Roslyn Spiegelman v. Sharon Towers Investment Company, LLC

DEMURRER TO FIRST AMENDED COMPLAINT

 

MOVING PARTY: Defendant Sharon Towers Investment Company, LLC

RESPONDING PARTY(S): Plaintiff Roslyn Spiegelman

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Roslyn Spiegelman, a tenant at the property owned by Defendant Sharon Towers Investment Company, LLC, alleges her rental unit exhibited water leaks and widespread mold, among other defects. Plaintiff asserts causes of action for (1) tortious breach of the implied warranty of habitability, (2) statutory breach of the implied warranty of habitability, (3) breach of contract, (4) breach of the covenant of quiet enjoyment, (5) negligence, (6) negligent hiring, training, and supervision, (7) tenant harassment, (8) private nuisance, (9) IIED, (10) financial elder abuse, and (11) unfair competition. 

Defendant now demurrers to each cause of action in the FAC. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Demurrer to the First, Second, Fourth, Fifth, Seventh, Eighth, Tenth, and Eleventh Causes of Action are OVERRULED.

Defendant’s Demurrer to the Third Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

Defendant’s Demurrer to the Sixth and Ninth Causes of Action are SUSTAINED.  Whether leave to amend is granted or not shall depend on whether Plaintiff proffers a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling.

Plaintiff is ordered to file and serve the Second Amended Complaint within 30-days of this Ruling. 

Moving party is ordered to give notice, unless waived.

DISCUSSION:

Demurrer

I. Meet and Confer

The Declaration of Steven S. Davis, Counsel for Defendant, reflects that the parties met and conferred.

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

A. First Cause of Action for Tortious Breach, Second Cause of Action for Statutory Breach, Fourth Cause of Action for Breach of Covenant of Quiet Enjoyment, Fifth Cause of Action for Negligence, Seventh Cause of Action for Tenant Harassment, Eighth Cause of Action for Private Nuisance, and Tenth Cause of Action for Financial Elder Abuse

Defendant argues these causes of action are uncertain and fail to state facts sufficient. Because the issues raised for each of these causes of action are effectively identical, the court addresses them together. 

Plaintiff, who was 73-years old as of the filing of the FAC, resides in a rental unit at the property owned by Defendant. (FAC ¶¶ 29, 30.) Plaintiff alleges the unit generally exhibits the “presence of mold and mildew,” “vermin infestation,” “lack of hot water,” and “sewage back-ups,” among other things. (Id. ¶ 17.) 

In August 2022, Defendant hired a contractor to repair Plaintiff’s air conditioning unit. (Id. ¶¶ 32-37.) During the installation, the contractor broke water pipes inside Plaintiff’s unit which caused flooding and “extensive water damage.” (Id. ¶¶ 37, 38.) As a result, Plaintiff relocated to a different unit in the building. (Id. ¶ 41.) The temporary unit “had a myriad of issues that were not addressed prior to Plaintiff’s move,” including a broken air conditioner, backed-up drains, and insect infestation. (Id. ¶ 51.) Defendant continued to assert that Plaintiff was “the problem” and made “threats of eviction and other legal actions against Plaintiff, and demanded that she vacate the Subject Property.” (Id. ¶ 53.) 

Defendant hired movers to assist with the relocation. (Id. ¶ 45.) This resulted in an “exorbitant” bill from the movers, which Defendant blamed on Plaintiff. (Id. ¶ 48.) Defendant then “began a campaign of harassment, retaliation, bullying, and intimidation against Plaintiff, in order to influence her to vacate the Subject Property.” (Id.) 

Plaintiff moved back into her original unit approximately six months later once the remediation was complete. (Id. ¶ 57.) To regain her personal items, Plaintiff was forced to pay the movers for the cost of storage because Defendant refused. (Id. ¶ 58.) Since moving back into her unit, Plaintiff has experienced four additional “water intrusions” in the same area where the initial water leak took place. (Id. ¶¶ 60-63.) 

Here, for pleading purposes, Plaintiff has alleged the ultimate facts necessary to establish all elements of these causes of action. Plaintiff has alleged that substantive habitability defects existed at both her unit and the temporary unit where she resided; that Defendant was aware of these defects yet failed to remedy them in a timely manner; and instead, that Defendant retaliated against Plaintiff for making complaints, including by requiring Plaintiff to pay the movers on her own dime. Defendant is well aware of the allegations against it, and nothing more is required. 

Accordingly, Defendant’s Demurrer to the First, Second, Fourth, Fifth, Seventh, Eighth, and Tenth Causes of Action are OVERRULED.

B. Third Cause of Action for Breach of Contract

Defendant also demurrers to the third cause of action for breach of contract. The elements of breach of contract are: “(1) the existence of the contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages.” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97–98.) The rule in California is that “[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’ [Citation.]”  (Heritage Pac. Fin., LLC v. Monroy, (2013) 215 Cal. App. 4th 972, 993.)

