Judge Michael E. Whitaker, Case Number: 23SMCV05565, Date: 2024-02-27 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV05565, Date: 2024-02-27 Tentative Ruling

Plaintiff Joshua Reihanian (“Plaintiff”) filed a verified complaint against Defendants W.S. Realtors Inc. and Hand Investments, Inc. (“Defendants”) for (1) statutory breach of warranty of habitability; (2) tortious breach of the implied warranty of habitability; (3) negligence; (4) breach of contract; (5) nuisance; (6) breach of the covenant of quiet enjoyment; (7) breach of the implied covenant of good faith and fair dealing; (8) intentional infliction of emotional distress; and (9) violation of Civil Code section 1942.4.

Defendants demur to the second, fifth, seventh, and eighth causes of action as uncertain, duplicative, and for failure to state facts sufficient to constitute a cause of action under Code of Civil Procedure, section 430.10,[1] subdivisions (e) and (f). Defendants also move to strike requests for, and references to, punitive damages.

“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 demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Although Defendants argue that the allegations of the complaint are uncertain, Defendants do not demonstrate that any portions of the Complaint are so bad that they cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them. The Court thus declines to sustain Defendants’ demurrer based on uncertainty.

Defendants demur to the second, fifth, seventh, and eighth causes of action on the basis that (1) the second cause of action for tortious breach of the implied warranty of habitability is duplicative of the first cause of action for statutory breach of the implied warranty of habitability; (2) the fifth cause of action for nuisance is duplicative of the third cause of action for negligence; (3) the seventh cause of action for breach of the covenant of good faith and fair dealing is duplicative of the fourth cause of action for breach of contract; and (4) Plaintiff fails to allege any “outrageous” conduct to support the eighth cause of action for intentional infliction of emotional distress or facts demonstrating Defendants’ intent to harm Plaintiff or that Plaintiff suffered the requisite “high bar” of emotional distress.

i. Second Cause of Action – Tortious Breach of the Implied Warranty of Habitability

Defendants first contend that the second cause of action for tortious breach of the implied warranty of habitability is duplicative of the first cause of action for statutory breach of the implied warranty of habitability because they “are based on the same gravamen of alleged facts” and neither cause of action “provide[s] a different standard of proof, recovery, or element that would be separate or distinct form [sic] the other.” (Demurrer at p. 6.)

The California Supreme Court has held that there is a warranty of habitability implied in every residential lease agreement. (Green v. Superior Court (1974) 10 Cal.3d 616, 637.) “In addition, there is a statutory cause of action available to the residential tenant where the premises are untenantable and other circumstances exist.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298.) Specifically, pursuant to Civil Code section 1942.4, a residential landlord may not demand or collect rent, increase rent, or serve a three-day notice to pay rent or quit if (1) the dwelling is untenable under Civil Code section 1941.1; (2) a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair the property; (3) the conditions have not been remedied within 35 days of the notice; and (4) the substandard conditions were not caused by the tenant. (Ibid.)

Thus, a statutory violation of Section 1941.1 is a separate and distinct cause of action from breach of the implied warranty of habitability, and the two causes of action have different elements which must be proven.

Moreover, the allegations supporting each cause of action are not identical. For example, in conjunction with the first cause of action, Plaintiff alleges “50. Plaintiff did not cause, create or contribute to the existence of the defective conditions” which, although incorporated by reference, is not otherwise specifically alleged in connection with the second cause of action. (Complaint ¶ 50.)

Therefore, the Court cannot sustain the demurrer to the second cause of action for breach of the implied warranty of habitability as duplicative of the first cause of action for statutory violations of Section 1941.1.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

By contrast, a “nuisance” is “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

A nuisance may be public, private, or both. (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) “Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land.” (Ibid.) “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.” (Ibid.)

Defendants contend the fifth cause of action for nuisance is duplicative of the third cause of action for negligence because both causes of action rely on the same set of facts. In support, Defendants rely on El Escorial Owner’s Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337 (hereafter El Escorial).

In El Escorial, the court noted that the complaint merely alleged negligent construction, which resulted in an asbestos contamination. In holding the plaintiff failed to state a cause of action for private nuisance, the appellate court highlighted case law indicating that asbestos products liability cases should not be litigated as a nuisance, and that in support of the nuisance cause of action, the plaintiff had provided only conclusory allegations that mirrored the negligence allegations. The El Escorial court did note, however “that courts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions” including “uninhabitable conditions,” and “whether a [nuisance] cause of action is viable depends on the facts of each case.” (El Escorial, supra, 154 Cal.App.4th at p. 1349.)

Here, the allegations related to the third cause of action for negligence allege duty, breach, causation, and damages:

70. As owners and managers of residential rental property, Defendants were under a duty of care to comply with all applicable codes, laws, and contractual obligations relating to health and safety, and to take reasonable measures to assure that Plaintiff would not be exposed to unreasonable risk of harm and/interference of their right to quiet enjoyment of the Premises.

