Judge: Michael E. Whitaker, Case: 25SMCV00412, Date: 2025-04-30 Tentative Ruling

Case Number: 25SMCV00412    Hearing Date: April 30, 2025    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises over a dispute concerning the habitability of Plaintiff’s apartment. 

On January 27, 2025, Plaintiff Sabrina Schloss (“Plaintiff”) filed suit against Defendants Daniel Monge; Lesley Gordon; Scott Brody; and Scott Properties Group, Inc. (“Defendants”) alleging seven causes of action for (1) breach of implied warranty of habitability; (2) professional negligence: (3) constructive eviction; (4) private nuisance; (5) promissory estoppel; (6) breach of contract; and (7) late return of security deposit.

Defendants demur to the First, Second, Fourth, and Fifth causes of action, and demur to the unnamed Cause of Action for Negligent Infliction of Emotional Distress, pursuant to Code of Civil Procedure section 430.10, subdivision (e) on the grounds that Plaintiff fails to state facts sufficient to constitute causes of action.  Moreover, Defendants demur to the entire complaint under Code of Civil Procedure section 430.10, subdivision (f), on the ground of uncertainty. 

Further, Defendants move to strike Plaintiff’s requests for “interest on money belonging to Plaintiff illegally retained by Defendants” and for punitive/exemplary damages. 

Plaintiff opposes both motions and Defendants reply.

REQUESTS FOR JUDICIAL NOTICE

            Defendants’ Request for Judicial Notice

Defendants request judicial notice of the Statement of Information filed with the Secretary of State on February 3, 2015 (“RJN Ex. 1.”) 

            In Elmore v. Oak Valley Hospital Dist., the appellate court explained:  “once a statement is filed pursuant to Government Code section 53051, it becomes the duty of the Secretary of State and the county clerk to place the information so filed in a ‘Roster of Public Agencies’” and thus, “a statement filed with the Secretary of State and indexed in the ‘Roster of Public Agencies’ becomes a document of which a court can properly take judicial notice” under Evidence Code section 452, subdivision (c).  (Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716, 722; see also Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1160, fn. 2 [taking judicial notice of the statement of information filed with the California Secretary of State identifying the chief executive officer for the entity defendant, pursuant to Evidence Code section 452, subd. (c) as an official act of the executive department of the state of California].)

            While courts may take judicial notice of official government acts, they may not take judicial notice of the truth of the matters asserted therein.  (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.)  Therefore, the Court takes judicial notice of the existence and filing of the Statement of Information, and the legal consequences thereof, but not of the truth of the matters asserted therein.

            Plaintiff’s Request for Judicial Notice

            Plaintiff requests judicial notice of the following:

·       Exhibit 1: The Real Estate License information for Defendant Scott Brody, taken from records of the State California Department of Real Estate on April 13, 2025.

·       Exhibit 2: The Real Estate License Information for Defendant Scott Properties Group Inc., taken from the records of the State of California Department of Real Estate on April 13, 2025.

            Judicial notice may be taken of “facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  (Evid. Code, § 452, subd. (h).)  The parties do not dispute that the California Department of Real Estate is a government agency whose records are of reasonably indisputable accuracy.  Therefore, the Court takes judicial notice of the real estate licenses and legal consequences thereof.

ANALYSIS

1.     DEMURRER

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

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

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if 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.)

A.    UNCERTAINTY

“[D]emurrers for uncertainty are disfavored.”  (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)  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 Complaint is unintelligible because the damages stated are “reimbursement for expenses while [Plaintiff] was displaced from her apartment, moving costs, applicable relocation fees, and other losses due to suddenly and unexpectedly being forced to move, economic losses as a result of missing appliances, and interest on the late return of her security deposit” without any allegation that these damages exceed $35,000.  This appears to be an argument that the action was improperly filed as an unlimited action, as opposed to a limited action, but does not demonstrate that any of Plaintiff’s claims for damages are so bad Defendants cannot reasonably determine what issues must be admitted or denied, or what claims are directed against them.

Defendants also argue that Plaintiff’s first cause of action is uncertain because it improperly conflates all four defendants and describes them as acting simultaneously.  Upon review, the Court does not find that Plaintiff improperly conflates Defendants.  Although Plaintiff alleges some conduct as to all defendants, such as emails Plaintiff sent to “Defendants” (see, e.g., Complaint ¶¶ 13. 18) or the fact that “Defendants” would pay for Plaintiff’s relocation expenses (Complaint ¶ 31), Plaintiff also specifies conduct as to individual defendants (see, e.g., Complaint ¶¶ 16-17, 21, 29.)