Plaintiff’s third cause of action incorporates all prior allegations. Plaintiff alleges generally that “[u]nder the terms of this contract, Defendant promised to comply with all state and local laws, regulations and ordinances concerning the rental and leasing of dwelling units, and satisfaction of this covenant was a condition precedent to Plaintiff’s obligation to timely pay monthly rents.” (FAC ¶ 96.) Plaintiff alleges “Defendant breached the agreement by failing to perform its central duties under the contract - i.e. - not interfering with the Plaintiff’s quiet enjoyment of her home, and not demanding or collecting any monies to which Defendant was not lawfully entitled.” (Id. ¶ 98.)

Here, while Plaintiff has provided the Rental Agreement (see FAC, Exh. A), Plaintiff has not identified any particular portion of the Agreement that has been breached. As currently pled, Plaintiff appears to base the breach, if any, on implied terms of the contract. However, these breaches are already encompassed by Plaintiff’s First, Second, and Fourth Causes of Action for breach of implied warranties/covenants. Therefore, Plaintiff has failed to state a cause of action for breach of contract.

Accordingly, Defendant’s Demurrer to the Third Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff is given leave to amend to plead facts supporting a breach of the Rental Agreement, which should identify the portion of the Rental Agreement purportedly breached.

C. Sixth Cause of Action for Negligent Hiring, Training, and Supervision

Defendant also demurrers to the Sixth Cause of Action for Negligent Hiring, Training, and Supervision. 

Liability for negligent hiring, training, and supervision “will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)

In support of this cause of action, Plaintiff alleges that “Defendant breached that duty by hiring, training and supervising agents and employees whom it knew were not qualified to hold the positions they were assigned, by failing to offer the agents and employees training, and by failing to supervise them to ensure that the Subject Property was properly managed and maintained.” (FAC ¶ 118.)

Here, Plaintiff merely recites the general elements of a claim for negligent hiring, supervision, or retention, but has not provided any specific allegations to support such a claim. Thus, she has not stated a claim under this cause of action.

Accordingly, Defendant’s Demurrer to the Sixth Cause of Action is SUSTAINED.   Whether leave to amend is granted or not shall depend on whether Plaintiff proffers a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) 

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

Next, Defendant demurrers to the Ninth Cause of Action for intentional infliction of emotional distress. Defendant argues Plaintiff has not alleged that she suffered any “severe” emotional distress.  

“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 Defendant acted in an outrageous manner by “knowingly ignoring and refusing to abate a dangerous and unhealthy nuisance; maintaining Plaintiff’s living quarters in an unsafe, unhealthy, uninhabitable and untenable conditions; refusing to repair the premises in the face of repeated complaints by the Plaintiff; demanding money from the Plaintiff under implied threat of evicting her from her home; engaging in unfair and unlawful business practices; and violating health and safety codes, ordinances, regulations, and other laws. (FAC ¶ 130.) As a result, Plaintiff alleges that she “suffered severe mental and emotional distress, depression, anxiety, annoyance and discomfort, fear for safety, loss in the value of leasehold, medical and related expenses, property damage, and attorney's fees.” (Id. ¶ 132.) 

Accordingly, Defendant’s Demurrer to the Tenth Cause of Action is SUSTAINED.  Whether leave to amend is granted or not shall depend on whether Plaintiff proffers a sufficient offer of proof that there is a reasonable possibility of successful amendment, consistent with this ruling. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) 

E. Eleventh Cause of Action for Unfair Competition

Finally, Defendant argues the Eleventh Cause of Action for Unfair Competition fails because Plaintiff seeks only monetary damages. 

 Despite its broad applicability, “[i]njunctive relief and restitution are the only remedies available under the UCL.”  (Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 53.)  Thus, “[a] UCL claim must be based on the existence of harm supporting injunctive relief or restitution.”  (Id.) 

While Defendant is correct that Plaintiff apparently does not seek injunctive relief (see FAC, generally), she does seek restitution under section 17200 et seq. (See Prayer for Relief.) By failing to address this request for restitution, Defendant has not established that it is unavailable here. Therefore, Plaintiff has sought a remedy available under the UCL.

Defendant goes on to argue that Plaintiff’s UCL cause of action is “fatally uncertain and subject to demurrer because it relies on conclusory, shotgun allegations devoid of facts.” (Dem. 15: 6-7.) The court again disagrees that the allegations, construed liberally and in context, are insufficient to state this cause of action. 

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

Concluding Observations Regarding Over-Pleading

A lawsuit’s complaint should not become a law school or bar examination in which one attempts to identify every possible claim in a blue book.  Suffice it to state, many of the causes of actions pled in this case are either duplicative and/or already covered by the breach of habitability cause of action.  In this case, Plaintiff’s counsel may perhaps score an “A” in a law school examination, but they get an “F” in practical civil litigation practice.   

IT IS SO ORDERED.

Dated:   February 26, 2025 ___________________________________