Judge Michael E. Whitaker, Case Number: 24SMCV02260, Date: 2024-12-03 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV02260, Date: 2024-12-03 Tentative Ruling

On May 13, 2024, Plaintiff Jean Pierre Christopher Murray (“Plaintiff”) filed suit against Defendants Richard Husky; Kevan Husky; Alessandro Angelo Dazzan (a/k/a Sandro Dazzan); and Umro Realty Corp., d/b/a The Agency (collectively, “Defendants”) alleging thirteen causes of action for (1) fraud; (2) promissory estoppel; (3) breach of lease; (4) unjust enrichment; (5) breach of the covenant of good faith and fair dealing; (6) breach of the warranty of habitability; (7) breach of the covenant of quiet enjoyment; (8) negligent maintenance; (9) breach of statutory duties; (10) violation of civil code, § 1946.2; (11) retaliatory eviction; (12) constructive eviction; and (13) declaratory relief.

Moving Defendants Richard Husky and Kevan Husky (“Moving Defendants”) now demur to all thirteen causes of action, on the grounds that the complaint fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e). Moving Defendants also move to strike Plaintiff’s requests for costs, attorneys’ fees, and 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 on 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.)

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 a promissory fraud action, to sufficiently alleges [sic] defendant made a misrepresentation, the complaint must allege (1) the defendant made a representation of intent to perform some future action, i.e., the defendant made a promise, and (2) the defendant did not really have that intent at the time that the promise was made, i.e., the promise was false.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060.)

“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.)

9. In June 2013, Plaintiff Jean Pierre Christopher Murray, as “Tenant,” and Defendants Richard Husky and Kevan Husky, as “Landlord” entered into a residential lease agreement for the property located at 21922 Pacific Coast Hwy, Malibu, CA 90265 (the “Property”) (the “Lease”).

10. Dazzan was the Husky’s real estate broker for the Lease transaction. At all relevant times, Dazzan has acted as the Husky’s agent for the Property and the Lease, and Defendants repeatedly led Murray to believe that Dazzan had full authority to act for and bind Husky regarding the Lease and the Property.

11. Murray originally leased the Property as a summer beach house as he was going through a divorce to enjoy with his then three young children. Since 2016 or so, Murray has not resided in California and has only used the Property on average 35-days per year. However, Murray continued to handle all repairs and most maintenance. Murray continued to have a clearing lady at least once a week.

13. At the time of the lease commencement, the Property was notably aged and required substantial maintenance and renovations to be considered habitable according to modern standards.

14. Relying on the Defendants’ assurances and with the intent to make the Property a suitable home for himself and his family, Murray invested over $600,000 in improvements, repairs, and maintenance. These investments included major renovations in the kitchen, bathrooms, living area, and the structural integrity of the Property, including but not limited to new plumbing, electrical systems, and waterproofing. Murray did over $600,000 in improvements, repairs, and maintenance based on the understanding that the Lease would be continuously extended.

15. Beginning in early 2023, the Property experienced significant water leaks that caused damage and threatened the structural integrity and habitability of the Property.

16. In June 2023, in conjunction with the Lease renewal, Defendants specifically promised that the repair works would begin by November 2023, at which time Murray would not need to pay rent.

On Wed, Jun 14, 2023 at 8:44 AM Sandro Dazzan wrote: Good morning Mark, Thanks again for coordinating access on Monday. Mr. & Mrs. Husky are very appreciative of how well Mr. Murray has taken care of the home and they have agreed to make the necessary repairs to the house that we discussed during our meeting. It will take some time for the City of Malibu permitting and ordering supplies so it seems by November they should be ready to start the repairs. Mr. & Mrs. Husky feel the house is currently habitable and expect to have the rent paid in a timely manner which is due tomorrow. In November once work is ready to commence, Mr. & Mrs. Husky understand the house will not be habitable at that time so we can waive any lease payments during the construction. Please let me know if you have any questions and we will keep you up to date with the exact timing of construction which is mainly dependent on the City of Malibu permit process. Best regards Sandro

18. In October 2023, Murray’s property manager Mark Freedman informed Dazzan that they had obtained storage for Mr. Murray’s personal property items during the November repair period.

19. Dazzan responded on October 4, 2023, that the construction permits from the City will not be ready to be pulled until January or February 2024.

20. In response, Murray through his counsel sought clarification when the repairs would be starting.

21. On November 16, 2023, Husky represented by email that his “contractor is awaiting permits from the City of Malibu to do the construction. . . . No rent will be charged during any agreed upon month of scheduled construction.”

22. In response, on or about December 4, 2023, Mr. Murray’s assistant, Cristina Peraza telephoned Mr. Husky to get clarification and information on the start of the repairs. Mr. Husky refused to answer any questions and rudely hung up on Ms. Peraza.

23. On December 11, 2023, Mr. Murray’s tried to contact Mr. Husky by email to try again get clarification and information on the start of the repairs. Mr. Husky refused to answer any questions and rudely hung up on Ms. Peraza.

24. On December 18, 2023, Mr. Husky’s attorney Fred Szkolnik stated “What was the point of responding?”

25. On January 10, 2024, Murray’s attorney asked Mr. Szkolnik when the repairs would be starting. Szkolnik responded that he had no information but he would ask his client.

