Judge Monica Bachner, Case 21STCV34296 2023-04-06 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Defendants Ivan Kutsevol’s and Alina Kutsevol’s demurrer to Plaintiff Brent Wing’s first amended complaint is overruled as to the 4th, 5th, 8th, 9th, 10th, and 11th causes of action and claim for punitive damages.

Defendants Ivan Kutsevol (“Ivan”) and Alina Kutsevol (“Alina”) (collectively, “Defendants”) demur to Plaintiff Brent Wing’s (“Wing”) (“Plaintiff”) first amended complaint (“FAC”) on the grounds that each cause of action fails to constitute a cause of action against Defendants.[1] (Notice of Demurrer, pg. 1.) Specifically, Defendants demur to Plaintiff’s 4th, 5th, 8th, 9th, 10th, and 11th causes of action, as well as Plaintiff’s claim for punitive damages against Defendants. (Notice of Demurrer, pg. 2.)

Defendants’ 8/31/22 request for judicial notice of the summons and complaint, answer, and 12/16/20 minute order in LASC Case No. 20STUD00202, Talan v. Wing, is granted.

Before filing a demurrer, the demurring party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41.) The demurring party must identify all of the causes of action it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the pleading must explain with legal support the basis for its position that the pleading is legally sufficient or, if it is not, how the pleading could be amended to cure any legal insufficiency. (C.C.P. §430.41(a)(1).)

Defendants’ counsel declares he attempted to meet and confer with Plaintiff’s counsel in letters dated May 2, 2022; June 1, 2022; and June 28, 2022, to which he did not receive a response. (Decl. of Earle ¶2, Exhs. A, B, C.) The Court determines Defendants’ counsel sufficiently and in good faith attempted to resolve the issues addressed in the instant motion out of Court.

This action arises out of Plaintiff’s alleged entry into a lease agreement (“Lease”) with Defendant Dale Aaron Jones (“Jones”) (“Non-moving Defendant”) on or around December 18, 2014, for real property located at 1815 N. Wilton Place, Los Angeles, CA 90028 (“Subject Building”). (FAC ¶¶6, 7, 17.) Plaintiff alleges during his tenancy, ownership and management of the Subject Building transferred from Non-moving Defendant Jones to Non-moving Defendant Elena Talan (“Talan”) (“Non-moving Defendant”) on or around October 30, 2019. (FAC ¶19.) Plaintiff alleges on information and belief that Non-moving Defendant Talan owned the Subject Building and managed the property with Defendants. (FAC ¶20.) Plaintiff alleges he was constructively evicted from the Subject Building on or around October 7, 2020. (FAC ¶21.)

On September 16, 2021, Plaintiff filed his original complaint (“Complaint”). On June 20, 2022, Plaintiff filed the operative FAC alleging eleven causes of action: (1) breach of contract; (2) breach of covenant of quiet enjoyment; (3) breach of warranty of habitability; (4) negligence; (5) private nuisance; (6) violation of Civil Code §1942.4; (7) violation of unfair business practices; (8) intentional infliction of emotional distress; (9) trespass to land; (10) trespass to chattels; and (11) retaliation/constructive eviction. On September 1, 2022, Defendants filed the instant demurrer. On March 21, 2023, Plaintiff filed his opposition. As of the date of this hearing, Defendants have not filed a reply.

