Judge: Teresa A. Beaudet, Case: 22STCV18968, Date: 2022-09-27 Tentative Ruling

Case Number: 22STCV18968    Hearing Date: September 27, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On June 9, 2022, Plaintiff Jordan Green (“Plaintiff”) filed this action against Defendants Andrew David Head and Cesar A. Montoya (jointly, “Defendants”). The Complaint asserts causes of action for (1) wrongful eviction, (2) constructive eviction, (3) unlawful retention of security deposit, (4) failure to provide separate utility meters, (5) failure to provide monetary relocation assistance fees, (6) statutory breach of the implied warranty of habitability, (7) tortious breach of the implied warranty of habitability, (8) breach of the covenant of quiet enjoyment, (9) breach of contract, (10) negligence, (11) negligent hiring, training and supervision, (12) private nuisance, (13) intentional infliction of emotional distress, and (14) unfair competition.  

Defendants now demur to the sixth, twelfth, thirteenth, and fourteenth causes of action of the Complaint. Defendants also move to strike portions of the Complaint. Plaintiff opposes both.

Demurrer

A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[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.) 

B.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that Defendants became the owners of real property located at 17408 Elkwood Street, Northridge, California 91325 (the “Subject Property”). (Compl., ¶¶ 1, 15.) Plaintiff’s rental unit (“Rental Unit”) was in one of the two units within the Subject Property. (Compl., ¶ 17.) Plaintiff entered into a written residential lease agreement with Defendants on or about October 1, 2021, to lease the Rental Unit at the Subject Property with a monthly rent of $789.00, and paid an additional security deposit in the amount of $789.00. (Compl., ¶ 29.) 

On or about October 4, 2021, Plaintiff moved into the Rental Unit and observed several uninhabitable conditions at the Subject Property, including, but not limited to, a leaking shower, a bathroom door that did not lock, old and moldy food in the refrigerator, and a filthy kitchen with overflowing trash bins. (Compl., ¶ 32.) Plaintiff requested that these conditions be abated, but the conditions continued. (Compl., ¶¶ 32, 35.) On or about October 26, 2021, Plaintiff complained to Defendants about an ongoing cockroach infestation, leaking shower, overflowing and not flushing toilets, broken bathroom doors, and otherwise filthy conditions at the Subject Property, and requested that these be abated, or Plaintiff would have no choice but to move out. (Compl., ¶ 39.) Although Defendants sent a reply text pleading with Plaintiff to stay because Defendants would remedy the conditions, this was not done. (Compl., ¶ 39.)

Plaintiff also alleges that there were ongoing domestic violence altercations between a female tenant at the Subject Property named Arnude and her non-tenant boyfriend, who

lived at the Subject Property on a nearly full-time basis. (Compl., ¶¶ 44, 46.) Plaintiff sent Defendants a text message expressing fear for his own safety as Arnude would scream Plaintiff’s name asking for help during the domestic violence altercations at the Subject Property, but Defendants failed to respond to Plaintiff. (Compl., ¶ 46.) On or about January 17, 2022, Plaintiff observed another female tenant, Angelica, and her boyfriend involved in a domestic violence altercation. (Compl., ¶ 51.)

On or about December 2021, another tenant at the Subject Property who managed the utilities for all of the other tenants ended his lease, but Defendants failed to timely determine each Tenant’s proportional share of utilities in violation of the lease agreement. (Compl., ¶ 54.)  On or about January 20, 2022, Plaintiff reported to Defendants that a representative from LADWP was at the Subject Property turning off their water and electricity utilities, but Defendants ignored Plaintiff’s requests to get the water and electricity utilities turned back on, and as a result, Plaintiff was forced to stay at a hotel and/or with a friend. (Compl., ¶ 55.)

On or about January 21, 2022, Plaintiff submitted a complaint to the County of Los Angeles Department of Public Health (“Public Health”) regarding the water and electricity utilities being shut off, and an Inspector from Public Health indicated that “[a]t the time of the inspection DPH staff observed that the unit was without running water and electricity. This condition clearly creates a hazard to the health, welfare, or safety of its occupants.” (Compl., ¶ 59.) On or about January 26, 2022, Public Health contacted Plaintiff, who confirmed that the water and electricity utilities were restored after six continuous days of being shut off since on or about January 20, 2022. (Compl., ¶ 65.) 

