Judge: Ronald F. Frank, Case: 23TRCV01881, Date: 2023-12-19 Tentative Ruling
Case Number: 23TRCV01881 Hearing Date: February 23, 2024 Dept: 8
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HEARING DATE: February 23, 2024
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CASE NUMBER: 23TRCV01881
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CASE NAME: Deandre Davon Fluckers, et al. v.
Extended Stay America, Inc., et al.
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MOVING PARTY: (1) Defendant,
Extended Stay America, Inc.
RESPONDING PARTY: (1) Plaintiff, Deandre Davon Fluckers and
Renzo Ross
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TRIAL DATE: Not
Set.
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MOTION:¿ (1) Defendant, Extended Stay America, Inc.’s Demurrer
(2) Defendant, Extended Stay America, Inc.’s Motion to
Strike
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Tentative Rulings: (1) Defendant, Extended Stay
America, Inc.’s Demurrer is OVERRULED in part and SUSTAINED in
part.
(2) Defendant, Extended Stay America, Inc.’s Motion to
Strike is DENIED in part and MOOTED in part.
I. BACKGROUND¿¿
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A. Factual¿¿
¿
On June 12,
2023, Plaintiffs, Deandre Davon Fluckers, Renzo Ross, and Lisa Y. Ross filed a
Complaint against Defendants, Extended Stay America, Inc., Orkin, LLC, aka
Orkin Pest Control, Housing Authority for the City of Los Angeles, Beach Front
Property Management, Inc. aka Beach PPTY MGMT, Seth Neblett, Ati Pauta, Victor
Ocampo, and DOES 1 through 100. On August 9, 2023, Plaintiffs filed a First
Amended Complaint (“FAC”) alleging causes of action for: (1) Negligence; (2)
Strict Liability – Faure to Warn; (3) Negligent Failure to Provide Habitable
Premises; (4) Breach of Implied Warranty of Habitability; (5) Breach of the
Covenant of Quiet Enjoyment; (6) Nuisance; (7) Premises Liability; (8)
Intentional Infliction of Emotional Distress; (9) Collection of Rent for
Substandard Dwelling; (10) Constructive Eviction and Willful Interruption of
Services; (11) Harassment; (12) Violation of Unfair Competition Law – Cal.
Business and Professions Code § 17200, et seq.; (13) Violation of Los Angeles
County Code § 8.52.130, et seq.; and (14) Fraudulent Concealment.
Both Defendants,
Beach
Front Property Management, Inc., aka Beach PPTY MGMT (“BFPM”) and Extended Stay America (“Extended
Stay”) filed a Demurrer and Motion to Strike portions of the FAC.
However, due
to numerous procedural errors, this Court has continued Defendant, Extended
Stay’s motions.
On January 5,
2024, however, this Court did sustain Beach Front Property’s demurrer in part,
noting that the demurrer to the cause of action for fraudulent concealment was
overruled, but the rest of the causes of action were sustained. The Court also
noted that Beach Front Property’s motion to strike was mooted.
As such, the
Court now rules on Extended Stay’s revised demurrer and motion to strike.
B. Procedural¿¿
On October 24, 2023, Extended
Stay filed a non-compliant Demurrer and a Motion to Strike. On December 6,
2023, Plaintiffs filed opposition papers to both motions. On December 12 ,
2023, Extended Stay filed reply briefs. Because Extended Stay’s original Demurrer
violated California Rules of Court, this Court allowed a refiling of a
code-compliant demurrer. On December 20, 2023, Extended Stay filed their
revised demurrer. On December 28, 2023,
Plaintiff filed an opposition to the revised demurrer. After filing another
non-compliant demurrer, the Court allowed Extended Stay one more bite at the
apple.
At the continued February 9,
2024 hearing, the Extended Stay failed to file their demurrer with the Court,
even if they served it on Plaintiff. The Court notes that Plaintiff filed an
updated opposition brief on January 22, 2024 and that Extended Stay filed a
reply brief on February 2, 2024.
On February 13, 2024,
Extended Stay filed their amended demurrer.
II. GROUNDS FOR MOTIONS
Extended Stay demurs to Plaintiffs’ FAC on the grounds that
it argues Plaintiffs’ first through thirteenth causes of action fail to state
any cause of action for which relief may be granted against Extended Stay.
Further, Extended Stay files a Motion to Strike portions
of Plaintiffs’ FAC that discuss Plaintiffs’ allegations regarding attorneys’
fees and request for punitive damages.
