Judge: Robert S. Draper, Case: 22STCV12080, Date: 2022-09-19 Tentative Ruling

Case Number: 22STCV12080    Hearing Date: September 19, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants’ Demurrer to the Fifth, Sixth, Ninth, and Tenth and Eleventh Causes of Action and Defendants’ Motion to Strike are placed off calendar. The Court will consult with counsel to determine how long it will take them to learn what the rules are and how to comply with them so that they do not waste their clients’ money and the Courts time any further.

FACTUAL BACKGROUND   

This is an action for constructive eviction and personal injury. The Complaint alleges as follows.

Plaintiff RH Lemorande (“Plaintiff”) rented a housing unit at 1245 North Crescent Height Blvd, Los Angeles, CA 90046 (the “Subject Property”). (Compl. ¶ 5.) Defendants Joseph Powell, Decedent Josephine Powell, the Josephine Powell Trust, and Josephine Powell Estate (together “Defendants”) owned and/or maintained the Subject Property. (Compl. ¶ 15.)

Beginning in July 2020, Plaintiff’s unit began suffering water damage due to a broken pipe or pipes in the walls or floor of the apartment above. (Compl. ¶ 26.) Plaintiff regularly informed Defendants of the issue, but Defendants did nothing. (Compl. ¶ 27.) Due to this inaction, the water damage worsened, rendering the bathroom inoperable. (Compl. ¶ 29.) Plaintiff was forced to leave his apartment until repairs were made. (Ibid.) Plaintiff was forced out his apartment for approximately six months. (Compl. ¶ 33.) Defendants consistently misrepresented the progress in repairs to Plaintiff, and informed Plaintiff that they would check for mold after construction was complete. (Compl. ¶ 43.) Defendants failed to inspect for mold, and upon Plaintiff’s return, mold was discovered throughout the bathroom walls. (Compl. ¶ 44.) In addition, Defendants failed to install safety handles so that Plaintiff could safely enter and exit the bathtub. (Compl. ¶ 45.) As a result of this, and of worn-down flooring in the bathroom, Plaintiff fell and injured himself exiting the bathtub. (Compl. ¶ 48.)

PROCEDURAL HISTORY 

On April 11, 2022, Plaintiff filed the Complaint asserting eleven causes of action:

1.    Negligence;

2.    Breach of Implied Warranty of Habitability;

3.    Breach of Covenant of Quiet Enjoyment;

4.    Breach of Contract;

5.    Intentional Infliction of Emotional Distress;

6.    Negligent Infliction of Emotional Distress;

7.    Breach of Covenant of Good Faith and Fair Dealing;

8.    Battery;

9.    Intentional Misrepresentation;

10.                   Negligent Misrepresentation; and,

11.                   Constructive Eviction

On June 10, 2022, Defendants Joseph Powell and the Josephine Powell Trust (together “Movants”) filed the instant Demurrer to the Complaint and Motion to Strike.

On July 22, 2022, Plaintiff filed a Request for Continuance of the proceedings.

On August 5, 2022, this Court granted that request for thirty days.

On September 9, 2022, Plaintiff filed an Opposition to the Demurrer and Motion to Strike.

On September 12, 2022, Movants filed a Reply.

DISCUSSION 

                         I.          DEMURRER

Movants demur to the Fifth, Sixth, Ninth, Tenth, and Eleventh Causes of Action.

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.)

Both parties have identified glaring defects in one another’s moving papers. Plaintiff points out that Movants’ Counsel failed to properly engage in the meet and confer process as required by Code of Civil Procedure section 430.41(a) before filing the instant Demurrer. Movants note that Plaintiff’s Opposition was both untimely and overlong. Both positions have merit and the demurrer and motion to strike are placed off calendar. The Court will consult with counsel to determine how long it will take them to learn what the rules are and how to comply with them so that they do not waste their clients’ money and the Courts time any further.

DATED: September 19, 2022 

____________________________

Hon. Robert S. Draper 

Judge of the Superior Court