Judge: Peter A. Hernandez, Case: 24STCV20897, Date: 2024-12-10 Tentative Ruling

Case Number: 24STCV20897    Hearing Date: December 10, 2024    Dept: 34

1.               Defendant Duane Heights L.P.’s Demurrer to Plaintiffs Ashley Miers LaRosa and John LaRosa’s Complaint is SUSTAINED in part as to Plaintiffs’ third cause of action and OVERULLED in part as to Plaintiffs’ eighth cause of action.

2.               Defendant Duane Heights L.P.’s Motion to Strike Portions of Plaintiffs Ashley Miers Larosa and John Larosa’s Complaint is DENIED.

Background

            On August 19, 2024, Plaintiffs Ashley Miers Larosa and John Larosa (“Plaintiffs”) filed a complaint against Defendants Duane Heights L.P., DDCM Inc., and Does 1-20 (“Defendants”) arising from Plaintiffs’ tenancy in Defendants’ property located at 2271 Duane St., Unit 1, Los Angeles, CA 90039 (“Subject Property”) alleging cause of action for:

1.                Negligence;

2.               Premises Liability;

3.               Negligent Infliction of Emotional Distress;

4.               Breach of the Implied Warranty of Habitability;

5.               Breach of the Implied Warranty of Quiet Enjoyment;

6.               Breach of Covenant of Good Faith and Fair Dealing;

7.               Breach of Contract;

8.               Nuisance; and

9.               Constructive Eviction.

On October 9, 2024, Defendant Duane Heights L.P. (“Duane”) filed its Demurrer and Motion to Strike Plaintiffs’ complaint. On November 18, 2024, Plaintiffs filed oppositions to Duane’s motions. On December 3, 2024, Duane filed replies to Plaintiffs’ oppositions.

1.     Demurrer

Legal Standard

            “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

            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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

            Duane demurs to Plaintiffs’ third cause of action for negligent infliction of emotional distress and eighth cause of action for nuisance.  

Third Cause of Action (Negligent Infliction of Emotional Distress)

            “The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The key distinction between a “bystander” and a “direct victim” case is whether the defendant owed a duty uniquely to the plaintiff, due to a preexisting relationship or otherwise (a “direct victim” case), or whether the plaintiff was a stranger to whom defendant owed only the general tort duty of care that each person owes each other person (a “bystander” case). (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073.) The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.) 

            Duane argues that Plaintiffs’ third cause of action for negligent infliction of emotional distress does not appear to be based on a “bystander” theory. (Demurrer, at p. 5.) Duane contends that Plaintiffs allege to have suffered emotional distress as a direct result of Defendants’ negligence which is improperly pled. (Ibid.) Additionally, Duane argues that Plaintiffs’ third cause of action is duplicative of Plaintiffs’ first cause of action for negligence. (Id., at p. 6.)

            In opposition, Plaintiffs make no arguments in support of overruling Duane’s demurrer to Plaintiffs’ third cause of action.

            In reply, Duane argues that Plaintiffs’ failure to address the demurring arguments pertaining to the negligent infliction of emotional distress claim implicitly admits that the demurrer should be sustained without leave to amend as to that cause of action. (Reply, at p. 1.)

            Plaintiffs allege that Defendants had a duty which arose from the lease of the Subject Property to Plaintiffs and that Defendants breached that duty causing damages to Plaintiffs including severe emotional distress. (Compl., ¶¶ 62-65. )  

            The court finds that Plaintiffs did not sufficiently plead a cause of action for negligent infliction of emotional distress as they simply restate the elements for negligence without alleging either a “bystander” theory or “direct victim” theory for recovery. Additionally, the court agrees that the negligent causation of emotional distress is not an independent tort; rather it is the tort of negligence. (Burgess, supra, 2 Cal.4th at 1072; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)

            The demurrer to the third cause of action is SUSTAINED.

Eighth Cause of Action (Nuisance)

            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.) 

            Duane argues that Plaintiffs’ first cause of action for negligence and eighth cause of action for nuisance arise out of Defendants’ alleged breach of due care to maintain the Subject Property in a habitable condition. (Demurrer, at p. 7.) Duane references the courts in El Escorial Owners’ Association (2007) 154 Cal.App.4th 1337, 1349 and Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 to argue that Plaintiffs’ allegations for their negligence and nuisance claim are conclusory and duplicative failing to provide the additional allegations necessary to state a separate cause of action for private nuisance. (Demurrer, at p. 7.)