III. ANALYSIS¿¿
A. Legal
Standard
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. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
¿¿¿
A pleading is uncertain if it is
ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer
for uncertainty may lie if the failure to label the parties and claims renders
the complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[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.)¿¿¿
B. Discussion
Negligence and Strict Liability – Failure
to Warn
Extended Stay demurs to the first
and second causes of action, each based on theories of vicarious liability,
fail because Extended Stay cannot be vicariously liable for Orkin’s conduct.
Extended Stay argues that Orkin is an alleged independent contractor, and
Extended Stay exercised zero control over Orkin’s provision of pest control
services at the subject property. The elements of premises liability and
negligence cause of action are the same: duty, breach, causation and
damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994,
998.) “The owner of premises is under a duty to exercise ordinary care in
the management of such premises in order to avoid exposing persons to an
unreasonable risk of harm. A failure to fulfill this duty is negligence.”
(Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611,
1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32,
37.)
“Ordinarily, negligence may be alleged in general
terms, without specific facts showing how the injury occurred, but there are
‘limits to the generality with which a plaintiff is permitted to state his
cause of action, and ... the plaintiff must indicate the acts or omissions
which are said to have been negligently performed. He may not recover upon the
bare statement that the defendant’s negligence has caused him injury.’
[Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)
However, while negligence may be alleged in general terms, there are “limits to
the generality with which a plaintiff is permitted to state his cause of
action.” (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)
Those who own, possess, or control property generally have a duty to exercise
ordinary care in managing the property in order to avoid exposing others to an
unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014)
232 Cal.App.4th 32, 37.) Consequently, the “duty to exercise reasonable
care can be inferred from the assertion of the fact that defendant owned and
managed the property.” (See Pultz v. Holgerson (1986) 184
Cal.App.3d 1110, 1117 [allegation of defendant's negligent management and
maintenance of property].)
Extended Stay argues that Orkin is an independent
contractor, and that it does not exercise any control over Orkin’s actions, and
that Orkin was in charge of pest control. Extended Stay contend that the FAC
fails to allege Extended Stay had no ability to control the manner and means by
which Orkin performed its work, and did not make any directive to Orkin as to
how the pest control work was to be performed and did not have any ability to
control the process. More specifically, Extended Stay argues that the FAC omits
any allegations that Defendant exerted any control over how Orkin conducted its
business, any direction to Orkin about how to do, or not do, its work, and
maintain that the condition of the subject property was the sole function of
subcontractor Orkins’ own operation.
Under the doctrine of respondeat superior, an employer
is vicariously liable for his employee’s torts committed within the scope of
the employment. This doctrine is based on “ ‘a rule of policy, a deliberate
allocation of a risk. The losses caused by the torts of employees, which as a
practical matter are sure to occur in the conduct of the employer’s enterprise,
are placed upon that enterprise itself, as a required cost of doing business.”
’ ” (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.)
“An agent or employee is always liable for his own torts, whether his employer
is liable or not.” (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th
1403, 1411 [178 Cal.Rptr.3d 18].) “Agency is the relation that results from the
act of one person, called the principal, who authorizes another, called the
agent, to conduct one or more transactions with one or more third persons and
to exercise a degree of discretion in effecting the purpose of the principal.”
(L. Byron Culver & Associates v. Jaoudi Industrial & Trading Corp. (1991)
1 Cal.App.4th 300, 304.)
Respondeat superior is a form of strict liability, in
that the employer is responsible for the employee's wrongful acts (whether
negligent or intentional) notwithstanding the exercise of due care in hiring
the employee or supervising his or her conduct. (Hinman v. Westinghouse Elec.
Co. (1970) 2 Cal. 3d 956.) Plaintiff need only prove an employee caused the
injury, not necessarily which employee was at fault. (Perez v. City of
Huntington Park (1992) 7 Cal. App. 4th 817.) However, employers are
unlikely to be held liable for torts of independent contractors. The parties
have not briefed the elements to determine whether an individual is an
employer’s employee or their independent contractor because nothing in the FAC
alleges that Orkin was an independent contractor, and Defendant Extended Stay
has not judicially noticed any other material. As such, the Court stresses that
the standard on demurrer is to determine the sufficiency of the allegations in
the pleading, on its face, not to consider facts raised by the demurring party
that are outside the scope of the FAC.
