Judge: Michael Shultz, Case: 21STCV35419, Date: 2022-10-06 Tentative Ruling
Case Number: 21STCV35419 Hearing Date: October 6, 2022 Dept: A
21STCV35419 Tammie Rankin v. Paramount Villas, et al.
Thursday, October 6, 2022, 8:30 a.m.
[PROPOSED]
ORDER SUSTAINING IN PART AND OVERRULING IN PART DEFENDANTS’ DEMURRER TO THE
SECOND AMENDED COMPLAINT.
[PROPOSED]
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE
The Second
Amended Complaint (“SAC”), filed on August 1, 2022, alleges that Plaintiff,
Tammie Rankin, is a disabled resident of rented premises owned and controlled
by Defendants. Plaintiff alleges that on September 27, 2020, she tripped on
uneven and raised concrete cement and fell on a ramp leading to the entrance of
the property. The SAC alleges ten causes of action as follows:
1) Negligence
2) Premises
liability
3) California
Disabled Persons Act
4) Violation
of the Unruh Civil Rights Act
5) Breach
of the warranty of habitability
6) Breach
of the implied covenant of good faith and fair dealing
7) Breach
of the covenant of quiet enjoyment
8) Negligent
maintenance of the premises
9) Negligence
per se
10) Violations
of the Americans with Disabilities Act
Plaintiff dropped from the SAC the former fifth cause of action
for negligent infliction of emotional distress.
On June 2,
2022, the Hon. Thomas D. Long heard Defendants’ demurrer and motion to strike
the First Amended Complaint. The court sustained demurrer with leave to amend the
following causes of action: (1) negligence, (3) violation of the California
Disabled Persons Act; (4) violation of Unruh Civil Rights Act, (5) negligent
infliction of emotional distress, (7) breach of the implied covenant of good
faith and fair dealing, (8) breach of quiet enjoyment, (9) negligent
maintenance of premises, (10) negligence per se, (11) violations of the
Americans with Disabilities Act. The court overruled demurrer to the claims for
(2) premises liability and (6) breach of warranty of habitability. The court
granted the motion to strike the prayer for punitive damages and paragraph 91 (alleging
oppressive and malicious conduct). Plaintiff did not re-allege paragraph 91 in
the SAC. The court gave Plaintiff 60 days leave to amend.
Defense
counsel’s declaration demonstrates that defense counsel attempted to meet and
confer in good faith with Plaintiff on April 21, 2022, however, the parties
were not able to resolve their disputes. Declaration of Joshua Cohen, ¶ 4. Code
Civ. Proc., §§ 430.41 and 435.5.
Defendants
attempted to file their Demurrer to the SAC and Motion to Strike on September
2, 2022. Although Plaintiff was served with the moving papers, the court
rejected Defendants’ filing. Defendants subsequently corrected the record by
filing the demurrer and motion to strike on October 4, 2022. As Plaintiff has
been served with all papers and the matter is fully briefed, the court considers
both the demurrer and motion to strike.
PART
1: DEMURRER
Defendants
demur to portions of the SAC as discussed in more detail below. Plaintiff filed an opposition on September
21, 2022. Defendants filed their reply brief on September 29, 2022.
I.
LEGAL STANDARDS
A demurrer tests the sufficiency of a complaint as a matter of law and
raises only questions of law. Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706. In testing the
sufficiency of the complaint, the court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
The court may not consider contentions, deductions, or
conclusions of fact or law. Moore v. Conliffe (1994) 7 Cal.4th 634, 638. Because a demurrer
tests the legal sufficiency of a complaint, the plaintiff must show that the
complaint alleges facts sufficient to establish every element of each cause of
action. Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43. Where the complaint
fails to state facts sufficient to constitute a cause of action, courts should
sustain the demurrer. Code Civ. Proc., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.
Sufficient facts are the essential facts of the case
"with reasonable precision and with particularity sufficiently specific to
acquaint the defendant with the nature, source, and extent of his cause of
action.” Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644. Whether the
Plaintiff will be able to prove the pleaded facts is irrelevant. Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.
A demurrer may also be sustained if a complaint is
“uncertain.” Uncertainty exists where a complaint’s factual allegations are so
confusing, they do not sufficiently apprise a defendant of the issues it is
being asked to meet. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ.
Proc., § 430.10(f).
A pleading is required to assert general allegations of
ultimate fact. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. However, unlike
federal courts, California state courts are not a notice pleading jurisdiction,
and notice alone is not a sufficient basis for any pleading. California is a fact pleading
jurisdiction. Merely putting an opposing party on notice is not sufficient. Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561;
see Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.
II.
DISCUSSION
A.
