Judge Ralph C. Hofer, Case 22GDCV00318 2022-09-09 Tentative Ruling

Plaintiff Ahmed Dehal alleges that plaintiff is a tenant of residential property in Glendale which plaintiff took possession of by a written lease. Plaintiff alleges that defendant Suzanna Abovyan, and un-named Avetik Karapetyan, is the legal owner of the subject property, and at all material times owned, managed, and controlled the property, acting as the active onsite manager.

The complaint alleges that during the course of plaintiff’s tenancy, habitability violations existed that were never properly addressed, including violations of the Civil Code and Health and Safety Code, and that as a consequence of the conditions, plaintiff has sustained physical injuries, and has also sustained severe mental suffering, frustration, and anxiety. Specifically, plaintiff alleges that at multiple times, plaintiff or third parties noticed and documented conditions, including but not limited to insufficient insulation, leaking plumbing, insufficient rain buttresses, electrical wiring not up to code, filth and mold, vermin, rats, bugs, and rubbish. The complaint alleges that plaintiff notified defendant about the violations, but defendant failed to correct the conditions, and in response to plaintiff’s complaints retaliated against plaintiff through confrontational communication or disregard and hostile intimidating acts. Plaintiff alleges that after trying to mitigate the problems, plaintiff was ultimately unable to live or work

The complaint alleges that plaintiff gave notice of the constructive eviction and was ousted from the property on November 1, 2020, and that defendant refused to return plaintiff’s entire security deposit, illegally withholding it. Plaintiff also alleges that due to the forced ouster plaintiff has suffered early termination charges by third parties, incurred attorney’s fees, and was forced to sign a lease on comparable property for substantially more money per month.

As defendant acknowledges in the demurrer, pursuant to Green v. Superior Court (1974) 10 Cal.3d 616, “a warranty of habitability is implied by law in residential leases.” Green, at 637. As the California Supreme Court held in Green, “Under the implied warranty we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.” Id.

The cause of action incorporates previous allegations, which state in some detail several habitability conditions, and alleges that the defective conditions constitute violations of state and local housing laws and posed severe health and safety hazards. [Complaint, paras. 11, 26, 27]. It is alleged that plaintiff notified defendant about the violations as early as the original move-in week, that defendants had actual and constructive notice, but failed to adequately repair or abate the conditions, in breach of the warranty of habitability. [Complaint, paras. 12, 28, 30]. The cause of action also alleges that as a direct and proximate result of defendant’s breach of the warranty of habitability, plaintiff has sustained special, general, and property damage. [Complaint, para. 32]. All elements have been alleged.

Defendant argues that the cause of action is defective because although plaintiff alleges that the habitability defects existed “as early as the original move in week,” that allegation is contradicted by plaintiff’s confirmation that the premises were in a “clean and operable condition” by initialing provision 10 of the Lease, as shown by Exhibit 1 to the complaint.

The statement in the Lease is not strictly contradictory of the allegations that the premises had habitability issues during the tenancy; it is entirely possible the defects identified, such as insufficient insulation, leaking plumbing, insufficient rain buttresses, electrical wiring not up to code, mold, vermin, rats, and bugs, were not obvious upon visual inspection, and were not discovered by the tenant until the tenant assumed full possession of the premises. The demurrer on this ground is overruled.

Defendant also argues that plaintiff does not state any damages for the breach of warranty of habitability, as there was no reduced value of the premises, as defendant broke the lease and moved out of the premises a mere one week after the inception of the lease.

The complaint alleges that defendant suffered damages and was unable to live or work in the premises without issue. [Complaint, paras. 14, 16, 32]. These allegations must be accepted as true for purposes of demurrer. See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v. Structural Materials Co. (1981, 2nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”) The pleading sufficiently alleges damages, and a reduced value of the premises to plaintiff. The demurrer is overruled.

“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 846 [122 Cal. Rptr. 114]; Guntert v. City of Stockton (1976) 55 Cal. App. 3d 131, 138 [126 Cal. Rptr. 690].)”