Here, the FAC contends that Defendant Orkin was hired
by Defendant, Extended Stay to eradicate the pest problem at the subject
premises. (FAC, ¶ 13.) The FAC also seemingly asserts that Defendant, Extended
Stay, hired Defendant Orkin, and is vicariously liable for Orkin’s conduct.
(FAC, ¶ 125.) However, there appears to be a typo in Plaintiffs’ FAC as it
states: “At all times relevant hereto, because Defendant ESA hired Defendant
Orkin, Defendant ESA is vicariously liable for the conduct of Defendant ESA.”
(FAC, ¶¶ 125, 137.) Further, specifically under the first and second causes of
action, Plaintiff asserts that Defendants and/or their agents owed a duty…”
(FAC, ¶¶ 113, 118, 132, 144.) However, the Court also understands that
Plaintiff, in a conclusory manner, alleges that “Defendants failed and continue
to fail to properly supervise, manage, and/or communicate with their own
agents, employees, independent contractors, vendors, and other and continue to
allow, encourage, and/or permit such persons to negligently conduct themselves
in violation of Defendants’ duty to Plaintiffs.” (FAC, ¶¶ 14, 114.)
Based on the above allegations, the FAC is vague and
ambiguous as to whether Orkin is alleged to be ESA’s employee, agent, or independent
contractor. The typos do not strengthen
plaintiffs’ argument. Because of this, the Court finds that demurrer may be
sustained as to the first and second causes of action, namely, because it is
unclear – based on the face of the FAC – whether Plaintiff is alleging that
Orkin is an employee or independent contractor. Although the Court assumes that
Plaintiff is alleging that Orkin is an agent of Extended Stay, the typo in the
paragraphs alleging vicarious liability create uncertainty as to the vicarious
liability claims. Plaintiff is given twenty (20) days leave to amend.
Negligent
Failure to Provide Habitable Premises
Next, Extended Stay argues that Plaintiffs’ claim for
negligent failure to provide habitable premises duplicates their negligence
claim. In fact, Defendant argues this cause of action is entirely superfluous
of Plaintiff’s negligence claim and is subject to demurrer. (citing Award
Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134-1135.)
In opposition, Plaintiffs argue that the first cause
of action for negligence is made against all Defendants, while the third cause
of action for Negligent Failure to Provide Habitable Premises specifically
excludes Orkin. In other words, Plaintiffs argue that the first cause of action
for negligence is for the misconduct that involves Defendant Orkin’s acts while
the third cause of action is for negligence that pre-dates (and post-dates for
certain Defendants) Defendant Orkin’s acts/involvement. The Court understands
Plaintiffs’ argument that the two theories are separated by Orkin, however, as
written, the First Cause of Action for Negligence is against all Defendants,
and does not clarify that it is only for Extended Stay’s negligence on a theory
of vicarious liability. Instead, the first cause of action for negligence often
refers to all “Defendants” negligence prior to specifying Defendant Orkin’s
liability as, presumably, an agent of Extended Stay. As noted in paragraph 2 of
the FAC, the term “Defendants” refers to all entities excluding Defendant
Orkin. As such, the negligence cause of action not only seeks to hold Extended
Stay liable for its own negligence, but also (subject to the deficiencies noted
above) Orkin’s alleged agent’s liability under a theory of respondeat superior.
As such, in analyzing paragraphs 111 through 122 as
applied to Extended Stay’s negligence on its own, the allegations are almost
identical to the allegations in the third cause of action for Negligent Failure
to Provide Habitable Premises. For example the following paragraphs have the
same allegations, but may be stated in a slightly different way: (1) Paragraph
112 & Paragraph 146; (2) Paragraph 113 & Paragraph 148; (3) Paragraph
114 & Paragraph149; (4) Paragraph 115 & Paragraphs 150, 151; and (5)
Paragraph 116 & Paragraph 151. Based on this, the Court SUSTAINS the
demurrer to the third cause of action for being duplicative. The Plaintiff is
granted twenty (20) days leave to amend.
Breach of Implied
Warranty of Habitability
Extended
Stay also demurs to the fourth cause of action for breach of implied warranty
of habitability. 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 California Supreme
Court has found that there is “a common law implied warranty of habitability in
residential leases in California…” (Green v. Superior Court
(1974) 10 Cal.3d 616, 619; see also Fairchild v. Park (2001) 90
Cal.App.4th 919, 924.) There is also an alleged breach of the covenant of
habitability in Civil Code § 1941, but the covenant is only applicable against
the lessor of the building.
