Judge Michael Shultz, Case 22CMCV00308 2022-12-13 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.

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[TENTATIVE] ORDER OVERRULING DEMURRER AND DENYING THE MOTION TO STRIKE BY DEFENDANTS

The complaint, filed on September 1, 2022, alleges that Plaintiff is a tenant pursuant to an oral lease agreement with Defendants, and resides in a travel trailer provided to him that was owned by Defendants and their predecessor in interest, Maria Moreno, now deceased. Defendants own the real property. Plaintiff alleges that the travel trailer was not a tenantable dwelling. Plaintiff alleges 14 causes action including claims for negligence, breach of the warranty of habitability, breach of the covenant of quiet use and enjoyment, and for nuisance.

Defendants demur to all 14 claims on grounds of uncertainty and for failure to state a claim. Defendants separately move to strike portions of the complaint, including damages, punitive damages, attorney’s fees, and costs. Plaintiff contends that the complaint is well pleaded but asks for leave to amend if the court finds the claims are defective. All arguments are detailed below. Defense counsel has complied with the obligation to meet and confer with Plaintiff’s counsel prior to filing the demurrer and motion to strike. Code Civ. Proc., § 430.41 and § 435.5.

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 complaint’s sufficiency, the court must assume the truth of the properly pleaded factual allegations as well as facts that can be reasonably inferred from those expressly pleaded facts. The court may also consider matters properly subject to judicial notice. 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. Plaintiff is required to allege 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 that is 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.

Defendants argue that Plaintiff has not alleged a basis for a duty of care. Defendants contend that the alleged misconduct is at most, a breach of contract, not a breach of a legal duty of care. A negligence claim requires facts showing that defendant owed plaintiff a duty of care, breach of that duty, causation, and damages. Merrill v. Navegar, Inc. (2001) 26 Cal.4^th 465, 477; Jones v. Grewe (1987) 189 Cal. App. 3d 950, 954. The absence of these allegations renders a complaint fatally defective and is properly challenged by demurrer. Id.; Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103.

Plaintiff has adequately alleged a factual basis for duties owed by Defendants. Plaintiff alleges the existence of a landlord-tenant relationship pursuant to an oral agreement for the rental of the travel trailer for $300 per month. Complaint, ¶ 1-2. Defendants allegedly own the real property on which the travel trailer is located. Complaint, ¶2.

Independent of any statutory duty owed by landlords implied in the parties’ contract, a landowner owes an affirmative duty to act for the protection of individuals coming upon the land which “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. Among other things, Plaintiff alleges Defendants breached their duties in failing to maintain the rental unit/premises and property so as to conform to applicable building codes. Complaint, 7:18. Plaintiff expressly alleges that the duties of care arise under both common law negligence and for violations of city ordinances. Gov. Code, § 36900. The claim is well-stated and not uncertain.

B. Demurrer to the second and third causes of action for negligent and intentional breach of implied warranty of habitability is OVERRULED.

Defendants argue that the claims fail because there is no written lease agreement contract in which the covenant can be implied. Defendants contend that the alleged oral lease agreement is subject to the statute of frauds and is not enforceable. Additionally, Defendants contend that Plaintiff has not alleged facts to support each element of the habitability claims.

In opposition, Plaintiff contends that the warranty is implied in every contract, whether written or oral. The alleged facts support the warranty claim whether negligent or intentional.

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. Green v. Superior Court (1974) 10 Cal.3d 616, 637. The elements of the claim "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.

Ordinarily, under the statute of frauds, an agreement for the lease of real property for more than one year must be in writing and signed by the parties to be charged. Civ. Code, § 1624 subd. (a)(3). However, “a party's partial or full performance of an oral agreement to lease real property can take the contract out of the statute of frauds. (Harrison v. Hanson (1958) 165 Cal.App.2d 370, 376, 331 P.2d 1084.)." Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1290.

Plaintiff alleges that the oral lease agreement was entered into on June 28, 2016. Complaint 2:8-11. The complaint alleges that Plaintiff has occupied the trailer since July 6, 2016, for $300 per month. Complaint, ¶ 6. Defendants have allegedly been collecting rent for the trailer. Complaint, 7:19-20. Accordingly, both parties’ alleged performance takes the lease agreement out of the statute of frauds. Id.

