Judge: Stephen P. Pfahler, Case: 23STCV10717, Date: 2024-10-23 Tentative Ruling

Case Number: 23STCV10717    Hearing Date: October 23, 2024    Dept: 68

Dept. 68

Date: 10-23-24

Case #23STCV10717

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendants, Johnson Electric, LLC, et al.

RESPONDING PARTY: Plaintiffs, Ernesto Flores, et al.

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         1st Cause of Action: Negligence

·         2nd Cause of Action: Premises Liability

·         3rd Cause of Action: Intentional Infliction of Emotional Distress

·         4th Cause of Action: Negligent Infliction of Emotional Distress

·         5th Cause of Action: Fraud – Intentional Misrepresentation

·         6th Cause of Action: Fraud – Concealment

·         7th Cause of Action: Fraud – False Promise

·         8th Cause of Action: Constructive Fraud

·         9th Cause of Action: Negligent Misrepresentation

·         10th Cause of Action: Breach of Written Contract

·         11th Cause of Action: Breach of Oral Contract

·         12th Cause of Action: Breach of Implied Contract

·         13th Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing

·         14th Cause of Action: Promissory Estoppel

·         15th Cause of Action: Breach of Warranty of Habitability

·         16th Cause of Action: Breach of Duty to Maintain Habitable Conditions

·         17th Cause of Action: Breach of the Implied Covenant of Quiet Enjoyment

·         18th Cause of Action: Public Nuisance

·         19th Cause of Action: Private Nuisance

·         20th Cause of Action: Unfair Business Practices

·         21st Cause of Action: Loss of Consortium

 

Motion to Strike Allegations in Support of, and Claim for, Punitive Damages

 

SUMMARY OF ACTION

Plaintiffs Ernesto Flores and Nayeli Quiroz were tenants of 2836 Frederick St., Los Angeles, a property owned and/or managed by Defendant TGNPM, LLC. On April 26, 2021, TGNPM was notified of an electrical problem. Defendant Kenneth Johnson visited the premises and allegedly  performed substandard electrical certain work. Flores was subsequently electrocuted on May 14, 2021.

 

On May 12, 2023, Plaintiffs filed a form complaint for Premises Liability, and General Negligence. On February 21, 2024, the court granted Plaintiff leave to file a first amended complaint. On February 22, 2024, Plaintiff filed a 21 cause of action first amended complaint for Negligence, Premises Liability, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Fraud – Intentional Misrepresentation, Fraud – Concealment, Fraud – False Promise, Constructive Fraud, Negligent Misrepresentation, Breach of Written Contract, Breach of Oral Contract, Breach of Implied Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, Promissory Estoppel, Breach of Warranty of Habitability, Breach of Duty to Maintain Habitable Conditions, Breach of the Implied Covenant of Quiet Enjoyment, Public Nuisance, Private Nuisance, Unfair Business Practices, and Loss of Consortium.

 

The action was transferred from a personal injury court on April 19, 2024.

 

RULING

Demurrer: Overruled in Part/Sustained in Part.

Defendant Johnson Electric, LLC and Kenneth Johnson (Johnson) submits a demurrer to the entire first amended complaint: 21 causes of action for Negligence, Premises Liability, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Fraud – Intentional Misrepresentation, Fraud – Concealment, Fraud – False Promise, Constructive Fraud, Negligent Misrepresentation, Breach of Written Contract, Breach of Oral Contract, Breach of Implied Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, Promissory Estoppel, Breach of Warranty of Habitability, Breach of Duty to Maintain Habitable Conditions, Breach of the Implied Covenant of Quiet Enjoyment, Public Nuisance, Private Nuisance, Unfair Business Practices, and Loss of Consortium. Johnson challenges the action on grounds of insufficient facts. The operative complaint itself alleges all claims against all defendants without any acknowledgment of the various roles and responsibilities among the parties. Plaintiffs in opposition maintain the complaint sufficiently pleads all claims. Johnson in reply reiterates the deficiently pled factual challenges.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

“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; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

The parties group the causes of action by certain commonalities. The demurrer itself offers summary address of the elements in order to address all 21 causes of action within the pagination limits.

 

1st Cause of Action: Negligence

2nd Cause of Action: Premises Liability

21st Cause of Action: Loss of Consortium

Defendants challenge the subject causes of action on grounds of lack of factual sufficiency. Defendants identify the negligence cause of action as one for “gross negligence” presumably based on the additional “grossly negligent” allegation presented in support of the claim for punitive damages. [First Amend. Comp., ¶ 29.]

