Judge: Robert B. Broadbelt, Case: 22STCV25610, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCV25610    Hearing Date: April 18, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Dai Bong Chung and Gloria N. Chung

RESPONDING PARTIES:    Plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza

Demurrer to Complaint

The court considered the moving and opposition papers filed in connection with this demurrer.  No reply papers were filed.

BACKGROUND

Plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza (“Plaintiffs”) filed this breach of warranty of habitability action against defendants Dai Bong Chung and Gloria N. Chung (“Defendants”) on August 9, 2022. 

Plaintiffs allege 12 causes of action for (1) violation of Civil Code section 1942.4; (2) tortious breach of the warranty of habitability; (3) private nuisance; (4) violation of Business and Professions Code section 17200, et seq.; (5) negligence; (6) breach of the covenant of quiet enjoyment; (7) intentional infliction of emotional distress; (8) negligence per se; (9) intentional influence to vacate; (10) violation of the Los Angeles Municipal Tenant Anti-Harassment Ordinance; (11) retaliatory eviction; and (12) disgorgement of fees paid for unlicensed contractor services.

Defendants move the court for an order sustaining their demurrer to each cause of action alleged in Plaintiffs’ Complaint.

DISCUSSION

The court notes that, in opposition, Plaintiffs request that the court overrule Defendants’ demurrer on the ground that the notice of motion states that it is directed to Plaintiffs’ “First Amended Complaint” even though Plaintiffs have not filed a First Amended Complaint.  The court finds that this typographical error has not prejudiced Plaintiffs or deprived them of a fair opportunity to respond, since the moving papers make clear that the demurrer is directed to the Complaint.  The court therefore declines to overrule the demurrer on this ground.

The court overrules Defendants’ demurrer to each cause of action in the Complaint on the ground of uncertainty because the Complaint is not ambiguous or unintelligible.  (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Defendants’ demurrer to the first cause of action for violation of Civil Code section 1942.4 because it states facts sufficient to constitute a cause of action since Plaintiffs have alleged facts establishing that public officers (here, officers of the City of Los Angeles Health Department, Building and Safety Department, and Code Enforcement), after inspecting the premises, notified Defendants of their obligation to repair substandard conditions, but that Defendants, without good cause, did not repair them within 35 days.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 17, 67-69, 18, 84; Civ. Code, § 1942.4, subd. (a).)

The court overrules Defendants’ demurrer to the second cause of action for tortious breach of the warranty of habitability because it states facts sufficient to constitute a cause of action since (1) Plaintiffs do not have to allege this cause of action as a claim for breach of contract, and (2) Plaintiffs have sufficiently alleged that Defendants were on notice of the substandard conditions due to (i) the government notices issued to Defendants informing them of violations of various regulations and statutes, and (ii) complaints from tenants, including Plaintiffs.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 33-34, 53, 92; Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297 [the elements of an affirmative claim for breach of the habitability warranty “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 damage”].)

The court overrules Defendants’ demurrer to the third cause of action for private nuisance because it states facts sufficient to constitute a cause of action since Plaintiffs have sufficiently alleged facts (1) describing the substandard conditions of the property, which Plaintiffs have alleged constituted a substantial and unreasonable interference with the use of the property, and (2) establishing that Defendants refused to make repairs, ignored complaints, and have failed to adequately address these conditions, and therefore have alleged facts showing that the interference was unreasonable.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 99, 101, 24-32; Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263 [setting forth elements of a cause of action for private nuisance].)

The court overrules Defendants’ demurrer to the fourth cause of action for violation of Business and Professions Code section 17200 et seq. because it states facts sufficient to constitute a cause of action since Plaintiffs have sufficiently alleged that (1) Defendants engaged in unlawful business acts or practices in violation of Civil Code sections 1941.1 and 1942.4, and (2) they have suffered injury in fact and have lost money as a result of the unfair competition by paying full rent for the substandard, uninhabitable property.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 112, 114; Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610.)

The court overrules Defendants’ demurrer to the fifth cause of action for negligence because it states facts sufficient to constitute a cause of action since Plaintiffs have adequately alleged that Defendants owed Plaintiffs the duty to exercise reasonable care in the ownership, management, and control of the property, Defendants breached that duty, and Plaintiffs have been damaged by this breach.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 118, 120-123; Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687 [“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages”].)

The court overrules Defendants’ demurrer to the sixth cause of action for breach of the covenant of quiet enjoyment because it states facts sufficient to constitute a cause of action since (1) Plaintiffs have alleged that the covenant of quiet enjoyment was implied in their leasehold interest in the property, and (2) Plaintiffs have alleged facts establishing the substantial interference with their right to use and enjoy the premises based on Defendants’ refusal to repair the habitability violations and substandard conditions.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 126-128, 24 [listing substandard conditions]; Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 [“every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises”] [emphasis in original], 589 [“To be actionable, the landlords act or omission must substantially interfere with a tenants right to use and enjoy the premises for the purpose contemplated by the tenancy”].)

The court overrules Defendants’ demurrer to the seventh cause of action for intentional infliction of emotional distress because it states facts sufficient to constitute a cause of action since Plaintiffs have alleged facts establishing (1) that Defendants’ conduct was extreme and outrageous in failing to address the substandard conditions at the subject property, including, for example, by (i) failing to repair Plaintiffs’ boiler and forcing them to boil their own water to shower for months at a time, and (ii) failing to address improper weatherproofing on the premises, leading to mold growth throughout the property, and (2) that Plaintiffs have suffered severe or extreme emotional distress as a result of Defendants’ failure to remedy these conditions.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 25-26, 30, 38 [alleging loss of appetite, loss of sleep, nightmares, disgust, shame, and embarrassment, and parents’ additional feelings of helplessness concerning their ability to protect their children]; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [elements for intentional infliction of emotional distress cause of action].)

