I. BACKGROUND 

Plaintiffs Reginald Freeman, et al. (collectively, “Plaintiffs”) filed their First Amended Complaint (“FAC”) against defendants Rainbow Apartments, L.P., SRHT Property Management Company, and Does l through 30 for (1) Breach of Contract/Covenant of Quiet Enjoyment/Warranty of Habitability, (2)Tortious Breach of The Implied Warranty of Habitability, (3) Negligence, (4) Violation of California Civil Code Section 1942.4, and (5) Violation of Unfair Business Practices. 

Defendants Rainbow Apartments, L.P. (“Rainbow Apartments”) and SRHT Property Management Company (collectively, “Defendants”) demur to the first cause of action and fifth cause of action. Defendants further move to strike the punitive damages and related allegations contained in Paragraphs 53, 65, 66, 77, and 91 of the FAC.  

 Plaintiffs oppose the motions, and Defendants filed their replies. 

II. DEMURRER¿ 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)   

The Court finds Defendants fulfilled this requirement prior to filing the demurrer. (Nachimson Decl. ¶¶ 3-4.) 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).) 

Defendants argue that no contract was provided as part of the FAC or specific terms of the contract pled, and that Plaintiffs allege three separate causes of action into one. Plaintiffs concede to the arguments raised by Defendants and agree to amend the FAC accordingly. Therefore, the demurrer to the first cause of action is SUSTAINED with leave to amend.  

Defendants contend Plaintiffs lack standing to bring an unlawful business practice cause of action, because Plaintiffs have failed to plead actual injury or causation. Defendants assert that, at most, Plaintiffs pled an actual injury on behalf of only 1 plaintiff, but that it is uncertain as to the actual injury for each of the 27 plaintiffs. Defendants contend that Plaintiffs must allege an individual injury by each Plaintiff showing how each was harmed by Defendants’ conduct. 

In opposition, Plaintiffs provide that they alleged that they paid more than the true rental value of the property because of the defects that decreased its rental value, and that as a result, Defendants received more rental income than they were entitled to. Plaintiffs aver that they have sufficiently alleged restitution of the rental funds overpaid, and that specific damages would require expert testimony. 

Here, Plaintiffs set forth a cause of action under Business and Professions Code § 17200 (“UCL”).  The UCL defines “unfair competition” as “any unlawful, unfair or fraudulent business act or practice.” (Cal. Bus. and Prof. Code § 17200.) The remedies afforded by the UCL include restitution or disgorgement of money wrongfully obtained. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179 (“Prevailing plaintiffs [under the UCL] are generally limited to injunctive relief and restitution.”).) 

The necessary elements for unfair business practices under Section 17200 are: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) an authorized remedy.¿ Bus. & Prof. Code, § 17200; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676 (Paulus). The UCL embraces “anything that can properly be called a business practice and that at the same time is forbidden by law.”  (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)  “By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” (Ibid.) 

The FAC alleges, in pertinent part, the following: Plaintiffs constantly and consistently complained to Defendants about the untenantable conditions of inadequate weather protection, inadequate plumbing, dampness and mold, inadequate sanitation, lack of heating and ventilation, inadequate wiring, vermin infestation, structural hazards, nuisance, failure to maintain premises in a good and safe condition, and harassment. (FAC ¶ 40.) Defendants “engaged in the illegal and unfair business practice of owning and/or renting substandard, untenantable, uninhabitable, dangerous, unhealthy and unsanitary housing.” (Id. at ¶ 93) and that “Defendants leased the Subject Property knowing that it was not fit for habitation” (Id. at ¶ 97.) “As a direct result of Defendants’ repeated failure to timely abate known nuisances at the Subject Property, Plaintiffs, and each of them, were harmed by paying more than the fair market value for their units in their uninhabitable condition.” (Id. at ¶ 98.) “The Defendants violated Civil Code §§1941.1, 1942, Health and Safety Code §17920.3, Business and Professions Code 17200, and local housing and building maintenance codes.” (Id. at ¶ 99.) “As a result, Plaintiffs paid the Defendants more than the reasonable or fair market value of the Subject Property. Because the Defendants failed to properly maintain the Subject Property despite reasonable notice by Plaintiffs, the Defendants unfairly and unjustly collected a windfall and retained rent money in excess of the value of the Subject Property given its condition.” (Id. at ¶ 100.)  

Plaintiffs have alleged specific unfair and unlawful conduct by violating health, safety, and housing codes, and these identified statutes were incorporated into the fifth cause of action. (FAC ¶¶ 40, 92.) This is sufficient to state a claim for unfair business practices, as Plaintiffs have alleged an unlawful business practice for which there is a statutory remedy. (See Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 [“Virtually any law can serve as the predicate for a section 17200 action.”].).)  Any ambiguity concerning which specific factual allegations apply to which particular plaintiff can be clarified during discovery. Defendants identify no specific “great prejudice” that would result by “deferring to the discovery process,” when Defendants would necessarily need to perform discovery to explore each of plaintiff’s individual claims as part of the standard litigation process regardless. 

Accordingly, Defendants’ demurrer to the fifth cause of action is OVERRULED.  

III. MOTION TO STRIKE¿ 

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5(a).) 

The Court finds Defendants fulfilled this requirement prior to filing the demurrer. (Nachimson Decl. ¶¶ 2-3.) 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (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”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)    

Defendants move to strike allegations relating to and the prayer for punitive damages. A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.”  (Civ. Code § 3294, subd. (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  [Citation.]  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) 

Plaintiffs, in opposition, agree to remove the punitive damages claims against SRHT. Therefore, the motion to strike punitive damages against SRHT is granted.  

As to Rainbow Apartments, Defendants argue that Plaintiffs have not identified the managing agent on behalf of the ownership entity in order to maintain a claim for punitive damages against it. In support thereof, Defendants cite City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal. App. 3d 31 and Cruz v. Home Base (2000) 83 Cal. App. 4th 160 regarding corporations. However, this is an argument raised for the first time in Defendants’ reply. (Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief[.]”].)  

Even if the Court were to consider the argument, Rainbow Apartments is not a corporation. Rather, Rainbow Apartments is alleged to be a limited liability partnership (FAC ¶ 2) and the “L.P.” in Rainbow Apartment’s name indicates that it is indeed a limited partnership. Aside from improperly raising this contention on reply, Defendants provide no authority that the pleading standard to assert punitive damages against a corporation is the same for a limited liability partnership.