Judge: Stephen I. Goorvitch, Case: 21STCV28966, Date: 2023-02-08 Tentative Ruling

Case Number: 21STCV28966    Hearing Date: February 8, 2023    Dept: 39

Scott Erickson, et al. v. Bartlett Loft

Case No. 21STCV28966

Demurrer and Motion to Strike

Plaintiffs Scott Erickson and Ryan Erickson (collectively, “Plaintiffs”) filed this action against Bartlett Loft (“Defendant”) asserting the following causes of action in the second amended complaint:

            1.         Breach of governing documents

            2.         Breach of fiduciary duties

            3.         Breach of covenant of good faith and fair dealing

            4.         Negligence

            5.         Harassment

            6.         Intentional infliction of emotional distress (“IIED”)

            7.         Discrimination under federal law

            8.         Discrimination under the Unruh Civil Rights Act

            9.         Discrimination under FEHA

Now, Defendant demurs to the second cause of action (breach of fiduciary duty) and the sixth cause of action (IIED).  Defendant also moves to strike the prayer for punitive damages and related allegations.   

PLAINTIFFS’ ALLEGATIONS

            Plaintiffs are spouses and own a residential unit governed by Defendant, a homeowners’  association.  (Second Amended Complaint, ¶¶ 3-4.)  Plaintiff Ryan Erickson resides at the unit, but Plaintiff Scott Erickson does not.  (Id., ¶ 3.)  Plaintiffs allege that Defendant “has targeted the Plaintiffs and engaged in selective enforcement of the Governing Documents to Plaintiffs’ financial and emotional detriment most notable since the beginning of 2019.”  (Id., ¶ 24.)  Plaintiffs allege that the building manager, Peter Ong, failed to address at least 26 written incident reports, including “harassing, disturbing, threatening, intimidating, slandering, and racially discriminating behavior” by another tenant, Christopher Tripp.  (Id., ¶ 25.)  Plaintiffs allege that Tripp made a series of racist and obscene comments to Plaintiff Ryan Erickson.  (Ibid.)  Plaintiffs also allege that Ong failed to address Tripp’s illegal activities, including suspected drug use and/or drug trafficking.  (Ibid.)  Plaintiffs allege that Ong failed to address Plaintiffs’ reasonable repair requests that led to overcharges and verbal harassment by Defendant’s repairman, Mr. Stivers, in addition to failing to repair holes from cameras Tripp installed, which subjected Plaintiff Ryan Erickson to exposure to toxic fumes.  (Ibid.)  Plaintiffs allege that they were denied use and enjoyment of the unit.  (Id., ¶ 27.) 

LEGAL STANDARD

A.        Demurrer

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.)  “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.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “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 p. 747.)  However, courts do not accept as true deductions, contentions, or conclusions of law or fact.  (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)  The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  

            B.        Motion to Strike

Courts may, upon a motion, or at any time in their discretion, and upon terms they deem proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts 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, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false or 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.)  

DISCUSSION     

A.        Breach of Fiduciary Duty

Plaintiffs’ second cause of action is for breach of fiduciary duties.  To state a claim for breach of fiduciary duties, Plaintiff must allege facts showing that the parties had a confidential, fiduciary relationship.  (Zumbrun v. Univ. of So. Cal. (1972) 25 Cal.App.3d 1, 13.)  Plaintiffs allege that they were members of Defendant’s association.  (Second Amended Complaint, ¶ 41.)  A homeowners’ association owes a fiduciary duty to its members over the matters for which they are responsible, e.g., “public-service functions” such as “maintenance and repair of public areas and utilities, street and common area lighting [and] sanitation and the regulation and enforcement of zoning ordinances.”  (Cohen v. Kite Hill Community Association (1983) 142 Cal.App.3d 642, 650-651, citation omitted.)  Among other things, Plaintiffs allege that Defendant did not address Plaintiffs’ repair requests.  (Second Amended Complaint, ¶ 25.)  Moreover, Plaintiffs allege that Defendant had a responsibility to address nuisances and disturbances on the property but failed to do so.  (Id., ¶¶ 19, 46.)  Plaintiffs allege Defendant had responsibility to prevent disturbances on the property.  (See Second Amended Complaint, ¶ 19, 46.)  These allegations are sufficient, and the demurrer to the second cause of action is overruled.

B.        Intentional Infliction of Emotional Distress

Plaintiff’s seventh cause of action is for intentional infliction of emotional distress.  “The elements of 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.  The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001, internal quotations and citations omitted.)  Plaintiffs allege that Defendant failed to address their complaints and Tripp’s alleged misconduct.  This does not suggest intentional conduct that satisfies the pleading standard.  Therefore, the Court sustains the demurrer to the seventh cause of action without leave to amend.

            C.        Motion to Strike

Defendant also moves to strike Plaintiffs’ prayer for punitive damages.  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice is defined in the statute as conduct 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.”  (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “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 Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted.)

In this case, Plaintiffs allege facts suggesting that Tripp acted with malice.  But Plaintiffs allege no such facts against Defendant.  Therefore, the Court grants Defendant’s motion to strike with respect to the prayer for punitive damages,  The Court also grants the motion to strike Plaintiffs’ requests for declaratory, injunctive, and specific relief, because these prayers are not supported by Plaintiffs’ allegations.  The Court denies leave to amend.

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         The demurrer is overruled with respect to the second cause of action.

            2.         The demurrer is sustained with respect to the sixth cause of action.

            3.         The motion to strike is granted.

            4.         The Court denies leave to amend.

            5.         Defendant’s counsel shall provide notice and file proof of such with the Court.