The court overrules Defendants’ demurrer to the eighth cause of action for negligence per se because it states facts sufficient to constitute a cause of action since Plaintiffs have alleged facts establishing (1) Defendants violated a statute, ordinance, or regulation; (2) the violations proximately caused injury to Plaintiffs; (3) the injury resulted from an occurrence the statute, ordinance, or regulation was designed to prevent; and (4) Plaintiffs are in the class of persons for whose protection the statute, ordinance, or regulation was adopted.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 143, 145, 147-149; Taulbee v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596 [elements of doctrine of negligence per se].)

The court sustains Defendants’ demurrer to the ninth cause of action for intentional influence to vacate because it does not state facts sufficient to constitute a cause of action since Plaintiffs have not alleged facts establishing that (1) Defendants “[u]se[d] or threaten[ed] to use, force, willful threats, or menacing conduct that interferes with the tenant’s quiet enjoyment of the premises” by telling Plaintiffs they had to move out of the subject property for various reasons, or (2) that Defendants’ violation of Civil Code section 1954 was “significant and intentional” as required by statute.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶ 155; Civ. Code, § 1940.2, subds. (a)(3), (a)(4).)

The court sustains Defendants’ demurrer to the 10th cause of action for violation of Los Angeles Municipal Tenant Anti-Harassment Ordinance because it does not state facts sufficient to constitute a cause of action since (1) the Tenant Anti-Harassment Ordinance provides that “[a] civil proceeding or small claims case initiated under this article alleging any violation of Section 45.33 may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time[,]” and (2) although Plaintiffs have alleged that public officials issued written citations to Defendants and that Plaintiffs made complaints about the substandard conditions, Plaintiffs have not alleged that they provided written notice to Defendants about the alleged violations of section 45.33 of the Los Angeles Municipal Code.  (Code Civ. Proc., § 430.10, subd. (e); Compl., ¶¶ 17-18, 33; L.A.M.C., § 45.35, subd. (F) [emphasis added].)

The court overrules Defendants’ demurrer to the 11th cause of action for retaliatory eviction because it states facts sufficient to constitute a cause of action since Plaintiffs have brought a cause of action under Civil Code section 1942.5, which (1) does not always require actual eviction, and (2) separately provides that a landlord may not “increase the rent” within 180 days of certain specified conduct.  (Code Civ. Proc., § 430.10, subd. (e); Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 257 [“while a common law cause of action requires actual eviction, a claim under section 1942.5 does not”]; Civ. Code, § 1942.5, subd. (a) [“If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee’s rights . . . the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, or increase the rent” within 180 days of the conduct specified by statute] [emphasis added].)

The court sustains Defendants’ demurrer to the 12th cause of action for disgorgement of fees paid for unlicensed contractor services because it does not state facts sufficient to constitute a cause of action against Defendants.  (Code Civ. Proc., § 430.10, subd. (e).)  

Here, Plaintiffs base their cause of action on Code of Civil Procedure section 1029.8 and Business and Professions Code section 7031.  (Compl., ¶¶ 185, 189.)  Code of Civil Procedure section 1029.8 provides that “[a]ny person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required . . . shall be liable to the injured person . . . .”  (Code Civ. Proc., § 1029.8, subd. (a).)  Business and Professions Code section 7031 provides that “a person who utilizes the services of an unlicensed contractor may bring an action in any court of competent jurisdiction in this state to recover all compensation paid to the unlicensed contractor for performance of any act or contract.”  (Bus. & Prof. Code, § 7031, subd. (b).)  Plaintiffs have not alleged (1) that Defendants caused injury to Plaintiffs by providing unlicensed services, or (2) that Plaintiffs are entitled to recover compensation paid to any unlicensed contractors from Defendants, and therefore have not pleaded that they are entitled to relief from Defendants pursuant to Code of Civil Procedure section 1029.8 or Business and Professions Code section 7031.

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at p. 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  The court finds that Plaintiffs have not met their burden of articulating how they could amend their pleading to render it sufficient as to the ninth and 10th causes of action.  The court therefore sustains the demurrer to those causes of action without leave to amend.  However, Plaintiffs have argued that their 12th cause of action may allege facts sufficient to constitute a cause of action for negligence based on Defendants’ alleged breach of duties owed to Plaintiffs by hiring unlicensed workers.  The court therefore sustains the demurrer to the 12th cause of action with leave to amend to give Plaintiffs the opportunity to allege a cause of action for negligence based on the facts alleged in support of the 12th cause of action.

ORDER

The court overrules defendants Dai Bong Chung and Gloria Chung’s demurrer to plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza’s first through eighth and 11th causes of action.

The court sustains defendants Dai Bong Chung and Gloria Chung’s demurrer to plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza’s ninth and 10th causes of action without leave to amend.

The court sustains defendants Dai Bong Chung and Gloria Chung’s demurrer to plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza’s 12th cause of action.

The court grants plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza 20 days leave to file a First Amended Complaint that amends the 12th cause of action to state a cause of action for negligence.

The court orders plaintiffs Jennifer Hernandez, Jasmine Hernandez, and Maria Carranza to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 18, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court