The elements of a cause of action for breach of covenant of quiet enjoyment are “an act or omission on the part of the landlord” which “interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.

Defendant argues that plaintiff does not allege what specific habitability defects the premises suffered which substantially interfered with the right to use and enjoyment of the property. Again, the cause of action incorporates previous allegations of serious habitability concerns, including mold, vermin and bug infestation. [Complaint, paras. 11, 33]. The cause of action alleges that as a result of defendant’s breach of the covenant of quiet enjoyment, the value of the leasehold was materially diminished. [Complaint, para. 37]. The facts alleged support that allegation. The demurrer accordingly is overruled.

Defendant also again argues that plaintiff’s cause of action is contradicted by plaintiff’s initialing the Lease stating the premises were in good condition, and that the pleading fails to sufficiently allege damages because the tenancy was so short. As discussed above, the pleading is not deficient on these grounds. Defendant has failed to cite any legal authority under which a tenancy must be of a certain length to give rise to breach of a covenant of quiet enjoyment. The demurrer is overruled.

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

Defendant again argues that although plaintiff alleges that the habitability defects existed as early as the original move-in week, that allegation is contradicted by the initials on the lease concerning the condition of the property, which argument will again be rejected. Defendant also again argues that the complaint fails to state damages, as the fact that plaintiff moved out one week after the inception of the lease contradicts his allegations in the nuisance cause of action that the nuisances have been and are ongoing and will continue to cause damages. The pleading sufficiently alleges the existence of a nuisance during the tenancy, so that any contradiction is irrelevant to whether a cause of action has been stated. The demurrer is overruled.

The cause of action incorporates all previous allegations and alleges that defendants engaged in unlawful and unfair business practices by virtue of the alleged acts and omissions, and by demanding rent for a substandard property. [Complaint, paras. 46, 47]. The complaint seeks restitution in the amount defendant has been unjustly enriched at the expense of plaintiff. [Complaint, para. 51]. The cause of action appears sufficiently stated. In addition, as pointed out in the opposition, the cause of action incorporates allegations that defendant unlawfully failed to return the tenant’s security deposit. [Complaint, paras. 18, 21]. This theory alone would support the cause of action.

Defendant again argues that the allegations concerning the condition of the premises are contradicted by the lease itself, and that plaintiff has failed to sufficiently allege damages. There is no contradiction giving rise to a defect in the cause of action, as discussed above, and the argument does not take into account the unfair business practices in connection with withholding the security deposit. The cause of action does not and cannot seek damages, but appropriately

To plead a claim for negligence, a plaintiff must allege the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

Under Civil Code § 1714(a) “Every one is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property...”

The cause of action alleges that defendant owed plaintiff a duty to exercise reasonable care in the ownership, management, and control of the property, including to comply with applicable state and local laws governing plaintiff’s rights as tenants, that these duties were breached, and that as a result plaintiff suffered damages. [Complaint, paras. 53-57]. All elements have been alleged.

Defendant again argues that the condition of the premises is contradicted by the representations plaintiff made in the Lease, and that plaintiff does not state damages resulting from defendant’s alleged breach. The pleading alleges that as a result of defendant’s breaches, plaintiff suffered physical injuries, property damage, emotional distress and pain and suffering, as well as medical expenses. [Complaint, paras. 10, 56, 57]. This situation would not be unusual in a lawsuit involving habitability issues such as mold, rodent, and insect infestation. The cause of action is sufficiently stated, and the demurrer is overruled.

To plead a cause of action for breach of contract, plaintiff must allege the following elements: The existence of a contract; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.

The pleading alleges that the Lease constitutes a valid contract in writing, that plaintiff has performed, and that defendant, by the conduct alleged herein, has breached the agreement. [Complaint, paras. 59-63]. As discussed above, the incorporated allegations include the maintenance of uninhabitable property, as well as the failure to return the security deposit. The Lease attached to the pleading shows that the Lease includes provisions concerning the appropriate use of and return of the security deposit. [Complaint, Ex. 1, para. 4]. The cause of action is sufficiently stated to withstand demurrer, and the demurrer is overruled.