First, Extended Stay bases its argument on
the fact that this cause of action is a contractual one, and because Plaintiff
has failed to plead a term of the rental agreement and fails to attach the
agreement to the FAC that this cause of action cannot stand. Here, the Court
notes, as it did in the prior ruling on demurrer for Beach Front Property, that
the above factors are what is required to be pleaded in a cause of action for
Breach of the Implied Warranty of Habitability. Even despite this, Plaintiff
notes in the opposition that the FAC does plead a contract by operation of law.
For example, paragraphs 10, 159 through 182, and others, state the existence of
a statutorily imposed rental agreement between Plaintiffs and Extended Stay. In
Paragraph 12 of the FAC, that Plaintiffs were a tenant of Extended Stay’s
property, and that Extended Stay owned, operated, controlled, and/or otherwise
maintained the premises…and during that time period was responsible for
maintaining the property in a lawful and habitable condition but failed and/or
refused to do so. (FAC, ¶ 12.)
The FAC identifies all
defendants who fall under the term “defendants” (not including Orkin) as
lessors and managers. (FAC, ¶ 113.) This Court notes that although it sustained
Beach Fron Property’s Demurrer as to this cause of action, this was based on a
judicially noticed grant deed, not judicially noticed in the hearing for
Extended Stay’s demurrer to the FAC. As such, based on the face of the FAC – as
it pertains to Extended Stay – Extended Stay has been alleged to be a lessor of
the property.
Next, Extended Stay
argues that Plaintiffs fail to allege that the condition was unknown to
Plaintiffs prior to their occupancy, and thus fails to meet all the conditions
required. But the law does not require such an element. The Greene Court noted that the
“increasing complexity of modern apartment buildings not only renders them much
more difficult and expensive to repair than the living quarters of earlier
days, but also makes adequate inspection of the premises by a prospective
tenant a virtual impossibility” (Id. at 624.)
In applying the actual elements for this cause of action,
this Court notes that Plaintiff has alleged the required elements. As such, the
Court OVERRULES this cause of action.
Breach of the
Covenant of Quiet Enjoyment & Statutory Harassment – Civil Code § 1940.2
Next,
Extended Stay argues that Plaintiff’s fifth cause of action fails because it is
duplicative of the statutory harassment cause of action, and because they
continue to reside on the property. 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 Estaes (2005) 125 Cal.App.4th 578, 588-591.)
But the demurrer misstates the law. An eviction, either
actual or constructive, is not required for a breach of the covenant of quiet
enjoyment. When a landlord deprives a tenant of beneficial enjoyment of the
leased property, the tenant may sue for breach of contractual damages as well
as for injunctive relief. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873,
897.) This cause of action has often been tied to breach of the covenant by eviction,
which disturbs the tenant’s right to undisrupted possession of the leased
premises. (Ibid.) The Third District Court of Appeal in Guntert v.
City of Stockton (1976) 55 Cal.App.3d 131, distinguished claims in which
the landlord has actually or constructively ousted the tenant from those in
which the landlord’s interference with the tenant’s enjoyment or use of the
property does not lead to ouster. (Id. at 898.) Many Courts have since
upheld this distinguishing factor since. As such, a cause of action for breach
of the implied covenant of quiet enjoyment can be understood as a cause of
action encompassing claims for wrongful eviction, and also claims in which the
tenant’s use of the premises is disturbed, but the tenant remains in
possession, and sues for damages. (Ibid.)
The Court notes that Plaintiff has alleged an oral and
written lease agreement between themselves and Defendants. (FAC, ¶ 149.)
Plaintiffs have alleged that Defendants breached their duties to secure the
quiet possession of the property, and have substantially interfered with
Plaintiffs’ quiet enjoyment of the leased property. (FAC, ¶174.) Further,
Plaintiffs have alleged damages in the amount equal to rent payments, or amount
to be proven at trial. (FAC, ¶176.) While
Beach Front Property’s demurrer was sustained as to this cause of action, the
arguments presented by Extended Stay are not the same, Extended Stay did not
file a request for judicial notice of a grant deed. As such, based on the face
of the pleading, and nothing else, this Court OVERRULES demurrer as to the
fifth cause of action, but will SUSTAIN the demurrer as to the eleventh cause
of action for Harassment – Violation of Civil Code § 1940.2 as it is
duplicative of this cause of action.
