Floare Gheta v. Steve Hoffman, et al.

(1) DEMURRER TO COMPLAINT

(2) MOTION TO STRIKE

 

MOVING PARTY: Defendants Steve Hoffman, an individual, and Steve Hoffman, as Trustee of the Karl and Pearl Family Living Trust

RESPONDING PARTY(S): Plaintiff Floare Gheta

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a breach of habitability case. Plaintiff Floare Gheta resided at an apartment complex at 309 North Sycamore, Ave, Los Angeles, CA 90036. Defendants Steve Hoffman, an individual, and Steve Hoffman, as Trustee of the Karl and Pearl Family Living Trust, operate and manage the complex. Plaintiff alleges a water leak caused mold in her unit that went unremedied by Defendants. 

Defendants now demur to the Second, Third, Fifth, Sixth, Seventh, and Eighth Causes of Action. Defendants also move to strike allegations pertaining to punitive damages. Plaintiff opposed both motions.

TENTATIVE RULING:

Defendants’ Demurrer to the Third, Fifth, and Sixth Causes of Action is SUSTAINED without leave to amend.

Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

Defendants’ Demurrer to the Seventh and Eighth Causes of Action is SUSTAINED.   Whether leave to amend is granted will depend on whether Plaintiff submits a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling. 

Defendants’ Motion to Strike is GRANTED.  Whether leave to amend is granted will depend on whether Plaintiff submits a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling.

If no leave to amend is granted, Defendants are to file an Answer within 21 days.

Defendants are ordered to give notice, unless waived.

DISCUSSION:

Demurrer to Complaint

I. Meet and Confer

The Declaration of attorney Harry A. Safarian confirms that the meet and confer requirement was satisfied. 

II. 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.)  

III. Analysis

Defendants demur to the Second, Third, Fifth, Sixth, Seventh, and Eighth Causes of Action in the Complaint. Each is addressed in turn.

A. Third Cause of Action for Breach of Implied Warranty of Habitability; Fifth Cause of Action for Breach of the Implied Covenant; Sixth Cause of Action for Breach of Written Contract

First, Defendants argue these contract-based causes of action fail as to the individual Defendant Steve Hoffman because he is not a party to the subject lease agreement. 

In opposition, Plaintiff states she does “not oppose the demurrer” as to these claims, thereby conceding them.  [FN 1]

Accordingly, Defendants’ Demurrer to the Third, Fifth, and Sixth Causes of Action is SUSTAINED as to Defendant Steve Hoffman, an individual, without leave to amend.

B. Second Cause of Action for Premises Liability

Next, Defendants argue Plaintiff’s Second Cause of Action for Premises Liability fails because it is duplicative of the negligence cause of action. Defendants also argue that California does not distinguish between negligence and premises liability. 

However, California does recognize a distinction between the two. Although the “elements of a cause of action for premises liability are the same as those for negligence” (Nicoletti v. Kest (2023) 97 Cal. App. 5th 140, 145), a premises liability claim “is distinct from a negligence claim as it is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Green v. Healthcare Servs., Inc. (2021) 68 Cal. App. 5th 407, 419 [cleaned up].)

There is likewise no merit to Defendants’ argument that the cause of action is duplicative. A plaintiff is free to plead alternative theories of recovery, even those that are inconsistent with each other. (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 476-477.)

Accordingly, Defendants’ Demurrer to the Second Cause of Action is OVERRULED.

C. Seventh Cause of Action for Intentional Infliction of Emotional Distress

Next, Defendants argue Plaintiff has not pled sufficient facts to state a claim 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 she rented an apartment from Defendants starting in 2017. (Compl. ¶¶ 3, 4.) Plaintiff alleges she noticed a water intrusion and resulting dampness in her bathroom in July 2022. (Id. ¶ 14.) Plaintiff observed “toxic mold” and that the wall behind her toilet was “buckling due to the water intrusion.” (Id.) Plaintiff “immediately reported the water intrusion” to the manager, “but no immediate adequate remedial measures were taken.” (Id. ¶ 18.)  Plaintiff then ordered a mold test which confirmed the presence of toxic mold. (Id. ¶ 19.) Plaintiff immediately reported this to Defendants, who began “remediation” in August 2022. (Id. ¶ 20.) The remediation forced Plaintiff to temporarily vacate the unit. (Id. ¶¶ 19-21.) Plaintiff returned to the rental unit on September 1, 2022, and the problems apparently persisted. (Id. ¶ 22.) Plaintiff alleges this caused her personal injuries and ultimately her constructive eviction. (Id. ¶¶ 7, 24.) 

