Judge Michael E. Whitaker, Case Number: 23SMCV05754, Date: 2024-03-28 Tentative Ruling

Judge: Michael E. Whitaker, Case: 23SMCV05754, Date: 2024-03-28 Tentative Ruling

This case arises from a dispute between landlord Defendants Kord Enterprises II, Lee Summers (“Summers”), and Ronak Kordestani (“Ronak”) (“Defendants”) and tenant Plaintiff Maureen Minehart (“Plaintiff”) concerning ongoing water intrusion and cockroach infestations at the apartment Plaintiff rented from Defendants. Plaintiff alleges eight causes of action (1) breach of contract; (2) breach of implied warranty of habitability/tenantability; (3) breach of implied warranty of quiet enjoyment; (4) negligence; (5) nuisance; (6) breach of statute CCC § 1942.4; (7) intentional misrepresentation; and (8) constructive eviction.

Defendants demur to the fourth, fifth, sixth, seventh, and eighth causes of action on the grounds they fail to state facts sufficient to constitute a cause of action, pursuant to Code of Civil Procedure section 430.10, subdivision (e). Defendants additionally demur to the seventh cause of action on the grounds of uncertainty, pursuant to Code of Civil Procedure section 430.10, subdivision (f). Further, Defendants move to strike references to and requests for punitive damages.

Defendants request judicial notice of “the Grant Deed dated September 08, 2009 for the property commonly know [sic] as 10830 Massachusetts Ave, Los Angeles, California, transferring the subject property to Kord Enterprises II, LLC.”

Courts may take judicial notice of the existence and recordation of real property records, including deeds, if authenticity is not reasonably disputed. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) “The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” (Ibid.) Moreover, courts can take judicial notice not only of the existence and recordation of recorded documents but also matters that can be deduced from the documents, including the parties, dates, and legal consequences of recorded documents relating to real estate transactions. (Ibid.)

“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.)

Defendants argue that the seventh cause of action for intentional misrepresentation is uncertain because it is unclear what the exact misrepresentations are.

10. Before executing the lease agreement in 2017, Defendants gave Plaintiff a tour of and an opportunity to briefly inspect the Property. Plaintiff is not an expert or professional in building construction, safety hazards, health hazards, pests, mold, or other matters pertinent to habitability that might exist but not be apparent during a brief, surface-level inspection. During Plaintiff’s brief, non- expert, non- professional inspection, she did not notice anything wrong with the property. Rather, she felt confident and comfortable that the Premises would make a wonderful new home.

11. Finally, on or around June 1, 2020, Defendants sent an email to Plaintiff regarding a major plumbing issue at the Property.

17. On or around December 23, 2021, Plaintiff notified Defendants of a new water leak inside the kitchen and living room at the Property. At this point, the entire kitchen and living room were engulfed in water after a few hours of constant rainfall. The following day, Defendants issued a response denying knowledge of any existing leaks at the Property, despite ignoring multiple notices by Plaintiff regarding the continuous water leaks, and despite their original June of 2020 notice of major plumbing issues at the Property.

19. A few days later, on or around December 31, 2021, Defendants’ maintenance personnel re-appeared to remove the water and inspect the Property after a week of constant rain. Upon inspection, Defendants’ maintenance personnel communicated to Plaintiff that the ceiling tiles were completely wet and required replacement. Despite assuring Plaintiff that the damaged wood and drywall on the ceiling would be replaced, the ceiling at the Property remained in the same defective condition for the duration of Plaintiff’s tenancy.

25. On or around August 7, 2022, Plaintiff once again contacted Defendants via email regarding the cockroach infestation, suspected mold exposure, and the deteriorated ceiling at the Property. In response, Defendants continued to deny the existence of habitability issues and attempted to shift blame onto Plaintiff. Furthermore, Defendants denied receiving notification from DPH regarding the exposed ceiling at the Property, despite that a copy of the courtesy notice issued by DPH was mailed directly to Defendants principal address.

26. On or around August 9, 2022, Plaintiff provided Defendant Ronak the complaint number issued by DPH outlining the habitability issues at the Property. On or around August 10, 2022, Defendant Ronak assured Plaintiff via email that a professional exterminator will inspect the Property to solve the cockroach issues; however, an exterminator never appeared at the Property.