Nuisance
Extended Stay argues that Plaintiffs cannot maintain a
cause of action for public nuisance because they lack standing, fail to allege
essential elements, fails to allege Defendant’s active participation, and is
duplicative of the negligence claim. A
nuisance is statutorily defined as anything “injurious to health” or “indecent,
or offensive to the senses, or an obstruction to the free use of property” that
interferes “with the comfortable enjoyment of life or property…” (Civ. Code, §
3479.) “A public nuisance is one which affects at the same time an entire
community or neighborhood, or any considerable number of persons, although the
extent of the annoyance or damage inflicted upon individuals may be unequal.”
(Civ. Code, § 3480.) “[P]ublic nuisances are offenses against, or
interferences with, the exercise of rights common to the public.” (People ex
rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103) “Of course, not every
interference with collective social interests constitutes a public nuisance. To
qualify, and thus be enjoinable [or abatable], the interference must be
both substantial and unreasonable.” (Id. at p. 1105.) It is substantial
if it causes significant harm and unreasonable if its social utility is
outweighed by the gravity of the harm inflicted. (Ibid.)
The elements “of a
cause of action for public nuisance include the existence of a duty and
causation.” (In re Firearm Cases (2005) 126 Cal.App.4th 959, 988.)
Public nuisance liability “does not hinge on whether the defendant owns,
possesses or controls the property, nor on whether he is in a position to abate
the nuisance; the critical question is whether the defendant created or
assisted in the creation of the nuisance.” (City of Modesto Redevelopment
Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.) The elements of public nuisance are: (1) a
nuisance that served as an obstruction of the free use of property so as to
interfere with the comfortable enjoyment of life or property; (2) the nuisance
affected a substantial number of people; (3) an ordinary person would be
unreasonably annoyed or disturbed by the nuisance; (4) the seriousness of the
harm occasioned by the nuisance outweighed its social utility; (5) plaintiffs
did not consent to the nuisance; (6) plaintiffs suffered harm as a result of
the nuisance that was different from the type of harm suffered by the general
public; and (7) the nuisance was a substantial factor in causing the
plaintiffs’ harm. (Department of Fish & Game v. Superior Court (2011)
17 Cal.App.4th 1323, 1352.)
Much of the FAC rests
on Defendants’ alleged failure to abate a nuisance, which is – as noted above –
not enough to state a cause of action for public nuisance. Plaintiffs do
however allege that this failure to abate the nuisance was the result of
policies and practices that prevented the allocation of resources necessary to
maintain the property in a habitable condition, solely in an effort to maximize
profits for Defendant at Plaintiffs’ expense. Additionally, this Court turns
the parties’ attention to the case of Birke v. Oakwood
Worldwide (2009) 169 Cal.App.4th 1540, 1548, where the Court found
allegations were sufficient where Plaintiff alleged that “the condition impacts
all guests of the apartment complex” in a secondhand tobacco smoke case. Similarly,
Plaintiffs allege that unless Defendants are enjoined from continuing their
course of conduct, the Plaintiffs currently residing at the property will
suffer irreparable injury in that those Plaintiffs will continue to be deprived
of comfortable enjoyment of their leasehold and property, and their health and
safety will be irreparable harmed. (FAC, ¶192.) Accordingly, the Court finds
these allegations sufficient to state a cause of action for public nuisance.
Premises
Liability
Extended Stay next argues that
Plaintiffs’ cause of action for premises liability fails because it is
redundant and duplicative of the negligence cause of action. Premises liability
is a form of negligence wherein the “owner of premises is under a duty to
exercise ordinary care in the management of such premises in order to avoid
exposing persons to an unreasonable risk of harm.”¿ (Brooks v. Eugene Burger
Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)¿ “The elements of a
cause of action for premises liability are the same as those for negligence”:
(1) the defendant’s legal duty to use due care; (2) breach; (3) proximate and
legal causation; and (4) damages.¿ (Jones v. Awad (2019) 39 Cal.App.5th
1200, 1207.)