Here, Plaintiffs allegations do not amount to outrageous conduct as a matter of law. Plaintiff alleges only a general failure to sufficiently or promptly remedy the alleged mold, amounting to negligence. She has not alleged any facts demonstrated that Defendants intended to cause, or acted with a reckless disregard of the probability of causing, Plaintiff emotional distress. The current allegations, standing alone, are insufficient to allege extreme and outrageous conduct by Defendants. 

Accordingly, Defendants’ Demurrer to the Seventh Cause of Action is SUSTAINED.  Whether leave to amend is granted will depend on whether Plaintiff submits a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. 

D. Eighth Cause of Action for Constructive Eviction

Finally, Defendants argue Plaintiff’s Eighth Cause of Action for Constructive Eviction fails against the individual Defendant Steve Hoffman because he is not a “landlord.” In reply, Defendants also argue that Plaintiff cannot allege a constructive discharge because she returned to the unit.

The court addresses the latter argument first. Plaintiff “moved out of” her unit when remediation work started in August 2022. (Id. ¶¶ 19, 20.) Plaintiff returned on September 1, 2022. (Id. ¶ 23.) Although the mold issue may have continued, there are no allegations that Plaintiff vacated the unit permanently.  [FN 2]

“In order that there be a constructive eviction it is essential that the tenant should vacate the property. There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment.” (Cunningham v. Universal Underwriters (2022) 98 Cal. App. 4th 1141, 1152.) As this court understands the allegations, Plaintiff vacated the unit for only a temporary period while remediation efforts happened. (Compl. ¶¶ 20-22.) Beyond that, there are no facts alleging that she permanently vacated the unit, and it is unclear if Plaintiff still resides there. On these facts, she cannot state a claim for constructive eviction.

Accordingly, Defendants’ Demurrer to the Eighth Cause of Action is SUSTAINED.   Whether leave to amend is granted will depend on whether Plaintiff submits a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. 

E. The Complaint is Not Uncertain

Finally, Defendants contend that the Complaint is uncertain because it does not “specify against the whom the various causes of action are directed” and fails to distinguish between the two Defendants.

Each cause of action in the Complaint is asserted against both Defendants. Moreover, the Complaint is not uncertain merely because it groups the Defendants together. “[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, Defendants’ Demurrer based on uncertainty is OVERRULED.

Motion to Strike

I. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

II. Analysis

Defendants move to strike Plaintiffs’ references to punitive damages in the Complaint at paragraphs 39, 99, 131, 132, 133, 136, 147, and the Prayer for Relief. (See Notice of Motion.) Defendants argue Plaintiffs have failed to plead specific facts to support an award of punitive damages.

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 

As defined in § 3294(c):

(1) “Malice” means 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. 

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

(3) “Fraud” means that a defendant intentionally misrepresented or concealed a material fact and did so intended to harm a plaintiff.

As discussed in the preceding demurrer, Plaintiff alleges that Defendants failed to remedy mold issues at the property despite being on notice of same. However, beyond the general allegations that Defendants were on notice of the defects and failed to remedy them, Plaintiff has failed to allege the ultimate facts necessary to show the requisite malice, oppression, or fraud necessary to seek punitive damages.  [FN 3]

Accordingly, Defendants’ Motion to Strike is GRANTED.  Whether leave to amend is granted will depend on whether Plaintiff submits a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.   If leave is granted, Plaintiff must allege ultimate facts to demonstrate that Defendant (in both capacities) acted with the required malice, oppression, or fraud. 

IT IS SO ORDERED.

Dated:   April 29, 2024 ___________________________________

FN 2 - Confusing matters, Plaintiff alleges elsewhere in the complaint that she “was forced to leave and was constructively evicted” in February of 2022. (Compl. ¶ 7.) This is inconsistent with her allegation that she did not discover the mold problem until July of 2022. (Id. ¶ 14.) It is therefore unclear when any permanent constructive eviction occurred, if at all. 

FN 3 - Additionally, Plaintiff has failed to allege sufficient facts to demonstrate liability for punitive damages as to the Trust, per Civil Code §3294 (b).