Judge Michael Shultz, Case 22STCV07441 2022-09-19 Tentative Ruling

[TENTATIVE] ORDER SUSTAINING IN PART AND OVERRULING IN PART DEMURRER TO THE FIRST AMENDED COMPLAINT BY DEFENDANTS, CHINECHE DELAROSA & BERTIE BEASLEY

The First Amended Complaint (“FAC”) alleges that Plaintiffs leased residential real property from Defendants beginning in 2006. Plaintiffs allege that beginning February 17, 2021, the premises became uninhabitable. Plaintiffs alleges claims for (1) breach of contract, (2) breach of the warranty of habitability, (3) breach of the covenant of quiet enjoyment, (4) negligence, (5) constructive eviction, and tortious interference with prospective economic advantage.

Defendants, Chineche Delarosa and Bertie Beasley, (“Defendants”), filed this demurrer on June 17, 2022, and demurs to the first through fifth causes of action. Defendants attempted to comply with their obligations to meet and confer with Plaintiffs before filing the demurrer, however, Plaintiffs did not respond. Declaration of Jacob H. Zadeh; Code Civ. Proc., § 430.41.

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.

III. DISCUSSION

A. Demurrer to the claims for breach of contract, breach of warranty of habitability, and breach of quiet enjoyment (first, second, and third causes of action ) is SUSTAINED.

Defendants argue that they were not parties to the lease agreement, nor have Plaintiffs alleged that Defendants were intended beneficiaries of the agreement. Plaintiffs have not alleged the material terms of the contract or attached a copy of the lease agreement. In opposition to Defendant’s argument to all claims, Plaintiffs allege the claims are well pleaded.

Plaintiffs allege that all Defendants owned, operated, managed, and/or control the premises. FAC ¶ 9. However, Plaintiffs expressly allege that the lease agreement was between Plaintiffs and Defendant, Sallyanne Payton. As demurring parties are not alleged to be parties to the contract, they are not liable for the breach of the contract terms. Bilich v. Barnett (1951) 103 Cal.App.2d Supp. 921, 925. ["Plaintiff, not being a party to the contract, cannot maintain this action on account of injuries resulting from any breach of duty defendant owed Pickle, arising purely out of the terms of the contract between them.’”]. Plaintiffs have not addressed this issue in substance. Accordingly, the contract claim is defective.

As Plaintiffs have not alleged that Defendants were parties to the lease agreement, these claims are not adequately alleged, and the demurrer is sustained as these causes of action.

Defendants argue that Plaintiffs do not allege a duty owed by Defendants. Defendants dispute that they are owners, managers, operators, and/or lessors. Accordingly, there is no basis for liability.

The fact that the tortious act arises during the performance of a duty created by contract does not negate the agent's liability. Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929. An agent may also be held liable on any properly pleaded tort causes of action." Id. at 929-930. Plaintiffs allege that Defendants exercised real or apparent authority regarding the property and have been responsible for maintaining it. FAC ¶ 9. Plaintiffs allege that Defendants were acting as agents or employees of co-Defendants. FAC ¶ 11. Defendants deny these allegations.

In considering a demurrer, the court accepts all facts as true and does not consider facts outside the pleading. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Whether or not Plaintiffs will be able to prove the allegations is irrelevant for purposes of a demurrer. Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610. This cause of action is adequately pleaded against Defendants.

Defendants argue that they are not the landlords or owners of the property. Defendants contend they lacked the authority, control, and relationship necessary for liability to attach.

A constructive eviction occurs when a landlord’s acts or omissions to act, “or any disturbance or interference with the tenant's possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or which has the effect of depriving the tenant for a substantial period of time of the beneficial, enjoyment or use of the premises." Groh v. Kover's Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614.

This is a tort claim, not a contract-based claim. An interference by the landlord, “or by someone claiming under the landlord” that deprives the tenant of the beneficial enjoyment of the premises amounts to a constructive eviction. Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590. This cause of action is adequately alleged based on the allegations that Defendants managed the property and acted as the agents, which the court accepts as true.

Based on the foregoing, the court OVERRULES demurrer to the claims for negligence and constructive eviction. Demurrer is SUSTAINED as to the claims for breach of contract, breach of warranty of habitability, and breach of the covenant of quiet enjoyment. Plaintiffs’ opposition does not demonstrate how the latter three claims can be cured, nor have Plaintiffs asked for leave to amend. Leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured. However, it is the Plaintiff’s burden to demonstrate how the defects can be cured by demonstrating show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading"].” Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302

Accordingly, the court does not grant leave to amend the first, second, and third causes of action. Defendants are ordered to answer the remaining claims within 10 days. Cal Rules of Court, Rule 3.1320.