91. On several occasions during the time that Plaintiff lodged complaints about the habitability of the Premises, Defendant Ronak represented that repairs would be made.

92. Defendant Ronak also represented that the Premises was safe for human habitation

93. More specifically, on or around August 10, 2022, Defendant Ronak contacted Plaintiff via email to assure her that a professional exterminator will inspect the Property to resolve the cockroach infestation. However, the exterminator never appeared to inspect the Property.

94. Defendant Ronak had no reason to believe the Premises was at any time habitable as he failed to perform the required tests and remedial work which would have undoubtedly been required.

95. Even further, Defendant Ronak had no reason to believe that a professional exterminator would appear at the Premises, as Defendant Ronak never hired a professional extermination company to inspect the Property.

96. Defendant Ronak knew that the aforementioned representations were false when he made them and knew that the representations recklessly and without regard for its truth.

Thus, the Complaint clearly alleges several misrepresentations. Defendants do not demonstrate that any portions of the seventh cause of action are so bad that Defendants cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them.

Defendants argue in connection with other causes of action that Plaintiff conflates Defendants and makes allegations as to all of them. However, Plaintiff does not demur to any other cause of action on the basis of uncertainty.

The Court thus declines to sustain Defendants’ demurrer to the seventh cause of action on the basis of uncertainty.

i. Fourth, Fifth, and Sixth Causes of Action – Negligence, Nuisance, and Breach of Statute

Defendants contend Plaintiff fails to state a cause of action for negligence, nuisance, or breach of statute against Defendants Summers and Kordestani because they are not landlords or landowners of the subject property and therefore do not owe Plaintiff a duty and could not breach Civil Code Section 1942.2 because they are not landlords with the authority to demand or collect rent.

Specifically, Defendants argue that the allegations that each Defendant is “the property manager and or landlord and or owner of the property” (Complaint ¶¶ 2-4) are contradicted by the lease agreement attached to the complaint, which shows Defendant Kord Enterprises II is the owner and “Frank Kordestani” (not Summers or Ronak Kordestani) is the landlord. Plaintiff further contends that the grant deed demonstrates the property is owned by Kord Enterprises II.

However, the lease indicating that Kord Enterprises II is the property owner and identifying the landlord as “Frank Kordestani” does not mean that the other defendants are not also property managers, landlords, and/or owners of the property, as alleged.

Defendants also argue that the allegations are uncertain because most of them are made against all Defendants instead of against Defendants individually. Defendants do not, however, demur to the fourth, fifth, or sixth causes of action on the basis of uncertainty, and allegations against all Defendants are not, in and of themselves indicative that Plaintiff fails to state a cause of action.

Therefore, the Court overrules the demurrer to the fourth, fifth, and sixth causes of action.

Defendants argue that the eighth cause of action for constructive eviction is uncertain[1] because California only recognizes a cause of action for wrongful eviction, and it is otherwise duplicative of the third cause of action for breach of the implied warranty of quiet enjoyment.

Plaintiff argues in opposition that Civil Code section 1940.2 prohibits a landlord to “(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.” (Opposition at p. 7.) However, Plaintiff does not refute that there is no cognizable cause of action for “Constructive Eviction.”

Rather, “Constructive Eviction” is an element of the cause of action for Breach of the Covenant of Quiet Enjoyment. Absent language to the contrary, “every lease includes a covenant of quiet possession and enjoyment.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1300.) The covenant is binding on successors in interest. (Nativi v. Deutsche Bank Nat’l Trust Co. (2014) 223 Cal.App.4th 261, 291.)

“To be actionable, the landlords act or omission must substantially interfere with a tenants right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) “The perpetrator of the interference with the tenant’s quiet enjoyment need not be the landlord personally. There may be an actionable breach where the interference is caused by a neighbor or tenant claiming under the landlord.” (Id. at p. 590.) “This covenant is breached upon actual or constructive eviction of the tenant.” (Ibid.) “Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.” (Ibid.)