27. On January 26, 2024, Mr. Szkolnik stated that Husky would not be renewing the Lease when it expired.

28. In response, Murray requested mediation. The parties’ Lease provides in ¶30 that the parties agree to mediate any dispute or claim before resorting to court action. The mediation request letter requested a response by February 3, 2024.

29. In response, Husky refused mediation by instead filing an unlawful detainer action, Husky vs. Murray, Los Angeles County Superior Court Case Number: 24SMCV00465.

30. On February 7, 2024, Husky rejected the mediators that Murray had proposed on January 26.

31. On February 19, 2024, Husky finally agreed to a mediator but claimed that he was available for mediation until “March 25 or thereafter.” On March 11, the parties finally agreed to do mediation on April 1, 2024, with Mark Loeterman, Esq. The mediation did proceed that day but it was not successful.

32. Also on February 19, 2024, Murray’s counsel notified Husky’s counsel that recent storm completely washed the stairs out to the beach; re door lock to the front beach slider does not work; and the garage door is sagging and is much lower than head height: 5’10.

33. As of the preparation of this Complaint on May 13, 2024, Husky has not repaired the stairs.

34. On April 30, 2024, Murray’s counsel notified Husky’s counsel of a major ceiling leak.

35. On May 4, 2024, Husky’s attorney stated that the leak was caused by a leaking washing machine that Murray had installed. Murray denies that the leak was caused by the washing machine that he had installed.

36. On May 7, Murray’s counsel asked Husky’s counsel; “Who told you that the washer they installed is causing a leak? Who was the house to inspect the leak? Was that person a licensed plumber? If so, please provide his contact information. Did they take any photographs?”

37. As of the preparation of this Complaint on May 13, 2024, Husky has not responded.

39. Husky, through their agent Dazzan, represented in June 2023 that they would repair the water leaks and related damages in November 2023, in order to induce Murray to renew the Lease then. They further represented that Murray would have not had to pay rent while the repairs were being done in November 2023. That representation is evidenced in the June 14, 2023 email alleged above. Husky was aware of Dazzan’s representation and promise to Murray that were made on Husky’s behalf.

40. That representation was a material inducement to get Murray to renew the Lease and continue to pay rent.

41. In reliance, Murray renewed the Lease and paid seven months of monthly rent of $28,000, which totals $196,000

42. Because of the conditions of the Property, Murray has not stayed at the Property since May 2023.

43. Husky /Dazzan knew their representation and promise were false. They had no intention to start repairs and in fact did not start the repairs in November 2023 or since then.

44. Defendants knew that Murray was relying on their promise and representation, and Murray in fact did so.

45. As a direct and proximate result of the Defendants’ fraudulent conduct, Murray has suffered significant damages, including financial losses due to continued rent payments and investments in the Property, loss of use and enjoyment of the Property, and other damages in excess of $196,000, in an amount to be proven at trial.

46. Murray is also entitled punitive damages for the fraud, malice and/or oppressive conduct perpetrated by Defendants.

Moving Defendants argue (1) the email does not mention a lease and does not appear designed to elicit any action from Plaintiff; and (2) the economic loss doctrine bars recovery here.

As for the first argument, although the email itself does not mention a lease, the allegations of the Complaint add the requisite context that this conversation occurred during negotiations to renew the lease, and that Plaintiff relied on these representations in renewing the lease.

Regarding the second argument, “[s]imply stated, the economic loss rule provides: where a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only ‘economic’ losses.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (hereafter Robinson Helicopter).) “The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” (Ibid.)

However, “Tort damages have been permitted in contract cases where a breach of duty directly causes physical injury; for breach of the covenant of good faith and fair dealing in insurance contracts; for wrongful discharge in violation of fundamental public policy; or where the contract was fraudulently induced.” (Robinson Helicopter, supra, 34 Cal.4th at pp. 989–990.)

Here, Plaintiff alleges he was fraudulently induced into renewing the lease. However, Moving Defendants argue that Plaintiff does not allege facts sufficient to show an intent to defraud or justifiable reliance.

The Complaint alleges, “Husky /Dazzan knew their representation and promise were false. They had no intention to start repairs and in fact did not start the repairs in November 2023 or since then.” (Complaint ¶ 43.) Further, the Complaint alleges specific facts that in October when the property manager contacted Moving Defendants’ agent to arrange having Plaintiff’s belongings put in storage during the November construction, Defendants’ agent replied that the permits “will not be ready to be pulled until January or February 2024.” (Complaint ¶¶ 18-19.) On November 16, 2023, Moving Defendants reiterated by email that the contractor is still awaiting the permits, and that no rent will be charged “during any agreed upon month of scheduled construction.” (Complaint ¶ 21.)

Yet, beginning December 4, 2023, Moving Defendants stopped effectively responding to Plaintiff’s inquiries about the forthcoming repairs. (Complaint ¶¶ 22-25.)

Although it is not entirely clear whether Moving Defendants actually intended to do the repairs at the time the promise was made in June 2023 and subsequent delays in obtaining the permits and the intervening communications between the parties subsequently soured Moving Defendants on the deal, or whether Moving Defendants truly had no intent of making the repairs in June 2023 when the agreement was made, as evidenced by their subsequent excuses and delays, taken in the light most favorable to Plaintiff, as the Court must do on a demurrer, the Complaint adequately alleges specific facts regarding Moving Defendants’ scienter to fraudulently induce Plaintiff into renewing the lease.