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[TENTATIVE] ORDER OVERRULING DEMURRER TO THE FIRST AMENDED COMPLAINT BY DEFENDANT, LASHON ENGLISH

The First Amended Complaint (“FAC”) alleges that Plaintiffs leased residential real property from Defendants in 2006. Plaintiffs allege that beginning February 17, 2021, the premises became uninhabitable. Plaintiffs allege claims for (1) breach of contract, (2) breach of the warranty of habitability, (3) breach of the covenant of quiet enjoyment, (4) negligence, (5) constructive eviction and (6) tortious interference with prospective economic advantage.

Defendant, Lashon English (“English”), filed this demurrer on June 8, 2022, and demurs to the sixth cause of action for intentional interference with prospective economic advantage. Defense counsel attempted to comply with counsel’s obligations to meet and confer with Plaintiffs before filing the demurrer. However, Plaintiffs’ counsel did not respond. Declaration of Jacob H. Zadeh; Code Civ. Proc., § 430.41.

Defendant English demurs to the sixth cause of action for intentional interference with prospective economic advantage only. Defendant argues that Plaintiffs did not allege any facts that Defendant’s alleged wrongful conduct constituted an independently wrongful act, which is a necessary element of the claim. Plaintiffs allege only that English “pressured” Plaintiffs to vacate the premises but does not allege how that conduct was unlawful.

In an opposition filed July 6, 2022, Plaintiffs recite the allegations of the FAC which they assert are sufficient to support the cause of action.

In reply filed July 11, 2022, Defendant argues that Plaintiffs’ opposition fails to explain how the alleged facts show independently wrongful conduct. The court should deny leave to amend since Plaintiffs have already been given a chance to allege a viable claim against Defendant.

To prevail on a claim for intentional interference with prospective economic advantage, plaintiff must prove "(1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action.” Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.

Additionally, the plaintiff must show that that defendant’s conduct was “wrongful by some legal measure other than the fact of interference itself.” Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1142. An act is independently wrongful if it is unlawful, i.e., "it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. at 1142.

The sixth cause of action alleges that English is employed by Defendant, SFV Associates, as a real estate salesperson. FAC ¶ 8. English and Defendant DelaRosa told Plaintiffs that Defendants had a buyer in place to purchase the building. FAC ¶ 38. English told Plaintiff that she represented Defendant Payton, as her real estate agent, although English was actually the buyer of the property. FAC ¶ 39. English allegedly began pressuring Plaintiffs on whether they were moving out and when. FAC ¶ 38. She allegedly induced the other Defendants to breach the lease agreement with Plaintiffs, thereby inducing Plaintiffs’ constructive eviction from the property. FAC ¶ 97.

Plaintiffs have adequately alleged an act by English that is independently wrongful, namely intentional interference with contract. Where a stranger to a contract induces a breach or disruption of the contractual relationship, the third party may be liable in tort for interfering with performance of the contract. Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126

The allegations adequately support the elements of the claim, which requires (1) a valid contract between plaintiff and a third party; (2) defendant's knowledge of this contract; (3) defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. Pacific Gas & Electric Co. at 1126 [“It has long been held that a stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract.”]

The court in PG&E observed that the “tort of interference with prospective economic advantage protects the same interest in stable economic relationships as does the tort of interference with contract, though interference with prospective advantage does not require proof of a legally binding contract.” Pacific Gas & Electric at 1126.

Notably, express termination provisions of a contract do not create a privilege to interfere. Tokuzo Shida v. Japan Food Corp. (1967) 251 Cal.App.2d 864, 866 ["Even though plaintiff's distributorship was subject to termination on January 29, 1959, at Waimanalo's will, plaintiff was not without legal protection against unjustified interference by third parties."].

Plaintiffs’ failure to expressly allege a claim for intentional interference with contract does not render the FAC defective. If the essential facts of some valid cause of action are alleged, the pleading survives demurrer. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38–39 [The court “is not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory." Id.

Based on the foregoing, Defendant, Lashon English’s, demurrer to the FAC is OVERRULED. Defendant is ordered to file an answer within 10 days. Cal. Rules of Court, rule 3.1320.

[TENTATIVE] ORDER OVERRULING DEMURRER TO THE FIRST AMENDED COMPLAINT BY DEFENDANT, SALLYANNE PAYTON

The First Amended Complaint (“FAC”) alleges that Plaintiffs leased residential real property from Defendant beginning in 2006. Plaintiffs allege that beginning February 17, 2021, the premises became uninhabitable. Plaintiffs alleges claims for (1) breach of contract, (2) breach of the warranty of habitability, (3) breach of the covenant of quiet enjoyment, (4) negligence, (5) constructive eviction, and tortious interference with prospective economic advantage.