Ultimately, Defendants do not demonstrate that any portions of the Complaint are so bad that Defendants 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 on the basis of uncertainty. 

B.    FAILURE TO STATE A CAUSE OF ACTION

                                                         i.          First Cause of Action – Breach of Implied Warranty of Habitability

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.)  “The elements of a cause of action for breach of the implied warranty of habitability are the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.”  (Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891.)

Defendant argues that the Complaint does not allege Defendant was given a reasonable time to correct the deficiency because it alleges Plaintiff first discovered and reported the gas leaks to Defendants on December 2, 2024 (Complaint ¶ 12), and then, despite Defendants’ attempts to fix the gas leaks on December 3 and December 9 (Complaint ¶¶ 15, 33), Plaintiff declared herself constructively evicted exactly one week later on December 9.  (Complaint ¶ 33.)  However, the Civil Code defines “a reasonable time” as being at least thirty (30) days.  (Civil Code, § 1942.)

Plaintiff argues that Section 1942 applies only to a tenant repairing a defect directly, and deducting such expenses from rent, not to breach of the implied warranty of habitability generally.  Moreover, Plaintiff argues that even if Section 1942 did apply, the statute creates a rebuttable presumption that at least 30 days is a “reasonable time,” but the statute “shall not be construed to prevent a tenant from repairing and deducting after a shorter notice if all the circumstances require shorter notice.”  (Civil Code, § 1942, subd. (b).)

The Court agrees with Plaintiff that whether Plaintiff provided Defendants a reasonable time to repair is a factual question to be determined at later stages of the litigation.  As such, the Court overrules Defendants’ demurrer to the first cause of action.

                                                       ii.          Second Cause of Action – Professional Negligence

Defendants demur to the second cause of action for professional negligence on the grounds that there is no heightened standard of care for landlords.  In opposition, Plaintiff argues that there is a heightened duty for property managers because Civil Code section 1941 requires that landlords maintain rental units in a condition fit for human occupancy.  Further, Plaintiff argues that Defendant Monge told Plaintiff “he holds a certification in landlord-tenant law” and Defendants Brody and Scott Properties hold real estate licenses.

The Court disagrees that Civil Code section 1941 imposes upon property managers a heightened duty of care for purposes of professional negligence.  Nor do Plaintiff’s assertions that Defendant Monge “holds a certification in landlord-tenant law” or that Brody and Scott Properties hold real estate licenses demonstrate that any Defendants are subject to professional negligence based on the conduct alleged in their capacities as landlords and Plaintiff has not provided any authority demonstrating otherwise.

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

                                                     iii.          Fourth Cause of Action – Private Nuisance

Defendants demur to the fourth cause of action for private nuisance on the grounds that (1) it is duplicative of the cause of action for professional negligence; and (2) it is barred by the economic loss doctrine.

With respect to Defendants’ argument that it is duplicative, the Court has sustained Defendants’ demurrer to the second cause of action for professional negligence, and therefore, there is no duplication.

As for the economic loss doctrine, “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 (quoting Neibarger v. Universal Cooperatives, Inc. (1992) 439 Mich. 512, 486 N.W.2d 612, 615, fns. omitted) (quotations omitted).)  “This doctrine hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.”  (Ibid.) 

In summary, the economic loss doctrine applies when the parties have entered into a contract; the plaintiff sues for tort damages, alleging defendant failed to perform as the contract requires; and negligently caused economic losses flowing from the breach. In such a case, plaintiffs are generally limited to recovery of those economic damages and cannot seek to expand their remedies beyond those available in contract. The doctrine does not apply if defendant's breach caused physical damage or personal injury beyond the economic losses caused by the contractual breach and defendant violated a duty flowing, not from the contract, but from a separate, legally recognized tort obligation.

A case in which the plaintiff sues a contractual party for fraud based on conduct committed during the course of a contractual relationship falls outside the economic loss doctrine. 

(Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 44.)

