Judge: Robert S. Draper, Case: 22STCV07266, Date: 2022-12-21 Tentative Ruling

Case Number: 22STCV07266    Hearing Date: December 21, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants’ Demurrer to the Sixth and Tenth Causes of Action is OVERRULED.

Defendants’ Demurrer to the Third and Seventh Causes of Action is SUSTAINED. Plaintiffs are granted thirty days leave to amend.

FACTUAL BACKGROUND   

This is an action for breach of the warranty of habitability. The operative First Amended Complaint alleges as follows.  

Plaintiffs Rocio A. Flamenco (“Rocio”) and Matthew Flamenco (“Matthew”, and with Rocio, “Plaintiffs”) are tenants of residential property located at 311 Griswold Ave., San Fernando, CA 91340 (the “Subject Property”). (FAC ¶ 1.) Defendants Michael R. Shaar (“Shaar”), Michael R. Shaar Separate Property Trust (“Shaar Trust”), Maribel P. Khoury (“Khoury”) and Maribel P. Khoury Separate Property Trust (“Khoury Trust” and collectively, “Defendants”) own and manage the Subject Property. (FAC ¶¶ 17-19.)

In April 2021, Plaintiffs noticed bedbugs in their unit and alerted Defendants’ employees of the issue. (FAC ¶ 29.) Defendants failed to remediate the issue. (Ibid.) Defendants were aware of the issue prior to Plaintiffs’ tenancy, as previous tenants had complained of the issue to Defendants. (FAC ¶ 33.)

PROCEDURAL HISTORY 

On February 28, 2022, Plaintiffs filed the Complaint asserting twelve causes of action:

1.    Breach of Warranty of Habitability (Violation of Civil Code § 1941.1);

2.    Breach of Warranty of Habitability (Health & Safety Code § 17920.3);

3.    Breach of Warranty of Habitability (Violation of Civil Code § 1942.4);

4.    Negligence – Premises Liability;

5.    Nuisance;

6.    Battery;

7.    Intentional Infliction of Emotional Distress;

8.    Negligent Infliction of Emotional Distress;

9.    Breach of Contract;

10.                   Breach of Covenant of Quiet Enjoyment;

11.                   Unfair Business Practices (Violation of Business and Professions Code § 17200, et seq.); and,

12.                   Fraudulent Concealment.

On July 11, 2022, Defendants filed a Demurrer to the complaint.

On August 11, 2022, Plaintiffs filed the operative First Amended Complaint omitting the Unfair Business Practices and Battery causes of action.

On November 9, 2022, Defendants filed the instant Demurrer to the First Amended Complaint.

On December 8, 2022, Plaintiffs filed an Opposition

On December 12, 2022, Defendants filed a Reply.

DISCUSSION 

                          I.          DEMURRER

Defendants demur to the Third, Sixth, Seventh, and Tenth Causes of Action of the First Amended Complaint.

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) As is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)  

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) 

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.) 

A.   Third Cause of Action – Breach of Warranty of Habitability (Violation of Civil Code § 1942.4)

Defendants demur to the Third Cause of Action for Breach of Warranty of Habitability (Violation of Civil Code § 1942.4).

“… [T]here is a statutory cause of action available to the residential tenant where the premises are untenable and other circumstances exist. Under¿Civil Code section 1942.4, a residential landlord may not demand or collect rent, increase rent, or serve a three-day notice to pay rent or quit if (1) the dwelling is untenantable as defined under¿section 1941.1, is in violation of¿section 17920.10 of the Health and Safety Code, or is deemed and declared substandard under¿section 17920.3 of the Health and Safety Code; (2) a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair the property; (3) the conditions have not been remedied within 35 days of the notice; and (4) the substandard conditions were not caused by the tenant's acts or omissions. (Civ. Code, § 1942.4, subd. (a).) In the event that each of the circumstances under subdivision (a) of the statute is satisfied, a tenant may bring an action for actual damages plus statutory damages of between $100 and $5,000. (Civ. Code, § 1942.4, subd. (b)(1).)” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298.)  

Here, Defendants argue that Plaintiffs have alleged no facts showing that a public officer inspected the Subject Property and gave Defendants written notice that it must abate the nuisance or repair the Subject Property.

In Opposition, Plaintiffs contend that Defendants maintained an uninhabitable property as defined by California Civil Code section 17920.3. However, Plaintiffs’ Second Cause of Action for Violation of Civil Code section 17920.3 is not the subject of the instant Demurrer. Civil Code Section 1942.4 explicitly requires a plaintiff to show that “a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair the property.”