Therefore, the court overrules Moving Defendants’ demurrer to the first cause of action.

“The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.)

48. Under the doctrine of promissory estoppel promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

49. Defendants made explicit and implicit promises to Plaintiff: (i) That they would conduct and complete necessary repairs to address the severe water leaks and structural damages in the Property; (ii) That they would maintain the Property in a habitable condition; (iii) That they would renew the lease allowing Plaintiff to continue residing at the Property under the terms discussed.

50. Relying on these promises, Plaintiff undertook significant actions: (i) He continued to pay rent under the belief that the repairs would be made promptly and adequately, ensuring the Property remained habitable; (ii) He forewent opportunities to seek alternative housing based on the assurances given by Defendants concerning lease renewal and property habitability.

51. Defendants subsequently reneged on these promises by failing to perform the necessary repairs, not maintaining the property in a habitable condition, and refusing to renew the lease as previously indicated.

52. As a direct result of relying on Defendants' promises, Plaintiff has suffered significant harm, including financial losses from continued rent payments for an uninhabitable property, additional living expenses incurred from having to find temporary housing, and substantial emotional distress.

53. Enforcing the promises made by Defendants is necessary to prevent injustice, as Plaintiff acted on these promises to his detriment.

54. Plaintiff seeks relief based on promissory estoppel, including compensation for all damages incurred due to Defendants' failure to fulfill their promises, and any other relief the Court deems just and proper.

Moving Defendants argue that the promise was not clear and unambiguous in its terms, because the time frame to start the repairs was always uncertain. Although the time in which to begin the repairs was not set, and although obtaining permits was always a condition precedent to beginning the repairs, Moving Defendants are alleged to have definitively promised to do the repairs. The Complaint further alleges that Plaintiff relied on that promise in renewing the lease and paying rent for several months. But Moving Defendants did not ever begin the repairs and stopped communicating updated time estimates to Plaintiff as to when construction would begin.

Thus, Plaintiff has adequately alleged a sufficiently definitive promise to withstand a demurrer.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Moving Defendants argue the Complaint fails to adequately describe the provisions of the Lease and how they were breached. The Court disagrees. In this regard, the Complaint alleges:

16. In June 2023, in conjunction with the Lease renewal, Defendants specifically promised that the repair works would begin by November 2023, at which time Murray would not need to pay rent. […]

56. The Lease agreement between Plaintiff and Defendants Richard Husky and Kevan Husky included specific provisions requiring Defendants to maintain the Property and to perform all necessary repairs to ensure the property's safety and habitability.

57. Despite these provisions, Defendants have consistently failed to perform their obligations under the lease. Specific breaches include: (i) Failing to repair significant water leaks and related damages reported by the Plaintiff, which have severely compromised the structural integrity and habitability of the property; (ii) Neglecting to perform agreed-upon maintenance tasks necessary for ensuring the property's safety, particularly in relation to electrical and plumbing systems found to be substandard and hazardous; (ii) Not repairing the emergency beach access stairs which were destroyed by winter storms, posing a safety hazard and denying the Plaintiff and his guests critical beach access, as well as an emergency exit route.

58. These failures constitute a breach of the lease terms, which explicitly stipulate that the Landlord is responsible for major repairs and for maintaining the property in a condition that is safe and habitable.

Thus, the Complaint alleges the existence and essential terms of the lease and Defendants’ alleged breaches.

Moving Defendants demur to the fourth cause of action for unjust enrichment on the grounds that (1) Plaintiff does not attach evidence of any improvements to the Complaint; and (2) there is no such cause of action for unjust enrichment. The Court agrees with the second argument.

[T]here is no cause of action in California for unjust enrichment. The phrase Unjust Enrichment does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so. Unjust enrichment is a general principle, underlying various legal doctrines and remedies, rather than a remedy itself. It is synonymous with restitution.

(Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793 [cleaned up]; accord Jogani v. Superior Court (2008) 165 Cal.App.4th 901, 911 [unjust enrichment is not a cause of action].)

v. Fifth Cause of Action – Breach of the Covenant of Good Faith and Fair Dealing

“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 683.) “Because the covenant is a contract term, however, compensation for its breach has almost always been limited to contract rather than tort remedies.” (Id. at p. 684.) “As a contract concept, breach of the duty led to imposition of contract damages determined by the nature of the breach and standard contract principles.” (Ibid.)

Moving Defendants argue that the Complaint fails to identify the specific acts or omissions that constitute a breach, or how Plaintiff’s “significant losses” were proximately caused by any such breach.

69. Defendants Richard Husky, Kevan Husky, and Alessandro Angelo Dazzan breached the covenant of good faith and fair dealing by: (i) Engaging in conduct that undermined Plaintiff's ability to enjoy the leased Property, specifically by failing to make necessary repairs and maintenance which they promised to complete, thereby compromising the property's habitability; (ii) Misrepresenting their intentions to repair the Property in a timely manner, which induced Plaintiff to renew the lease under false pretenses; (iii) Refusing to renew the lease as a retaliatory measure in response to Plaintiff's requests for essential repairs and lawful actions to enforce his rights under the lease.

