Judge Peter A. Hernandez, Case Number: 21STCV43516, Date: 2024-08-22 Tentative Ruling

1. Defendants Ken Mifflin and Renee Mifflin’s Demurrer to Plaintiffs’ Complaint is SUSTAINED. The court will inquire of the parties whether leave is warranted.

2. Defendants Ken Mifflin and Renee Mifflin’s Motion to Strike Portions of Complaint is MOOT based on the Demurrer ruling.

Plaintiffs Shawana King and Lance Sams (“King” and “Sam” and together, “Plaintiffs”) allege the following:

On or about November 14, 2019, Plaintiff King signed a lease at Defendant 4303 S. Western Ave., Apartments (“Apartment”). Plaintiff King moved into the apartment with her son, Plaintiff Sams. About two weeks after Plaintiff King signed the lease, she sought medical treatment for reasons unrelated to the bedbug infestation. When the doctor was evaluating her, the doctor discovered bites on Plaintiff King’s back and said these bites looks like bedbug bites. In response, Plaintiff King stated that she had just moved into the apartment and that she is experiencing itchiness. In response, the doctor advised Plaintiff King to request that the Apartment be sprayed for bedbugs. Thereafter, Plaintiff King returned to the Apartment, inspected her son, Plaintiff Sams, and discovered that he too had bedbug bites on his skin.

On or about November 28, 2019, Plaintiffs sought medical treatment at Olympia Medical Center. They were diagnosed with having been bitten by bedbugs and prescribed medication for their injuries. Thereafter, Plaintiff King went back to Olympia Medical Center whenever Plaintiffs would run out of topical cream. Plaintiffs would use topical cream consistently as they both continued to receive bedbug bites.

After receiving initial medical treatment at Olympia Medical Center, Plaintiff King immediately notified Defendant Renee Mifflin (“R. Mifflin”) of the bedbug infestation and that both her and her son had never received bedbug bites prior to moving into the Apartment. Plaintiff King further showed Defendant R. Mifflin the bites that she had received. In response, Plaintiff King was told that the doctor did not know what s/he was talking about. Additionally, Defendant R. Mifflin further stated that she should not spray their apartment for bedbugs. Due to being denied a spray treatment, Plaintiffs attempted to clean their sheets in an attempt to get rid of the bedbugs, but their attempts were unsuccessful.

On or about January 16, 2020, Plaintiff King sought medical treatment with Dr. John Cheung, located at 15230 Hawthorne Blvd., Lawndale, CA 90260. There, she consulted Dr. Cheung regarding her bedbug bites and he diagnosed Plaintiff King with having been bitten by bedbugs and prescribed her medication for her injuries. Additionally, Dr. Cheung advised her of remedies that can help rid the bedbug infestation.

On or about February of 2020, the Apartment was sprayed. The gentleman that came to spray their apartment told Plaintiff King that he had never sprayed for bedbugs before, and he further stated he would spray for insects in general. In response, Plaintiff King inquired as to whether or not he was an exterminator. In response, he stated that he works for Defendant R. Mifflin and did not clarify if he was an exterminator. The spray treatment was unsuccessful. Thereafter, Plaintiff King informed Defendant R. Mifflin that the spray treatment was unsuccessful. Additionally, she stated that her apartment was beginning to have termites. In response, Defendant R. Mifflin stated that they indeed sprayed her apartment. Additionally, with respect to the termites, she stated her and her dad, Defendant Ken Mifflin (“K. Mifflin”) would come to inspect the termites. Thereafter, the same day Plaintiff King called R. Mifflin and K. Mifflin and they to Plaintiffs’ apartment. Defendant K. Mifflin brought a green solution, drilled a hole into the wall of their apartment, and further directed Plaintiffs to not touch the wall and to give it a couple of days before the termites would go away. However, the termites did not go away.

Plaintiffs continued to receive bedbug bites, which grew painful, itchy, and swollen, until finally moving out on or about April 3, 2020. They both lived out of their car for approximately two months. Plaintiff King eventually got rid of the car due to the bedbug infestation spreading into the car.

On November 29, 2021, Plaintiffs filed a complaint, asserting causes of action against Apartment,[1] R. Mifflin, K. Mifflin (collectively with R. Mifflin as “Defendants”) and Does 1-20 for:

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)

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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) 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 placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Defendants demur, pursuant to Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the First, Third, and Sixth through Ninth causes of action in Plaintiff’s complaint, on the basis that they both fail to state facts sufficient to constitute cause of action and are uncertain.[2]

The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiffs position would have been offended by the touching. (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

Plaintiffs allege that: (1) Defendants deliberately chose not to eradicate a Cimex lectularius infestation in the Apartment; (2) Defendants deliberately chose not to inspect or ensure that Plaintiffs’ Apartment, was free of Cimex lectularius immediately after Plaintiffs complained to the Management on multiple occasions; (3) Defendants deliberately and recklessly chose not to inspect the bed skirts in Plaintiffs’ Apartment to protect against and prevent a Cimex lectularius infestation; (4) Defendants willfully disregarded a Cimex lectularius infestation that was known to Defendants; and (5) Defendants deliberately and recklessly chose not to notify Plaintiffs of the presence of Cimex lectularius in the surrounding apartments. (Complaint, ¶ 34.) None of these allegations allege that Defendants’ intentionally “touched” Defendants with the intent to harm them. Specifically, there are no allegations that they intentionally wanted “bed bugs” to “touch” them with the intent to be harmed. The demurrer is sustained.