Plaintiff also alleges that the Subject Property did not have an accessible/functioning HVAC system during Plaintiff’s tenancy. (Compl., ¶ 68.) Plaintiff complained that due to the “smart” thermostat at the Subject Property always being locked and password protected at 72

degrees Fahrenheit, Plaintiff could not turn up the heater during the cold fall and winter months. (Compl., ¶ 69.) As result of Defendants’ failure to provide habitable living conditions, Plaintiff was left with no choice but to vacate the Subject Property on or about February 7, 2022. (Compl., ¶ 72.)

C.    Uncertainty

As an initial matter, the Court does not find that any of the causes of action are ambiguous or unintelligible. Therefore, the special demurrer on the basis of uncertainty is overruled.¿ 

D.    Sixth Cause of Action – Statutory Breach of the Implied Warranty of Habitability

Defendants assert that Plaintiff’s sixth cause of action for statutory breach of the implied warranty of habitability must fail because it is derivative of Plaintiff’s breach of contract cause of action. Defendants cite to Van Zyl v. Spiegelberg (1969) 2 Cal.App.3d 367, 372, where the plaintiff sought “to recover in damages under the same state of facts but under different theories of recovery, that is, private nuisance and negligence.” The Van Zyl Court found that “[i]n such a case there is but one cause of action.” (Ibid.) Defendants assert that here too, both of the subject causes of action rely on the same facts. Defendants also cite to Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1798, where the Court of Appeal noted that “Allstate did assert a contractual cause of action: breach of the implied warranty of habitability.”

However, the Court agrees with Plaintiff that the statutory breach of the implied warranty of habitability cause of action is not derivative of the breach of contract cause of action. As Plaintiff notes, the statutory breach of the implied warranty of habitability cause of action alleges violations of certain statutory provisions, including Civil Code sections 1941, 1941.1, and 1942.4. (Compl., ¶¶ 134-139, 141.) The breach of contract cause of action alleges that Plaintiff executed a written contract to lease the Subject Property from the Defendants, and that “Defendants breached the contract by failing to perform their central duties under the contract – i.e. – not interfering with Plaintiff’s quiet enjoyment of his home, and not demanding or collecting any monies to which they are not lawfully entitled.” (Compl., ¶¶ 163, 166.) Unlike the statutory breach of the implied warranty of habitability cause of action, the breach of contract cause of action does not allege violations of specific statutory provisions. Plaintiff also notes that Civil Code section 1942.4, which Defendants allegedly violated, provides for remedies specific to violations of this Code section: “(1) A landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000). (2) The prevailing party shall be entitled to recovery of reasonable attorney’s fees and costs of the suit in an amount fixed by the court.” ((Civ. Code, § 1942.4, subd. (b).)

Based on the foregoing, the Court overrules the demurrer to the cause of action for statutory breach of the implied warranty of habitability. 

E.     Twelfth Cause of Action for Private Nuisance

Defendants assert that Plaintiff’s twelfth cause of action for private nuisance must fail because it is derivative of Plaintiff’s tenth cause of action for negligence. Defendants note that “[w]here negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Defendants also cite to Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 318, where the Court of Appeal noted that “[w]hile a nuisance and liability therefor may exist without negligence, the torts of negligence and nuisance may be, and frequently are, coexisting and practically inseparable.”

In support of his cause of action for private nuisance, Plaintiff alleges that “[t]he conditions of the building as described constitute a nuisance within, but not limited to, the meaning of Civil Code, §3479, et seq. in that these defective conditions were injurious to the health and safety of Plaintiff, and substantially interfered with his comfortable and quiet enjoyment of the Subject Property.” (Compl., ¶ 183.)

In support of his cause of action for negligence, Plaintiff alleges that Defendants breached duties owed to Plaintiff by, “including but not limited to: failing to maintain plumbing and gas facilities in good working order and in conformity with applicable law; failing to maintain and furnish a hot and cold water supply to appropriate fixtures and further failing to have those fixtures adequately connected to a sewage disposal system; failing to maintain proper heating facilities; failing to keep the building, grounds and appurtenances clean, sanitary and free from debris, filth, rubbish, garbage, vermin and rodents; failing to provide adequate garbage and rubbish receptacles; failing to hire properly qualified, trained and/or certified to inspect, maintain, install and/or repair the plumbing at the Subject Property; continuing to charge rent, and accepting rent payments from Plaintiff while having knowledge of the deficiencies; and failing to disclose and/or warn of the deficiencies to Plaintiff despite knowing or should have knowing that these above-mentioned deficiencies existed and that these deficiencies posed a public safety and health hazard to Plaintiff.” (Compl., ¶ 171.)