70. These actions by Defendants were performed in bad faith and with the intent to deprive Plaintiff of the benefits promised under the lease agreement, specifically the right to a habitable living environment and the continued enjoyment of the Property.

71. As a direct and proximate result of Defendants' breaches of the covenant of good faith and fair dealing, Plaintiff has suffered significant losses, including but not limited to additional living expenses, emotional distress, and other compensable damages.

72. Plaintiff seeks damages in an amount to be determined at trial, and any other relief the Court deems just and proper, to compensate for the harms suffered due to Defendants’ breach of the implied covenant of good faith and fair dealing.

Thus, the Complaint adequately alleges the specific breaches and proximate causation.

Moving Defendants also argue in the body of the brief that the fifth cause of action is uncertain, pursuant to Code of Civil Procedure, section 430.10, subdivision (f). This ground was not raised in the demurrer, and is therefore improper. In any event, the Court does not find these allegations are so bad that Moving Defendants cannot reasonably determine what allegations must be admitted or denied or what causes of action are being brought against them. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Therefore, the Court declines to sustain a demurrer on the grounds of uncertainty.

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 (hereafter Erlach).) 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.

Moving Defendants argue this cause of action fails because Plaintiff has not attached the lease to the complaint to demonstrate the contractual relationship. Further, Moving Defendants contend that Plaintiff’s own improvements may have caused the habitability issues, the Complaint does not adequately allege that Defendants had actual knowledge of the alleged habitability issues, and it is not clear whether there were any actual habitability issues.

Regarding the first argument, as discussed above, the Complaint adequately alleges the existence of a lease.

As for the remaining arguments, it appears Moving Defendants are conflating a statutory cause of action under Section 1942.4 with the general warranty of habitability implied in every residential lease. In any event, in addition to the above allegations, the Complaint alleges:

74. Under California Civil Code §1941.1, landlords are required to maintain rental properties in a condition that is habitable and fit for human occupancy. This obligation includes providing effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors; operating systems for heating, plumbing, and electrical; and clean, sanitary, and structurally safe premises.

75. Defendants Richard Husky and Kevan Husky have breached the implied warranty of habitability by failing to maintain the Property in a safe and habitable condition. The Property has suffered from significant and persistent issues, including but not limited to severe water leaks, mold growth, and structural damages, which have not been adequately addressed by Defendants despite repeated notifications and requests for repairs by Plaintiff.

76. The Defendants' failure to repair critical issues such as leaking roofs, faulty plumbing, and deteriorating structural integrity has directly compromised the safety, health, and welfare of Plaintiff and his family, rendering the Property uninhabitable at times and in direct violation of the terms of the lease and California habitability standards.

77. As a direct and proximate result of Defendants’ breach of the implied warranty of habitability, Plaintiff has suffered damages including, but not limited to, loss of use and enjoyment of the Property, incurred costs for temporary housing, and adverse health effects related to exposure to mold and other unsafe conditions.

78. Plaintiff seeks an order requiring Defendants to make all necessary repairs to restore the Property to a habitable condition and for damages in an amount to be determined at trial, including reimbursement for any expenses incurred by Plaintiff as a result of Defendants’ breach, along with any other relief the Court deems just and proper.

Regarding Moving Defendants’ second and fourth arguments, whether Moving Defendants were in fact aware of the alleged habitability issues, or whether there were, in fact, any habitability issues at all, these are factual questions to be determined at later stages of the litigation. For purposes of a demurrer, the Complaint alleges “Defendants Richard Husky and Kevan Husky have breached the implied warranty of habitability by failing to maintain the Property in a safe and habitable condition. The Property has suffered from significant and persistent issues, including but not limited to severe water leaks, mold growth, and structural damages, which have not been adequately addressed by Defendants despite repeated notifications and requests for repairs by Plaintiff.” (Complaint ¶ 75.)

As for Moving Defendants’ third argument that Plaintiff’s own improvements may have caused the habitability issues, while that may be a possibility (see Complaint, ¶ 14),[1] Plaintiff alleges that there were pre-existing water leaks that caused damage “Beginning in early 2023” that Defendants were aware of in June 2023 when the parties negotiated the lease renewal. (Complaint ¶¶ 15-16.) Although Moving Defendants apparently deemed the home habitable as of June 14, 2023, it is conceivable based upon the allegations that the damage from the existing unrepaired water leaks subsequently made the home uninhabitable.

Thus, construing the allegations in the light most favorable to Plaintiff, the Complaint adequately alleges that the existing leaks Defendants were aware of as of June 2023 made the home uninhabitable. Therefore, the Court overrules Moving Defendants’ demurrer to the sixth cause of action.

vii. Seventh Cause of Action – Breach of the Covenant of Quiet Enjoyment

Absent language to the contrary, “every lease includes a covenant of quiet possession and enjoyment.” (Erlach, supra, 226 Cal.App.4th at pp. 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 (sic) 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 (hereafter Andrews).) “The perpetrator of the interference with the tenants 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.” (Erlach, supra, 226 Cal.App.4th at p. 1299.) “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.” (Id. at pp. 1299-1300.)

