Judge: Shirley K. Watkins, Case: 23VECV00053, Date: 2023-04-10 Tentative Ruling

Case Number: 23VECV00053    Hearing Date: April 10, 2023    Dept: T

            [TENTATIVE] ORDER:  The Demurrer to the Complaint is OVERRULED as to the second and fourth causes of action and SUSTAINED with 20 days leave to amend as to the ninth cause of action.

1.     Introduction

Defendants Faye Mirsalimi, Trustee Of The Mirsalimi Family Trust Dated May 31, 2011 ("Mirsalimi") and Sharam Salmasizadeh, Trustee Of The Shafa Trust Dated February 19, 2 2019 ("Salmasizadeh") (collectively "Defendants") demur to the second, fourth, and ninth causes of action in Plaintiff Erin Hick’s (“Plaintiff”) Complaint.

2.     Discussion

a.     Private Nuisance

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” (Code Civ. Proc., § 3479.)

Virtually any disturbance of the enjoyment of property may amount to a nuisance, so long as the interference is substantial and unreasonable. (See Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302; see also Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.)

“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. (See Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.)

            Defendants argue that Plaintiff’s allegations are conclusory. However, as Plaintiff points out in opposition, the allegations state that Defendants intentionally cut off the heat and other utilities, Defendants harassed Plaintiff, and Defendants failed to provide a habitable dwelling (Complaint, ¶12). Further, any argument regarding the subject lease and entitlement to be on the property is extrinsic evidence and not appropriate on demurrer.

Accordingly, the demurrer to the second cause of action is OVERRULED.

b.     Breach of Covenant of Quiet Enjoyment and Possession of the Premises

Defendants argue that Plaintiff may not allege this cause of action while still being in possession of it, because it amounts to a contract cause of action and not a wrongful eviction claim. Defendants cite to Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, however this case states that punitive damages and/or consequential tort damages are recoverable only if the implied covenant of quiet enjoyment is breached by a wrongful eviction or another basis for finding tort liability. (Id. at 897-902.) Accordingly, Defendants have not shown that this cannot be a cause of action if Plaintiff has not vacated the property, but only that Plaintiff cannot claim punitive damages.

            The demurrer to the fourth cause of action is OVERRULED.

c.     Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372.)

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Id.) While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. (Id. at 494.)

Plaintiff alleges that Defendants deliberately cut off the utilities in the property causing Plaintiff to suffer from lack of heat, deficient plumbing, and lack of proper electrical wiring. (Complaint, ¶12.) The Court does not find these allegations to rise to the level of extreme and outrageous conduct such that it goes beyond all possible bounds of decency, and is regarded as atrocious, and utterly intolerable in a civilized community.

Accordingly, the demurrer to the ninth cause of action is SUSTAINED with leave to amend.