Defendant, Sallyanne Payton (“Payton”), filed this demurrer on August 2, 2022, and demurs to the first through fifth causes of action. Payton complied with its obligations to meet and confer with Plaintiffs before filing the demurrer. Declaration of Craig B. Forrey; Code Civ. Proc., § 430.41.

III. DISCUSSION
A. Demurrer to the first cause of action for breach of contract is OVERRULED.

Defendant Payton argues that Plaintiffs have not alleged the material terms of the contract nor have Plaintiffs attached a copy of the lease agreement. In opposition to Defendant’s argument to all claims, Plaintiffs allege the claims are well pleaded.

The elements of a claim for breach of contract are (1) the existence of a valid and existing contract between the parties, (2) plaintiff’s performance or excuse for non-performance, (3) defendant’s breach; and (4) resulting damage. Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186. A written contract may be pleaded either by its terms, set out verbatim in the complaint or Plaintiff may attach a copy of the contract the complaint and incorporate it by reference. Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993. Plaintiff may also allege the contract by its legal effect by alleging the substance of its relevant terms. Id. at 993.

The FAC alleges the agreement according to its legal effect. Plaintiffs allege they entered into a residential lease agreement with Defendant in 2006. FAC ¶ 15. As Plaintiffs have continued to reside at the premises through March 16, 2021, it is reasonable to infer that the agreement was not for a limited term. Regardless, the cause of action is not based on the breach of the express terms, but rather those terms implied in a residential lease agreement as Plaintiffs specifically described. FAC ¶ 65.a. through c. Accordingly, the claim is adequately pleaded.

B. Demurrer to second cause of action for breach of the warranty of habitability is OVERRULED.

Payton argues that the claim is based on a “foul smell” that was inspected by professionals retained by Plaintiffs and Defendants. Substantial compliance with applicable code standards affecting health and safety satisfies a landlord’s duty. A “foul smell” does not make the premises uninhabitable. Payton argues that Plaintiffs did not attach the notice from the County of Los Angeles Department of Health (“Department”) instructing that the condition be corrected.

A warranty of habitability is implied by law in residential leases in California. Fairchild v. Park (2001) 90 Cal.App.4th 919, 925. 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 FAC alleges that the foul smell that began on January 17, 2021. The smell was “so foul” it attracted an excessive amount of flies and caused health problems. FAC ¶ 18-19. Plaintiffs could not stay at the property and stayed at a hotel or their daughter’s home from January 19, 2021 through February 26, 2021. FAC ¶ 19.

The allegations that both parties retained professionals to address the issues do not render the claim defective. Plaintiffs allege Defendants did not mitigate the issue despite hiring numerous professionals. FAC ¶ 38. Instead, Defendants began pressuring Plaintiffs to move out because “Defendants were not going to fix anything at the property.” FAC ¶ 38-39.

Payton does not cite any authority for claim that Plaintiffs’ failure to attach the “Notice to the Owner” allegedly issued by the Department renders the claim defective. Accordingly, the claim is well pleaded.

C. Demurrer to the third cause of action for breach of the covenant of quiet enjoyment is OVERRULED.

Payton contends she used ordinary care in preserving the property in a safe and good condition. She contends that the allegation that both parties hired professionals to remedy the condition renders the claim defective.

Plaintiffs incorporate the general allegations cited above, namely that the foul smell persisted despite numerous attempts to remedy the condition, and that it was substantial enough that Plaintiffs were forced to relocate to a hotel and their daughter’s home. FAC ¶ 38-39. Defendant’s alleged failure to remedy the condition caused Plaintiffs to vacate the property on March 15, 2021, although Plaintiffs allege they had no intention of moving out at all. FAC ¶ 45. The allegations adequately support the claim.

Payton argues that the FAC does not allege facts to show Defendant breach of the standard of care. Instead, Plaintiffs allege that both parties retained professional problems to remedy the issue.

Plaintiffs recite the Defendant’s numerous failures to render ongoing issues despite Plaintiffs’ repeated requests and despite the order issued by the Department. FAC, ¶ 45. Plaintiffs allege that despite a technician’s opinion that the smell was coming from something dead, and from water and fungus infestation, Payton never responded. FAC ¶¶ 32, 36. Plaintiffs have adequately alleged Payton’s omission in failing to respond to Plaintiffs’ requests.

Payton argues that Plaintiffs do not allege facts that the Defendant’s acts or omissions rendered the property unfit for which they were leased, or that Plaintiffs were deprived of the beneficial enjoyment or use of the property.

The allegations incorporated into the claims for breach of the warranty of habitability and of quiet enjoyment, previously referred to above, are sufficient to support this claim.

V. CONCLUSION

Based on the foregoing, Defendant Payton’s demurrer to the FAC is OVERRULED. Payton is ordered to file an answer within 10 days.