Judge Ronald F. Frank, Case 22TRCV00403 2022-10-25 Tentative Ruling

On May 27, 2022, Plaintiffs Norma Wesolowski, Brenda Zuniga, and Yessenia Bueno¿(collectively “Plaintiffs”) filed a complaint alleging the following: (1) Breach of Contract; (2) Private Nuisance; (3) Unfair Competition (Business and Professions Code § 17200); (4) Negligence; and (5) Failure to Return Security Deposit. This case arises out of Plaintiffs’ claim that Defendants Amal Zaky and Palo Vista Property Management (collectively “Defendants”) failed to disclose and maintain a building free from toxic mold and other hazardous substances during Plaintiffs’ leas with Defendants at 22523 Crenshaw Blvd, Torrance, CA 90505 (“the Property”.) ¿

On May 27, 2022, Plaintiffs filed a Complaint against Defendants alleging: (1) Breach of Contract; (2) Private Nuisance; (3) Unfair Competition (Business and Professions Code § 17200); (4) Negligence; and (5) Failure to Return Security Deposit. On August 9, 2022, Defendants filed this demurrer to the Complaint. On September 2, 2022, Plaintiffs filed an opposition to Defendants’ demurrer to the Complaint. No reply was filed.

II. MOVING PARTY’S GROUNDS FOR THE DEMURRER¿¿

Defendants demur to the entire complaint on grounds of uncertainty. Defendants also demur to the first, second, third, and fifth causes of action asserted in the Complaint.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)¿

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“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.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿

Uncertainty

Defendants assert that Plaintiffs’ Complaint is uncertain as it cannot be ascertained from the pleadings whether the lease agreement is written, oral, or implied by conduct.

The Code of Civil Procedure expressly permits a demurrer when the "pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” (CCP § 430.10(f).) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the complaint is so poorly drafted that the defendant cannot reasonably respond. (CCP § 430.10(f).)¿ A demurrer for uncertainty is a disfavored ground for sustaining a demurrer. (Id.)

Here, Defendants demur to the entire Complaint on grounds of uncertainty because, Defendants assert, it cannot be ascertained from the pleadings whether the lease is a residential lease of a commercial lease, or because there ae conflicting allegation in the Complaint. Defendants cite to paragraph 1 of the Complaint stating, “Plaintiffs...at all time material to this lawsuit, resided at 22523 Crenshaw Blvd., Torrance, CA...” (Compl. ¶ 1.) However, Plaintiffs later state that “Plaintiffs entered into a commercial lease agreement.” (Id. at ¶ 26.) Paragraph 27 states that Plaintiffs “operated a business” per the lease’s terms, although no copy of the lease or those terms are attached to the Complaint. Paragraph 36 alleges “residential occupancy.” Defendants assert that because the law treats residential leases and commercial leases differently, it is crucial to draw a distinction between the two. The Court concurs, in part.

The Court finds that several of the paragraphs in the Complaint are in conflict with each other, and the question of whether this was a commercial or a residential lease may have a bearing on the applicable law (e.g., with respect to the Complaint’s references to sections of the Civil Code that apply only to residential tenancies). While this does not render the complaint so uncertain such that defendants cannot determine how to respond to the Complaint, the Court is requiring Plaintiff to amend the first cause of action for other reasons so these inconsistencies and uncertainties should be clarified in an amended pleading.

Accordingly, while the demurrer to the entire Complaint on grounds of uncertainty is OVERRULED, Plaintiff should clarify whether the tenancy was a residential or commercial one and make the amended pleading internally consistent on that basis.

Breach of Contract

Defendants demur to the first cause of action on grounds that it cannot be ascertained from the Complaint whether the contract is written, oral, or implied by conduct. California Code of Civil Procedure 430.10, subsection (g) provides grounds for demurring when, “[I]n an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (CCP § 430.10(g).) Here, Plaintiffs have not alleged whether the subject lease agreement is written, oral, or implied by conduct. Accordingly, the demurrer to the first cause of action is SUSTAINED with leave to amend.

Private Nuisance

Defendants demur to the second cause of action on the grounds that it cannot be ascertained from the pleadings which of the parties to the lease agreement bears the responsibility for maintenance and repairs. Defendants further argue that it cannot be ascertained whether the Defendants engaged in an affirmative act of damaging the premises, or by failing to perform an obligation to repair, which would require a contract dictating the assignment of the obligation.

Code of Civil Procedure §430.10(e) permits a demurrer for failure to state facts sufficient to constitute a cause of action. “The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Thus, to allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. (Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.)