The complaint adequately alleges facts to support each element of the claim: Plaintiff specifically alleges the existence of material defective conditions affecting habitability by incorporating the City of Lynwood’s Notice of Violation to Defendants identifying the unsafe living conditions. Complaint, ¶ 8, Ex. 1. Plaintiff alleges that the City gave notice directly to the landlord on January 19, 2022. Id. The complaint alleges that despite this notice, including Plaintiff’s own request for repairs, Defendants failed to remedy the conditions or comply with the City’s requirements resulting in damages. Complaint, ¶ 28-30. All elements are supported. Peviani at 891.

Defendants argue that Plaintiff has never paid rent and was not a legal tenant. Upon receiving the City’s notice, Defendants notified Plaintiff to vacate the trailer. However, the court accepts the alleged facts as true and does not consider facts beyond the complaint. Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 840.

C. Demurrer to the fourth and fifth causes of action for negligent and intentional nuisance is OVERRULED.

Defendants argue that a complaint for nuisance is not sufficient if it merely alleges the violation of a criminal statute or ordinance but does not allege facts to conclude that the violation constitutes a nuisance. The City’s Notice does not contain facts supporting the existence of a nuisance. Plaintiff argues that the nuisance claims incorporate more specific language alleged in the complaint. The claim is adequately alleged.

An action for nuisance may be brought "by any person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in Section 3479 of the Civil Code.” Code Civ. Proc., § 731. A “nuisance” is “anything” injurious to health, indecent or offensive to the senses, or "an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property." Civ. Code, § 3479. The statutory definition "appears to be broad enough to encompass almost any conceivable type of interference with the enjoyment or use of land or property.” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.

Plaintiff expressly alleges the defects including lack of heat, leaking ceiling, garbage, debris under the trailer, little to no security, roaches and/or vermin, electrical issues, and inadequate bath/toilet facilities. Complaint ¶ 10. This paragraph is incorporated in the nuisance claims. Contrary to Defendants’ argument, the complaint sufficiently alleges facts allowing a conclusion that such violation constitutes a nuisance “apart from criminality.” Demurrer, 16:1-8. As previously discussed, Plaintiff has alleged notice of the defects to Defendants by way of the City’s notice, as well as Plaintiff’s own complaints, and that the conditions remain. Complaint, ¶ 28-30. The claims are not uncertain or fatally defective.

D. Demurrer to the sixth cause of action for violation of Bus. and Prof. Code § 17200 is OVERRULED.

Defendants argue that Plaintiff fails to allege any sort of business action or practice to support this claim. Defendants contend they never collected rent, and the claim is uncertain.

This cause of action incorporates the underlying allegations that Defendants did not comply with various code provisions and failed to repair and/or maintain the premises such that the habitability issues persisted. Complaint, ¶ 52. Plaintiff alleges this conduct constitutes unfair and unlawful business acts or practices in violation of section 17200 of the Business and Professions (“Unfair Competition Law” or “UCL”).

As Plaintiff has “tethered” the alleged unlawful practices to Defendants’ common law and statutory violations, the claim is adequately alleged. Gutierrez at 1265 ["Virtually any statute or regulation (federal or state) can serve as a predicate for a UCL unlawful practice cause of action."]. The UCL is stated in the disjunctive; Plaintiff need only allege a claim that is unlawful, unfair, or fraudulent. Under Section 17200, a practice is prohibited as ‘unfair’ or ‘deceptive’ even if not ‘unlawful’ and vice versa.” Cel-Tech Communications, at 180.

E. Demurrer to the seventh cause of action for breach of the covenant of quiet enjoyment is OVERRULED.

Defendants again argue that the lack of a written lease agreement and their dispute of the existence of an oral agreement renders this claim defective. Plaintiff does not allege a relationship between the parties that support a duty owed by Defendants to Plaintiff. Defendants contend they obtained a judgment requiring Plaintiff to vacate the premises, however, Plaintiff refuses to do so. Plaintiff contends the claim is adequately alleged.

The covenant of quiet enjoyment is implied in every contract and “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.

“Quiet enjoyment” concerns the tenant’s right to use the premises as contemplated by the lease without interference. Nativi at 292.

The court incorporates it analysis at part III. A, discussing Defendants’ independent duty arising from their status as property owners and landlords, that performance takes the alleged oral agreement out of the statute of frauds, and that the court does not consider facts extrinsic to the complaint. The rationale and conclusion to overrule the demurrer applies equally to this cause of action.