First cause of action for negligence
Defendants
argue that the negligence claim is duplicative of the second cause of action
for premises liability. They are based on the same facts and elements and premises
liability claims does not add anything to the negligence claim. Defendants also
aver that Plaintiff’s failed to allege a nontrivial defect or facts to support
causation.
A negligence
claim requires facts to establish a duty of care owed to Plaintiff and that
Defendants’ breach of that duty causes damage to Plaintiff. Merrill
v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.
Negligence claims can be alleged in general terms by stating the acts or
omissions that were negligently performed. Greninger
v. Fischer (1947) 81 Cal.App.2d 549, 552. Premises liability is a “species” of
negligence with the same elements. McIntyre
v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 668 and 671.
The affirmative duty to act for the protection of individuals coming upon the
land “is grounded in the possession of the premises and the attendant right to
control and manage the premises.” Preston
v. Goldman (1986) 42 Cal.3d 108, 118–119.
Plaintiff
alleges she suffered injury because of the damage to the ramp and railing
“outside the entrance of Plaintiff’s apartment that led to Plaintiff’s slip and
subsequent injuries.” SAC ¶ 30. Plaintiff added new allegations that the
property contains a leasing office, open to the public, that is accessible by
stairs or a disability access ramp. SAC ¶ 18. This is not the cause of
Plaintiff’s alleged injuries.
The negligence
claim is based on the same allegations supporting the second cause of action
for premises liability. The alleged duty in support of the negligence claim is
based on Defendants’ ownership and control of the premises and Defendants’ alleged
failure to remedy the condition of the ramp, which contained cracks in the concrete
and/or cement as well as a loose and wobbly railing running alongside the ramp
that made it difficult for Plaintiff to enter and leave her apartment. SAC ¶ 23.
Plaintiff alleges she sustained injury when she tripped on the cracked, uneven,
and raised concrete on the ramp. SAC ¶ 24. The second cause of action is based
on identical facts and asserts the same basis for a duty owed, namely a duty arising
out of Defendants’ ownership and control of the premises and failure to remedy
deceptive conditions. SAC ¶29. Judge Long previously determined that Plaintiff
adequately alleged facts to support cause of action. Cohen Declaration, Ex. A,
.pdf page 20, ¶ 2.
Plaintiff’s
argument that a “duplicative claim” is not grounds for demurrer is
persuasive. A demurrer is limited by statute. Code
Civ. Proc., § 430.10. A redundancy was previously
susceptible to a motion to strike; however, the statute was amended to permit
striking of irrelevant, false or improper matter. Code
Civ. Proc., § 430.10. The “irreproachable rationale”
for eliminating the reference to redundancy was that “it is a waste of time and
judicial resources to entertain a motion challenging part of a pleading on the
sole ground of repetitiveness. (See Civ.Code, § 3537 [‘Superfluity does not
vitiate’].) This is the sort of defect that, if it justifies any judicial
intervention at all, is ordinarily dealt with most economically at trial, or on
a dispositive motion such as summary judgment." Blickman
Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.
Defendants rely on two cases to
support their position. Both are factually distinguishable. In Rodrigues
v. Campbell Industries (1978) 87 Cal.App.3d 494,
the plaintiff included a fifth cause of action that “combine[d] all preceding
causes, alleging
they are joint and concurrent causes of plaintiffs' damage.” Rodrigues
at 498. Since it did not allege any basis for recovery, demurrer was
sustained. Rodrigues
at 501. The second case Defendants rely upon was an anti-SLAPP motion to
strike a complaint. The court determined that depending on the allegations of a
case, claims for false light and intentional infliction of emotional distress
may be “redundant to a defamation cause of action and subject to dismissal on demurrer
for that reason.” Dickinson v. Cosby (2017) 17 Cal.App.5th
655, 692. In the interest of judicial
economy and efficiency, and because discovery may reveal a different basis for
a duty owed to Plaintiff, demurrer is overruled on that ground.
To the extent that Blickman is
in conflict with Rodrigues and Dickinson, this court finds Blickman more persuasive
than the two cases cited by Defendants and chooses Blickman. Auto Equity
Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450,
456,
(Where appellate decisions are in conflict, the court exercising
inferior jurisdiction can and must make a choice between the conflicting
decisions).
Defendants reiterate that Plaintiff
merely alleged a trivial defect. In the
prior demurrer, the court declined to address the matter in substance because the
argument was belatedly raised, and because the nature of the defect was subject
to numerous factual circumstances which the court could not determine at the
pleading stage. Id., .pdf page 20, ¶¶ 2-4. Notwithstanding the
foregoing, the court noted that the defects in the ramp were cracked, uneven,
and contained raised concrete, and a loose and wobbly railing, which are
realleged in the SAC. The allegations are sufficient to allege a dangerous
condition. SAC ¶ 3.
