Holly Munson, et al. v. Alicia O. Thimbrel, et al.

DEMURRER TO COMPLAINT

 

MOVING PARTIES: Defendant Robin Thimbrel

RESPONDING PARTY(S): Plaintiff Holly Munson

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Holly Munson and her children resided at a property at 1654 W. 59th Place in Los Angeles, CA, which was allegedly owned, managed, and/or operated by Defendants Alicia Thimbrel and her daughter, Robin Thimbrel. Plaintiff alleges the premises contained dilapidated, dangerous, and materially defective conditions, including broken doors and windows, insect infestation, and lack of heating and water.  This resulted in Plaintiff’s constructive eviction in May of 2021.

Defendant Robin Thimbrel now demurs to each cause of action in the Complaint. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Demurrer to the Complaint is OVERRULED in its entirety.

Defendant is to file an Answer to Complaint within 21-days of this ruling.

Plaintiff to give notice, unless waived.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Attorney J. John Oh reflects that the meet and confer requirement was met. (CCP § 430.41.)

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

Analysis

A. First Cause of Action for Breach of Implied Warranty of Habitability (Common Law) and Second Cause of Action for Breach of Implied Warranty of Habitability (Statutory)

Defendant Robin argues the first cause of action fails against her because she was not the landlord but merely an agent of the landlord, Defendant Alicia.  

The Rental Agreement lists the landlord as Defendant Alicia Thimbrel.  (Compl. Exh 1, ¶ 32.) It lists Defendant Robin Thimbrel as “[o]wner of property or a person who is authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for all notices and demands.” (Id.) Plaintiff alleges that both Defendants “owned, managed, and operated” the property (Compl. ¶ 6).  Defendant Alicia would also remind Plaintiff that Defendant Robin “was listed on the rental agreement as a person authorized to act for or on behalf of owner.” (Id. ¶ 21.)

The elements of an affirmative claim for a breach of the common law implied warranty of habitability are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1297.) 

The court agrees, generally, that an agent of a landlord cannot be liable for breach of the implied warranty. (See Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 929 [stating “the trial court correctly ruled the agents could not be held liable on the breach of warranty because an agent is ordinarily not liable on the contract when he acts on behalf of a disclosed principal.”].) 

Here, however, Defendant has presented no authority suggesting that someone like Defendant Robin who also allegedly “owned, managed, and operated” the property cannot be considered a “landlord,” and thus liable for breach of the implied warranty. (Compl. ¶ 6). (Emphasis added.) The court recognizes that only Defendant Alicia is listed as “Landlord/Lessor/Agent” on the Rental Agreement. But Defendant has not shown this fact is automatically dispositive.  Thus, this likely presents a factual question that cannot be resolved now. “On demurrer, a court must accept properly pleaded facts as true.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal. App. 4th 166, 173.) Defendant has also not asked this court to take judicial notice of any documents purporting to suggest that she did not own the property.  

Lastly, the court disagrees that the pleading is uncertain. “[D]emurrers for uncertainty are disfavored,” and are strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.”  (Lickiss v. Fin. Indus. Regul. Auth., (2012) 208 Cal. App. 4th 1125, 1135.)

Accordingly, Defendant’s Demurrer to the First and Second Causes of Action is OVERRULED.

B. Third Cause of Action for Retaliation; Fourth Cause of Action for Breach of the Warranty of Quiet Enjoyment; Ninth Cause of Action for Violation of the RSO; and Tenth Cause of Action for Constructive Retaliatory Conviction

Defendant again argues these causes of action fail because there are no allegations that Defendant Robin was a lessor/landlord of Plaintiff or anything other than an agent of the landlord. 

For the same reasons stated above, Plaintiff has plead that Defendant Robin “owned, managed, and operated” the property. (Compl. ¶ 6). Moreover, all relevant factual allegations to support the elements of the causes of action are alleged against both Defendants. For similar reasons, the pleading is not uncertain.

Accordingly, Defendant’s Demurrer to the Third, Fourth, Ninth, and Tenth Causes of Action is OVERRULED.

