Judge Ralph C. Hofer, Case Number: 23GDCV00998, Date: 2023-12-08 Tentative Ruling

Plaintiff Rebecca Garcia alleges that in October of 2014, plaintiff entered into a Residential Rental Agreement with Landlord defendant Warren Properties, Inc. for the rental of residential property, an apartment, located in Glendale.

The FAC alleges that during the month of December 2020, plaintiff’s sink was backed up, floor and cabinets were soaked and plaintiff’s personal items were contaminated due to the poor plumbing. Property management agreed to take care of the sink and any consequences of the incident.

Plaintiff alleges that in March of 2021 plaintiff noticed that she had developed a cough, congestion and difficulty breathing, and on March 29, 2021 emailed defendant’s representatives regarding mold. Defendant confirmed a leak. Plaintiff alleges that plaintiff hired a mold technician who inspected the apartment, verified there was mold in the apartment, and recommended that defendant Warren respond to the water damage within 24-48 hours. Plaintiff alleges that plaintiff repeatedly complained, defendant landlord promised to repair and remediate the mold, but no professional mold remediation came, and defendants once again covered up the mold. Plaintiff alleges plaintiff was forced to move out as a result of the uninhabitable living conditions in the apartment unit.

The FAC alleges that plaintiff went to a doctor on July 8, who assessed that plaintiff’s symptoms were a possible reaction to toxic mold and heavy metal exposure, and then went to another doctor on August 17, who ran pulmonary evaluation and allergy testing. The FAC alleges that defendant Warren willfully hid and covered up a severe mold issue prior to plaintiff moving into the dwelling which resulted in severe medical problems and caused extreme emotional distress.

The file shows that defendant Warren filed a demurrer and motion to strike in response to the original complaint, which were rendered moot by the filing of the First Amended Complaint. Defendant now challenges the sufficiency of the FAC.

Defendant argues that this plaintiff Kingsley Sandoval is not a proper plaintiff to the complaint, as the lease agreement which is the subject of the complaint and forms the basis for this and several other causes of action does not name this person as a tenant for the subject unit.

Defendant has filed a request for judicial notice requesting that the court take judicial notice of the subject Rental Agreement. [RFJN, Ex. 1, Notice of Lodgment, Ex. A]. While the document is not authenticated, and ordinarily the court would be reluctant to judicially notice the document, the opposition does not oppose the request for judicial notice, and does not challenge the authenticity of the document, but relies on it and refers to it in support of the opposition. The unopposed Request for Judicial Notice accordingly is granted.

However, plaintiffs in opposition argue that the Rental Agreement lists as Occupants who “may live in this apartment,” “Rebecca Garcia,” and “Valentina Garcia.” [RFJN, Ex. 1, Ex. A, Rental Agreement, p. 3, “OCCUPANTS.”].

Plaintiffs in the opposition explain that Valentina Garcia is plaintiff’s daughter, who also goes by the name Kingsley Sandoval, and that plaintiff’s daughter also lived in the apartment, and was also diagnosed with illness related to mold infestation in the premises.

The problem is that none of this is alleged in the pleading. The pleading occasionally refers to “plaintiffs” but primarily alleges conduct by and harm suffered by “plaintiff,” and the only “plaintiff” formally alleged in the pleading is “Rebecca Garcia.” [FAC, paras. 1, 8]. The opposition suggests that this can be remedied, and allegations brought by plaintiff Sandoval can be made, including how this party is entitled to claim breaches of the covenants under the Rental Agreement. The demurrer as to plaintiff Kingsley Sandoval accordingly is sustained with leave to amend, and plaintiffs are required to include in the pleading specific allegations concerning the claims of this plaintiff and her entitlement to relief. Plaintiffs should on amendment fully comply with CRC Rule 2.112 which provides, in pertinent part:

The first cause of action is brought for violation of Civil Code sections 1941.1 and 1942 and includes allegations specific to those statutes. There is no argument that the cause of action is not sufficiently alleged by plaintiff Garcia.

With respect to it being duplicative of the second cause of action, the second cause of action is based on a different statute, Health and Safety Code section 17920.3, and alleges facts concerning violations of that section, and is focused on existing defects in the premises on or before plaintiffs took occupancy, as well as improper maintenance. [FAC, paras. 45-47]. The causes of action are accordingly not strictly duplicative.