71. As land owners and/or managers of land, the Defendants, and each of them, owed a duty of care under common law and Cal. Civ. Code § 1714 to exercise due care in the management of their Property so as to avoid foreseeable injury to others. This duty required Defendants to comply with all building, health, fire and safety codes, ordinances, regulations, and other laws applying to maintenance and operation of residential rental housing.

72. Defendants had statutory duties to repair and maintain the Property, a building used for human habitation, in conformance with Los Angeles Housing Code and Health and Safety Code §17920.3. 75. At all relevant times herein, Defendants’ duties as alleged herein extended to Plaintiff.

73. Defendants have breached their common law and statutory duties of due care by failing to correct the substandard conditions complained of. Defendants knew, or reasonably should have known, that Plaintiff would be injured as a result of their breach of the common law and statutory duties of due care.

78. Defendants negligently owned, maintained, managed and operated the Premises, and the result of such negligence legally caused the injuries and damages to Plaintiff. The Defendants negligently failed to properly maintain, inspect, and remedy dangerous conditions upon the Premises, including but not limited to driveways, walkways, windows and stairways, entrance and exit ways, floors, stairs, steps and any other surfaces and areas upon which individuals may reasonably be expected to move about.

74. Defendants knew or should have known that Plaintiff would suffer foreseeable injuries, damages and harm as a result of Defendants’ failure to exercise reasonable ordinary care as alleged above.

75. Defendants knew or should have known, that the safety of the Property was a material fact affecting the value and desirability of living in the Property.

79. Defendants knew, or in the exercise of reasonable care should have known, that their acts and/or omissions presented an unreasonable risk of harm to Plaintiff and in failing to act in a reasonable manner, breached their duty of care which was owed to Plaintiff such breaches were the factual and legal cause of the incidents and Plaintiff’s injuries.

76. As a direct and proximate result of the Defendants’ negligent maintenance of the Premises, the value of the Plaintiff’s leasehold was diminished. Consequently, Plaintiff has been damaged and injured by Defendants’ negligent maintenance of the Premises in an amount to be proven at trial.

77. Furthermore, and as a direct and proximate result of Defendants’ conduct, Plaintiff has suffered illness, physical injury, mental stress, emotional distress, depression, anxiety, annoyance and discomfort, fear for their safety, loss in the value of their leasehold, property damage, and lost income, all to Plaintiff’s damage in an amount to be proven at trial, but which amount is within the jurisdictional limits and requirements of this Court.

80. As a direct and proximate result of Defendants’ conduct, Plaintiff has suffered substantial economic and non-economic damages as described above.

By contrast, the allegations underlying the nuisance cause of action focus on the conditions being “injurious” to Plaintiff’s “health and safety” and “interfer[ing] with Plaintiff’s comfortable and quiet enjoyment of the Premises.” (Complaint ¶ 92.)

Therefore, Plaintiff’s fifth cause of action for nuisance is not duplicative of the third cause of action for negligence.

iii. Seventh Cause of Action – Breach of the Covenant of Good Faith and Fair Dealing

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 349.) It cannot exist independent of its contractual underpinnings and “[i]t cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Id. at pp. 349-350.) “[W]here breach of an actual term is alleged, a separate implied covenant claim, based on the same breach, is superfluous.” (Id. at p. 327.)

Defendants argue that the seventh cause of action for breach of the covenant of good faith and fair dealing is duplicative of Plaintiff’s fourth cause of action for breach of contract because, although the seventh cause of action alleges “to the extent that Plaintiff has been denied the intended benefits of their contract without the presence of a technical breach, Defendants will have violated the implied covenant of good faith and fair dealing” (Complaint ¶ 108), Plaintiff does not allege any non-technical breach separate from the breach of contract allegations.

Here, Plaintiff alleges Defendants breached the contract by failing to provide “habitable and tenantable rental dwelling units” and “interfering with Plaintiff’s quiet enjoyment of their home” in exchange for Plaintiff’s obligation to timely pay monthly rent. (Complaint ¶¶ 85-88.)

Thus, Plaintiff does not allege an interference with Plaintiff’s right to receive the benefits of the lease agreement that are separate and apart from Defendants’ alleged breach of the agreement. As such, the seventh cause of action is superfluous.

To prevail on the Intentional Infliction of Emotional Distress (“IIED”) cause of action, a plaintiff must prove: “(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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) A defendant’s conduct is outrageous when “it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid. [cleaned up].) Further, the defendant’s conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 1051 [cleaned up].)