Moving Defendants argue the Complaint does not allege specific facts that they ever interrupted Plaintiff’s beneficial enjoyment, and instead contains only conclusory statements. But there is no heightened pleading requirement to allege a breach of the covenant of quiet enjoyment. Here, the Complaint alleges:

80. Under California Civil Code § 1927, every lease of real property that is intended for human occupation implies a covenant of quiet enjoyment. This covenant assures the tenant that their use and enjoyment of the property will not be disturbed by the landlord or any other person with superior title.

81. Defendants Richard Husky and Kevan Husky have breached the covenant of quiet enjoyment by their continuous failure to address significant maintenance issues and their direct actions, which have resulted in substantial disturbances to Plaintiff's peaceful occupation of the Property.

82. Specific actions constituting this breach include, but are not limited to: (i) Failure to address urgent and severe water leaks and related damages, resulting in persistent noise, health hazards from mold exposure, and discomfort; (ii) Allowing the property's emergency beach access stairs to remain in disrepair, thereby causing a significant safety hazard and limiting Plaintiff's access to property amenities; (iii) Failure to take reasonable steps to mitigate the disturbances caused by extensive neighbor construction, which the Defendants were aware significantly impacted the Plaintiff’s use and enjoyment of the Property.

83. These actions and failures by Defendants have significantly interfered with Plaintiff's right to quiet enjoyment of the Property, causing him undue stress, anxiety, and depriving him of the full use and benefit of his rental.

84. As a direct and proximate result of Defendants’ breach of the covenant of quiet enjoyment, Plaintiff has suffered and continues to suffer damages, including diminished use and enjoyment of the Property, emotional distress, and other compensable losses.

85. Plaintiff seeks damages for the breach of the covenant of quiet enjoyment, and any other relief the Court deems just and proper, including but not limited to an injunction preventing Defendants from continuing practices that breach this covenant.

(Complaint ¶¶ 80-85.) Thus, the Complaint sufficiently alleges ultimate facts[2] to withstand demurrer.

Moving Defendants also argue in the body of the brief, but not in the demurrer itself, that the seventh cause of action is uncertain, pursuant to Code of Civil Procedure section 430.10, subdivision (f). As discussed above, this ground was not properly raised in the demurrer and is therefore not properly before the Court. Moreover, the seventh cause of action is not so bad that Moving Defendants cannot reasonably ascertain what factual allegations must be admitted or denied, or what causes of action are brought against them. Therefore, the Court declines to sustain a demurrer on the basis of uncertainty.

As such, the Court overrules Moving Defendants’ demurrer to the seventh cause of action.

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Moving Defendants argue the Complaint fails to allege that Moving Defendants were negligent, instead alleging that they attempted to obtain proper permitting to cure the alleged defects, and that Plaintiff stayed at the home during his own improvements, repairs, and maintenance.

87. Defendants, including Richard Husky, Kevan Husky, and Alessandro Angelo Dazzan (acting as the managing agent for the property), owed a duty of care to Plaintiff to maintain the Property in a reasonably safe condition and to perform all necessary maintenance to prevent foreseeable harm to tenants

88. Defendants breached this duty of care by failing to (i) Properly address and repair significant water leaks and related structural damages that compromised the integrity and safety of the Property; (ii) Maintain the emergency beach access stairs, thereby jeopardizing the safety of the Property's occupants and guests; (iii) Respond adequately to reports of mold and other hazardous conditions that posed health risks to Plaintiff and his family; (iv) Conduct regular and necessary inspections to ensure that all critical systems (electrical, plumbing, structural) were in safe working order.

89. The negligence of the Defendants in failing to maintain the Property has directly resulted in the Property becoming unsafe and inhabitable at various times, leading to physical discomfort, emotional distress, and financial losses for Plaintiff due to the need for alternative housing and other mitigative actions.

90. As a direct and proximate result of Defendants' negligent maintenance, Plaintiff has suffered damages including, but not limited to, additional living expenses, loss of use and enjoyment of the Property, and adverse health effects.

(Complaint ¶¶ 87-90.) Thus, the Complaint sufficiently alleges “ultimate facts” of Moving Defendants’ alleged negligence.

Moving Defendants also argue in the body of the brief, but not the demurrer, that the eighth cause of action is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). As discussed above, this ground was not properly raised, and in any event, the Complaint is not so unintelligible that Moving Defendants cannot ascertain what allegations must be admitted or denied or what causes of action are brought against them.

Defendant argues this cause of action fails to state a cause of action, because the factual allegations are conclusory, and that this cause of action is duplicative of the breach of warranty of habitability and negligent maintenance claims.

As discussed above, the California Supreme Court has held that there is a warranty of habitability implied in every residential lease agreement. (See Green v. Superior Court, supra, 10 Cal.3d 616.) “In addition, there is a statutory cause of action available to the residential tenant where the premises are untenantable and other circumstances exist.” (See Erlach, supra, 226 Cal.App.4th at p. 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.)

Similarly, Civil Code section 1941.3 provides, “The tenant shall be responsible for notifying the owner or his or her authorized agent when the tenant becomes aware of an inoperable dead bolt lock or window security or locking device in the dwelling unit. The landlord, or his or her authorized agent, shall not be liable for a violation of subdivision (a) unless he or she fails to correct the violation within a reasonable time after he or she either has actual notice of a deficiency or receives notice of a deficiency.” (Civ. Code, § 1941.3, subd. (b).)

