3294.)

Here, the Complaint does allege generally that Plaintiff notified Defendants of the defective conditions, and Defendants knowingly failed to correct the issues:

2.  It was only after Plaintiff made numerous complaints about the uninhabitable conditions to the owner and local government agencies, including the Los Angeles Department of Building & Safety, that the owner decided to come out and inspect the premises. Said inspection was completed by force and without proper notice to Plaintiff. Defendants, APRIL 26TH, LLC, 1033 3RD STREET APARTMENTS, LLC, HOWARD MANAGEMENT GROUP, VAHID VAHDAT, and Does 1 to 50, Inclusive, used threats of violence and intimidation taking matters into their own hands on a regular basis.

3. Defendants, APRIL 26TH, LLC, 1033 3RD STREET APARTMENTS, LLC, HOWARD MANAGEMENT GROUP, VAHID VAHDAT, and Does 1 to 50, Inclusive, owned, managed, maintained, operated, leased, rented, ran, and supervised an uninhabitable apartment complex and uninhabitable rental units therein at his property located at 416 N. Oakhurst Drive, Beverly Hills, California 90211, in total disregard for the rights, health, and safety of the tenants, to wit, the Plaintiff herein.

4. Specifically, Defendants, APRIL 26TH, LLC, 1033 3RD STREET APARTMENTS, LLC, HOWARD MANAGEMENT GROUP, VAHID VAHDAT, and Does 1 to 50, Inclusive, failed to maintain a habitable environment at the apartment complex with units rented to the general public, and once made aware of the numerous problems that plagued every comer of the edifice, failed to take reasonable and effective remedial action and also failed to warn subsequent tenants of the presence of the uninhabitable and hazardous conditions, […]

[…]

24. Defendant, APRIL 26TH, LLC, 1033 3RD STREET APARTMENTS, LLC, V AHID V AHDAT, and Does 1 to 50, Inclusive, shall collectively be referred to as the "Landlords."

25. Plaintiff is informed and believes, and therefore allege, that the Landlords, and each of them, and Does 1 through 50, Inclusive, are the current owners or managers of the Property, and have acted in that capacity during all times relevant to this Complaint.

[…]

36. Shortly after Plaintiff move into the Prope1ty after January 11, 2020, Plaintiff became aware of potentially toxic black mold inside their residence. Plaintiff notified Defendants of bad smells and mildew emanating from the bathroom in their residence.

37. Despite the apparent water damage and high likelihood of the presence of black mold, maintenance was not sent to inspect the issue.

38. Corrective measures weren't properly commenced at the residence where Plaintiff lived during the entire time of their tenancy.

39. Instead, Plaintiff had to endure a series of delays and stop-gap measures that fell well below the standard of care required to remove the hazard.

[…]

41. During this time period, Plaintiff made repeated requests for the ceiling to be repaired. to no avail. Instead. Defendants refused to make any repairs inside the residence. All the while the exposed drywall caused awful smells and moisture emanating from the mold to permeate the residence.

[…]

44. Water damage was still evident and worsened over time. Plaintiff notified Defendants about the multiple issues with the residence including the water leaks from the ceiling and bathroom.

45. Plaintiff pleaded with Defendants for rent abatement and relocation, as the smell was worsening and was causing a rash to form on Plaintiff. Despite the repeated pleas, no offer to relocate was extended and rent abatement was being contested by Defendants.

46. Plaintiff decided to hire their own plumber and handyman to fix the leaks and pipes as Defendants refused to do any of the much needed repairs. The plumber and handyman evaluated the residence occupied by Plaintiff.

47. Immediately upon sight both the plumber and handyman told Plaintiff that the residence was unsafe for habitation due to the significant water and mold that had built up inside the unit. While evaluating, Plaintiff witnessed the water leaking. Plumber informed Plaintiff that the pipes needed to be replaced to repair the leaks. Handyman advised Plaintiff that the ceiling and walls needed to be removed due to the mold.

48. Plaintiff contacted Defendants again to advise them of the problems with their unit. Instead of making repairs they ignored him. Defendants refused to make any repairs during Plaintiffs tenancy which began on January 11, 2020.

49. Defendants also threatened to increase Plaintiffs rent if he did not stop making valid complaints. Threats were also made to wrongfully tem1inate their lease.

50. During this time Plaintiff's health condition and skin rash worsened, to the point where they felt compelled to notify Defendant of all the harm they endured as consequence of the damages to the unit and inexcusable delays.

51. Despite the repeated requests, no offer to relocate was extended. Instead, Defendants did everything possible to remove Plaintiff from his residence and effectively evict him by force and against this will.

            While these allegations are sufficient to plead generally what was said and generally when it was communicated, it does not specify specifically to whom Plaintiff communicated, or how such communications were made (in person, via email, via telephone, etc.)  In particular, Plaintiff does not allege with specificity malice “among corporate leaders:  the officers, directors, or managing agents.”  

            Therefore, Plaintiff has failed to plead specific facts supporting the request for punitive damages.  As such, the Court grants Defendant’s motion to strike.

3.      LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet this burden as Plaintiff merely argues that leave to amend should be liberally granted, but does not specify any additional facts Plaintiff could allege to cure the deficiencies with the claim for punitive damages.    

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendant’s Demurrer to the Seventh and Tenth Causes of action, but grants Defendant’s motion to strike requests for and references to punitive damages from the Complaint without leave to amend.    

Further, the Court orders Defendant to file an Answer to the Complaint on or before January 31, 2024.

Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  January 10, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court