The economic loss rule is best understood as a specific application of the same independent tort principle reflected in Tameny, Applied Equipment, and Freeman & Mills. Whenever a contract breach causes physical harm to a person or property, the economic loss rule's limitation gives way to the recognition that an independent tort duty of care was likely also breached, resulting in an injury not contemplated and provided for by the parties. This is so because any contractual breach resulting in physical injury or property damage normally resides outside the reasonable expectations of the parties when they entered their contractual relationship. The inverse may also be true. When a contractual breach results only in economic losses, the pecuniary injury may fall within the scope of parties' precontractual expectations and their allocation of risks, and it is less likely to implicate the breach of a tort duty independent of their contractual rights and obligations. Whether the alleged harm arises independently from the contract can be a nuanced question. 

When evaluating whether the parties' expectations and risk allocations bar tort recovery, the court must consider the alleged facts. First, applying standard contract principles, it must ascertain the full scope of the parties' contractual agreement, including the rights created or reserved, the obligations assumed or declined, and the provided remedies for breach. Second, it must determine whether there is an independent tort duty to refrain from the alleged conduct. Third, if an independent duty exists, the court must consider whether the plaintiff can establish all elements of the tort independently of the rights and duties assumed by the parties under the contract.

The guiding and distinguishing principle is this. If the alleged breach is based on a failure to perform as the contract provides, and the parties reasonably anticipated and allocated the risks associated with the breach, the cause of action will generally sound only in contract because a breach deprives an injured party of a benefit it bargained for. However, if the contract reveals the consequences were not reasonably contemplated when the contract was entered and the duty to avoid causing such a harm has an independent statutory or public policy basis, exclusive of the contract, tort liability may lie. 

(Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at pp. 26-27.)

“The lesson to be drawn from this review is that contract and tort obligations are different. The independent tort principle, and its specific application in our economic loss rule cases, honors those differences. The law of contracts protects the interests of parties who enter into an agreement that secures rights and obligations of their choosing. The parties make clear those rights and obligations by the terms they put in the contract. Contract law functions to facilitate commerce by enforcing the agreement the parties adopt. Tort law operates on a different principle. A tort remedy arises, not based on an agreement between the parties, but because the defendant has violated a societal duty that the law itself imposes on everyone. A tortfeasor is held liable not for violating a contract, but for violating an independent legal duty.”  (Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at p. 37 [cleaned up].)

“But to be held liable in tort, a defendant must commit a tort. If all the defendant has allegedly done is violate the terms of the parties' contract, depriving the plaintiff of the benefits the contract ensures, the defendant's liability is limited by the contract. Broader tort liability only arises if a defendant violates an independent legal duty and the type of harm that ensues was not reasonably contemplated or accounted for by the contractual parties.”  (Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at p. 37.)

“Within the context of the broader independent tort principles previously summarized, our answer encapsulates steps one and three of the required analysis: (1) a court must ascertain the full scope of the parties' contractual agreement; and (3) the court must determine whether the plaintiff can establish all elements of the tort independent of the rights and duties assumed by the parties under the contract. Step two is satisfied here because, as discussed post, the independent tort duty to refrain from engaging in fraudulent conduct is well established by statute and common law.”  (Rattagan v. Uber Technologies, Inc., supra, 17 Cal.5th at p. 38 [cleaned up].)

But “[n]uisance liability is not precluded by the existence of a contractual relationship between the tenant and landlord.”  (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.)  Therefore, the Court overrules Defendants’ demurrer premised on the economic loss doctrine.

                                                     iv.          Fifth Cause of Action - Promissory Estoppel

“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.)

Defendants argue that Plaintiff fails to allege a clear and unambiguous promise or that her reliance on said promise was reasonable.  Plaintiff alleges:

24. After Sabrina stressed the urgency of the situation, Defendant Monge apologized for his initial reaction and sent this text message:

You will stop paying rent effective immediately we will also reimburse you for your hotel stay I heard you had found a place please continue to stay there and until this matters rectified we will reimburse you for every dollar you spend there and we will give you a concession for the days rent if you already paid for this month.

25. In a separate text message, he wrote: Since I reasonably project this to be approximately 3 days or so Airbnb might be a better alternative I know when I've replaced furnaces completely they've been able to do it within 2 days I still need a separate day for diagnosis so 3 days might be better in an Airbnb   

26. As instructed — and in reliance on Defendant Monge's promise that he would reimburse Sabrina for her expenses — Sabrina rented an Airbnb for three days, packed her suitcase, and left the apartment.

[…]

28. Defendant Monge responded by writing, "I appreciate your concerns about the safety of the gas infrastructure and recognize that these matters can be perceived differently from a personal standpoint versus an independent one."