Plaintiff asserts that the Complaint “alleges separate facts specifically with respect to his Private Nuisance cause of action…e.g., having to endure numerous domestic violence altercations…these breaches of Plaintiff’s quiet enjoyment resulting in PTSD and mental and emotional distress…amount to a nuisance, and are not derivative of Plaintiff’s negligence cause of action.” (Opp’n at p. 8:6-13.) Defendants fail to address this point in the reply. Indeed, paragraph 171 of the Complaint in the negligence cause of action (set forth above) does not mention the alleged domestic violence altercations.

Based on the foregoing, the Court overrules the demurrer to the private nuisance cause of action. 

F.     Fourth Cause of Action – Intentional Infliction of Emotional Distress

            Defendants first contend that the thirteenth cause of action for intentional infliction of emotional distress (“IIED”) cause of action must fail because Plaintiff does not allege specific facts that demonstrate extreme and outrageous conduct by the Defendants.

“A cause of action for intentional infliction of emotional distress exists when there is (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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotations omitted].) Extreme and outrageous conduct is conduct that goes “beyond all possible bo[u]nds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499, fn. 5 [internal quotations omitted].) 

In Stoiber v. Honeychuck, the plaintiff tenant pleaded a cause of action for intentional infliction of emotional distress by alleging that she had “suffered ‘extreme emotional distress’ as a result of the defendants ‘knowing, intentional, and willful’ failure to correct defective conditions of the premises.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921.) The Court of Appeal held that these allegations were sufficient to state a cause of action because whether the landlord’s acts were extreme and outrageous and resulted in severe mental distress were factual questions. (Id. at p. 922.) Similarly here, Plaintiff alleges that “Defendants…acted in an outrageous manner by, among other things, knowingly ignoring and refusing to abate a dangerous and unhealthy nuisance; maintaining Plaintiff’s living quarters in an unsafe, unhealthy, uninhabitable and untenable conditions; refusing to repair the premises in the face of complaints by the Plaintiff; constructively evicting Plaintiff by shutting-off his utilities; unlawfully retaining his security deposit; engaging in unfair and unlawful business practices; and violating health and safety codes, ordinances, regulations, and other laws.” (Compl., ¶ 190.) Plaintiff alleges that he suffered “severe mental and emotional distress, depression, anxiety, annoyance and discomfort,” and “fear for safety” as a result of Defendants’ conduct. (Compl.,    ¶ 192.)

Defendants also argue that Plaintiff’s IIED cause of action is insufficient because there are no facts demonstrating the nature, extent, or duration of the alleged distress. Defendants cite to Bogard v. Emplrs Casualty Co. (1985) 164 Cal.App.3d 602, 617, where the Court of Appeal found that “[a]lthough appellants alleged they suffered severe emotional distress, they failed to set forth any facts which indicate the nature or extent of any mental suffering incurred as a result of Employers’ alleged outrageous conduct.” The Bogard Court noted that “[a]s explained in the Restatement Second of Torts…[complete] emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity.” (Id. at p. 617.)

The Court finds that Plaintiff has sufficiently alleged facts demonstrating the intensity and duration of his distress. As Plaintiff notes, he alleges that “[o]n or about December 7, 2021…Plaintiff sent a text message to Defendants stating that, ‘[t]his house got my anxiety through the roof.’” (Compl., ¶ 45.) In addition, “[o]n or about January 9, 2022, Plaintiff observed tenant Arnude and her boyfriend screaming and involved in another domestic violence altercation, which resulted in the police arriving to the Subject Property. Concerned about his safety, Plaintiff once again sent Defendants a text message expressing fear for his safety and distress because Arnude’s boyfriend was continuously driving up and down their street intimidating Plaintiff and the other tenants even after the police left the Subject Property.”  (Compl., ¶ 49.) Further, Plaintiff alleges that “[o]n or about January 17, 2022, Plaintiff observed another female tenant, Angelica, and her boyfriend involved in a domestic violence altercation. Plaintiff sent a text message to Defendants stating that the ongoing domestic violence altercations are causing him PTSD and mental and emotional distress.” (Compl., ¶ 51.)