 

The court declines to render the three causes of action as one arising from or exclusively based on “gross negligence.” While gross negligence in fact requires a separate analysis, the identified claims still only arise in negligence. The gross negligence allegation is not a separately pled cause of action, and therefore should be addressed in a separately filed motion to strike. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [While a demurrer is not the exclusive means to challenge a cause of action, a motion to strike generally applies to parts of a cause of action, claim for damages, or where the cause of action or primary right is barred as a matter of law.]; see Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike”].)

 

Defendants otherwise offer no substantive challenge to the validity of the negligence based claims. The demurrer is OVERRULED.

 

3rd Cause of Action: Intentional Infliction of Emotional Distress

Defendant challenges the lack of facts supporting a finding of outrageous conduct. Plaintiff counters that the actions of the security guard demonstrate the required element.

 

The elements 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.’” (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 129.) “The tort calls for intentional, or at least reckless conduct—conduct intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 130.) “The modern rule is that there is liability for conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress (citation). ‘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.’” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921.)

 

The electrical work performed without a permit and subjecting to Flores to danger of electrocution constitutes sufficiently outrageous conduct to support IIED. The demurrer is OVERRULED.

 

4th Cause of Action: Negligent Infliction of Emotional Distress

“The law of negligent infliction of emotional distress in California is typically analyzed ... by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) Flores, as the victim, apparently seeks recovery under direct victim theory. “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.)

 

The operative complaint sufficiently establishes the basis for the existence of a duty and resulting injury. Whether the emotional distress should be subsumed within the negligence claim or separately pled is not considered for purposes of the demurrer. The Demurrer is OVERRULED.

 

5th Cause of Action: Fraud – Intentional Misrepresentation

6th Cause of Action: Fraud – Concealment

7th Cause of Action: Fraud – False Promise

8th Cause of Action: Constructive Fraud

9th Cause of Action: Negligent Misrepresentation

Defendants challenge the subject causes of action on grounds of lack of factual sufficiency. Plaintiffs maintain all are properly pled.

 

A review of the operative complaint demonstrates a lack of any operative facts meeting the heightened pleading standards for any and all fraud claims. A series of conclusions with reliance on the negligence claim will not meet the required standard of representation, omission, and reliance. The court will not make the arguments for Plaintiff. The demurrer is SUSTAINED.

 

10th Cause of Action: Breach of Written Contract

11th Cause of Action: Breach of Oral Contract

12th Cause of Action: Breach of Implied Contract

13th Cause of Action: Breach of the Implied Covenant of Good Faith and Fair Dealing

Defendants challenge the subject causes of action on grounds of lack of factual sufficiency.

Defendants challenge the subject causes of action on grounds of a lack of basis of liability in that moving defendants are not alleged as owners or manager of the subject property (e.g. no basis of contract between the parties). Plaintiffs allege a contractual relationship based on beneficiary status.

 

While an alleged beneficiary can bring a contract based action, the operative complaint neither alleges any such relationship nor any actual contractual terms. The court will not make the arguments for Plaintiff. The demurrer is SUSTAINED.

 

14th Cause of Action: Promissory Estoppel

The complaint lacks any specific terms establishing a basis for estoppel. The court will not make the arguments for Plaintiff. The demurrer is SUSTAINED.

 

15th Cause of Action: Breach of Warranty of Habitability

16th Cause of Action: Breach of Duty to Maintain Habitable Conditions

17th Cause of Action: Breach of the Implied Covenant of Quiet Enjoyment

Defendants challenge the subject causes of action on grounds of a lack of basis of liability in that moving defendants are not alleged as owners or manager of the subject property. Plaintiff relies on a claim that Defendants exercise of control over the electrical repairs rendered them directors subject to habitability liability.

 

The court finds a lack of support for liability based on performance of service maintenance on a property. Nothing in the allegations establishes a basis of liability for maintenance of habitability under the landlord tenant standard, or otherwise establishes a basis of a “director” level position. (Green v. Superior Court (1974) 10 Cal.3d 616, 627l; Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588; see Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503.) The court will not consider Nevada law and ONLY relies on California law. The demurrer is SUSTAINED.