Defendants contend the eighth cause of action fails because (1) Plaintiff fails to allege any “outrageous” conduct; (2) Plaintiff fails to allege facts demonstrating Defendants’ intent to harm Plaintiff; and (3) Plaintiff fails to allege Plaintiff suffered the requisite “high bar” of emotional distress.

112. Defendants and/or their agents and employees abused their positions as landlords and acted in an outrageous manner by, among other things, in inducing Plaintiff to rent a dwelling that contains defects, inadequate waterproofing, water intrusion, defective and inadequate plumbing which Defendants had neglected for months, failing to repair the defects and plumbing in an effective manner, were intentionally done to cause harm to Plaintiff.

113. Defendants’ (sic) have the power and ability to improve the numerous defects in Plaintiff’s unit, but abused that power to damage Plaintiff’s interests, which is outrageous conduct. Defendants’ (sic) continuously ignored Plaintiff’s requests that were directly related to their health and safety, which is outrageous conduct.

(Complaint ¶¶ 112-113.) The conduct alleged – renting out a dwelling that contains defects and water intrusion and failing to repair those defects does not constitute conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized society.”

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, Defendants move 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.

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”].)

18. On or about 02/15/2023, Plaintiff notified Landlord agent Toshiro Ohinata (“Toshiro”) of dirty water dripping from the bathroom vent. Handyman, Elvis, was sent to repair the issue on 02/17/2023, however, the habitability issue persisted.

21. On or about 02/24/2023, REIHANIAN notified Toshiro with both a video and description of the continued leaking vent in the bathroom. The video illustrated brown murky water leaking from the vent, as well as condensation and water around the vent. Toshiro said he would send Elvis back, again, to repair it. Toshiro was notified by REIHANIAN that Elvis felt that he did all he could do to repair it.

22. On or about 02/25/2023, REIHANIAN tells Toshiro that there is a leak coming from a window in the living room, as well as ants coming from the wall in the kitchen. This occurred after rain in the area. Toshiro has Elvis take care of the window leak and sends an exterminator to deal with the ant problem.

26. On or about 03/18/2023, REIHANIAN began feeling symptoms of fatigue, fever, chills, and pain when swallowing.

27. On or about 03/19/2023, REIHANIAN woke up with swollen tonsils and feeling very ill. He went to Urgent Med Urgent care in Santa Monica. Symptoms listed by Doctor: Constant sore throat, pain when swallowing, fatigue. REIHANIAN was diagnosed with Acute Tonsillitis.

28. On or about 04/05/2023, REIHANIAN follows-up with Toshiro regarding the bathroom vent being replaced, as REIHANIAN had not heard back from either Toshiro or Elvis. Initial outreach about replacement scheduling was 03/10/2023 and REIHANIAN had to follow up yet again.

30. On or about 08/22/2023, Guaranteed Property and Mold Inspections conduct an inspection of 508 S Barrington Ave Unit 6 - Their report finds extensive water damage in the bathroom where the levels of moisture are at some points 60% when baseline is 9.3%. Their report finds elevated levels of mold in the bathroom and bedroom.

31. In the air quality test lab report, Alternaria is reported to be an agent of ulcerated cutaneous infections which correlate with the constant canker sores REIHANIAN has been dealing with since March.

(Complaint ¶¶ 18, 21-31.) Plaintiff does not allege specific facts demonstrating a conscious or reckless disregard of Plaintiff’s well-being. To the contrary, Plaintiff alleges that landlord Toshiro attempted to fix the issues, but was unsuccessful at doing so.

Moreover, “[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].)

Plaintiff does not allege whether Toshiro is an agent of Defendant W.S. Realtors Inc., Defendant Hand Investments, Inc., or both, much less that Toshiro is a corporate leader of one or both of Defendant entities.

As such, the Court finds that the allegations do not adequately support a claim for punitive damages against Defendants.

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 did not oppose the demurrer or the motion to strike, and therefore Plaintiff does not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted.

For the reasons stated, the Court overrules Defendants’ Demurrer to the Second and Fifth Causes of Action, and sustains without leave to amend Defendants’ Demurrer to the Seventh and Eighth Causes of Action.

Further, the Court grants Defendants’ Motion to Strike and strikes the allegations and claims regarding punitive damages from the Complaint.

Further, the Court orders Defendants to file an Answer to the Complaint on or before March 15, 2024.

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

[1] The demurrer erroneously cites to Code of Civil Procedure section 430.41, which requires the parties to meet and confer prior to filing a demurrer, but the Court construes the request as being brought pursuant to section 430.10 subds. (e) and (f).

DEPARTMENT	207
HEARING DATE	February 27, 2024
CASE NUMBER	23SMCV05565
MOTIONS	Demurrer and Motion to Strike Portions of Complaint
MOVING PARTIES	Defendants W.S. Realtors Inc. and Hand Investments, Inc.
OPPOSING PARTY	none