In support of their demurrer to Plaintiff’s FAC, Defendants argue the 4th, 5th, 8th, 9th, 10th, and 11th causes of action and claim Plaintiff’s FAC fail to state facts sufficient to constitute causes of action. (Notice of Demurrer, pg. 2.)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Plaintiff alleges on information and belief that when ownership transferred from Defendant Jones to Defendant Talan, Defendant Jones also assigned his interests and obligations under the lease to Defendant Talan. (FAC ¶88.) Plaintiff alleges as landowners and/or managers of land, the Defendants owed a duty of care under common law and Civil Code §1714 to exercise due care in management of the property so as to avoid foreseeable injury to others. (FAC ¶89.) Plaintiff alleges this duty of care required the Defendants to comply with all building, health, fire and safety codes, ordinances, regulations and other laws applying to maintenance and operation of residential rental housing. (FAC ¶89.) Plaintiff alleges this obligation of the owner also includes the obligation to properly maintain the Subject Property and to timely and competently effectuate repairs when required. (FAC ¶89.) Plaintiff alleges Defendants breached this common law and statutory duty of due care by failing to institute a regular maintenance process; failing to correct substandard conditions complained of; and failing to supervise their agents and employees who operated and maintained the building. (FAC ¶90.) Plaintiff alleges the Defendants knew, or reasonably should have known, that Plaintiff would be injured because of this breach of common law and statutory duties of due care. (FAC ¶90.) Plaintiff alleges Defendants Ivan and Alina entered Plaintiff’s unit without proper notification and attempted to illegally evict the Plaintiff from the Subject Property. (FAC ¶91.) Plaintiff alleges as experienced owners and managers, Defendants were aware of the proper protocols for maintenance, unit entry and evictions, yet they failed to follow the law in that regard. (FAC ¶91.) Plaintiff alleges as a direct and proximate result of Defendants’ actions and inactions, the value of the leasehold held by Plaintiff was diminished. (FAC ¶92.) Plaintiff alleges as a further direct and proximate result of the conduct of the Defendants, Plaintiff suffered and continues to suffer injury, extreme mental and emotional distress, discomfort, annoyance, anxiety, loss in the value of his leasehold, property damage, and out of pocket costs, all to Plaintiff’s damage in an amount to be proven at trial, but within the jurisdictional requirements of this Court. (FAC ¶93.)

Defendants Ivan and Alina argue Plaintiff fails to allege the duty they owed to Plaintiff, and merely pleading that Ivan and Alina were managers for Plaintiff’s landlord, Defendant Talan, is insufficient to plead the duty element. (Demurrer, pg. 5.) Defendants Ivan and Alina also argue Plaintiff fails to allege the conduct that breached the duty. (Demurrer, pg. 6.) Plaintiff sufficiently alleges each Defendant was the owner and/or manager of the Subject Building during Plaintiff’s tenancy and therefore owed Plaintiff a duty of case. (FAC ¶¶6, 89.) Plaintiff also alleges Defendants Ivan’s and Alina’s conduct that breached the duty of care owed to Plaintiff, specifically entering Plaintiff’s apartment without proper notice and assisting Defendant Talan with an attempt to illegally evict Plaintiff and remove Plaintiff’s personal possessions. (FAC ¶¶44, 91.)

Accordingly, Defendants Ivan’s and Alina’s demurrer to Plaintiff’s 4th cause of action for negligence is overruled.

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.)

Plaintiff alleges that the actions taken by the Defendants constituted a private nuisance within, but not limited to, the meaning of Civil Code §3479, in that Defendants allowed conditions that were injurious to the health and safety of Plaintiff and were indecent and offensive such that it interfered substantially with Plaintiff’s right to use and quietly enjoy the Subject Property. (FAC ¶95.) Plaintiff alleges Defendants Ivan, Alina, and Talan had aggressive business practices that prevented Plaintiff from enjoying his leased unit. (FAC ¶96.) Plaintiff alleges, among other conduct, Defendants engaged in construction near the Subject Property while Plaintiff still resided in his unit, Defendants made false statements and issued false notices in their plan to remove all tenants from the premises against their will, and they entered the Subject Property and discarded Plaintiff’s personal belongings. (FAC ¶96.) Plaintiff alleges Defendants’ actions and inactions deprived Plaintiff of a healthy and comfortable use of the Subject Property and created conditions that were harmful to health, indecent and offensive to the senses, and an obstruction to the free use of property, so as to interfere with the Plaintiff’s comfortable enjoyment of the Subject Property. (FAC ¶97.) Plaintiff alleges he did not consent to the Defendants’ acts or failures to act, nor did Plaintiff cause any of the injurious conditions which existed at the Subject Property. (FAC ¶98.) Plaintiff alleges Defendants had been repeatedly put on notice and knew that dangerous conditions existed at the Subject Property, had the financial ability to fix the conditions, but did nothing to repair and remediate the dangerous conditions, despite their legal obligation to do so. (FAC ¶99.) Plaintiff alleges Defendants’ acts and/or failures to act were intentional and unreasonable and Defendants harmed Plaintiff, and Plaintiff has suffered from a leasehold worth less than rent paid, property loss, loss of earnings, mental distress, costs of repairs, relocation expenses, and loss of use and enjoyment of his rental property. (FAC ¶100.) Plaintiff alleges Defendants’ conduct was a substantial factor in causing Plaintiff’s harm. (FAC ¶101.) Plaintiff alleges an ordinary person would reasonably be annoyed and disturbed by the Defendants’ conduct. (FAC ¶102.) Plaintiff alleges Defendants’ conduct warrants an award of punitive damages because Defendants’ actions were fraudulent, malicious, and oppressive, and were carried out with willful and conscious disregard of the rights and safety of Plaintiff. (FAC ¶103.) Plaintiff alleges under California Civil Code §3294, Defendants’ conduct warrants the imposition of punitive damages in a sum appropriate to punish the Landlord and to deter future similar misconduct and accordingly, Plaintiff seeks treble damages for the sake of example and by way of punishing the Defendants for their conduct. (FAC ¶104.)