F. Demurrer to the eighth and ninth causes of action for negligent and intentional infliction of emotional distress is OVERRULED.

Defendants argue that the claim for intentional infliction fails because Plaintiff has not alleged extreme and outrageous conduct. Plaintiff’s allegations are mere conclusions. The negligent infliction claim is a negligence claim which fails for the same reasons as the first cause of action (no basis for a duty owed).

To prevail on a claim for intentional infliction of emotional distress, plaintiff must allege facts showing (1) extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing emotional distress, (2) Plaintiff suffered severe or extreme emotional distress, and (3) actual and proximate causation. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903. The conduct must be “most extremely offensive” and “exceeding all bounds usually tolerated by a decent society.” Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129. If reasonable minds may differ on whether a Defendant’s conduct is sufficiently outrageous “it is for the jury, subject to the control for the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499. Moreover, if reasonable minds may differ on whether a defendant’s conduct is sufficiently outrageous “it is for the jury, subject to the control for the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.

Contrary to Defendants’ arguments, the allegations previously discussed can support “outrageous” conduct since Plaintiff alleges Defendants violated various statutes in failing to comply with notices to abate conditions and allowing the alleged conditions to persist. The claim for negligent infliction is adequate for all the reasons discussed with respect to the first cause of action for negligence. Accordingly, demurrer is OVERRULED.

G. Demurrer to the 10^th and 11^th causes of action negligent and intentional violation of a statutory duty is OVERRULED.

Defendants argue that the complaint refers to ambiguous statutory duties which render the claim uncertain. This contention ignores the clear allegations of the complaint. Plaintiff has alleged a violation of Gov Code § 36000, which imposes liability for failure to comply with ordinances as previously discussed. The complaint includes the City of Lynwood’s notice which specifically refers to the particular ordinances that Defendants allegedly violated. Complaint, Ex. 1. Plaintiff expressly and adequately states a statutory violation for nuisance. Code Civ. Proc., § 731 and Civ. Code, § 3479. Accordingly, demurrer is not well taken.

Defendant contends plaintiff did not allege sufficient facts to support the claim. Abandonment of the premises by the tenant within a reasonable time is essential to maintain a claim for constructive eviction. However, Plaintiff alleges that he continues to reside in the trailer.

In opposition, Plaintiff argues that nothing in the statutes governing these claims require tenant abandonment. Defendant’s reply does not respond to Plaintiff’s opposition with respect to the 13^th cause of action.

A claim for retaliatory eviction is grounded in common law and statute. The retaliatory eviction doctrine under the common law “is founded on the premise that “[a] landlord may normally evict a tenant for any reason or for no reason at all, but he may not evict for an improper reason ....” Barela v. Superior Court (1981) 30 Cal.3d 244, 249, citing and quoting S.P. Growers Assn. v. Rodriguez, supra, 17 Cal.3d 719, 730. However, Plaintiff cannot state a common law cause of action for retaliatory eviction because that cause of action applies only to conduct that causes the tenant to involuntarily vacate the premises. Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 328. Plaintiff has not alleged that he has involuntarily vacated the premises. Instead, he alleges that he “may be forced to vacate his rental unit for his safety and the safety of others. Complaint, ¶ 19.

A statutory claim for retaliatory eviction which Plaintiff identifies as one for “constructive eviction” provides that it is unlawful “for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of such acts, for the purpose of retaliating against the lessee because he or she has ... lawfully and peaceably exercised any rights under the law.” (Italics added.) " Barela v. Superior Court (1981) 30 Cal.3d 244, 251; Civ. Code, § 1942.5.
Plaintiff alleges Defendants failed to make repairs for Plaintiff’s complaints about lack of heating, a leaking ceiling, electrical issues, and inadequate bath/toilet facilities and the accumulation of debris and trash. Complaint ¶ 10, Ex. 1. Thus, the claim is based on the alleged decrease of services. Plaintiff also alleges that Defendants are threatening eviction as their first unlawful detainer action was dismissed. Complaint, ¶ 18, 19. Plaintiff further alleges that in response to Plaintiff’s requests for necessary repairs and maintenance, Defendants served an unlawful detainer action against Plaintiffs. Defendants allegedly “purposefully” retaliated against Plaintiff for Plaintiff’s assertion of his rights. Complaint, ¶ 57, ¶ 76. Therefore, the claim as a whole is well pleaded as one for statutory constructive eviction. A demurrer cannot rightfully be sustained to part of a cause of action." Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.