Here, the Court notes that in most
cases, a cause of action for negligence and premises liability will be similar
– hence their elements are same. However, Plaintiff asserts again that Orkin is
not alleged in the seventh cause of action for premises liability, but is in
the first cause of action for negligence. Again, the Court does not find this
to be a compelling argument as the first cause of action is not entirely based
on vicarious liability. However, Plaintiffs also argue that the basis of
liability in the two causes of action are distinct as the first seeks liability
is based on Extended Stay’s (and other defendants) breach of their duty to
maintain the property in a condition fit for human occupation and failing to repair
all substandard dilapidated conditions which harmed Plaintiffs. The seventh
cause of action – as Plaintiffs suggest – is based on the grounds that Extended
Stay failed to exercise general due care in its management of the premises
under Civil Code § 1714, including in its hiring and entrustment of staff and
other agents and management of third parties. The Court finds that Plaintiffs’
reasoning actually cuts against them as their seventh cause of action liability
looks like negligent hiring or negligent entrustment – a cause of action which
would fall under negligence. The two causes of action are duplicative.
As such, this Court SUSTAINS the
demurrer as it relates to the cause of action for premises liability.
Intentional
Infliction of Emotional Distress
Extended
Stay argues Plaintiff’s IIED claim fails because there is no allegation it
intended to injure Plaintiff, and does not allege outrageous conduct. “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, citation and ellipses omitted.)
Although intention
is not a per se requirement as a reckless disregard standard is sufficient, for
the same reasons as the Court’s ruling in Beach Front Property’s demurrer to
the FAC, this Court finds that Plaintiffs allegations fail to state a cause of
action for IIED. The Demurrer to the IIED claim is SUSTAINED and the Court
invited argument as to whether leave to amend should be granted.
Collection of Rent
for Substandard Dwelling
The Court notes that the demurrer
suggests it is challenging the ninth cause of action for Collection of Rent for
Substandard Dwelling. Civil Code § 1942.4 states in relevant part:
“(a) A landlord of a dwelling
may not demand rent, collect rent, issue a notice of a rent increase, or issue
a three-day notice to pay rent or quit… if all of the following conditions
exist prior to the landlord’s demand or notice:
(1) the dwelling substantially
lacks any of the affirmative standard characteristics listed in section 1941.1
or violates section 17920.10 of the Health and Safety Code, or is deemed and
declared substandard as set forth in section 17920.3 of the Health and Safety
Code because conditions listed in that section exist to an extent that
endangers the life, limb, health, property, safety, or welfare of the public or
the occupants of the dwelling.
(2) A public officer or employee
who is responsible for the enforcement of any housing law, after inspecting the
premises, has notified the landlord or the landlord's agent in writing of his
or her obligations to abate the nuisance or repair the substandard conditions.
(3) The conditions have existed and
have not been abated 35 days beyond the date of service of the notice specified
in paragraph (2) and the delay is without good cause. For purposes of this
subdivision, service shall be complete at the time of deposit in the United
States mail.
(4) The conditions were not caused
by an act or omission of the tenant or lessee in violation of Section 1929 or
1941.2.”
Here
the Court is uncertain as to what Extended Stay’s argument is when it states
Plaintiffs merely state conclusory allegations. Plaintiffs have included the
exact violations listed in 1941.1 and Health and Safety Coed 17920.3 (FAC, ¶¶
217-218); notes that a public officer or employee (“DPH Inspectors and/or other
municipal enforcement inspectors, who are public employees”) have notified the
Defendants in writing of their duty to correct the substandard conditions (FAC,
¶ 210); that the conditions have existed and were not abated after 35 days
(FAC, ¶ 220); and that the conditions were not caused by an act or omission of
the tenant or lessee. (FAC, ¶ 221.)
As
such, the Court OVERRULES demurrer as to this issue.
Constructive
Eviction and Willful Interruption of Services
Extended
Stay demurs to the tenth cause of action for constructive eviction and willful
interruption of services as it impermissibly consolidates server causes of
action into one, and because Plaintiffs have not been evicted. A constructive
eviction occurs when the acts or omissions to act of a landlord, or any
disturbance or interference with the tenant’s possession by the landlord,
renders the premises, or a substantial portion thereof, unfit for the purposes
for which they were leased, or which has the effect of depriving the tenant for
a substantial period of time of the beneficial, enjoyment or use of the
premises.” (Groh v. Kover’s Bull Pen, Inc. (1963) 221 Cal.App.2d 611,
614.) “Any interference by the landlord by which the tenant is deprived of the
beneficial enjoyment of the premises amounts to a constructive eviction if the
tenant so elects and surrenders possession.” (Johnson v. Snyder (1950)
99 Cal.App.2d 86, 88.) Additionally, Civil Code section 789.3 provides that “A
landlord shall not with intent to terminate the occupancy under any lease … of
property used by a tenant as his residence willfully cause, directly or
indirectly, the interruption or termination of any utility service furnished
the tenant, including, but not limited to, water, heat, light, electricity,
gas, telephone, elevator, or refrigeration, whether or not the utility service
is under the control of the landlord.” (CCP § 789.3(a).) To allege constructive
eviction, a plaintiff must allege a disturbance of their possession by the
lessor, which “has the effect of “depriving the tenant of the beneficial enjoyment
of the premises, provided the tenant vacates the premises within a reasonable
time.” (Nativi v. Deutsche Bank Nat'l Tr. Co. (2014) 223 Cal.App.4th
261, 292 [citations omitted].)