29. Defendant Monge also wrote that “it would be it irresponsible to simply replace the furnace without fully understanding and addressing the root causes of the leaks.” He did not revise his timeframe that it could all be done within three days.

30. On December 7, 2024, when the three days in the Airbnb ended, Sabrina asked Ms. Inthanou, an employee of Defendant Scott Properties, for an update. Ms. Inthanou, told Sabrina that the apartment should be ready by December 9, but to find another place to stay for another three days until December 10, 2024, "just in case."

31. Sabrina complied. Mindful that Defendants would pay her expenses, she went to extra lengths to keep the costs down. It was too late to avoid the cleaning fee where she was, but she was able to find a less expensive Airbnb that would work for her, so she reserved the less expensive Airbnb for three days.

32. While Sabrina was displaced from her apartment, she had no way to cook or keep groceries. When moving from place to place, she was without a home during the day because check out was in the mornings and check in was later in the day. Because she was told the stays would be short, she only packed limited items. This meant that when she checked out of an Airbnb in the morning, she had to return to her uninhabitable apartment before or after work to pack a new set of clothing before going to the new Airbnb. If she didn't want to return to her uninhabitable apartment twice in one day, she had to bring her suitcase with her to work. And because Sabrina does not own a car, she had to do so on foot, by bus, or by uber. Meanwhile, she had to keep up with a demanding new job, which meant often working late into the nights and through weekends.

33. Sabrina later learned that no technician entered the apartment to assess the furnace leak until December 9, 2024, seven days after the gas was initially turned off and five days after Defendant Monge assured Sabrina that the unit would be habitable again in three days.

34. On December 9, 2024, the apartment remained uninhabitable with no heat, hot water or way to cook, and — despite her repeated inquiries — Defendants had still not offered any updates on when the apartment would be habitable. Sabrina therefore wrote Defendants an email declaring constructive eviction and informing them she would be moving to a new apartment as soon as possible.

35. Defendants did not respond.

[…]

42. On December 18, 2024, Sabrina received a call from a technician who wanted to schedule a time to look at the leaky furnace. She referred the matter back to Defendants. Fourteen days had passed since Defendant Monge had told her that the furnace would be repaired in three days.

43. On December 19, 2024, Defendant Monge told Sabrina he would not reimburse her dislocation expenses, as promised. He said he had consulted legal counsel who informed him he was not obligated to reimburse Sabrina's displacement expenses because they should be covered by renter's insurance. (Footnote Omitted.)  Defendant Monge instead told Sabrina he would be "willing to reimburse the rent paid" while the unit was uninhabitable.

44. Sabrina reminded Defendant Monge that he had specifically promised both reimbursement for her expenses and rent relief, and she had reasonably relied on his promise.

45. In subsequent emails, Defendant Monge told Sabrina that if he reimbursed her for expenses and refunded her rent, this would amount to "unjust enrichment" for her, so he was not required to honor his promise.

46. In late December, Defendant Monge told the Spinnaker Insurance Company that the gas leaks were due to gas pipes that had "deteriorated over time and needed to be replaced." Based on Defendant Monge's statement, the insurance company rejected the claim because this was not one of the covered perils.

47. In an email dated January 22, 2025, Defendant Monge stated the gas leaks were "unforeseen" and an "Act of God" and therefore he was not obligated to compensate Sabrina for the harm she suffered when her apartment became uninhabitable and she was displaced.

48. In the same email, Defendant Monge wrote that he acted "promptly" to resolve the problem and that "Delays arose due to the need for specialized equipment and labor for the 50+ year-old infrastructure" and "landlords are not liable for damages caused by unforeseen acts."

49. On January 23, 2025, Sabrina learned from a former neighbor and tenant of the apartment on Doheny Drive that major work was still being done on her former apartment.

[…]

100. On December 4, 2024, Defendant Monge promised Sabrina, in writing, that she would stop paying rent and he would cover all her costs associated with being dislocated including hotel and Airbnb expenses. While Sabrina was displaced, Defendant Monge knew Sabrina was relying on his promise. He therefore knew reliance on his promise was both foreseeable and that she did rely on it. On December 19, 2024, after she had incurred expenses, Defendant Monge informed her that he would not honor his promise.

(Complaint ¶¶ 24-35, 42-49, 100.)

