Judge: Randy Rhodes, Case: 20STCV05359, Date: 2023-03-13 Tentative Ruling




Case Number: 20STCV05359    Hearing Date: March 13, 2023    Dept: F51

Dept. F-51¿¿ 

Date: 3/13/23¿ 

Case #20STCV05359

 

DEMURRER WITH MOTION TO STRIKE 

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Demurrer with Motion to Strike Filed: 1/19/23

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MOVING PARTY: Defendant FPI Management, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiffs Katrin Silvestro and Jorge A. Rodriguez (collectively, “Plaintiffs”) 

NOTICE: OK¿ 

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RELIEF REQUESTED: Moving Defendant demurs to Plaintiffs’ entire complaint. Moving Defendant also seeks an order striking a provision of the complaint relating to punitive damages.

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TENTATIVE RULING: The demurrer is sustained as to Plaintiffs’ third, fourth, fifth, seventh and eighth causes of action, and overruled as to the second cause of action. The motion to strike is denied. Plaintiffs are granted 20 days leave to amend the complaint to cure the defects set forth herein.

 

BACKGROUND¿ 

Plaintiffs bring this action alleging personal injury and monetary damages arising from bedbug bites they sustained in February 2018 while residing at an apartment complex owned and operated by Defendants. Moving Defendant is the managing corporation of the apartment complex.

On 2/10/20, Plaintiffs filed their original complaint against Defendants, alleging the following causes of action: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Breach of Implied Warranty of Habitability; (5) Breach of Covenant of Quiet Enjoyment; (6) Violation of Civil Code Section 1942.4; (7) Private Nuisance; and (8) Public Nuisance.

On 1/19/22, Moving Defendant filed the instant demurrer and motion to strike. On 2/28/23, Plaintiffs filed their opposition. On 3/6/23, Moving Defendant filed its reply.

 

DEMURRER

Meet-and-Confer 

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Moving Defendant’s counsel declares that on 3/9/22, 3/11/22, and 3/14/22, she telephoned Plaintiffs’ counsel in attempts to meet and confer regarding the issues raised in the instant demurrer and motion to strike, but did not receive a response. (Decl. of Jizell Lopez, ¶¶ 2–5.) Therefore, the Court finds that Defendant’s counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). 

 

Legal Standard 

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f)). In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Moving Defendant demurs to demurs to Plaintiffs’ second, third, fourth, and fifth causes of action for failure to state a cause of action, and to the seventh and eighth causes of action as duplicative of the Negligence cause of action. Moving Defendant also demurs to the entire complaint on the basis that it is uncertain.

 

A.    Negligence

Plaintiffs allege in their second cause of action that Defendants acted negligently by failing to maintain the property “in a safe and habitable condition and to keep it free from insect infestations.” (Compl. ¶ 42.) To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8.)

Here, the only issue raised is the element of duty. Moving Defendant argues that Plaintiffs have failed to allege facts alleging any duty of care it owes to them. (Dem. 3:25–27.) In opposition, Plaintiffs argue that “Defendant has a duty to the Plaintiffs to ensure that the premises are safe and habitable. Defendant breached that duty by producing a room infested with bedbugs to Plaintiff.” (Pls.’ Opp. 5:27–28.)

The Court notes that on the face of the complaint, Plaintiffs cite to various statutes which would give rise to a duty and/or standard of care owed to them by Moving Defendant. (Compl. ¶¶ 47–49.) Therefore, the Court finds that Moving Defendant’s argument that “Plaintiffs fail to state the duty or obligation recognized by law and the specific facts why FPI owed the Plaintiffs a duty of care” lacks merit. (Def.’s Reply, 2:5–7.)

Accordingly, the Court finds that Plaintiffs have alleged facts sufficient to constitute a cause of action for Negligence against Moving Defendant, and the demurrer is overruled as to Plaintiffs’ second cause of action.

 

B.     Intentional Infliction of Emotional Distress

Plaintiffs’ third cause of action alleges against Defendants intentional infliction of emotional distress. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)

A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant's alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047–1048.)

Here, Moving Defendant argues that Plaintiffs have failed to plead facts to support their allegations of severe emotional distress. “Here, there are no allegations to support the claim that either of the two Plaintiffs suffered from severe emotional distress.” (Dem. 5:3–4.)