Thus, the Court declines to sustain a demurrer on the grounds that the statutory causes of action are duplicative.

With regard to Moving Defendants’ second argument that the allegations are conclusory, the general rule is that “statutory causes of action must be specifically pleaded[.]” (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1020.) Here, the Complaint alleges:

92. Plaintiff realleges and incorporates by reference paragraphs 1 through 37 as though fully set forth in this cause of action.

93. California Civil Code §§ 1941.1 and 1941.3 provides that landlords have statutory duties to maintain rental properties in a habitable condition, ensure effective waterproofing and weather protection of the property, provide adequate sanitation, plumbing, and heating facilities, and comply with health and building codes affecting health and safety.

94. Defendants Richard Husky and Kevan Husky breached their statutory duties by: (i) Failing to adequately address severe and urgent repair needs at the Property, including significant water leaks, mold, and structural damages, which compromised the property’s habitability; (ii) Ignoring repeated requests and legal notices from Plaintiff to repair critical damage to the Property, thereby failing to perform necessary maintenance and repairs as legally required for the safety and health of tenants; (iii) Failing to maintain common areas and essential safety features of the Property, specifically the emergency beach access stairs, which degraded to the point of disrepair and posed significant safety risks.

95. The Defendants' failure to comply with their statutory obligations directly resulted in the Property falling below the habitable living standards required by California Civil Code §1941.1, which mandates that a landlord must provide a rental property that substantially complies with state and local building and health codes that materially affect tenants' health and safety. This noncompliance exposed Plaintiff and his family to unhealthy living conditions and potential safety hazards, forcing them to inhabit a property that was not maintained to the minimum legal standards of habitability.

96. The Defendants' failure to comply with these statutory duties has caused Plaintiff to incur substantial costs in attempts to mitigate the deteriorating conditions of the Property, and has directly resulted in significant personal discomfort, health issues, and financial losses.

97. Plaintiff seeks damages in an amount to be determined at trial, and any other relief the Court deems just and proper, to compensate for the harms suffered due to Defendants’ negligence and failure to comply with their legal obligations as landlords.

Thus, the Complaint fails to allege a public officer inspected the premises and gave the landlord written notice that it must abate the nuisance or repair the property or that the conditions were not remedied within 35 days of the notice, as is required to state a cause of action for statutory violations of Section 1941.1.

The Complaint also does not allege an inoperable dead bolt lock or window security or locking device to state a cause of action for a violation of Section 1941.3. With regard to locks, the only allegation is:

(Complaint ¶ 32.) But section 1941.3 “shall not apply to horizontal sliding doors.”

Moving Defendants demur to this cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and the allegations refer to a “notice” without factual reference to any notice.

Civil Code section 1946.2 provides, “after a tenant has continuously and lawfully occupied a residential real property for 12 months, the owner of the residential real property shall not terminate a tenancy without just cause, which shall be stated within the written notice to terminate tenancy.” Subdivision (b)(1) defines “At-fault just cause” and includes “Default in the payment of rent.” Subdivision (b)(2) defines “No-fault just cause” and includes “Intent to demolish or substantially remodel the residential property.” Further,

(1) An owner who attempts to recover possession of a rental unit in material violation of this section shall be liable to the tenant in a civil action for all of the following:

(C) Upon a showing that the owner has acted willfully or with oppression, fraud, or malice, up to three times the actual damages. An award may also be entered for punitive damages for the benefit of the tenant against the owner.

(2) The Attorney General, in the name of the people of the State of California, and the city attorney or county counsel in the jurisdiction in which the rental unit is located, in the name of the city or county, may seek injunctive relief based on violations of this section.

25. On January 10, 2024, Murray’s attorney asked Mr. Szkolnik when the repairs would be starting. Szkolnik responded that he had no information but he would ask his client.

27. On January 26, 2024, Mr. Szkolnik stated that Husky would not be renewing the Lease when it expired.

29. In response, Husky refused mediation by instead filing an unlawful detainer action, Husky vs. Murray, Los Angeles County Superior Court Case Number: 24SMCV00465.

99. Civil Code §1946.2 (The Tenant Protection Act of 2019) provides that a residential real property owner cannot terminate the tenancy of a tenant who has continuously and lawfully occupied a residential real property for 12 months without “just cause.” Civ. Code §1946.2(a), (k).

100. Furthermore, Husky did not provide Murray with notice that as required by the Act. Therefore, Husky was precluded from refusing to renew the Lease.

101. Because of Husky’s violation, he is precluded from terminating the Lease or evicting Murry.

(Complaint ¶¶ 25-29; 99-101.) Thus, Plaintiff appears to seek injunctive relief, which is only available to the Attorney General, not private parties.

Further, although the Complaint alleges “Husky did not provide Murray with notice that as required by the Act” which is sufficient at the pleadings stage, Plaintiff contends in opposition, “Husky has already dismissed the [unlawful detainer] Action.” (Opposition at p. 14.)

Thus, in addition to seeking relief that is not available to a private party, this cause of action appears to have been mooted by the dismissal of the unlawful detainer action.

To the extent Plaintiff seeks to restrain Moving Defendants from ever terminating the lease or evicting Plaintiff in the future, such cause of action is not yet ripe. Further, a hypothetical future termination/eviction predicated upon just cause (such as Plaintiff’s default on the payment of rent, or Defendants’ planned extensive remodel/repairs) and written notice would be proper.