 

18th Cause of Action: Public Nuisance

19th Cause of Action: Private Nuisance

Defendants challenge the claim as lacking sufficient facts establishing the electrical work with a nuisance. A private nuisance arises from the interference with the quiet use and enjoyment of land. (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534.) “Anything which is injurious to health, including … an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property…” constitutes a private nuisance. (Civ. Code, §§ 3479, 3481.) “A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.) The court finds the allegedly substandard work sufficiently alleges the basis of private nuisance, but lacks any impacts beyond the premises and injuries to Plaintiff for purposes of public nuisance. (Rincon Band of Luiseno Mission Indians etc. v. Flynt (2021) 70 Cal.App.5th 1059, 1100.) The demurrer is OVERRULED as to private nuisance and SUSTAINED as to public nuisance.

 

20th Cause of Action: Unfair Business Practices

Defendants challenge the subject causes of action on grounds of lack of factual sufficiency.

 

The UCL does not proscribe specific acts, but broadly prohibits ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising....’” [¶] “‘A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition.’ (Citation.)” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1359.) Fact specific pleading is not required in order to allege an unfair business practice. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 46–47.

 

An “unlawful” practice “means any practices forbidden by law, be it civil or criminal, federal, state, or municipal, statutory, regulatory, or court-made.… ‘Unfair’ simply means any practice whose harm to the victim outweighs its benefits. (Citation.) ‘Fraudulent,’ as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public ‘“are likely to be deceived.”’” (Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 838–839.) “[A]n unfair business practice also means” the relied upon public policy provision is “tethered” to a specific regulatory provisions. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 81.) Fundamentally, recovery requires a direct harm to the consumer, and actual reliance. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 326–327.)

 

The operative complaint lacks any articulation of said business practices other than improper electrical work at the behest of ownership and management. The demurrer is SUSTAINED.

 

 

Motion to Strike: Moot/Granted.

Defendant moves to strike allegations in support of, and claim for, punitive damages within first, second, third, fifth, sixth, seventh, eighth, ninth, fifteenth, sixteenth, seventeenth, eighteenth, and twenty-first causes of action. The motion is moot as to all causes of action sustained in the demurrer. The court considers the remainder.

 

On the punitive damages claim, the court refers to the statute. Civil Code section 3294, subdivision (c) authorizes punitive damages upon a showing of malice, oppression, or fraud, which are defined as follows:

 

(1) “Malice” means 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.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means 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.

 

Circle Graphics correctly argues that negligence based claims in and of themselves generally will not support a punitive damages claim. Plaintiff counters with general citation to the standard of recovery.

 

Punitive damages require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. Omitted [emphasis added].)

 

Any negligence based causes of action in and of themselves will not support the claim for punitive damages. Plain unintentional carelessness, characterized as negligence or recklessness, is not sufficient to support punitive damages. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286 [“Conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages”]; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32 (“When nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice”]; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87 [“Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant “has been guilty of oppression, fraud, or malice,” the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages’]; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891; McDonell v. American Trust Co. (1955) 130 CA2d 296, 300 [Awareness of a potential condition under a negligence claim not sufficient to support a claim for punitive damages].)

 

The first amended complaint reads as a series of statements regarding the allegedly substandard work, without distinction between the conduct of the electrician defendants and the landlord parties. It remains unclear as to ultimate responsibility for purposes of finding punitive damages as to a contractor. (See White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576–577; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168.) The court therefore GRANTS the motion to strike on the punitive damages claim.

 

The demurrer is therefore overruled as to the Negligence, Premises Liability, Intentional and Negligent Emotional Distress, Private nuisance and Loss of Consortium causes of action. The demurrer is sustained with leave to amend as to the remainder. The motion to strike is moot in part and granted without prejudice as to the remainder.

 

Plaintiffs are given 30 days leave to amend. Plaintiff may ONLY amend the existing causes of action and the punitive damages allegations in the identified causes of action. Plaintiff may not add any new causes of action or damages claims. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

 

If Plaintiff declines or fails to file a second amended complaint, moving defendants shall answer the operative complaint within 10 days of the lapsed deadline. Any new causes of action or allegations outside the scope of the order may be addressed via a motion to strike.

 

“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1), see Code Civ. Proc., § 435.5, subd. (e)(1).) This is the first review of the operative complaint.

 

Case Management Conference will be concurrently held.

 

Defendants to give notice.