In their complaint, Plaintiffs allege that they “suffered severe emotional distress that has caused Plaintiffs to sustain severe, serious and permanent injuries to their person” as a result of Defendants’ “intentional, extreme, and outrageous” acts. (Compl. ¶¶ 61, 59.) However, as Moving Defendant observes, the complaint falls short of alleging “facts indicating the nature or extent of any mental suffering incurred.” (Pitman, 197 Cal.App.3d at 1047.)

Accordingly, the Court finds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for Intentional Infliction of Emotional Distress, and the demurrer is sustained as to Plaintiffs’ third cause of action.

 

C.    Breach of Implied Warranty of Habitability; Breach of Implied Covenant of Quiet Enjoyment

Plaintiffs’ fourth and fifth causes of action respectively allege against Defendants Breach of Implied Warranty of Habitability, and Breach of Implied Covenant of Quiet Enjoyment.

To establish a breach of the implied warranty of habitability, Plaintiffs must establish (1) “the existence of a material defective condition affecting the premises’ habitability,” (2) “notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,” (3) “the landlord was given a reasonable time to correct the deficiency, and” (4) “resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

The elements of a claim for breach of the covenant of quiet enjoyment are: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which “substantially interfere[s] with a tenant[’]s right to use and enjoy the premises for the purposes contemplated by the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)

Moving Defendant demurs against Plaintiffs’ fourth and fifth causes of action on the basis that it is not a party to the lease agreement, but a “designated agent for a disclosed principal,” therefore these contractual causes of action must fail for lack of privity between the parties. (Dem. 5:24.) In opposition, Plaintiffs maintain only that they held a residential lease giving rise to Moving Defendant’s duty to honor the implied warranty of habitability and implied covenant of quiet enjoyment. (Pls.’ Opp. 10:8–10.) However, as Moving Defendant observes, Plaintiffs fail to acknowledge Moving Defendant’s main argument, which is “that FPI is not a party to the lease.” (Def.’s Reply, 3:8.)

The Court notes that the terms of the purported lease agreement have not been set forth verbatim in the body of the complaint, nor has a copy of the agreement been attached to the complaint and incorporated by reference therein. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) Furthermore, Plaintiffs have not pled any factual allegations stating with whom they entered the lease agreement. Without this information, the Court is unable to determine whether Plaintiffs’ fourth and fifth causes of action necessarily fail for lack of a valid contract between the parties.

Accordingly, the Court finds that Plaintiffs have failed to allege facts sufficient to constitute their causes of action for Breach of Implied Warranty of Habitability and Breach of Implied Covenant of Quiet Enjoyment, and the demurrer is therefore sustained as to Plaintiffs’ fourth and fifth causes of action.

 

D.    Private Nuisance; Public Nuisance

Plaintiffs’ seventh and eighth causes of action respectively allege against Defendants Private Nuisance and Public Nuisance.

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., 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, 262-263, citations, italics, brackets, and quotation marks omitted.)

Public nuisances are “substantial and unreasonable” “offenses against, or interferences with, the exercise of rights common to the public.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) However, “where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owner’s Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

Moving Defendant argues that “Plaintiffs here have failed to demonstrate how the nuisance claim is different from the negligence claim,” and therefore, under El Escorial, the nuisance causes of action must fail because they are duplicative of Plaintiffs’ second cause of action for Negligence. (Dem. 6:14–15;154 Cal.App.4th at 1349.)

In the complaint, Plaintiffs allege that the bedbug infestation “negligently and intentionally” caused by Defendants constitutes both a private and public nuisance. (Compl. ¶¶ 96, 101.) The underlying factual allegations, namely that Defendants failed to maintain the health and safety of the premises, are the same in Plaintiffs’ second cause of action for Negligence.

Plaintiffs’ opposition papers appear to corroborate Moving Defendant’s argument to this point. Plaintiffs maintain that the nuisance causes of action are properly pled because “Defendants poorly maintained the apartment and created or caused to be create [sic] an infestation of bedbugs in rooms and the spread of the bedbug infestation between the rooms at the apartment by failing to eradicate the infestation properly and thoroughly prior to renting out rooms to guests such as Plaintiffs.” (Pls.’ Opp. 12:2–5.) “Defendants’ failure to properly eliminate and eradicate the bedbug infestation prior to renting out the rooms, including Plaintiffs’ room, was intentional with reckless disregard for the health and safety of Plaintiffs and other guests staying at the Apartment.” (Id., 12:16–18.)

Based on the foregoing, the Court finds that Plaintiffs’ causes of action for Private Nuisance and Public Nuisance rely on the same underlying factual allegations, they are duplicative of Plaintiffs’ Negligence cause of action. Accordingly, the demurrer is sustained as to Plaintiffs’ seventh and eighth causes of action.