“A constructive eviction occurs when the acts or omissions of a landlord, 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 has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.”

Defendant argues that the cause of action to the extent it alleges that defendant interfered with possession of the premises by interrupting or terminating utilities, is contradicted by the Lease, which provides that tenant is responsible for payment of utilities. [Complaint, Ex. 1, Lease, para. 9]. The Lease at that paragraph, however, provides that the landlord is in fact responsible for “gas.” [Id.]. The complaint alleges that defendant caused the interruption of utilities, including “gas.” [Complaint, para. 65].

Moreover, the fact that the tenant agreed to pay for electricity and water would not strictly contradict allegations that the landlord nevertheless interfered to interrupt those services. The opposition indicates that defendants sought to terminate the utilities, as alleged. The demurrer on this ground is overruled.

Defendant also argues that any acts did not have the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises. The argument does not take into account that a constructive eviction can occur where the premises are rendered unfit for the purposes for which they are leased, which is the theory here, based in the cause of action specifically on vermin existing throughout the property. [Complaint, paras. 66, 68]. The cause of action is sufficiently alleged, and the demurrer is overruled.

The cause of action alleges that the property is governed by the Los Angeles Rent Stabilization Ordinance, and that under that ordinance no landlord shall demand or accept rent for a property without first procuring and serving on the tenant or displaying in a conspicuous place a valid written registration statement, that the unit did not contain a certificate of occupancy, or a valid registration statement, and so plaintiff is entitled to return of the rent and treble damages. [Complaint, paras. 74-78].

Defendant argues that the Los Angeles Municipal Code, section 151.02 excludes single family homes from LARSO in its definition of rental units, and only applies to “rental units” in the “City of Los Angeles.” Los Angeles Municipal Code, chapter XV, article 1 applies to “Rental Units,” “in the City of Los Angeles,” and provides that the term rental units “shall not include: 1. Dwellings, one family, except where three or more dwelling units are located on the same lot.” Section 151.02. Section 12.03 contains the following definition, “Dwelling, one-family. A detached dwelling containing only one dwelling unit.”

The complaint alleges that the property, “is a single-family home,” located in “GLENDALE.” [Complaint, paras. 1, 3]. It would appear that the Los Angeles Rent Stabilization Ordinance plaintiff relies on would not apply to the property.

Plaintiff has not addressed this cause of action in opposition to the demurrer. The demurrer accordingly is sustained. The court will discuss at the hearing whether plaintiff by failing to oppose the demurrer on this ground is conceding its validity, and whether leave to amend is necessary or will be permitted.

The cause of action alleges that plaintiff paid to defendants a security deposit, in the sum of $9,000, and $11,000, and that the full deposit was to be returned to plaintiff immediately, or by statute, on or before November 28, 2020, but defendants did not return the deposit. [Complaint, paras. 81-85].

(b) As used in this section, "security" means any payment, fee, deposit or charge, including, but not limited to, any payment, fee, deposit, or charge, except as provided in Section 1950.6, that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or that is imposed as an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following:

(3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act adding this sentence shall apply only to tenancies for which the tenant's right to occupy begins after January 1, 2003.

(4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement….

(1) No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy under Section 1946 or 1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than 60 calendar days prior to the expiration of a fixed-term lease, the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security and shall return any remaining portion of the security to the tenant.

Defendant argues that the cause of action fails because plaintiff alleges in paragraph 81 of the complaint that the security deposit was $9,000, and in paragraphs 82 and 85 alleges that the security deposit was $11,000, and that both of these sums are contradicted by the Lease itself, which states the security deposit is $4,650. Defendant argues that these inconsistencies render the cause of action fatally uncertain. The pleading is not ideal, and plaintiff does not address this argument in the opposition. It is possible that a deposit was paid in excess of what the Lease required, however, and the discrepancies do not appear to render the cause of action fatally uncertain. It is generally held, “demurrers for uncertainty are disfavored. We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery.” Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. The correct sum of the security deposit can be explored in discovery, and the demurrer for uncertainty will be overruled.

