Judge: Stephen P. Pfahler, Case: 23STCV14488, Date: 2024-01-23 Tentative Ruling


Case Number: 23STCV14488    Hearing Date: January 23, 2024    Dept: 68

Dept. 68

Date: 1-23-24

Case #23STCV14488

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendants, Greystar California, Inc.

RESPONDING PARTY: Plaintiff, Lauren Swaim

 

RELIEF REQUESTED

Demurrer to the First Amended Complaint

·         1st Cause of Action: Assault

·         2nd Cause of Action: Battery

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

·         4th Cause of Action: False Imprisonment

·         5th Cause of Action: Negligence

·         6th Cause of Action: Tenant Harassment in Violation of Civil Code section 1940.2

·         7th Cause of Action: Tenant Harassment in Violation of FEHA (Government Code section 12955)

·         8th Cause of Action: Breach of Implied Warranty of Habitability

·         9th Cause of Action: Breach of Implied Covenant of Quiet Enjoyment

·         10th Cause of Action: Violation of Los Angeles Municipal Code article 5.3

·         11th Cause of Action: Violation of Los Angeles County Code section 8.52.130

·         12th Cause of Action: Bad Faith Retention of Security Deposit

 

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

 

SUMMARY OF ACTION

On November 1, 2021, plaintiff Lauren Swaim commenced a lease for Apartment 202 in 548 Spring Street. The building was owned and/or managed by defendant Greystar California, Inc., Defense International Corporations, Inc. and four entities identified as SBDTLA 1, LLC, SBDTLA 2, LLC SBDTLA 3, LLC and SBDTLA 4. Plaintiff alleges employed/contracted security services for the building. On June 21, 201, Plaintiff entered the building, and alleges an unidentified security guard “aggressively approached Plaintiff, began showing threats and obscenities ... trapped her in an elevator, and violently struck Plaintiff...”

 

Plaintiff separately alleges unsafe living conditions on the premises, including mold, rodent and insect infestation, and unsafe construction zone areas. Plaintiff identifies as disabled under Civil Code section 1761.

 

On June 21, 2023, Plaintiff filed a complaint for Assault, Battery, Intentional Infliction of Emotional Distress, False Imprisonment, Negligence, Tenant Harassment in Violation of Civil Code section 1940.2, Tenant Harassment in Violation of FEHA (Government Code section 12955), Breach of Implied Warranty of Habitability, Breach of Implied Covenant of Quiet Enjoyment, Violation of Los Angeles Municipal Code article 5.3, Violation of Los Angeles County Code section 8.52.130, and Bad Faith Retention of Security Deposit. On November 3, 2023, the court sustained the demurrer to the complaint and granted the motion to strike punitive damages. On November 22, 2023, Plaintiff filed a first amended complaint.

 

RULING

Demurrer: Overruled.

Defendant Greystar California, Inc. (Greystar) submits a demurrer to the entire first amended complaint. Greystar challenges the operative complaint on grounds of insufficient facts specifically establishing a basis of liability, due to overly general, conclusive allegations without specific articulation distinguishing the individual defendants. Plaintiff in opposition maintains all causes of action are sufficiently pled, and the demurrer improperly seek a level of proof not applicable to the demurrer standard. Greystar in reply reiterates the lack of any sufficiently pled respondeat superior basis of liability based on the alleged conduct of the security guard, as well certain deficiencies in certain individual causes of action.

 

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.]

 

1st Cause of Action: Assault

2nd Cause of Action: Battery

4th Cause of Action: False Imprisonment

Defendant concedes the pled elements of the claim and instead challenges the lack of contextual facts establishing a basis of liability. Plaintiff maintains a basis of liability under the doctrine of respondeat superior, without any actual legal support for the argument. Defendant maintains that any and all respondeat superior claims are in fact directed towards co-defendant Defense International Corporation, Inc.

 

“‘[A]n employer is liable for risks “arising out of the employment.” [Citations.] [¶] A risk arises out of the employment when 'in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business. [Citations.] In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one “that may fairly be regarded as typical of or broadly incidental” to the enterprise undertaken by the employer. ...’” [¶] ‘“One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. ... [¶] In California, the scope of employment has been interpreted broadly under the respondeat superior doctrine.” (Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-1004 (internal quotation marks omitted).)

 

The operative complaint specifically alleges an employment relationship between the security guard and moving defendant, and the security guard was acting within the course and scope of employment. [First Amend. Comp., ¶¶ 23, 25.] The court declines to consider any extrinsic inference deflecting employment liability to co-defendant Defense International Corporation, Inc. at the pleading stage of review. The demurrer is overruled. The parties may conduct discovery for further distinguishing information regarding the identity of the security guard and responsible employer, if applicable.

 

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 alleged actions of the security guard meet the standard for outrageous conduct. The demurrer is overruled.

 

5th Cause of Action: Negligence

Defendant challenges the lack of facts, while Plaintiff counters the complaint sufficiently articulates a basis of liability for both the conduct of the security guard and the condition of the premises. The allegations lack any apparent statements regarding the condition of the premises, and seemingly seek to allege liability under a claim of negligent hiring.

 

“Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)

 

The court finds the operative complaint sufficiently articulates a claim for negligence, and declines to otherwise consider extrinsic inference regarding other potential forms of relief under the umbrella of negligence. The demurrer is overruled.

 

6th Cause of Action: Tenant Harassment in Violation of Civil Code section 1940.2

7th Cause of Action: Tenant Harassment in Violation of FEHA (Government Code section 12955)

8th Cause of Action: Breach of Implied Warranty of Habitability

9th Cause of Action: Breach of Implied Covenant of Quiet Enjoyment

10th Cause of Action: Violation of Los Angeles Municipal Code article 5.3

11th Cause of Action: Violation of Los Angeles County Code section 8.52.130

12th Cause of Action: Bad Faith Retention of Security Deposit

Defendant relies on a lack of facts contention without specific address or articulation of the individual elements per cause of action. Plaintiff counters that all claims remain sufficiently pled with address of the required elements for each and every claim. The court finds the elements are both properly pled and undisputed. The court declines to make the arguments for Defendant. The demurrer is overruled to the instant causes of action.

 

 

Motion to Strike

Defendant moves to strike allegations in support of, and claim for, punitive damages within each and every cause of action in the complaint, including the assault, battery, emotional distress, false imprisonment, negligence, FEHA violations, warranty and habitability and quiet enjoyment causes of action, and LAMC code violations.

 

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 pro forma statements with the intention of generally identifying all “employer” defendants of the security, but otherwise only generally pleads facts relied upon in support of the punitive damages claim and ratification. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576–577; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168.) While the court finds the allegations sufficient for purposes of the demurrer, the higher pleading standard applicable to punitive damages claims requires more than mere conclusions. The court therefore grants the motion to strike on the punitive damages claim.

 

Any motion to strike on the same subject matter pled in the potential second amended complaint will constitute the third time the Court considers the subject matter. “In response to a motion to strike and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. ...” (Code Civ. Proc., § 435.5, subd. (e)(1).)

 

 

 

 

The demurrer is therefore overruled in its entirety. The motion to strike is granted in its entirety. Plaintiff has 30 days leave to amend ONLY as to the punitive damages allegations in the identified causes of action. Plaintiff may not add any new causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

 

Any motion to strike on the same subject matter pled in the potential second amended complaint will constitute the third time the Court considers the subject matter. “In response to a motion to strike and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured. ...” (Code Civ. Proc., § 435.5, subd. (e)(1).)

 

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

 

OSC re: Entry of Default set for February 27, 2024.

 

Defendant to give notice.