Moreover, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 177, 180.

In addition, in Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890, it was observed that the duplicative standard referred to by defendant is not listed as a ground to sustain a demurrer under CCP § 430.10. Blickman, at 890. The court of appeal in Blickman noted that although the motion to strike statute previously authorized a court to strike “irrelevant and redundant” matter from a pleading, the statute no longer includes that language, and concluded, “This is not a ground on which a demurrer may be sustained.” Blickman, at 890, italics in original.

With respect to plaintiff Garcia, defendant primarily argues that this cause of action is duplicative of the first cause of action. As discussed above, the court does not find that the causes of action are strictly duplicative, as brought under different statutory schemes, and the court will not in any case recognize under the circumstances here the theory on demurrer that the causes of action are defective even if they were duplicative.

Defendant argues that the cause of action is based on a statute which does not exist, Civil Code section 17920.3. It is correct that there is no such section in the Civil Code, and that the cause of action in its caption states it is for violation of “Civil Code sect 17920.3.” [FAC, Second Cause of Action]. However, the allegations of the cause of action refer to and set forth certain subdivisions of “Health and Safety Code section 17920.3,” which does exist, pertains to substandard buildings, and the allegations based on that section are appropriate. [FAC, para. 45].

The demurrer accordingly is sustained with leave to amend in connection with plaintiff Garcia only on the ground there is a typographical error in the heading of the Second Cause of Action, which should be corrected from “Civil Code” to read “Health and Safety Code” upon amendment.

Defendant argues that this cause of action is duplicative of other causes of action, specifically noting that the cause of action expressly references Civil Code section 1941 under this cause of action, the same statute relied upon for the first cause of action. Again, the cause of action is not duplicative of the first cause of action but alleges a theory of breach of a negligence duty rather than the contract based and statutory duties otherwise alleged. The reference to Civil Code section 1941 is clearly alleged to support a negligence per se claim, in effect, alleging that the breach of the statutory duties can support a presumption of the failure of defendant to exercise due care under Evidence Code section 669. [FAC, paras. 54-56]. This result does not give rise to duplication, and as discussed above, the court does not in these circumstances recognize the duplicative argument as a valid basis for sustaining a demurrer. The demurrer as to plaintiff Garcia is overruled on this ground.

Defendant also argues that the negligence cause of action is barred by the applicable statute of limitations. The argument is a bit confusing, as defendant seems to rely on both the two-year statute of limitations for “injury to” and individual “caused by the wrongful act of neglect of another,” under CCP section 335.1, but also refers to the statute of limitations for a negligence claim arising from property damage as three years under CCP section 338(c)(1).

The argument is then, that, according to the FAC, the latest date by which plaintiff’s causes of action accrued was March 29, 2021. This time is the date it is alleged that plaintiff emailed defendant’s representative to notify defendant about mold. [FAC, para. 17]. Defendant then argues that the statute of limitations then ran on March 29, 2023, but the complaint was not filed until May 15, 2023. However, by defendant’s own calculations, the three-year statute did not run until March of 2024, so that the complaint filed in May of 2023 was filed well within that statute of limitations. The cause of action realleges the general damage allegations which include allegations that plaintiff’s “personal items were contaminated due to poor plumbing.” [FAC para. 14].

A demurrer on the ground that a cause of action is barred by the statute of limitations should be sustained only where the facts alleged on the face of the complaint “clearly and affirmatively” show that the cause of action is barred. It is not enough that the complaint might be barred. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.

Plaintiff argues in the opposition that the factual allegations support a conclusion that there were continuing injuries from any mold contamination. It is held that if a complaint alleges wrongful conduct commencing at a time barred by the statute of limitations, but continuing until a date not barred, there is no bar based on the statute of limitations. See Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 786.

Plaintiff also argues that although the FAC alleges that plaintiff noticed symptoms such as a cough, congestion, and difficulty breathing in March of 2021, it is also alleged that plaintiff was first told by a physician that her symptoms were a possible reaction to toxic mold exposure on July 8, 2021, within even the two-year statutory period of filing the complaint. [FAC, paras. 16, 21]. The FAC sufficiently is stated to survive demurrer on a statute of limitations argument. The issue will be best resolved once a factual showing is before the court such as at trial or on motion for summary judgment/adjudication.