 

E.     Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

Here, Defendants argue that Plaintiffs’ entire complaint is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f) because “there are no indications provided as to any of Plaintiffs’ claims about which defendant they are contending is responsible for conduct. Almost every one of Plaintiff’s allegations sets out conduct against all defendants as a collective, even though Plaintiffs’ Complaint acknowledges there is a different owner and a different manager.” (Dem. 6:20–23.)

In applying the stringent standard for demurrers filed on this ground, the Court finds that Plaintiffs’ complaint is not “so incomprehensible” that Moving Defendant cannot respond, especially given the extensive analyses it has offered in attacking the pleading. Even where a complaint is in some respects uncertain, ambiguities can be clarified under modern discovery procedures. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Accordingly, the demurrer is overruled on this ground.

 

MOTION TO STRIKE

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.) Here, Moving Defendant moves to strike Plaintiffs’ prayer for punitive damages.

 

Meet and Confer 

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are required to meet and confer at least five days before the date a motion to strike must be filed, otherwise the moving party is granted a 30-day extension to file the motion. (Ibid.

Here, as previously mentioned, Moving Defendant’s counsel telephoned Plaintiffs’ counsel on 3/9/22, 3/11/22, and 3/14/22, attempting to meet and confer regarding the issues raised in the instant demurrer and motion to strike, but did not receive a response. (Lopez Decl., ¶¶ 2–5.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 435.5, subdivision (a). 

  

Malice, Fraud, or Oppression

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

Here, Moving Defendant argues that “Plaintiffs have failed to assert specific facts demonstrating FPI engaged in oppressive, fraudulent, or malicious conduct.” (MTS 4:1–2.) Plaintiffs argue in opposition that “the Complaint alleges facts that show an extreme indifference and conscious disregard by all Defendants of the serious risk of harm to Plaintiffs in exposing them to a bedbug infestation, and not taking any action regardless of the amount of complaints from Plaintiffs.” (Pls.’ Opp. to MTS, 9:12–15.)

Plaintiffs cite to paragraph 59 of the complaint, which alleges various actions by Defendants that “were intentional, extreme, and outrageous,” including Defendants’ deliberate decision against inspecting and eradicating the bedbug infestation in Plaintiffs’ apartment after being given notice thereof. (Compl. ¶ 59.) The Court finds that these factual assertions are sufficient at the demurrer stage to plead malicious conduct in “willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294, subd. (c)(1).)

Accordingly, the motion to strike is denied on this basis.

 

Employer Liability

“An employer shall not be liable for [punitive] damages … based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).)

Moving Defendant further argues that it cannot be held liable for punitive damages based upon the acts of any of its employees under Civil Code section 3294, subdivision (b) because “there are no allegations that pertain to FPI at all, let alone any individual acting on behalf of FPI.” (MTS 5:2–3.) Plaintiffs argue in opposition that they have satisfied the statutory requirements because they “specifically allege that an owner or managing agent of the Apartment ratified and/or authorized the conduct of Defendant employees failing to respond to multiple pleas by Plaintiffs for months.” (Pls.’ Opp. to MTS, 12:3–5.)

The Court notes that throughout the complaint, Plaintiffs allege that Defendants “authorized or ratified the conduct of the Apartment employees by,” inter alia, “turning a blind eye to complaints and not terminating Management who has inadequately protected tenants against bedbug infestations at the subject Apartment.” (Compl. ¶¶ 31, 37, 54, 63, 74, 82.)

The Court therefore finds, at this demurrer stage, that Plaintiffs have sufficiently pled Moving Defendant’s ratification of employee conduct, thus giving rise to liability for punitive damages under Civil Code section 3294, subdivision (b). Accordingly, the motion to strike is denied on this basis.

 

LEAVE TO AMEND

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿

Here, the Court notes that this demurrer is to the original complaint, and Plaintiffs have specifically requested leave to amend the complaint in the event that the Court finds merit in any of Moving Defendant’s arguments. Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiffs 20 days leave to amend the complaint to cure the defects set forth above.

“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB¿(2010) 185 Cal.App.4th 1018, 1023.) Moving Defendant may file a motion to strike as to any new causes of action added without leave of court.

 

CONCLUSION¿ 

The demurrer is sustained as to Plaintiffs’ third, fourth, fifth, seventh and eighth causes of action, and overruled as to the second cause of action. The motion to strike is denied. Plaintiffs are granted 20 days leave to amend the complaint to cure the defects set forth herein.