Defendants Ivan and Alina argue Plaintiff failed to allege any conduct they committed that unreasonably interfered with Plaintiff’s enjoyment with his rental unit and that the interference was substantial. (Demurrer, pg. 6.) Plaintiff sufficiently alleges Defendants Ivan’s and Alina’s conduct constituting an unreasonable interference with enjoyment of the land, including illegal construction, making false statements and notices, and entering the subject property and discarding Plaintiff’s personal belongings. (FAC ¶96.)

Accordingly, Defendants Ivan’s and Alina’s demurrer to Plaintiff’s 5th cause of action for private nuisance is overruled.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted; CACI 1600.) “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921, quoting Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297.)

Plaintiff alleges Defendants’ actions and failure to act, as detailed above, including, but not limited to, the Defendants’ refusal or failure to repair all the habitability and safety issues, despite numerous pleas for repairs from Plaintiff, represents outrageous and malicious conduct. (FAC ¶124.) Plaintiff alleges he relied on Defendants to make these repairs and the Defendants’ refusal to do so was an abuse of their position as the Subject Property’s landlord. (FAC ¶124.) Plaintiff alleges Defendants engaged in bothersome construction near the Subject Property while Plaintiff still resided at the Subject Property and Defendants Talan, Ivan, and Alina attempted to remove Plaintiff from the Subject Property against his will. (FAC ¶125.) Plaintiff alleges Defendants made false statements about the timeliness and remittance of Plaintiff’s rent payments and then entered the Subject Property and discarded many of Plaintiff’s valuable possessions. (FAC ¶125.) Plaintiff alleges Defendants knew that Plaintiff lived in the Subject Property with the dangerous and uninhabitable conditions, Defendants knew that Plaintiff remained in the Subject Property during his construction project, and Defendants

Talan, Ivan, and Alina knew that they were making false accusations about Plaintiff’s payments, willfully invading Plaintiff’s privacy, and illegally discarding Plaintiff’s belongings. (FAC ¶126.) Plaintiff alleges Defendants acted with a reckless disregard to the probability that Plaintiff would suffer severe emotional distress; including annoyance, mental anguish, anxiety, worry, fear, discomfort, loss of enjoyment of life, and humiliation as a result of the Subject Property’s uninhabitable conditions, which the Defendants created and allowed to continue, the construction project near the Subject Property, and Defendant’s conduct. (FAC ¶127.) Plaintiff alleges despite being aware that Plaintiff was timely paying rent and that the Subject Property was an illegal unit, Defendants started eviction proceedings against the Plaintiff to remove him from the Subject Property. (FAC ¶128.) Plaintiff alleges Defendants’ conduct was a substantial factor in causing Plaintiff’s severe emotional distress, and Plaintiff suffered mental injury and loss of use and enjoyment of his rental home as a result. (FAC ¶129.) Plaintiff alleges Defendants consciously disregarded Plaintiff’s rights and their conduct towards Plaintiff was intentional, malicious, and oppressive, and under Civil Code §3294, Plaintiff is entitled to punitive damages and accordingly Plaintiff seeks treble damages for the sake of example and by way of punishing the Defendants for their conduct. (FAC ¶130.)

Defendants Ivan and Alina argue Plaintiff fails to allege outrageous conduct by Defendants Ivan and Alina and merely alleges “bothersome conduct.” (Demurrer, pg. 7.) Plaintiff sufficiently alleges various habitability defects; Defendants Ivan’s and Alina’s failure to address the habitability defects; and that Plaintiff suffered annoyance, mental anguish, anxiety, worry, fear, discomfort, loss of enjoyment of life, and humiliation as a result of Defendants Ivan’s and Alina’s conduct. (FAC ¶127.) Plaintiff sufficiently alleges Defendants abused a relation or position which gives them power to damage the plaintiff’s interest. (FAC ¶¶19, 21, 124; Stoiber, 101 Cal.App.3d at pg. 921.)