Defendants claim that “Plaintiffs failed to state facts sufficient to constitute this case of action because Defendants’ conduct described in the Complaint does not qualify as ‘extreme and outrageous conduct.’” (Demurrer, at p. 15.) Plaintiffs’ only contention was that Defendants were notified of the bed bugs, but they do not allege additional facts demonstrating why the notice – alone – sufficiently alleges “extreme and outrageous” conduct. The court does not see additional allegations that would demonstrate such conduct. Instead, Plaintiffs acknowledge that Defendants attempted to address the bed bug infestation. While such action may have been unsuccessful in their attempt to ameliorate the infestation, such conduct is clearly not “extreme and outrageous.”

(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice: (1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that dangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling. (2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premise, has notified the landlord or landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions. The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail. (4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2….

Defendants contend that Plaintiffs fail to allege that a “public officer or employee who is responsible for the enforcement of any housing law” inspected the Apartment and notified Defendants to “abate the nuisance” or correct the “substandard condition.” Plaintiffs do not address this element in their opposition.

The elements of nuisance are: (1) An interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff's use and enjoyment that involves substantial actual damage; and (3) the interference was unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; Civ. Code § 3479.) “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal. App. 4th 1036, 2041.) Mere apprehension of injury from a dangerous condition may constitute a nuisance where it interferes with the comfortable enjoyment of property. (McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254.)

The interference must not only be substantial and unreasonable, but in the case of a landlord’s liability, that person must be “an active participant in causing” the alleged damages. (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 100-01.) Here, the Complaint fails to allege that Defendants were active participants in causing the bed bug infestation. Again, Plaintiff acknowledges that Defendants’ attempted, in allegedly failed ways, to ameliorate the infestation.

Civil Code section 3480 defines a public nuisance as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” Here, there are no allegations that Defendants’ actions or inactions has harmed “a considerable number of people.” (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.) Defendants’ demurrer is sustained.

Plaintiffs allege they entered into a written contract for the lease with Defendants. (Complaint, ¶ 106.) They did not attach the written contract to the Complaint nor explain or describe the conditions and obligations of the parties.

Under California law, the elements of a breach of contract claim are: (1) the existence of a valid contract between the parties; (2) defendant’s performance; (3) defendant's unjustified or unexcused failure to perform; and (4) damages to defendants caused by the breach. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) Here, Plaintiff’s Complaint fails to properly plead sufficient factual allegations regarding: (a) the existence of a valid contract between the parties, (b) Defendants’ failed performance, and/or (c) Defendants' unjustified or unexcused failure to perform.

Pursuant to Code of Civil Procedure section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading. (b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Defendant moves the court for an order striking out the following paragraphs of Plaintiff’s Complaint:

1. “39. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of Plaintiffs’ rights to be free from such tortious behavior, such as to constitute oppression, fraud or malice pursuant to California Civil Code Section 3294 and that an officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.” (Complaint, 8:25-9:3.)

2. “56. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of Plaintiffs’ rights to be free from such tortious behavior, such as to constitute oppression, fraud or malice pursuant to California Civil Code Section 3294 and that an officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.” (Complaint, 12:25-13:3.)

3. “63. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of Plaintiffs’ rights to be free from such tortious behavior, such as to constitute oppression, fraud or malice pursuant to California Civil Code Section 3294 and that an officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.” (Complaint, 14:24-15:2.)

4. “76. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of Plaintiffs’ rights to be free from such tortious behavior, such as to constitute oppression, fraud or malice pursuant to California Civil Code Section 3294 and that an officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.” (Complaint, 17:4-10.)

5. “84. Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct of Defendants, and DOES 1 through 20, was carried out with a willful and conscious disregard of Plaintiffs’ rights to be free from such tortious behavior, such as to constitute oppression, fraud or malice pursuant to California Civil Code Section 3294 and that an officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of the employees of Defendants, and DOES 1 through 20, entitling Plaintiffs to punitive damages in an amount appropriate to punish and set an example of Defendants, and DOES 1 through 20.” (Complaint, 18:20-26.)

6. “92. AS a direct and proximate result of the foregoing, Plaintiffs are entitled to statutory damages pursuant to Civil Code Section 1942.4(b)(1) and reasonable attorney’s fees and costs pursuant to Civil Code Section 1942.4(b)(2).” (Complaint, 19:19-21.)

7. “2. For punitive damages in an amount to be determined at trial;” (Complaint, 22:1.)

Punitive damages may be awarded in an action for the breach of an obligation not arising from contract upon clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)

“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).) “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. (c)(2).) “Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd. (c)(3).)

A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice. . .’” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [emphasis added].)

As an initial matter, Defendants’ request Nos. 6 and 8 are MOOT in light of the court’s above-referenced demurrer ruling. In case the court provides leave to amend, the entire motion will become MOOT.[3]

[1] Apartment has been served but not responded.

[2] Defendants do not address the “uncertainty” basis for the Demurrer under section 430.10(f).

[3] The court is not in receipt of a Memorandum of Points and Authorities in support of the Motion to Strike.