Defendants again argue that the
allegations are insufficient to demonstrate causation. As noted above, Judge
Long determined that the facts were sufficient to support causation. Cohen
Declaration, Ex. B, .pdf page 20, ¶ 2. To the extent that Defendants attempt to
renew its argument that Plaintiff has alleged a trivial defect, "[a]
party demurring to a pleading that has been amended after a demurrer to an
earlier version of the pleading was sustained shall not demur to any portion of
the amended complaint, … on grounds that could have been raised by demurrer to
the earlier version of the complaint, … ." Code Civ.
Proc., § 430.41. Accordingly,
demurrer to the first cause of action for negligence is OVERRULED.
B.
Violation of California Disabled
Persons Act (“CDPA”), Violation of the Unruh Civil Rights Act (“Unruh”),
Violation of the Americans with Disabilities Act (“ADA”) (third, fourth and 10th causes of
action, respectively).
1)
Arguments
Defendants
argue that the ADA, CDPA and Unruh apply to public accommodations. Here, the premises are private, and Plaintiff
did not allege she was denied equal access to a public place. Moreover, the Unruh Act cannot be used to
mandate repairs. Defendants also argue that Plaintiff’s claims be verified and must
be alleged with specificity including, but not limited to, the dates of each
alleged barrier.
In opposition,
Plaintiff acknowledges that the ADA does not apply strictly to residential dwellings
but alleges that the ramp leading to the business leasing office was for public
use.
Application
The CDPA, set
forth in sections 54 through 55.2 of the Civil Code are “intended to secure to
disabled persons the ‘same right as the general public to the full and free
use’ of facilities open to the public.” Urhausen
v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 261.
The foregoing statutes entitle
individuals with disabilities to “full and equal access, as other members of
the general public, to accommodations, advantages, facilities, ... and
privileges of all common carriers, ... modes of transportation ..., places of
public accommodation, ... and other places to which the general public is
invited ....’.” Id.
at 261.
The ADA equally
prohibits discrimination on the basis of disability in the enjoyment of public
accommodations, including with respect to access. 42
U.S.C.A. § 12182 (West). It has been consistently held
that the ADA does not apply to apartments and condominiums. Birke
v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1553 [“Oakwood's
contention that the ADA does not apply to apartments and condominiums is
persuasive. Considerable federal authority is presented to this court to
substantiate this principle. As stated by Oakwood, ‘Although the Act covers
public accommodations including ‘an inn, hotel, motel, or other place of
lodging,’ 42 U.S.C. § 12181(7)(A), ‘the legislative history of the ADA
clarifies that ‘other place of lodging’ does not include residential
facilities.'" Id. at 1553.
The CDPA
strengthens areas where it is weaker than the ADA and provides more protection
for individuals with disabilities. Jankey
v. Lee (2012) 55 Cal.4th 1038, 1044. Unruh
overlaps the remedies provided for in the CDPA and "broadly outlaws
arbitrary discrimination in public accommodations and includes disability as
one among many prohibited bases." Jankey
at 1044. Unruh is limited in its application; it only applies to business
establishments that are “generally open to the public” (In re Cox (1970) 3
Cal.3d 205), and mandates that those establishments “serve all persons
without arbitrary discrimination.” Smith
v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 149 Unruh
does not cover “discriminations other than those made by a ‘business
establishment’ in the course of furnishing goods, services or facilities to its
clients, patrons or customers.” Id. Unruh claims are appropriate where
the plaintiff was in a relationship with an organization similar to that of a
customer-proprietor relationship. Id.
The new
allegations in the SAC do not cure this defect. The SAC describes the
Defendants’ leasing office as a place of public accommodation. SAC ¶ 18. The
CDPA claim alleges that Plaintiff was denied access to the front entrance area
of her property and was prevented from leaving her apartment. SAC ¶45. The
Unruh claim incorporates previously alleged allegations to support this claim.
SAC ¶ 49. The ADA claim is based on Defendants’ failure to maintain functional
accommodations to access her apartment. SAC ¶ 95.
The SAC does
not allege that Plaintiff was denied access to the leasing office. On the contrary, Plaintiff alleges that she
was provided an access ramp to both the leasing office and the entrance to her
apartment. FAC ¶ 45. Plaintiff alleges she fell because the ramp was defective.
Id. This is not a denial of access.
Plaintiff has
not cured the defects previously found.