Accordingly, Defendants’ demurrer to Plaintiff’s 8th cause of action for intentional infliction of emotional distress is overruled.

To set forth a cause of action for trespass to land, a plaintiff must allege (1) plaintiff’s lawful possession or right to possession of real property; (2) a defendant’s wrongful, intentional, reckless, or negligent act of trespass on plaintiff’s property; (3) that plaintiff did not give permission for the entry or scope of permission was exceeded; and (4) damage to plaintiff caused by the trespass. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262; CACI 2000.)

To set forth a cause of action for trespass to chattels, a plaintiff must allege the following: (1) plaintiff owned, possessed, or had a right to possess an item of personal property; (2) defendant intentionally interfered with plaintiff’s use or possession of the item of personal property or damaged the item of personal property; (3) plaintiff did not consent; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 2120.)

Plaintiff alleges the Lease gave Plaintiff dominion and control over the Subject Property and after Plaintiff had control over the property, Defendants intentionally entered the Subject Property under the false statement that Plaintiff abandoned the premises without permission, proper notice, or a legitimate cause to enter. (FAC ¶134.) Plaintiff alleges Defendants intentionally interfered with Plaintiff’s personal property without Plaintiff’s permission and without written notice or a lawful purpose. (FAC ¶140.) Plaintiff alleges Defendants caused Plaintiff great harm as many of his valuable and sentimental personal belongings were lost and he was in constant distress that the Defendants would enter his unit at any time without notice, invade his privacy, and interfere with his personal belongings. (FAC ¶135.) Plaintiff alleges Defendants caused harm to Plaintiff’s personal property by failing to abate the Subject Property’s habitability issues and continuous nuisances, such as weather intrusion, mold formation, and vermin infestation, which caused Plaintiff’s personal property to be damaged and forced Plaintiff to discard his personal property, such as throwing away his food after Defendants turned off the Subject Building’s power without notice. (FAC ¶141.) Plaintiff alleges Defendants knew Plaintiff was living in the Subject Property, but entered the Subject Property without permission, proper notice, or a legitimate cause and then discarded many of Plaintiff’s valuable and sentimental belongings. (FAC ¶142.) Plaintiff alleges as a direct and proximate cause of Defendants’ entry onto Plaintiff’s property, Plaintiff has suffered actual, special, and property damage in an amount to be proven at trial. (FAC ¶¶137, 145.) Plaintiff alleges Defendants’ conduct was oppressive and malicious within the meaning of Civil Code §3294 in that it shows a willful and conscious disregard of Plaintiff’s rights, and accordingly, Plaintiff seek treble damages for the sake of example and by way of punishing Defendants for their conduct. (FAC ¶¶138, 146.)

Defendants Ivan and Alina argue Plaintiff fails to allege the date and time of Defendants Ivan’s and Alina’s alleged trespass to Plaintiff’s possessory interest to his rental unit or personal property. (Demurrer, pg. 8.) Defendants Ivan and Alina argue the instant action stems from a landlord-tenant relationship between Plaintiff and Defendant Talan, which resulted in the filing of an Unlawful Detainer case that was resolved by Plaintiff voluntarily vacating the Subject Property before a judgment was reached. (Demurrer, pg. 8.) Plaintiff sufficiently alleges causes of action for trespass to land and trespass to chattels. The date and time of a trespass is not an essential element of a cause of action for trespass to land or chattels. (See CACI 2000, 2120.) However, Plaintiff sufficiently alleges the date the alleged trespasses took place, which was May 11, 2020. (FAC ¶44.)

Accordingly, Defendants’ demurrer to Plaintiff’s 9th and 10th causes of action for trespass to land and trespass to chattels is overruled.

Constructive eviction occurs where intolerable conditions render the premises so unfit or so interfere with beneficial enjoyment of the unit that the tenant is forced to vacate. Recoverable damages include whatever amounts are necessary to compensate the tenant for detriment proximately caused by the “eviction” or likely to result therefrom—generally, the value of the tenant’s unexpired term, plus moving costs and consequential mental anguish, pain and physical injury. In an appropriate case, punitive damages are also awardable. (Stoiber, 101 Cal.App.3d at pgs. 925-926.)