Here, there are no allegations stating as such, and Plaintiffs do not address that defect in their Opposition.

Accordingly, Defendants’ Demurrer to the Third Cause of Action is SUSTAINED. Plaintiffs are granted thirty days leave to amend.

B.   Sixth Cause of Action – Intentional Infliction of Emotional Distress

Defendants demur to the Sixth Cause of Action for Intentional Infliction of Emotional Distress.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)  

Here, Defendants argue that Plaintiffs have failed to allege facts showing that Defendants acted with intent in failing to remedy the habitability issues. Defendants note that in both Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, and Aweeka v. Bonds (1971) 20 Cal.App.3d 278, causes of action for Intentional Infliction of Emotional Distress based on landlord defendants’ failure to remedy housing defects were permitted only after plaintiff tenants alleged explicit facts showing that landlord defendants refused to remedy the issues because of an intent to injure the tenants. Defendants contend that no such facts demonstrating malintent are alleged here.

In Opposition, Plaintiffs note that a landlord’s knowingly, intentional, and willful failure to correct a defective condition may sufficiently state an extreme and outrageous conduct. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069.)

“[I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord’s acts are extreme and outrageous and result in severe mental distress. Whether this is so under the present allegations, presents a factual question it cannot be said as a matter of law that appellant has not stated a cause of action.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922.)

Here, the First Amended Complaint alleges that Plaintiffs informed Defendants of the bed bug issue in April 2021. (FAC ¶ 146.) Additionally, the First Amended Complaint alleges that prior tenants had informed Defendants of the same issue. (FAC ¶ 150.) Next, the First Amended Complaint alleges that Defendants intended to cause Plaintiffs severe emotional distress by failing to abate the issue, and that Plaintiffs did suffer such severe emotional distress. (FAC ¶¶ 151, 153.)

The Court finds that Plaintiffs’ allegations are sufficient to state a claim at the pleading stage. Accordingly, Defendants’ Demurrer to the Sixth Cause of Action for Intentional Infliction of Emotional Distress is OVERRULED.

C.   Seventh Cause of Action – Negligent Infliction of Emotional Distress

Next, Defendants demur to the Sixth Cause of Action for Negligent Infliction of Emotional Distress (“NIED”), arguing that NIED is not an independent cause of action, and therefore Plaintiffs’ NIED cause of action is duplicative of the Fourth Cause of Action for Negligence – Premises Liability.

Negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) Damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Id.) If a cause of action is otherwise established, it is settled that damages are given for mental suffering naturally ensuing from the complained of acts. (Id.)

In Opposition, Plaintiffs note that NIED claims are viable where there exists a negligent breach of a duty arising out of a preexisting relationship. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.) Plaintiffs argue that, as Plaintiffs’ NIED claim arises from their relationship to Defendants as Defendants’ tenants, it is a viable independent tort.

However, Plaintiffs’ Fourth Cause of Action for Negligence is also based on Defendants’ duty of care to Plaintiffs as their landlord. (FAC ¶¶ 103-06.) Accordingly, the Seventh Cause of Action is duplicative of the Fourth Cause of Action for Negligence.

Defendants’ Demurrer to the Seventh Cause of Action is SUSTAINED with thirty days leave to amend.

D.   Tenth Cause of Action – Fraudulent Concealment

Defendants demur to the Tenth Cause of Action for Fraudulent Concealment.

The elements of fraud that give rise to a tort action for deceit are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citation.]” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; see also CACI No. 1900.) 

There are four scenarios “in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]” (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) 

Here, Defendants argue that Plaintiffs could not have relied upon Defendants failure to disclose the issue with bed bugs before signing the lease, as Defendants did not purchase the Subject Property until after Plaintiffs had moved into their unit.

However, the timing of Defendants’ purchase of the Subject Property is neither present on the face of the First Amended Complaint nor the subject of judicial notice. Additionally, the First Amended Complaint alleges that Defendants knew of the issue with bed bugs prior to Plaintiffs’ tenancy, due to previous tenants’ complaints. (FAC ¶ 33.)

Accordingly, Defendants’ Demurrer to the Tenth Cause of Action for Fraudulent Concealment is OVERRULED.

DATED: December 21, 2022 

____________________________

Hon. Robert S. Draper 

Judge of the Superior Court