Defendant also argues that the pleading is uncertain, as plaintiff attaches to the pleading a lease with a term beginning on October 23, 2021, but confusingly alleges in the pleading that plaintiff was ousted on November 1, 2020, before the lease term began, and that the security deposit was due by November 28, 2020, again before the lease term began. [Complaint, Ex. 1, para. 2; paras. 17, 84]. The opposition does not address what appear to be typographical errors. The court will determine at the hearing, if the court will interlineate the pleading at paragraphs 17 and 84 to correct the dates from “2020” to “2021,” or if the demurrer will be sustained with leave to amend to make corrections to those paragraphs.

Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…” “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code § 3294 (c)(2). “Malice” is defined to mean “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.” Civil Code § 3294 (c)(a).

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible”. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725. “Despicable conduct” is defined as, “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary, decent people.” Mock v. Michigan Millers Mutual Ins. Co. (1990, 2nd Dist.) 4 Cal. App. 4th 306, 331, quoting BAJI 14.72.1; See CACI 3940 (“’Despicable conduct’ is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”) Such conduct has been described as “[having] the character of outrage frequently associated with crime.” Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894, quotation omitted. Punitive damages are appropriate if the defendant’s acts are “reprehensible, fraudulent or in blatant violation of law or policy.” Tomiselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287.

The complaint here alleges with some specificity that “At multiple times,” plaintiff and/or third parties “noticed and documented conditions,” including, “water and leaking plumbing,” electrical wiring not up to code, “mold,” and “vermin, rats, bugs.” [Complaint, para. 11]. It is alleged that plaintiff notified defendant about the conditions as early as move-in week, but defendants failed to correct the conditions. [Complaint, para. 12]. It is also alleged that the defendant is an experienced property owner and manager of residential property and is aware that absent maintenance and proper remediation of leaks, serious conditions would develop, impacting the tenancy. [Complaint, para. 13]. It is also alleged that in response to complaints, defendants engaged in “confrontational communication,” and “hostile, intimidating acts.” [Complaint, para. 15]. These allegations appear to sufficiently allege that defendant consciously failed to address a known risk to plaintiff’s health and safety.

Plaintiff has not opposed the motion, indicating in opposition to the demurrer that the opposition to the demurrer and the decision thereon, “makes moot the concurrently filed and pled motion to strike.” [Opposition, p. 1:20]. This conclusion is not strictly true since the demurrer will for the most part be overruled.

However, there are allegations of water leakage and mold on the property, and the Second District recognizes that a landlord’s refusal to remediate problems caused by excessive moisture and mold infestation may support a claim for punitive damages, even in a commercial setting. See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1068. The Second District in Burnett relied on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, in which the court of appeal found the trial court had abused its discretion in granting a motion for judgment on the pleadings with respect to a claim for punitive damages, noting that plaintiff in that case:

“alleged that defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants "In maintaining said nuisance, . . . acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious."”

Here, as discussed above, it is similarly alleged that defendant permitted known water leakage to continue during the course of a residential tenancy, and, despite notification, failed to address the presence of such leaking and mold contamination, along with vermin, rodents, and insects. The court in the alternative may find the allegations sufficient and deny the motion to strike.

Demurrer is SUSTAINED WITH LEAVE TO AMEND to the eighth cause of action for Violation of LARSO on the ground the complaint appears to allege facts showing that the Los Angeles Rent Stabilization Ordinance relied upon does not apply to the single-family residence involved here which appears to be located in the City of Glendale. [Complaint, paras. 1, 3]. The Court notes that plaintiff in opposition to the demurrer does not specifically address the demurrer to this cause of action and does not meet plaintiff’s burden of showing how the complaint could be amended to correct the deficiencies in the pleading.

Demurrer is OVERRULED to the first, second, third, fourth, fifth, sixth, seventh, and ninth causes of action (the Court notes that the ninth cause of action—Civil Code 1950.5 is erroneously referred to as the “EIGHTH” cause of action, when there is already a preceding eighth cause of action—Violation of LARSO).

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