Plaintiff alleges Defendants Talan, Ivan, and Alina began evicting tenants in November 2019 to conduct construction and Plaintiff feared that he would be forced to leave or that his unit would be torn down with his belongings still inside. (FAC ¶148.) Plaintiff alleges on November 8, 2019, Defendants began eviction proceedings against Plaintiff. (FAC ¶149.) Plaintiff alleges throughout January 2020, the Los Angeles Housing and Community Investment Department (“HCIDLA”) sent numerous letters to Defendants stating that their eviction notices to Plaintiff and the other tenants were not sufficient as they did not state the reason for eviction. (FAC ¶150.) Plaintiff alleges on or around January 6, 2020, Plaintiff complained to HCIDLA about his unit not being registered, Defendants’ illegal eviction, and Defendants’ lack of compliance with the Rent Stabilization Ordinance rules. (FAC ¶151.) Plaintiff alleges almost immediately after filing this complaint, Defendants retaliated against the Plaintiff by entering his unit without permission, disposing of his personal belongings, refusing to cash Plaintiff’s rent checks and continuing with their eviction proceedings. (FAC ¶152.) Plaintiff alleges on or around January 10, 2020, Defendant Talan issued an eviction notice to Plaintiff with a notice date of January 7, 2020. (FAC ¶153.) Plaintiff alleges Defendants, and each of them, willfully, knowingly, and purposefully retaliated against Plaintiff for asserting his rights regarding the aforementioned acts and omissions of Defendants, and each of them, by taking certain actions, or failing to act, in a manner that was intended to actually and substantially harass Plaintiff and to evict and/or constructively evict Plaintiff from the Subject Property. (FAC ¶154.) Plaintiff alleges as a direct and proximate result of Defendants’ retaliatory acts, Plaintiff was injured in his emotional health and suffered fear, discomfort, mental and physical injuries and mental distress in an amount to be proven at trial. (FAC ¶155.) Plaintiff alleges as a further direct and proximate result of Defendants’ retaliatory acts, Plaintiff was injured by the Defendants’ deprivation of a safe, secure, healthy, and comfortable dwelling for Plaintiff. (FAC ¶156.) Plaintiff alleges despite failing to ever remedy any of the issues noted by the HCIDLA, Defendants continued with their eviction proceedings. (FAC ¶157.) Plaintiff alleges he was constructively evicted in or around October 7, 2020. (FAC ¶158.) Plaintiff alleges Defendants’ retaliatory acts and omissions were knowing, intentional, willful, and malicious, and were done with full knowledge of the discomfort, fear, distress, and annoyance such retaliatory acts would cause Plaintiff, and were further done in conscious disregard of the rights of Plaintiff. Plaintiff therefore is entitled to exemplary damages in such an amount that is adequate to punish and make an example of Defendants, and each of them, and are further entitled to attorney’s fees in accordance with Civil Code §1942.5. (FAC ¶159.)

Defendants Ivan and Alina argue Plaintiff fails to allege that Defendants Ivan and Alina are the owner or lessor of the Subject Property, any affirmative conduct by them that could be “construed as reasonable tenant to have interfered with Plaintiff possessory property” [sic], and that Plaintiff vacated the rental property only after an Unlawful Detainer case had been filed against him by Defendant Talan, the landlord. (Demurrer, pg. 9.) Plaintiff sufficiently alleges Defendants Ivan and Alina are the managers of the Subject Property and, on information and belief, have an ownership interest in the Subject Property. (See FAC ¶¶19, 20.) Plaintiff sufficiently alleges Defendants Ivan and Alina attempted to illegally remove Plaintiff, entered his unit without permission, and assisted in throwing away all of his possessions. (FAC ¶¶148, 152.)

Accordingly, Defendants’ demurrer to Plaintiff’s 11th cause of action for constructive/retaliatory eviction is overruled.

A motion to strike, not a general demurrer, is the procedure to attack an improper claim for punitive damages or other remedy demanded in the complaint. A general demurrer challenges only the sufficiency of the cause of action pleaded and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action. (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.)

Accordingly, Defendants’ demurrer to Plaintiff’s claim for punitive damages is overruled.

[1] Defendants erroneously demur to Plaintiff’s second amended complaint. Plaintiff has only filed a first amended complaint; no second amended complaint has been filed with the Court, and Plaintiff’s opposition acknowledges the operative pleading is the first amended complaint. Therefore, the Court construes Defendants’ demurrer to be to the first amended complaint.