Defendants argue that the claim must be pleaded with specificity, and the allegations do not meet the heightened pleading standard. A fraud claim requires facts to support the following elements: (1) a misrepresentation, (2) made with knowledge of its falsity, (3) Defendant intended to defraud Plaintiff, i.e., induce Plaintiff’s reliance, (4) Plaintiff justifiably relied on the misrepresentation, (5) causing damage. Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268. Fraud claims are subject to strict requirements of particularity in pleading. Id. These requirements necessitate pleading facts showing “how, when, where, to whom, and by what means the representations were tendered." Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. The requirement “applies not only to the alleged misrepresentation, but also to the elements of causation and damage." Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 776.

Plaintiff expressly alleges that Defendants impliedly and expressly promised at the time they rented the trailer to Plaintiff that the trailer was fit for human habitation to be used for living or dwelling purposes. Complaint ¶ 9. Plaintiff alleged the date of the tenancy commenced on July 6, 2016. Complaint ¶ 6. The allegations reasonably infer that the representations were made orally and by the act of offering the trailer as a rental. Plaintiff alleges that he relied on these representations and paid rent. Complaint, ¶ 12. Plaintiff asserts throughout the complaint the physical and emotional injuries he has sustained as a result of Defendants’ conduct. See for example, Complaint, ¶ 18. The allegations are sufficiently certain and specific to warrant overruling the demurrer.

J. Demurrer to the 14^th cause of action for Violation of the Los Angeles County Covid-19 Tenant Protections resolution

Defendants argue that this claim does not allege any facts demonstrating how Defendants violated the County of Los Angeles COVID-19 Tenant Protections Resolution (“Resolution”). The property is not subject to the Resolution since Plaintiff is not authorized to occupy it as it violates city ordinances. The claim is also rendered moot because Defendants received a judgment for possession of the premises.

The complaint alleges that Defendants attempted to evict Plaintiff for no-fault reasons, without compensation in violation of the Resolution as well as Chapter 8.52 of the Los Angeles County Code. Complaint ¶ 89. Plaintiff alleges that Defendants are bound to provide relocation assistance which Defendants failed to provide.

The County Resolution prohibits no-fault eviction. Resolution, p. 11, paragraph 2. The Resolution provides in pertinent part that Landlords are prohibited from intimidating or retaliating against Tenants by failing to provide housing services, failing to perform repairs and maintenance required by housing, health, and safety laws, and failing to exercise due diligence in completing repairs and maintenance. Resolution, p. 18, Section IX. It also provides for Residential Tenant relocation assistance “as set forth in Section 8.52.110 of the County Code and DCBA's policies and procedures; ….” Resolution, p. 13, paragraph (g).

While Defendants argue the issue is moot or that the Resolutions do not apply for other reasons, the court is not concerned with the Plaintiff’s ability to prove the allegations. The court accepts the alleged facts as true and does not consider facts beyond the complaint. Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 840.

Accordingly, the demurrer to Plaintiff’s complaint is OVERRULED in full. Defendants are ordered to answer within 10 days. Cal Rules of Court, Rule 3.1320.

Defendants’ motion to strike portions of each cause of action is based on the same arguments made in support of their demurrer to each claim. Plaintiff argues each cause of action is properly alleged and should not be stricken.

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 §436 subd. (a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿

As previously discussed, all of Plaintiff’s claims are adequately alleged and survive demurrer. Accordingly, the motion to strike entire claims or portions thereof is DENIED. The motion to strike the prayers for special, general, or consequential damages relating to these claims is DENIED.

Defendants also move to strike the claim for punitive damages and attorney’s fees. In considering a motion to strike punitive damages, the court considers the complaint as a whole and assumes the allegations are true. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. Plaintiffs must allege circumstances of oppression, fraud, or malice as those terms are defined by statute. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. The predicate acts that will support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of others. Civ. Code, §3294 subd. (a). Oppressive conduct is defined as “despicable conduct” that subjects a person to cruel and unjust hardship in conscious disregard of a person’s rights. Civ. Code, §3294 subd. (c).

Plaintiff has sufficiently alleged the claim for fraud which can serve as a predicate act in support of a punitive damages claim. With respect to the prayer for attorney’s fees, it is not an abuse of discretion to refuse to strike a claim for attorney fees where Plaintiff has not had a full opportunity to determine the basis for such fees. Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699.