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

Defendant demurs to the eleventh cause of action on the grounds that it fails to state facts sufficient to constitute a cause of action and that these allegations are better suited in defense of an unlawful detainer action. Civil Code section 1942.5 provides:

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights under this chapter […], and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days [….]

(h) Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for all of the following:

(2) Punitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.

(i) In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney’s fees to the prevailing party if either party requests attorney’s fees upon the initiation of the action.

(j) The remedies provided by this section shall be in addition to any other remedies provided by statutory or decisional law.

(Civ. Code., § 1942.5, subd. (a), (h), (i), & (j).) Here, the Complaint alleges:

25. On January 10, 2024, Murray’s attorney asked Mr. Szkolnik when the repairs would be starting. Szkolnik responded that he had no information but he would ask his client.

27. On January 26, 2024, Mr. Szkolnik stated that Husky would not be renewing the Lease when it expired.

29. In response, Husky refused mediation by instead filing an unlawful detainer action, Husky vs. Murray, Los Angeles County Superior Court Case Number: 24SMCV00465.

103. Under California Civil Code § 1942.5, tenants are protected against retaliatory eviction by landlords who act to evict, increase rent, decrease services, or bring or threaten to bring an action for possession in retaliation for the tenant's lawful exercise of rights, such as complaining about the habitability of the property or requesting repairs.

104. Defendants, including Richard Husky, Kevan Husky, and Alessandro Angelo Dazzan, engaged in actions constituting retaliatory eviction after Plaintiff requested necessary repairs to the Property to address severe habitability issues including water leaks, mold, and structural damages that were promised but repeatedly ignored by Defendants.

105. Specifically, after Plaintiff's repeated requests for repairs and lawful withholding of rent due to unaddressed severe habitability issues; (i) Defendants responded not by making the promised repairs, but by serving Plaintiff with an unlawful detainer (eviction notice); (ii) Defendants refused to renew the lease under terms previously implied and discussed, directly in response to Plaintiff's complaints and legal actions taken to enforce his tenant rights.

106. Defendants' actions were intended to punish Plaintiff for his lawful exercise of rights, attempting to evict him and refusing lease renewal as a direct response to his complaints about the Property’s condition and his legal actions to seek remediation.

107. As a result of these retaliatory actions, Plaintiff has suffered and continues to suffer damages, including but not limited to emotional distress, financial losses due to forced relocation, and other compensable harms.

108. Plaintiff seeks damages for retaliatory eviction and a court order to prevent Defendants from continuing such illegal practices, along with any other relief the Court deems just and proper.

Thus, although the Complaint alleges that Plaintiff was in default of the January 2024 rent when Moving Defendants initiated unlawful detainer proceedings, Plaintiff alleges the rent was lawfully withheld due to inhabitable conditions on the property. As such, Plaintiff has adequately alleged a cause of action to recover damages incurred in connection with Moving Defendants’ purported unlawful retaliatory eviction.

Moving Defendants also argue in the body of the brief, but not the demurrer, that the eleventh cause of action is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). As discussed above, this ground was not properly raised in the demurrer, and in any event, the Complaint is not so unintelligible that Moving Defendants cannot ascertain what allegations must be admitted or denied or what causes of action are brought against them.

Moving Defendants demur to the twelfth cause of action on the grounds that it fails to state facts to constitute a cause of action and it is better suited for an unlawful detainer action.

As discussed above, “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.” (See Erlach, supra, 226 Cal.App.4th at pp. 1299-1300.) And “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, supra, 125 Cal.App.4th at p. 589.) “This covenant is breached upon actual or constructive eviction of the tenant.” (Erlach, supra, 226 Cal.App.4th at p. 1299.) “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.” (Id. at pp. 1299-1300.)

Similarly, 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.” Here, the Complaint alleges:

110. Constructive eviction is established under California law when actions or omissions by a landlord substantially interfere with the tenant's use and enjoyment of the premises, compelling the tenant to vacate. This legal concept is outlined in California Civil Code §1942, which allows tenants to vacate rentable property that is not in a condition fit for human occupation. The applicability of constructive eviction was further clarified in legal precedents such as Stoiber v. Honeychuck, 101 Cal.App.3d 903 (1980), where it was determined that the landlord must not perform any actions which would materially interfere with the tenant’s enjoyment of the property.

111. Defendants Richard Husky and Kevan Husky committed acts of constructive eviction by: (i) Failing to address critical repairs and maintenance issues, including severe water leaks and structural damages, despite repeated notifications and pleas from Plaintiff, thus significantly impairing the property's habitability; (ii) Making promises to repair the property within specified timelines, which were not met, misleading Plaintiff about the time frame for these critical repairs, and subsequently causing significant delays that rendered the property uninhabitable for extended periods; (iii) Ignoring safety concerns, including the disrepair of emergency beach access stairs, essential for safe access to and from the property, thereby endangering the safety of Plaintiff and his family.

112. As a direct and proximate result of these actions, Plaintiff was forced to vacate the premises due to the intolerable living conditions directly created by Defendants' neglect and mismanagement.

113. Due to the constructive eviction, Plaintiff has suffered damages, including but not limited to moving costs, higher rent for alternative accommodation, emotional distress, and loss of enjoyment of life.