As such, the demurrer to the third, fourth, and 10th causes
of action is SUSTAINED without leave to amend.
C.
Sixth and Seventh Causes of Action
for breach of the implied covenant of good faith and fair dealing and breach of
the implied covenant of quiet enjoyment, respectively. (Defendants improperly
numbered these claims as seventh and eight causes of action).
1)
Arguments
Defendants
argue that both claims depend on Defendants’ alleged failure to provide a
habitable residence. Therefore, these claims are duplicative, superfluous and
unnecessary. In opposition, Plaintiff argues that the claims are adequately
pleaded.
2)
Application
A claim for
breach of the implied covenant of good faith and fair dealing requires a
contractual relationship between where the defendant unreasonably withholds
benefits to the plaintiff without proper cause. Dalrymple
v. United Services Auto. Assn. (1995) 40 Cal.App.4th 497, 512,
fn 4. The court previously sustained demurrer to the bad faith claim since the
“general rule preclud[es] tort recovery for noninsurance contract breach, at
least in the absence of violation of 'an independent duty arising from
principles of tort law.'” (Freeman & Mills, Inc. v. Belcher Oil Co. (1995)
11 Cal.4th 85, 102 [44 Cal.Rptr.2d 420, 900 P.2d 669].) As stated by one Court
of Appeal, “... it seems clear to us that the recognition of a tort remedy for
a breach of the implied covenant in a noninsurance contract has little
authoritative support.” Sutherland
v. Barclays American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 314.
Therefore, as this action
arises from a non-insurance context, it is not viable. Demurrer to the sixth
cause of action for breach of the implied covenant of good faith and fair
dealing is SUSTAINED without leave to amend.
The seventh
cause of action for breach of the covenant of quiet enjoyment arises from an
covenant implied in every contract that “insulates the tenant against any act
or omission on the part of the landlord, or anyone claiming under him, which
interferes with a tenant's right to use and enjoy the premises for the purposes
contemplated by the tenancy.” Nativi
v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291–292.
In contrast, a habitability claim is based on
a warranty implied by law in residential leases in California wherein a landlord
covenants that leased residential premises will be maintained in a habitable
state for the duration of the lease. The landlord is not required to ensure
that the residence is in “perfect, aesthetically pleasing condition, but it
does mean that ‘bare living requirements' must be maintained.” Green
v. Superior Court (1974) 10 Cal.3d 616, 637.
In most cases, substantial compliance with applicable building and housing code
standards materially affecting health and safety will suffice to meet the
landlord's obligations under the common law implied warranty of habitability. Id.
at 637. The standards of “tenantability” set out in Civil Code section
1941.1 “may provide some helpful guidance in determining whether a landlord has
satisfied the common law warranty of habitability. Id. at 637, fn23. A
dwelling is deemed untenantable if it substantially lacks (among other things)
clean and sanitary buildings, grounds, and “appurtenances under the landlord’s
control, free from debris, filth, rubbish, rodents, and vermin.” Civ.
Code, § 1941.1.
The claim for
breach of quiet enjoyment is not duplicative of the habitability claim, the
latter of which is based on a failure to provide safe and sanitary living
conditions. “Quiet enjoyment” concerns the tenant’s right to use the premises as
contemplated by the lease without interference. Accordingly, demurrer to the
seventh cause of action for breach of the covenant of quiet enjoyment is
OVERRULED.
D.
Negligent Maintenance of Premises (eighth
cause of action.)
1)
Arguments
Defendants
argue that this claim is based on an alleged violation of Civ. Code, § 1941
which is entirely duplicative of the habitability claim. Plaintiff does not
allege facts to support such a violation with particularity. Plaintiff does not
address this cause of action.
2)
Application
Civil Code
section 1941 imposes a duty on the lessor of a building intended for human
occupation to ensure that the premises is fit occupation and to repair
"all subsequent dilapidations thereof, which render it untenantable,
except such as are mentioned in section nineteen hundred and twenty-nine
Civ. Code, § 1941. That section “speaks of a lessor's duty to put a building
into a condition fit for occupation and to repair all later defects which make
the premises uninhabitable.” Knight
v. Hallsthammar (1981) 29 Cal.3d 46, 55. In
contrast, a habitability claim "exists whether or not [the landlord] has
had a ‘reasonable’ time to repair.” Id.
The violation of Section 1941 is otherwise supported by the allegations.
Accordingly,
demurrer to the eighth cause of action is OVERRULED.
E. Ninth
Cause of Action for Negligence Per Se
1)
Arguments
Defendants argue that this claim
is duplicative and unnecessary since it is based on a violation of Civil Code §
1941, alleged in another cause of action. It is not a separate cause of action,
but rather an evidentiary presumption. It is redundant and improper. Plaintiff does
not address this cause of action.
