Judge Sarah J. Heidel, Case Number: 23BBCV00655, Date: 2024-03-14 Tentative Ruling

Judge: Sarah J. Heidel, Case: 23BBCV00655, Date: 2024-03-14 Tentative Ruling

Case Number: 23BBCV00655 Hearing Date: March 14, 2024 Dept: V

SHAHRZAD ALVANDIAN, et al.; Plaintiffs, vs. SELECT PRODUCE PROPERTIES, LLC, et al.; Defendants. Case No.: 23BBCV00655 Hearing Date: March 14, 2024 Time: 8:30 a.m. [TENTATIVE] ORDER RE: DEFENDANT SELECT PRODUCE PROPERTIES, LLC'S DEMURRER AND MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT

MOVING PARTIES: Defendant Select Produce Properties, LLC

RESPONDING PARTY: Plaintiffs Shahrzad Alvandian and Masoud Ansari

Demurrer and Motion to Strike Portions of the Second Amended Complaint

The court considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiffs Shahrzad Avandian (“Avandian”) and Masoud Ansari (“Ansari”) (collectively, “Plaintiffs”) allege that on July 18, 2023, Avandian entered into a written lease agreement with lessor Coldwater Court Apartments for the property located at 4526 Coldwater Canyon Avenue, #205, Los Angeles, CA 91604. Plaintiffs allege that through a series of transactions, Defendant Select Produce Properties, LLC (“SPP”) and Defendant SPI, LLC (“SPI”) became the present lessors of the property. Avandian alleges that she and her husband Ansari currently reside in Unit #205.

Plaintiffs allege that commencing on November 14, 2021, Defendants have created a nuisance at Unit #305 by allowing it to be used by others who make excessive noise day and night. Plaintiffs allege that Defendants were repeatedly notified of the excessive noise, but they failed to take action to reduce the noise and sounds.

The operative Second Amended Complaint was filed on January 16, 2024, and alleges causes of action for (1) nuisance, (2) breach of lease, (3) breach of implied covenant of quiet enjoyment, (4) intentional infliction of severe emotional distress, and (5) negligence.

On February 13, 2024, Defendant filed the instant demurrer to the SAC and motion to strike punitive damages. Plaintiff opposes.

LEGAL STANDARD

A. Demurrer

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.)¿¿¿

B. Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the

claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

DISCUSSION

Defendant demurs to the third and fourth causes of action and argue that Plaintiffs fail to allege sufficient facts and that the allegations are uncertain. Defendant also moves to strike punitive damages on the basis that Plaintiffs fail to allege sufficient facts.

A. Third COA: Breach of Implied Covenant of Quiet Enjoyment

Defendant argues that this claim is duplicative of the second cause of action for breach of the lease.

“[E]very lease includes a covenant of quiet possession and enjoyment.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 (citing Civ. Code, § 1927).) “Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) “To be actionable, the [landlord’s] act or omission must substantially interfere with a [tenant’s] right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Ibid.)

“A ‘“breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself’ and it has been held that ‘[b]ad faith implies unfair dealing rather than mistaken judgment.... [Citation.]” [Citation.]’” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394. citing Congleton v. National Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 59.) “California case law has recognized a tort cause of action for wrongful eviction, including breaches of the covenant of quiet enjoyment that

compel a tenant to vacate, whereas breach of covenant of quiet enjoyment that does not result in a wrongful constructive or actual eviction is a breach of contract.” (Bevis v. Terrace View Partners, LP (2019), 33 Cal. App. 5th 230, 251). There is no allegation that Plaintiffs have vacated the premises. Accordingly, the Court finds that the third cause of action is duplicative of the breach of contract causes of action.

The demurrer to the third cause of action is SUSTAINED.

B. Fourth COA: Intentional Infliction of Emotional Distress

Defendant argues that Plaintiffs fail to allege specific facts showing outrageous conduct.

The elements of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) In order to avoid a demurrer, the plaintiff must allege with specificity the acts which she believes are so extreme as to exceed all bounds of behavior usually tolerated in a civilized community. (Ibid.)

Conduct to be outrageous must be so extreme as to exceed all bounds of behavior usually tolerated in a civilized community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Ibid.) “Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) The SAC does not allege conduct so extreme as to exceed all bounds of behavior usually tolerated in a civilized

community and that the conduct was calculated to cause mental distress. (Christensen, supra, 54 Cal.3d at 903.)

The demurrer to the fourth cause of action is SUSTAINED with leave to amend.

C. Punitive Damages

Defendant moves to strike punitive damages from the SAC.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found: “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.”

“Malice” is defined in Civil Code §3294 to mean “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 of the rights or safety of others.” (Civ. Code § 3294(c)(1).) As the court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” (Id. at 725 (citation omitted).)

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b).)

Defendant points out that the court granted the prior motion to strike punitive damages. Again, the court does not find the allegations sufficient to show despicable conduct that is willful by failing to stop or reduce the sound of the noisy tenants. The conduct does not rise to being base, vile, or contemptible. In opposition, Plaintiffs contend that a landlord, who is receiving

rent, and is ignoring the complaints of excessive noise of the tenant is entitled to punitive damages. However, Plaintiffs provide no authority for this assertion. Further, Plaintiffs fail to allege that the conduct was perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. Accordingly, the motion to strike is GRANTED with leave to amend.

Based on the foregoing, the court SUSTAINS the demurrer to the third cause of action without leave to amend and SUSTAINS the demurrer to the fourth cause of action with leave to amend. The court GRANTS the motion to strike with leave to amend.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: March 14, 2024