Plaintiff adequately alleges that Defendant Monge promised her in writing that she would stop paying rent and he would cover all her temporary relocation costs until the gas leak was fixed, and that Plaintiff relocated to temporary housing in reasonable reliance upon this specific promise.  Therefore, the Court overrules Defendants’ demurrer to the fifth cause of action.

                                                       v.          Negligent Infliction of Emotional Distress

“[T]he negligent causing of emotional distress is not an independent tort but the tort of negligence.  The traditional elements of duty, breach of duty, causation, and damages apply.”  (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729 [cleaned up].) 

“The law of negligent infliction of emotional distress in California is typically analyzed by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.”  (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 213 (hereafter Spates).) 

“The bystander theory recognizes a duty in the limited class of cases where a plaintiff “(1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.”  (Spates, supra, 114 Cal.App.4th at p. 213.)

By contrast, “[d]irect victim theory involves a duty owed directly to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.”)  (Spates, supra, 114 Cal.App.4th at p. 213.)

Here, Plaintiff alleges:

112. On December 3 and 4, 2024, Sabrina warned Defendants and agents for Defendants that the underlying problems had not been resolved, and if the gas was turned on, she risked another leak in her apartment which could cause serious harm. Despite this warning, Defendants and agents for Defendants insisted that she call the gas company and turn the gas on. Indeed, the moment the gas was turned back on, there was another leak. Sabrina knew that if the leak had occurred later while she was sleeping, she could have been injured or killed. Sabrina therefore experienced the emotional distress of a property supervisor taking a fix-gas-leaks-as-they-occur approach to an old leaky gas infrastructure instead of addressing the underlying problems, which meant living with the stress that the next potentially lethal gas leak might occur while she was asleep.

113. The infliction of emotional distress continued when Defendant Monge told her to move to an Airbnb or hotel for 3 days and then failed to communicate with her, leaving her displaced from her apartment with no information about when the apartment would be habitable again.

114. Defendant Monge further inflicted emotional distress when without warning he reneged on his promise to reimburse her dislocation expenses.

115. Sabrina suffered severe emotional distress because she was reasonably afraid she might be injured or even killed by a gas leak, she was displaced from her home and left dangling without information and without warning she had locate, apply for, and move into a new apartment.

(Complaint ¶¶ 112-115.)

            Thus, the Complaint alleges Defendants, as owners/landlords of the property, owed Plaintiff a duty of care to keep the unit free of gas leaks, which Defendants breached by failing to control the gas leaks, causing Plaintiff’s damages, including emotional distress.  As such, the Court overrules Defendants’ demur to the claim of negligent infliction of emotional distress. 

2.     MOTION TO STRIKE

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

Defendants argue that Plaintiff’s request for interest on the security deposit unlawfully retained should be stricken because “there is no obligation implied by law for landlord to pay interest on tenant’s security deposit.”  (Korens v. R.W. Zukin Corp. (1989) 212 Cal.App.3d 1054, 1063.)  But Korens refers to the landlord’s retention of the security deposit during the tenancy; it does not create an exception to the general rule that interest accrues on sums certain that are wrongfully retained. 

Defendants also argue that Plaintiff’s request for punitive/exemplary damages should be stricken.

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

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

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

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

Defendants argue that their failure to remedy the gas leaks within seven days cannot, as a matter of law, constitute oppression or malice.  The Court disagrees.  Plaintiff alleges the following:

15. On December 3, 2024, plumbers sent by Defendants found and fixed multiple leaks throughout the gas infrastructure, including another leak by the meter.

16. After the plumbers finished, Defendants instructed Sabrina to call the gas company and have the gas turned on again. Sabrina told Defendant Monge and other agents for Defendant Scott Properties that the plumbers found and fixed multiple leaks, but they had not addressed or fixed the underlying issue, namely, why there were so many leaks in a short time and why the furnace could not be isolated. Sabrina repeatedly stated, to multiple agents of Defendant Scott Properties, that she did not want to turn on the gas until the unit was safe from all underlying issues.

17. Despite Sabrina’s warnings and fears, multiple agents for Defendant Scott Properties insisted Sabrina call the gas company and have the gas turned back on. That night, Sabrina remained in the apartment without hot water, heat, or a way to cook.

18. While waiting for the gas company to arrive on December 4, Sabrina sent Defendants an email detailing her concerns about the safety of the apartment. In the email, she listed all the leaks that occurred since she moved in and said that there was "obviously" a problem with the "entire gas infrastructure."