114. Plaintiff seeks damages in an amount to be determined at trial, and any other relief the Court deems just and proper, to compensate for the harms suffered due to Defendants’ acts of constructive eviction.

Thus, Plaintiff’s twelfth cause of action appears to be seeking relief from the allegedly constructive eviction under a breach of the covenant of quiet enjoyment theory stemming from the uninhabitable conditions. But Plaintiff has already brought the seventh cause of action for breach of the implied covenant of quiet enjoyment premised on the allegedly uninhabitable conditions.

Therefore, Plaintiff has not stated a separate cause of action for “constructive eviction.” As such, the Court sustains Moving Defendants’ demurrer to the twelfth cause of action.

Moving Defendants demur to the thirteenth cause of action on the ground that Plaintiff has not attached to the complaint a copy of the lease agreement upon which the declaratory relief is based. As discussed above, Plaintiff has adequately pleaded the existence and essential terms of the lease agreement at issue to withstand demurrer.

Moving Defendants also argue in the body of the brief, but not the demurrer, that the thirteenth cause of action is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). As discussed above, this ground was not properly raised in the demurrer, and in any event, the Complaint is not so unintelligible that Moving Defendants cannot ascertain what allegations must be admitted or denied or what causes of action are brought against them.

Therefore, the Court overrules the demurrer as to the thirteenth 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.)

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”].)

Moving Defendants move to strike from the Complaint Plaintiff’s requests for costs, attorneys’ fees, and punitive damages.

As discussed above, because the Court overrules Moving Defendants’ demurrer to the fraud-based cause of action, the Court finds Plaintiff has adequately alleged fraudulent conduct to support a claim for punitive damages against Moving Defendants.

Further, as discussed above, attorneys’ fees are available for Plaintiff’s eleventh cause of action for retaliatory eviction.

With regard to costs, costs are generally available to the prevailing party. (See Code Civ. Proc., § 1032, subd. (b).) Although Moving Defendants have moved to strike Plaintiff’s request for costs from the Complaint, the body of the motion to strike does not contain any argument as to why the request for costs should be stricken.

Therefore, the Court denies Moving Defendants’ motion to strike in its entirety.

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].)

· Fourth Cause of Action for Unjust Enrichment on the grounds that there does not exist any such cause of action.

· Ninth Cause of Action for Breach of Statutory Duties on the grounds that Plaintiff failed to allege an officer inspected the premises and gave the landlord written notice of the deficiencies and the allegations about a deficient lock involved a “slider” which is not actionable under the applicable statute.

· Tenth Cause of Action for Violation of 1946.2 on the grounds that the injunctive relief sought is not available to private citizens like Plaintiff, and the cause of action was mooted when the unlawful detainer action was dismissed.

· Twelfth Cause of Action for Constructive Eviction on the grounds that Plaintiff has not alleged a cause of action for “Constructive Eviction” separate from the breach of the covenant of quiet enjoyment cause of action.

Because the Court sustains the demurrer to the fourth and twelfth causes of action on the grounds that no such causes of action exist, there are no facts Plaintiff could add to the complaint to cure that deficiency.

With regard to the ninth and tenth causes of action, Plaintiff argues in opposition that Plaintiff obtained several documents in discovery, including emails that demonstrate Defendants did not intend to honor the lease extension in June 2023 when it was signed or to initiate the repairs prior to Jan/Feb when they sent Plaintiff an email indicating they intended to begin repairs in November. While these additional facts would bolster Plaintiff’s fraud cause of action, they are not relevant to the deficiencies the Court identified with the ninth and tenth causes of action.

For the foregoing reasons, the Court overrules Moving Defendants’ demurrer to the first, second, third, fifth, sixth, seventh, eighth, eleventh, and thirteenth causes of action, and sustains without leave to amend Moving Defendants’ demurrer to the fourth, ninth, tenth, and twelfth causes of action.

Further, the Court denies Moving Defendants’ Motion to Strike in its entirety.

Further, the Court orders Moving Defendants to file and serve Answer(s) to the Complaint on or before December 24, 2024.

Moving Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] 14. “Relying on the Defendants’ assurances and with the intent to make the Property a suitable home for himself and his family, Murray invested over $600,000 in improvements, repairs, and maintenance. These investments included major renovations in the kitchen, bathrooms, living area, and the structural integrity of the Property, including but not limited to new plumbing, electrical systems, and waterproofing. […]”

[2] Ultimate facts are those “constituting the cause of action” or those upon which liability depends, e.g., duty of care, breach of the duty and causation (damages). (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he term ultimate fact generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary facts and from legal conclusions.” (Central Valley General Hosp. v. Smith (2008) 162 Cal.App.4th 501, 513 [cleaned up]; see also Rodriguez v. Parivar, Inc. (2022) 83 Cal.App.5th 739, 750–751 [“The elements of a cause of action constitute the essential or ultimate facts in a civil case”].)

DEPARTMENT	207
HEARING DATE	December 3, 2024
CASE NUMBER	24SMCV02260
MOTIONS	Demurrer and Motion to Strike Portions of Complaint
MOVING PARTIES	Defendants Richard Husky and Kevan Husky
OPPOSING PARTY	Plaintiff Jean Pierre Christopher Murray