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
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.