C. Fifth Cause of Action for Negligence

Defendant argues there are no allegations that Defendant owed a duty to Plaintiff; that she breached that duty; or that there was a reasonably close causal connection between that breach and Plaintiff’s injury.

Plaintiff alleges that as “owners, operators, and managers” of the property, a duty arose to exercise reasonable care in said “ownership, operation, management and control.” (Compl. ¶ 128.) Indeed, courts have found that “due regard for human safety and health compels the imposition on a landlord of a duty of due care in the maintenance of the premises.” (Stoiber, supra, 101 Cal. App. 3d at 924.) Thus, Plaintiff has alleged that Defendant owed her a duty of care. Plaintiff also alleges these breaches were a direct and proximate cause of her injuries.  (Compl. ¶ 130.) The Complaint therefore states a cause of action for negligence and is not uncertain.

Accordingly, Defendant’s Demurrer to the Fifth Cause of Action is OVERRULED.

D. Sixth Cause of Action for Intentional Infliction of Emotional Distress

Defendant next argues there are no allegations of extreme or outrageous conduct to support a cause of action for IIED.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.  A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) (internal citations omitted). “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”  (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 233.)  Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’”  (Id.)

Although a claim for IIED will generally present multiple questions of fact, a court may sustain a demurrer to the claim when “the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock, supra, 225 Cal. App. 4th at 235.)  The process has been described as “more intuitive than analytical.”  (So v. Shin (2013) 212 Cal.App.4th 652, 671–672.)

Plaintiff alleges, among other things, that Defendant “regularly threatened” her with eviction despite the Covid-19 eviction moratorium in place; started a “campaign of unfounded complaints” that Plaintiff was causing a nuisance; purposefully destroyed Plaintiff’s property; and regularly entered Plaintiff’s unit without consent or emergency. (Compl. ¶ 56.) In response to Plaintiff’s complaints, Defendants retaliated against her by refusing to make repairs so that the conditions would further deteriorate and become unbearable.  (Compl. ¶ 58.) 

Accepting these allegations as true—as the court must when ruling on the demurrer—Plaintiff has adequately pled facts that could potentially amount to extreme or outrageous conduct. The pleading is also not uncertain.

Accordingly, Defendant’s Demurrer to the Sixth Cause of Action is OVERRULED.

E. Seventh Cause of Action for Private Nuisance

Defendant argues there are no specific allegations that Defendant Robin did anything to create a nuisance. 

The elements of an action for private nuisance are: (1) plaintiff must prove an interference with his use and enjoyment of his property; (2) invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, that is, that it causes plaintiff to suffer substantial actual damage; (3) interference with the protected interest must not only be substantial, but it must also be unreasonable, that is, 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.)

Plaintiff alleges that in “own[ing], manag[ing], and operat[ing]” the property, Defendant created “defective conditions [that] were and are injurious to the health and safety of Plaintiffs…” (Compl. ¶¶ 6, 146.). These included, among other things: broken doors and windows, insect infestation, mold and mildew, and lack of heating and water. (Id. ¶ 22.) Plaintiff further alleges “[s]uch nuisances were ongoing and caused Plaintiffs to suffer general and special damages.”  (Id. ¶ 150.) Thus, Plaintiff has alleged private nuisance against Defendant Robin, and the pleading is also not uncertain.

Accordingly, Defendant’s Demurrer to the Seventh Cause of Action is OVERRULED.

F. Eighth Cause of Action for Invasion of Privacy

Defendant argues there are no allegations that Defendant Robin did anything that would constitute an invasion of privacy.

Civil Code section 1954 provides when and under which circumstances a landlord may enter a residential dwelling, and requires notice before entering in other situations.  Plaintiff alleges that Defendants disregarded this code section when they entered her unit without consent or an emergency “approximately a dozen times during Plaintiff’s tenancy.” (Compl. ¶ 56.) Thus, the claim is well-pled, and is not uncertain.

Accordingly, Defendant’s Demurrer to the Eighth Cause of Action is OVERRULED.

Defendant is to file an Answer to Complaint within 21-days of this ruling.

Moving party to give notice, unless waived.  

IT IS SO ORDERED.

Dated:   January 11, 2023 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.