Thus, Plaintiff’s allegations that Defendants’ inactions constructively evicted Plaintiff from her home do not support an independent cause of action.

Therefore, the Court sustains Defendants’ demurrer to the eighth cause of action.

Plaintiff only alleges the seventh cause of action against Defendant Ronak. (See Complaint.)

The elements for fraudulent misrepresentation are “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 605–606.)

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid.)

“One of the purposes of the specificity requirement is notice to the defendant, to furnish the defendant with certain definite charges which can be intelligently met.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) As such, less specificity is required “when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy[.]” (Ibid.) “Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.” (Ibid.)

As discussed above, Plaintiff alleges that on December 24, 2021, “Defendants” denied prior water issues at the property, contradicting the June 1, 2020 email indicating the building had plumbing issues. (Complaint ¶¶ 11, 17.) On December 31, 2021, Plaintiff alleges Defendants’ maintenance worker assured Plaintiff the wet ceiling tiles would be replaced, yet they were not replaced during Plaintiff’s tenancy. (Id. ¶ 19.) On August 7, 2022, Defendants denied Plaintiff’s unit had habitability issues and denied receiving notification from DPH, even though DPH sent Plaintiff a courtesy copy of the notice they sent Defendants. (Id. ¶ 25.) On August 10, 2022, Defendant Ronak emailed Plaintiff, indicating an exterminator would be by to treat the infestation issue, but no exterminator ever came. (Id. ¶¶ 26, 93.) Defendant Ronak also represented that the premises were habitable and that repairs would be made. (Id. ¶¶ 91-91.)

98. Plaintiff relied reasonably on the representations and was damaged. The reliance was reasonable as the parties were in privity of contract and the requirements of the laws of the state.

99. Defendant Ronak was the substantial factor and the actual and proximate cause of the injuries and damages suffered by Plaintiff

Therefore, Plaintiff fails to allege reliance and causation with requisite particularity to withstand demurrer. As such, the Court sustains Defendants’ demurrer to the seventh cause of action.

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”].)

Here, Plaintiff seeks punitive damages as to Defendant Ronak only. (Complaint at Prayer ¶ 8.) As discussed above, Plaintiff does not plead reliance with requisite specificity to state a claim for Fraudulent Misrepresentation against Ronak, and therefore, Plaintiff cannot premise the request for punitive damages on Defendant Ronak’s allegedly fraudulent conduct.

However, Plaintiff’s request for punitive damages is proper if the allegations demonstrate oppression and/or malice. Here, Plaintiff also alleges Defendant Ronak repeatedly consciously disregarded serious water intrusions and pest infestations at the property, by either ignoring Plaintiff’s complaints or making false promises to repair and remediate the conditions, leaving Plaintiff with a large cockroach infestation, an exposed, water-damaged ceiling, and mold levels ten times greater than is acceptable. Thus, Plaintiff’s allegations are generally sufficient to allege oppression and/or malice by Defendant Ronak.

Therefore, Defendants’ request to strike the references to and request for punitive damages is denied.

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, although Plaintiff requests leave to amend, Plaintiff has not identified any specific allegations that could be added to the Complaint to cure the identified deficiencies. Therefore, Plaintiff has not met her burden of demonstrating that leave to amend is proper.

For the reasons stated, the Court overrules Defendants’ Demurrers to the fourth, fifth, and sixth causes of action, and sustains without leave to amend Defendants’ demurrers to the seventh and eighth causes of action.

The Court also denies Defendants’ Motion to Strike references to and requests for punitive damages.

Further, the Court orders Defendants to file an Answer to the Complaint on or before April 18, 2024.

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

[1] Although Defendants do not demur to the eighth cause of action on the basis of uncertainty, the Court analyzes whether Defendants’ arguments demonstrate Plaintiff has failed to state facts sufficient to constitute a cause of action.

DEPARTMENT	207
HEARING DATE	March 28, 2024
CASE NUMBER	23SMCV05754
MOTIONS	Demurrer and Motion to Strike Portions of Complaint
MOVING PARTIES	Defendants Kord Enterprises II, Lee Summers, and Ronak Kordestani
OPPOSING PARTY	Plaintiff Maureen Minehart