Here, plaintiffs allege defendants are the owners and landlords of the property who were responsible for the management and maintenance of the property; that there were multiple water intrusions and toxic mold growing throughout the property; that plaintiffs made verbal and written complaints to defendants about the conditions of the property; that defendants ignored plaintiffs’ complaints, failed to make repairs, and blamed them for the conditions instead of fixing the issues; that plaintiffs have experienced symptoms of mold exposure for which they sought medical treatment; and that plaintiffs could not enter the building after a doctor informed plaintiffs that the high levels of mold were dangerous to their health. (Compl., ¶¶ 2, 7-16, 30.) Plaintiffs allege defendants interfered with their use and enjoyment of the property, that the interference was substantial and unreasonable, and that plaintiffs suffered substantial damage as a resolve of defendants’ interference. (Id., ¶¶ 33, 34.)

These allegations are sufficient to plead a cause of action for private nuisance against defendants. The Demurrer to the second cause of action is thus OVERRULED.

Unfair Competition (Business and Professions Code § 17200

Defendants argue a § 17200 claim cannot be pursued by a tenant who has already vacated the property and a § 17200 claim allows only injunctive relief.¿ Defendants argue this cause of action fails because plaintiffs are out of possession of the property and seek monetary damages.¿¿¿The Court disagrees.

The Court notes that defendants’ argument that a § 17200 claim only provides for injunctive relief is essentially an argument that plaintiffs are seeking an improper remedy.¿ This argument is improper on a demurrer.¿ (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-83 [“A demurrer does not lie to a portion of a cause of action.”]; Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385 [“The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.”]¿)¿¿

In any case, despite defendants’ contention, remedies for a § 17200 claim include both injunctive relief and restitution.¿ (Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105, 1133.)¿ Here, plaintiffs are seeking restitution.¿ (Compl., ¶ 38.)¿ This is a proper remedy for a § 17200 claim.¿

Defendants’ argument that a § 17200 claim cannot be pursued by a tenant who has already vacated the property is unavailing.¿ Defendants rely on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903 to support their argument.¿ The Court of Appeal in Stoiber found the appellant failed to allege a cause of action for injunctive relief under the Unfair Business Practices Act because the appellant had no need of or standing to seek an injunction on her own behalf when the appellant was not in current possession of any property owned or managed by the defendants.¿ Stoiber, supra, 101 Cal.App.3d at 928.¿ Here, as discussed, plaintiffs are seeking restitution, not injunctive relief.¿ There is thus no issue with respect to a necessity for or standing to seek injunctive relief.¿ To this extent, plaintiffs’ § 17200 claim in this action is distinguishable from the § 17200 claim in Stoiber.¿ There is thus nothing barring plaintiffs from pursuing their § 17200 claim despite plaintiffs no longer being in possession of the property.¿

Accordingly, the demurrer to the third cause of action is OVERRULED.¿

Failure to Return Security Deposit

Defendants argue this cause of action fails because there is no Government Code § 1950.5(g)(1).¿ Defendants assert that, although there is a Civil Code § 1950.5, that provision relates to security for residential property, not commercial property.¿

The Court notes that while plaintiffs referenced Government Code § 1950.5(g)(1) in paragraph 44 of the complaint, it is clear from the cause of action itself and from the reference to Civil Code § 1950 in paragraph 46 that plaintiffs’ claim is a claim for violation of Civil Code § 1950.5, not Government Code § 1950.5.¿

Civil Code section 1950.5 specifically states that it “applies to security for a rental agreement for residential property that is used as the dwelling of the tenant.”¿ (Civ. Code § 1950.5(a).) If plaintiffs stand on their allegations that theirs was a commercial lease, and that they “operated a business” pursuant to the terms of their lease, it appears Civil Code section 1950.5 does not apply in this case.¿ (Compl., ¶ 26, 27.)

Accordingly, the demurrer to the fifth cause of action is sustained without leave to amend, unless plaintiffs proffer proof at the hearing of how they can successfully amend to state this cause of action against defendants.¿

The demurrer to the Complaint is SUSTAINED WITH LEAVE TO AMEND as to the first cause of action, OVERRULED as to the second and third causes of action, and SUSTAINED WITHOUT LEAVE TO AMEND as to the fifth cause of action.¿Further, Plaintiff should clarify whether the tenancy was a residential or commercial one and make the amended pleading internally consistent on that basis. Unless notice is waived, Defendants are ordered to give notice of the ruling.¿