The Court
agrees that this cause of action consolidates two causes of action that do not
per se relate to one another. As noted above, actual eviction is not a per se
requirement for breach of the covenant of quiet enjoyment. However, surrendering
of the premises is required to bring a constructive eviction cause of action.
Plaintiffs argue in footnote 4 of their opposition that they are not pleading a
constructive eviction cause of action, but cause of action ten clearly states
“constructive eviction” AND “willful interruption of service.” This indicates
to the Court that there are two causes of action stated. As such, based on this
alone, the cause of action can be sustained for uncertainty. However, even if
this is exclusively a cause of action for willful interruption of services, the
Court SUSTAINS demurrer as to this cause of action for the same reasons it
sustained Beach Front Property’s demurrer to this cause of action.
Violation of
California Business & Professions Code § 17200
Next, Extended Stay argues that
Plaintiffs cannot maintain a cause of action for Violation of Unfair
Competition Law. To set forth a claim for a violation of Business and
Professions Code section 17200 (“UCL”), Plaintiff must establish Defendant was
engaged in an “unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising” and certain specific acts.
(Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is
not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products
Co. (2000) 23 Cal.4th 163, 173.) More specifically, Extended Stay submits that
Plaintiffs fail to state the inadequacy of legal remedies, fails to allege
facts for restitution, unlawfulness, unfairness, or fraudulent behavior.
Just as the Court sustained the
Beach Front Property’s demurrer as to this cause of action, the Court sustains
the demurrer here. As noted in the January 5, 2024 minute order, although
Plaintiff alleges the elements to this cause of action in a conclusory way, it
is not enough for Plaintiffs to merely allege that there were violations and
unlawful conduct without stating which codes and ordinances were violated. To
state a claim under this cause of action, facts must be plead with specificity,
not generality. As such, the demurrer to the eleventh cause of action is
SUSTAINED.
Violation
of Los Angeles County Code § 8.52.130, et seq.
Finally, Extended Stay argues that
Plaintiffs cannot maintain a cause of action under the Los Angeles County Code
section 8.52.130. Los Angeles County Code section 8.52.130 prohibits tenant
harassment and retaliation, which includes conduct that interferes with a
tenant’s right to live in habitable conditions and fraudulently causing a
tenant to vacate their tenancy.
Extended Stay asserts that this
cause of action is duplicative of the harassment cause of action. In Plaintiffs’
opposition, they argue that not only does this cause of action to have anything
to do with Extended Stay’s entry into their unit (as the Harassment cause of
action does), but that section 8.52.130(B)(1) and (2) serve as an independent
grounds for relief. For example, Section 8.52.170(D) states that each violation
of any provision of thie Chapter, and each day during which any such violation
is committed, permitted or continued, shall constitute a separate offense. But common law harassment and statutory
harassment appear to have separate elements even though the remedy is the same
for each. As such, the Court requests the parties provide thoughts as to
whether the duplicative nature of the two harassment claims means Plaintiff should
combine them into a single cause of action or whether the duplicative nature of
the remedies militates in favor of pruning yet another overlapping cause of
action at the pleading stage. The Court
will thus hear very brief oral argument on these points.
Fraudulent
Concealment
Extended Stay asserts that it is
demurring to all causes of action. However, there is no legal argument as to
the Fourteenth Cause of Action for Fraudulent Concealment, perhaps because ESA
ran out of pages in its brief.
C.
Extended Stay’s Motion to Strike
Legal Standard
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the
court.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that
the pleading has irrelevant, false improper matter, or has not been drawn or
filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice.¿ (Id.,
§ 437.)¿ “When the defect which justifies striking a complaint is capable of
cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998)
63 Cal.App.4th 761, 768.)¿ ¿
Discussion
Here, Extended Stay seeks to strike all
reference to Plaintiffs’ allegations of attorneys’ fees and requests for
punitive damages.