Defendant argues that the cause of action is duplicative of the negligence claim, and also that the statute of limitations has run on the claim. Again, a reading of the FAC shows that the nuisance claim is not strictly duplicative of the previous causes of action, as it alleges numerous statutory violations not implicated by the previous claims. [FAC, paras. 62-69]. The cause of action also incorporates by reference previous damage allegations, including damages to personal property. [FAC para. 72]. As discussed above, besides the cause of action not being duplicative, the court finds that the duplicative argument does not apply in any case, and also that the allegations of the pleading are sufficient to withstand demurrer based on the statute of limitations. The demurrer as to the cause of action as brought by plaintiff Garcia is overruled.

Defendant argues that his cause of action is barred by the two-year statute of limitations, making the same arguments set forth above. For the reasons set forth above, the demurrer is overruled on this ground.

To state a cause of action for Intentional Infliction of Emotional Distress, plaintiff must plead the following essential elements: Extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress; plaintiff suffered severe or extreme emotional distress; defendant’s outrageous conduct actually and proximately caused emotional distress; the conduct was directed to plaintiff. Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.

It is held that conduct to be outrageous must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community,” and be “of a nature which is especially calculated to cause, and does cause, mental distress…” Christensen, 54 Cal.3d at 903, 905.

The Second District recognizes that a landlord’s refusal to remediate problems caused by excessive moisture and mold infestation may support a claim for IIED, even in a commercial setting. See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1068-1069. The Second District relied on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, cited by plaintiff in the opposition, 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, and foreclosing a cause of action for IIED as a matter of law, 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, the cause of action incorporates previous allegations, and alleges that plaintiffs failed to put plaintiffs on notice of “uninhabitable conditions,” which would include the mold predating the occupation and occurring without remediation, and that defendant intended to cause, or consciously disregarded, the near certainty that plaintiffs would suffer emotional distress. [FAC, paras. 72-73]. Considering the previous allegations regarding the mold infestation, the allegations are sufficient to show extreme and outrageous conduct.

The demurrer also argues that the FAC fails to allege facts showing that plaintiffs suffered severe or extreme emotional distress. In such a cause of action, the distress must be severe, defined as “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397. Moreover, to sufficiently state this element, plaintiff must set forth facts indicating the nature and extent of any alleged mental suffering. Bogard v. Employers Casualty Co. (1985, 2nd Dist.) 164 Cal.App.3d 602, 617. Conclusory allegations that plaintiff suffered severe emotional distress, without more, are held insufficient. Id.; See also Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.

Here, the FAC alleges that plaintiffs “have endured many sleepless nights and much emotional and mental distress couple [sic] with other physical conditions associated with severe mental and emotional distress. [FAC, para. 75]. These allegations appear conclusory, and without more are insufficient to support an IIED cause of action. The demurrer is sustained on this ground.

Defendant argues that these causes of action are clearly duplicative of the first two causes of action and of each other, and that since the implied covenants are implied in the Rental Agreement, the claims fail for the same reasons the other causes of action fail.

As discussed above, the claims are not duplicative, and in any case plaintiff is permitted to allege duplicative claims, and duplication is not an enumerated ground for sustaining a demurrer. The demurrer as to the claims asserted by plaintiff Garcia is overruled.

Defendant again argues that the claims are barred by the applicable statutes of limitations. However, the statute of limitations relied upon is the three-year statute of limitations set forth in CCP section 338, and it appears that the original complaint was filed well within three years of when plaintiff discovered and reported mold infestation in March of 2021. The demurrer on this ground is overruled.

To state a cause of action for fraud, plaintiff must plead the following elements: A false representation, actual or implied, or concealment of a matter of fact material to the transaction which defendant had a duty to disclose, or defendant’s promise made without intention to perform; defendant’s knowledge of the falsity; defendant’s intent to deceive; plaintiff’s justifiable reliance thereon; and resulting damage to plaintiff. Pearson v. Norton (1964) 230 Cal.App.2d 1.

The elements of a claim for negligent misrepresentation are: 1) assertion of a false statement; (2) honest belief by the speaker that the statement is true, but without reasonable ground for such belief, (3) justifiable reliance by the plaintiff; and (4) resulting damage. See Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474-1476.