2)
Application
Negligence per se is not an
independent right of action. It is an evidentiary doctrine that presumes
negligence based on the violation of a statute. As it is not an independent
cause of action, it is not required to be alleged separately. Quiroz v. Seventh Ave.
Center (2006) 140 Cal.App.4th 1256, 1285–1286. Therefore, this claim is improper.
Based on the foregoing, demurrer
to the ninth cause of action is SUSTAINED without leave to amend.
PART 2: MOTION TO STRIKE
FILED OCTOBER 4, 2022
I.
Arguments
Defendants
move to strike the allegations supporting the claim for punitive damages, for
treble damages, for lost earnings and damages for loss of consortium. The FAC
does not allege the predicate facts necessary to support a claim for such
damages. Plaintiff argues the motion to strike is moot.
II.
Legal Standards Governing Motions to Strike a Punitive Damages Claim
The court may, upon motion or at
any time in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of the pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the Court. Code Civ. Procedure
sec 436(a)-(b).
Plaintiffs may recover on a claim for
exemplary damages if Plaintiffs
establish “by clear and convincing evidence that the defendant has been guilty
of oppression, fraud, or malice.” Civ. Code, § 3294 subd. (a). The
predicate acts to support a claim for punitive damages must be intended to
cause injury or must constitute “malicious” or “oppressive” conduct as defined
by statute. “Malice” is defined as “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.” Civ. Code, § 3294
subd. (c)(1); College Hospital
Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 ["malice involves awareness of dangerous consequences and a willful
and deliberate failure to avoid them"]. "Oppression" is defined
as “despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.” Civ. Code, § 3294 subd. (a) subd. (c)(2).
Absent an intent to
injure the plaintiff, the conduct must be “despicable” which is defined as
“base, vile, or contemptible.” College Hospital Inc. at 725. Plaintiffs
must demonstrate that “the defendant acted in such an outrageous and
reprehensible manner that the jury could infer that he knowingly disregarded
the substantial certainty of injury to others." Dawes v.
Superior Court (1980) 111 Cal.App.3d 82, 90. Conduct
constituting negligence, gross negligence or recklessness is insufficient to
support a claim for punitive damages. Dawes at 87.
Plaintiff dropped the claim for
intentional infliction of emotional distress in the SAC. The remaining viable
claims do not allege facts intended to cause injury, nor does Plaintiff allege
conduct that could be described as “despicable” as opposed to Defendants’ collective
failure to adhere to their statutory and common law duties. Accordingly, the court
GRANTS the motion to strike and strikes the prayer for punitive damages without
leave to amend. SAC, 19:14.
The prayer for loss of consortium
was not previously alleged in the FAC. See, FAC 19:22-28. The SAC
includes a prayer for loss of consortium. SAC, 19:13. Such a claim requires, in
pertinent part, a valid and lawful marriage between two parties, and a tortious
injury to a spouse. Hahn v.
Mirda (2007) 147 Cal.App.4th 740, 746 fn. 2. The complaint is brought in
the name of Plaintiff only and does not state a claim for damages to a spouse.
Therefore, the Motion to Strike is GRANTED. The court strikes the prayer at
19:13.
The FAC previously alleged a claim for treble damages and lost
earnings. See, FAC 19:24-28. Defendants did not move to strike the
prayer for such relief. As with demurrers, "[a] party moving to strike a
pleading that has been amended after a motion to strike an earlier version of
the pleading was granted shall not move to strike any portion of the pleadings
on grounds that could have been raised by a motion to strike as to the earlier
version of the pleading. "Code Civ. Proc., § 435.5. Accordingly, the motion to strike these damages
is DENIED.
III.
SUMMARY
OF CONCLUSIONS
Based
on the foregoing, the court SUSTAINS demurrer to the SAC without leave to amend
as follows:
(3) California Disabled Persons Act
(4) Unruh Act
(6) Breach of the implied covenant of good faith
and fair dealing
(9) Negligence per se
(10) Violations of the Americans with Disabilities.
The demurrer is OVERRULED with respect to the
following:
(1)
Negligence
(7) Breach of the covenant of quiet enjoyment
(8) Negligent maintenance of the premises
The
motion to strike portions of the SAC is GRANTED in part without leave to amend.
The court strikes the prayer for punitive damages at page 19, line 14 and the
prayer for loss of consortium at page 19, line 13. In all other respects, the
motion to strike is DENIED.
Defendants
are ordered to file their answer within 10 days. Cal Rules of Court, Rule
3.1320.