Lastly, Defendants argue for the first time in the reply that Plaintiff has not established that Defendants had the intent to cause Plaintiff any emotional distress. The Court notes that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Moreover, as set forth above, the first element of a cause of action for IIED is “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress…” (Hughes v. Pair, supra, 46 Cal.4th 1035, 1050 [emphasis added].)

The Court finds that Plaintiff has sufficiently stated a cause of action for IIED. Accordingly, the Court overrules the demurrer to the IIED cause of action.

G.    Fourteenth Cause of Action – Unfair Competition

Business and Professions Code section 17200, et seq. (the “Unfair Competition Law” or “UCL”) prohibits fraudulent, unlawful and unfair business practices. “By proscribing ‘any unlawful’ business act or practice . . . , the UCL ‘borrows’ rules set out in other laws and makes violations of those rules independently actionable.” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) A “violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) However, even beyond violations of another law, “[u]nder the broad scope of the UCL, [t]he statutory language referring to ‘any unlawful, unfair or fraudulent’ practice (italics added) makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. . . . [T]he Legislature . . . intended by this sweeping language to permit tribunals to enjoin on-going wrongful business conduct in whatever context such activity might occur.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 678 [internal quotations and citations omitted].)

First, Defendants contend that “Plaintiff’s cause of action for Unfair Competition, Violation of California Business & Professions Code § 17200 is improperly pled and uncertain,” but fail to explain how this cause of action is improperly pled or uncertain. (Demurrer at p. 12:10-15.)

Next, Defendants assert that Plaintiff has no standing to bring a cause of action under California Business and Professions Code section 17200. Defendants note that Business and Professions Code section 17204 provides in part that “[a]ctions for relief pursuant to this chapter shall be prosecuted…by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.” Defendants contend that Plaintiff has not demonstrated any loss that was the result of Defendants’ alleged unfair business practices. However, Plaintiff alleges that “[a]s a…result of these unlawful and unfair business practices, Defendants have been, and will be, unjustly enriched at the expense of Plaintiff. Specifically, Defendants have been unjustly enriched by their receipt of monies from Plaintiff in the form of rent payments.” (Compl., ¶ 201.)  

Based on the foregoing, the Court overrules the demurrer to the unfair competition cause of action. 

            Motion to Strike

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Defendants move to strike a number of allegations from the Complaint, contending that Plaintiff fails to plead an adequate basis for punitive damages. A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “‘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.” (Civ. Code, § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code., § 329, subd. (c)(2).) “‘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.” (Civ. Code, § 3294, subd. (c)(3).)

Defendants argue that “[n]othing in plaintiff’s complaint shows that defendant had any ill, evil, or despicable intention when dealing with the alleged uninhabitable condition or the alleged unlawful retention of the security deposit asserted in the Complaint.” (Mot. at p. 9:7-9.)

But as discussed above and as Plaintiff points out in the opposition, Plaintiff alleges he complained to Defendants regarding a number of uninhabitable conditions at the Subject Property on multiple dates, but Defendants allegedly continued to maintain the Subject Property in an uninhabitable condition. Among other allegations, Plaintiff alleges that Defendants failed to maintain proper heating facilities and failed to keep the building free from debris, filth, rubbish, garbage, vermin and rodents. (Compl., ¶ 134.) Plaintiff also alleges that Defendants allowed the water and electricity utilities to be shut off for six continuous days. (Compl., ¶¶ 55, 65.) In addition, Plaintiff alleges that he informed Defendants of domestic violence altercations at the Subject Property, including that the altercations were causing him PTSD and mental and emotional distress, but that Defendants failed to respond to Plaintiff. (See, e.g., Compl., ¶¶ 50, 51.) Plaintiff also alleges that Defendants retained Plaintiff’s security deposit in bad faith, misrepresented the law to Plaintiff concerning the return of Plaintiff’s security deposit, and sent Plaintiff a threatening text message stating, “[w]ill send you the deposit, but will go to small claim courts to recover the utilities portion.” (Compl., ¶¶ 78, 79, 83.)

The Court finds that Plaintiff has alleged facts sufficient to demonstrate a basis for punitive damages. Accordingly, Defendants’ motion to strike is denied.  

Conclusion

Based on the foregoing, Defendants’ demurrer is overruled in its entirety. Defendants’ motion to strike is denied. The Court orders Defendants to file and serve an answer to the Complaint within 10 days of the date of this Order. 

Plaintiff is ordered to give notice of this Order. 

DATED:  September 27, 2022                       ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court