            In opposition, Plaintiffs argue that their negligence and nuisance claims are two separate causes of action addressing two different harms with different sets of elements and facts. (Opp., at p. 4.) Plaintiffs contend that the allegations in their complaint satisfy each element to plead nuisance cause of action which Duane does not dispute. (Id., at p. 5.) Instead, Plaintiffs argue that their negligence and nuisance claims are not duplicative invoking Paterno v. State of California (1999) 74 Cal.App.4th 68, 104 and Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 101 to argue that Plaintiffs are permitted to bring claims for both negligence and nuisance. (Opp., at pp. 5-6.) Plaintiffs concede that there is an overlap between the claims but contend that they are not identical since the nuisance claim focuses on the conditions that were allowed to continue on the Subject Premises and the negligence claims focuses on Defendants’ breach of duty. (Id., at p. 6.) Additionally, Plaintiffs argue that Lussier permits evidence of Defendants’ negligence to prove an element of nuisance provided that Defendants’ negligent conduct led to a substantial interference with Plaintiffs’ property right. (Ibid.)

            In reply, Duane argues that Plaintiffs failed to allege additional facts to their nuisance cause of action, such as intentional maintenance of the nuisance that separates it from Plaintiffs’ negligence claim. (Reply, at p. 2.) As such, Duane again argues that the nuisance claim is a duplication of the negligence cause of action in that it is based on the same facts and seeks the same damages. (Ibid.)

            The court notes that at the pleading stage it is permissible to plead alternative theories for liability. (Paterno v. State of California¿(1999) 74 Cal.App.4th 68, 104 (“That a given set of facts fortuitously supports liability on two legal theories is not a principled reason to deny a party the right to pursue each theory.”).) “Where the exact nature of the facts is in doubt, or where the exact legal nature of plaintiff's right and defendant's liability depend on facts not well known to the plaintiff, the pleading may properly set forth alternative theories in varied and inconsistent counts.” (Rader Co. v. Stone¿(1986) 178 Cal.App.3d 10, 29.) Thus, the demurrer may not be sustained on Duane’s argument that Plaintiffs’ nuisance claim is duplicative.

            Additionally, the court finds that Plaintiffs nuisance claim is sufficiently pled. (Compl., ¶¶ 101-109.)

            The demurrer to the eighth cause of action is OVERRULED.  

2.     Motion to Strike

Legal Standard

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) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike 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.)

Discussion

            Duane moves to strike Plaintiffs’ request for punitive damages.

            Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

            Duane argues that punitive damages are requested against Defendants based on the failure to remedy issues existing at the Subject Property during Plaintiffs’ tenancy. (MTS, at p. 4.) However, Duane contends that the allegations do not reflect the heightened level of conduct required to impose punitive damages on an entity such as Duane. (Ibid.) Additionally, Duane argues that as Plaintiffs claim breach of contract, punitive damages are not permitted for cause of action arising in contract. (Id., at p. 5) Duane also argues that the complaint lacks any specificity necessary for the imposition of punitive damages against Duane as Plaintiffs fail to show how negligent or insufficient repairs are evidence of malice, fraud, or oppression and fail to show how Duane could have further prevented loss of personal property as allegedly suffered by Plaintiffs. (Id., at p. 7.) Lastly, Duane contends that Plaintiffs’ allegations fail to satisfy the heightened pleading standard applicable to punitive damages claims against corporate entities and employes under Civil Code section 3294. (Id., at p. 12.)

            In opposition, Plaintiffs argue that they simply plead that Defendants refused to remedy any of the habitability defects that Plaintiffs brought to their attention which affected their health, safety, and mental wellbeing suffering harm. (Opp., at p. 5.). As such, Plaintiffs contend that the pleadings provide the imposition of punitive damages for malice, fraud, or oppression. (Ibid.) Plaintiffs also argue that Defendants argument under Civil Code section 3294 is flawed in that this section applies in cases where a plaintiff is claiming that a corporate entity should be held responsible for the independent act of its employees which Plaintiffs do not allege here. (Id., at p. 6.)

            In reply, Duane restates the arguments made in his motion.

            California courts have approved punitive damages where a landlord persistently fails to address substandard conditions. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) Reading the complaint as a whole, the court finds that Plaintiffs have adequately alleged malice and oppression. Plaintiffs allege that during Plaintiffs’ tenancy, there were several conditions in violation of the Health and Safety Code and Civil Code along with safety hazards in the Subject Premises. (Compl., ¶¶ 13-15.) Additionally, Plaintiffs have alleged a pattern of Defendants’ failure to repair these defects in spite of Plaintiffs’ complaints. These facts, taken together, could allow a reasonable jury to make a finding of malice or oppression.

            The court therefore denies the motion to strike.

Conclusion

1.     Defendant Duane Heights L.P.’s Demurrer to Plaintiffs Ashley Miers LaRosa and John LaRosa’s Complaint is SUSTAINED in part as to Plaintiffs’ third cause of action and OVERULLED in part as to Plaintiffs’ eighth cause of action.

2.     Defendant Duane Heights L.P.’s Motion to Strike Portions of Plaintiffs Ashley Miers LaRosa and John LaRosa’s Complaint is DENIED.