Generally, in a fraud cause of action, a plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.

The causes of action here are based on various representations and concealment, including concealing serious plumbing issues, representing that the property was in good condition, and representing that defendants would promptly and promptly remediate serious plumbing issues. [FAC, paras. 114-118, 132-134]. It is not alleged in these causes of action where the representations were made, by whom, to which of the plaintiffs, or by what means, oral or in writing, such representations were made. The demurrer is sustained on this ground with leave to amend to allege the causes of action with the requisite specificity.

Disregarding a corporate entity has two requirements: 1) There must be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist; and 2) it must be demonstrated that “the facts are such that an adherence to the separate existence of the corporation would, under the particular circumstances, sanction a fraud or promote injustice.” Minifie v. Rowley (1921) 187 Cal. 481, 487.

In Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, the court of appeal set out several factors to be considered in making an alter ego determination, including, among many, the commingling of funds and assets, treating the corporate assets as the assets of the individual, the holding out by an individual that he is personally responsible for the corporate debts, the failure to maintain minutes or adequate corporate records, the disregard of legal formalities, and the failure to adequately capitalize a corporation. Associated Vendors, at 838-840. The court of appeal noted that in the cases in which alter ego liability has been found, “in all instances several of the factors mentioned were present.” Associated Vendors, at 840.

Here, the FAC fails to allege either of the elements, or any of the factors. The opposition does not address the motion to strike these allegations. The motion to strike accordingly is granted. Since this is the first motion to strike to come to hearing on this issue, and the ground is lack of specificity, the court grants the motion to strike with leave to amend, if possible.

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties...”

The FAC alleges that attorney’s fees are sought pursuant to the rental agreement and Civil Code section 1942.4. [FAC, para. 88]. The FAC also seeks fees pursuant to Civil Code section 1021.5, the private attorney general doctrine. [FAC, para. 39]. There is legal authority under which it has been held error to strike from a pleading a request for attorneys’ fees under CCP § 1021.5, precisely because no prayer is required for this theory to be relied upon. See Snatchko v. Westfield, LLC (2010) 187 Cal.App.4th 469, 497.

Moreover, defendant here has requested judicial notice of the Rental Agreement between the parties, which includes an express provision concerning the recovery of attorney fees. [See RFJN, Ex. A, Ex. 1, p.4].

Demurrer is SUSTAINED WITH LEAVE TO AMEND as to all causes of action as brought by plaintiff Kingsley Sandoval, as the pleading does not expressly identify this plaintiff, this plaintiff does not appear in the Rental Agreement, and the FAC fails to include specific charging allegations brought by this plaintiff or allegations alleging wrongful conduct, harm, causation, or damages claimed by this party. Plaintiff Kingsley Sandoval on amendment must include in the amended pleading specific allegations concerning the claims of this plaintiff and her entitlement to relief. Plaintiffs must also on amendment fully comply with CRC Rule 2.112 (“Each separately stated cause of action, count or defense must specifically state:…((3) The party asserting it, if more than one party is represented in the pleading (e.g. “by plaintiff Jones’)…”)

Demurrer to the claims made by plaintiff Rebecca Garcia is OVERRULED to the first cause of action for breach of warranty of habitability, third cause of action for negligence, sixth cause of action for breach of contract, seventh cause of action for breach of covenant of good faith and fair dealing, and eighth cause of action for breach of covenant of quiet enjoyment.

Demurrer to the claims made by plaintiff Rebecca Garcia is SUSTAINED WITH LEAVE TO AMEND to the second cause of action for breach of covenant of good faith and fair dealing on the ground there is a typographical error in the heading of the Second Cause of Action, which should be corrected from “Civil Code” to read “Health and Safety Code” upon amendment.

Demurrer to the claims made by plaintiff Rebecca Garcia is SUSTAINED WITH LEAVE TO AMEND to the fifth cause of action for IIED on the ground the FAC fails to sufficiently allege detailed severe emotional distress.

Demurrer to the claims made by plaintiff Rebecca Garcia is SUSTAINED WITH LEAVE TO AMEND to the ninth cause of action for fraud and the tenth cause of action for negligent misrepresentation on the ground the causes of action are not alleged with sufficient specificity. See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (plaintiff must allege specifically how, what, where, to whom and by what means a defendant made a misrepresentation).

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