19. Another Gas Leak: When the gas company technician arrived and turned on the gas, another leak sprung immediately, so he turned the gas back off, again leaving the apartment without heat, hot water, or a way to cook.

20. The technician again told Sabrina that the furnace could not be isolated, therefore gas to the entire unit had to be turned off. He repeated what the first gas technician had said: the gas pipes to the furnace were outdated, and he'd never seen anything like it. Again, the gas company technician left a written notice. This one said, "Floor furnace appliance leak, unable to isolate leak, left meter valve off." The technician further informed Sabrina, and she later told Defendants and agents for Defendants, “it could be the whole house gas line.”

21. On December 4, on the telephone, Sabrina told Defendant Monge that the gas company was unable to turn on the gas because there was another leak and tried to relay what the gas company technician had told her. Defendant Monge became hostile, raised his voice, and accused Sabrina of lying to get a new furnace. Sabrina ended the call.

22. All Sabrina's subsequent communication with Defendant Monge was in writing, either texts messages or email.

23. In a text message, Defendant Monge told Sabrina that he would not take her word for what needed to be done. He would accept only something in writing from the gas company telling him exactly why the gas was turned off. "Not from you from him. That is the only thing I can accept," he wrote. "Dated TODAY."

27. The following day, on December 5, 2024, Sabrina's stepmother, Teri Kanefield, wrote Defendants an email with the heading "Safety hazards in my stepdaughter's apartment." She repeated what Sabrina had already told Defendants: gas leaks are potentially lethal, there had been many leaks already in the apartment, and there was obviously a problem with the entire infrastructure. She wrote, "replacing the furnace will not remove the safety hazards."

28. Defendant Monge responded by writing, "I appreciate your concerns about the safety of the gas infrastructure and recognize that these matters can be perceived differently from a personal standpoint versus an independent one."

29. Defendant Monge also wrote that “it would be it irresponsible to simply replace the furnace without fully understanding and addressing the root causes of the leaks.” He did not revise his timeframe that it could all be done within three days.

30. On December 7, 2024, when the three days in the Airbnb ended, Sabrina asked Ms. Inthanou, an employee of Defendant Scott Properties, for an update. Ms. Inthanou, told Sabrina that the apartment should be ready by December 9, but to find another place to stay for another three days until December 10, 2024, "just in case."

[…]

33. Sabrina later learned that no technician entered the apartment to assess the furnace leak until December 9, 2024, seven days after the gas was initially turned off and five days after Defendant Monge assured Sabrina that the unit would be habitable again in three days.

34. On December 9, 2024, the apartment remained uninhabitable with no heat, hot water or way to cook, and — despite her repeated inquiries — Defendants had still not offered any updates on when the apartment would be habitable. Sabrina therefore wrote Defendants an email declaring constructive eviction and informing them she would be moving to a new apartment as soon as possible.

35. Defendants did not respond.

(Complaint ¶¶ 15-35.)

            Thus, Plaintiff adequately alleges specific facts suggesting that Defendants acted with a conscious disregard for Plaintiff’s health, safety, and rights. 

3.     LEAVE TO AMEND

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

Here, Plaintiff requests, “If the Court finds that this cause of action would be more properly heard as a standard negligence claim, Sabrina asks permission to amend the complaint and delete the word “professional” and proceed on a claim of negligence. Simply deleting the word “professional” is all that is needed because the Complaint alleges all elements of negligence: Defendants owed a duty of care to maintain safe and habitable premises (¶¶ 66, 77), breached that duty by allowing a deteriorated gas infrastructure to endanger Sabrina (¶ 77), and caused Sabrina to be displaced from her home, incurring financial and emotional damages (¶¶ 86–87, 111-115).” 

The Court agrees.  Therefore, the Court grants Plaintiff leave to amend the Complaint to allege negligence, as opposed to professional negligence. 

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendants’ demurrer to the second cause of action for professional negligence, but grants Plaintiff leave to amend the Complaint to allege ordinary negligence instead of professional negligence.  Defendants’ demurrer to the complaint is overruled in all other respects.

The Court also denies Defendants’ motion to strike in its entirety. 

Plaintiff shall file and serve a First Amended Complaint in conformance with the Court’s ruling on or before May 14, 2025.

Further, on the Court’s own motion, the Court continues the Case Management Conference from June 5, 2025 to July 23, 2025 at 8:30 A.M. in Department 207.  All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences.  In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). 

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

DATED:  April 30, 2025                                                        ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court