Judge: Serena R. Murillo, Case: 22STCV11053, Date: 2023-08-15 Tentative Ruling
Case Number: 22STCV11053 Hearing Date: August 15, 2023 Dept: 31
TENTATIVE
Defendants’ demurrer is SUSTAINED with
leave to amend in part and OVERRULED in part. The demurrer is sustained with 30
days leave to amend as to the first cause of action for Violation of Civil Code §¿1942.4, and the twelfth cause of action for
trespass. The demurrer is overruled as to the cause of action for negligent
hiring, supervision, and retention.
Legal Standard
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) The court “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law
….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) In a demurrer
proceeding, the defects must be apparent on the face of the pleading or via
proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994).)
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. (Code Civ. Proc., §§ 430.30, 430.70.) The
only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
Meet and Confer
The demurrer and motion to strike are
accompanied by the declaration of H.G. Long which satisfies the meet
and confer requirement. (Code Civ. Proc. § 430.41.)
Discussion
First
Cause of Action (Violation of Civil Code §¿1942.4)
"… [T]here is a
statutory cause of action available to the residential tenant where the
premises are untenantable 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.)
Defendants argue that nowhere
does Plaintiff allege the written notification by a public officer or employee
responsible for enforcement of housing law, or that Defendants did not abate
the condition or conditions within35 days. There is also no allegation that the
failure to abate within 35 days was not with good cause.
The
Court agrees that there are no allegations regarding whether a public officer inspected the premises and gave the landlord written
notice that it must abate the nuisance or repair the property; and that the conditions have not
been remedied within 35 days of the notice. The complaint says nothing
about a public officer inspecting the premises and giving Defendants notice to
abate or repair, or that the conditions have not been remedied within 35 days
of that officer’s notice. The complaint merely alleges the conditions were not
remedied within days of Plaintiff’s
notice to correct the defective conditions at the property. (Complaint, ¶ 75.) This is not what the
statute requires.
As a result, the demurrer to the first
cause of action is SUSTAINED with leave to amend.
Ninth Cause of Action (Negligent Hiring,
Retention, and Supervision)
A
cause of action for negligent hiring, supervision, or retention of an employee
requires the following elements: (1) the employer hired employee; (2) the
employee was/became unfit or incompetent to perform the work for which he was
hired; (3) the employer knew or should have known the employee was/became unfit
or incompetent and that this unfitness or incompetence created a particular
risk to others; (4) the employee’s unfitness or incompetence harmed plaintiff;
and (5) the employer’s negligence in hiring/supervising/ retaining the employee
was a substantial factor in causing plaintiff’s harm. (CACI No. 426; see
also Federico v. Superior Court (1997) 59 Cal.App.4th 1207,
1213-1214.) To establish a cause of action for negligent hiring,
retention, or supervision, a plaintiff must show that the employer knew or
should have known that hiring or retaining the employee created a particular
risk or hazard and that particular harm
occurs. (See Z.V. v. County of Riverside (2015) 238 Cal.App.4th
889, 902; Doe, supra, 50 Cal.App.4th at 1054.) Negligent
hiring, retention, or supervision is a form of direct negligence. (Ibid.)
Defendant
argues that the ninth cause of action is alleged against both defendants,
including against Mark Barnes. However, the complaint alleges that Mark Barnes
is the agent of Forrest. Therefore, the agent/employee cannot be negligent in
its own hiring.
Plaintiff concedes this point, but maintains that
throughout the cause of action, it is clear that the charges for negligent
hiring, retention, and supervision are against Defendant Forrest Barnes.
Paragraphs 139, 141, and 143 demonstrate that the conduct at bar in the Ninth
Cause of Action is charged against the Defendant Forrest Barnes.
The Court agrees the allegations are directed to Forrest
Barnes, and not Mark Barnes, and Plaintiff admits she does not allege this
cause of action against Mark Barnes. Thus, the demurrer is OVERRULED as to the
ninth cause of action for negligent hiring, retention and supervision.
Twelfth
Cause of Action (Trespass)
Code of Civil
Procedure section 338(b) provides for a three-year statute of limitations for
“[a]n action for trespass upon or injury to real property.”
Where the
dates alleged in the complaint show the action is barred by the statute of
limitations, a general demurrer lies. ¿(Saliter v. Pierce Bros. Mortuaries (1978)
81 Cal.App.3d 292, 300.)
The complaint alleges that “Plaintiffs
are informed and believe and thereon allege that Defendants entered the Subject
Property in October of 2015. Plaintiff had installed an alarm system in the
Subject Property, such that when the Defendants entered the Property without
Plaintiffs knowledge or consent while she was not home, the alarm was
triggered. Plaintiff alleges that Defendants quickly departed from the Subject
Property, but nonetheless are guilty of trespass.” (Complaint, 164.) Plaintiff
filed this action on March 30, 2022.
Plaintiff contends that the three-year
limitations period does not bar Plaintiff’s cause of action because Defendants
have engaged in a pattern and practice of trespassing in the Subject Property,
including trespassing which has occurred in the past three years.
Here, the Complaint does not allege any facts to show the
trespass has continued beyond 2015. Since the Complaint does not set forth any
facts supporting Plaintiff’s contention, the three-year statute of limitations
under CCP § 338(b) is applicable to these actions for trespass.
Accordingly, the Court SUSTAINS the demurrer to the twelfth
cause of action, with leave to amend.
Conclusion
Based on the foregoing, the demurrer is
SUSTAINED with leave to amend in part and OVERRULED in part. The demurrer is
sustained with 30 days leave to amend as to the first cause of action for Violation
of Civil Code §¿1942.4, and the twelfth cause of action for trespass. The
demurrer is overruled as to the cause of action for negligent hiring,
supervision, and retention.
Moving party is ordered to give notice.