Civil Code section 3294, subdivision
(a) authorizes punitive damages in non-contract cases “where the defendant has
been guilty of oppression, fraud, or malice.”
“Malice
[is defined as] conduct which is intended by the defendant to cause injury to
the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disregard for the rights and safety of others.” (Civ.
Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that
subjects a person to cruel and unjust hardship in conscious disregard of that
person's rights.” (Civ. Code, § 3294, subd. (c)(2).) “Fraud” is “an intentional
misrepresentation, deceit, or concealment of a material fact known to the
defendant with the intention on the part of the defendant of thereby depriving
a person of property or legal rights or otherwise causing injury.” (Civ. Code,
§ 3294, subd. (c)(3).)
“In order to survive a motion to strike an allegation
of punitive damages, the ultimate facts showing an entitlement to such relief
must be pled by a plaintiff. In passing on the correctness of a ruling on a
motion to strike, judges read allegations of a pleading subject to a motion to
strike as a whole, all parts in their context, and assume their truth. In
ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson
v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation
an intentional tort was committed is not sufficient to warrant an award of
punitive damages. Not only must there be circumstances of oppression, fraud or
malice, but facts must be alleged in the pleading to support such a claim.” (Grieves
v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Something more than the
mere commission of a tort is always required for punitive damages. There must
be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a
fraudulent or evil motive on the part of the defendant, or such a conscious and
deliberate disregard of the interests of others that his conduct may be called
willful or wanton.” (Taylor v. Superior Court (1979) 24 Cal.3d 890,
894.)
To plead a “willful and conscious disregard of the
rights of others,” a plaintiff need only allege, “that the defendant was aware
of the probable dangerous consequences of his conduct, and that he willfully
and deliberately failed to avoid those consequences.” (Lackner v. North
(2006) 135 Cal.App.4th 1188, 1211.) However, the definition of malice also
requires that the conduct be despicable. “'Despicable conduct' has been
described as conduct which is so vile, base, contemptible, miserable, wretched
or loathsome that it would be looked down upon and despised by ordinary decent
people. Such conduct has been described as '[having] the character of outrage
frequently associated with crime.”' (American Airlines, Inc. v. Sheppard,
Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) In cases
involving conduct performed without intent to harm, a finding of malice
requires proof by clear and convincing evidence that defendant's tortious wrong
amounted to despicable conduct and that such despicable conduct was carried on
with a ‘willful and conscious disregard’ of the rights or safety of others.”
(See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704,
725.)
“A breach of a fiduciary duty alone without malice,
fraud or oppression does not permit an award of punitive damages. The wrongdoer
must act with the intent to vex, injure, or annoy, or with a conscious
disregard of the plaintiff's rights. Punitive damages are appropriate if the
defendant's acts are reprehensible, fraudulent or in blatant violation of law
or policy. The mere carelessness or ignorance of the defendant does not justify
the imposition of punitive damages. Punitive damages are proper only when the
tortious conduct rises to levels of extreme indifference to the plaintiff's
rights, a level which decent citizens should not have to tolerate.” (Tomaselli
v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
Here, Extended Stay argues Plaintiffs’ FAC is
insufficient to support a claim for punitive damages. As noted above, this
Court ruled on numerous causes of action above, predominantly sustaining
demurrer. As such, the Motion to Strike punitive damages as pertaining to the
sustained causes of action on demurrer above are mooted. However, as to the
mention of punitive damages for the causes of action that were overruled, or
not demurred to (fraudulent concealment), the court DENIES the Motion to
strike.
Attorneys’
Fees
Parties cannot recover attorney’s
fees unless expressly authorized by a statute or contract. (Hom v.
Petrou (2021) 67 Cal.App.5th 459, 464.) As for the Motion to Strike as
it relates to attorneys’ fees, the Court analysis is the same. Attorneys’ fees
as the pertain to the causes of action sustained on demurrer are mooted.
However, reasonable attorneys’ fees awarded by statute, like in the ninth cause
of action for collection of rent on untenable dwelling, etc. are DENIED.
IV.
CONCLUSION
For the foregoing reasons, Extended Stay’s Demurrer is
OVERRULED in part and SUSTAINED in part. Further, Extended Stay’s Motion to
Strike is DENIED in part, and MOOTED in part.
Extended Stay is ordered to give
notice.