Judge: Teresa A. Beaudet, Case: 23STCV09441, Date: 2023-10-16 Tentative Ruling

Case Number: 23STCV09441    Hearing Date: December 13, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiffs Tea Hermankova (“Hermankova”) and Tomas Hermanek, a Minor, by and through his Guardian Ad Litem, Tea Hermankova (jointly, “Plaintiffs”) filed this action on April 27, 2023 against Defendants Runway Sub Reit, LLC (“Runway”) and Bozzuto Management Company (jointly, “Defendants”). The Complaint alleges causes of action for (1) breach of lease, (2) breach of implied covenant of habitability, (3) trespass, (4) negligence, (5) breach of covenant of quiet enjoyment, (6) maintenance of nuisance, (7) constructive eviction, (8) intentional infliction of emotional distress, and (9) negligent infliction of emotional distress.

Runway now demurs to the Complaint and moves to strike portions of the Complaint. Plaintiffs oppose 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.)

B.     Allegations of the Complaint  

In the Complaint, Plaintiffs allege that since on or about May 16, 2022, Hermankova leased premises from Defendants, located at 12760 W. Millennium Dr., Unit A408, Playa Vista, California (“Unit A408”). (Compl., ¶ 11.) Plaintiffs allege that “[d]ue to the unlawful and outrageous conduct as hereinafter set forth in detail, Plaintiff Hermankova and her minor son, Plaintiff Tomas Hermansek, could not continue to reside at the [Unit A408], and instead moved into 12760 W. Millennium Dr., Unit A424, Playa Vista, California, (‘Unit A424’), pursuant to an agreement entered into with the lessee of Unit A424, whereby Plaintiff Hermankova paid monthly rent to the lessee of Unit A424.” (Compl., ¶ 11.)

Plaintiffs allege that “[f]rom the very beginning of Plaintiffs’ occupancy of Unit A408, pursuant to the Rental Agreement, Plaintiffs experienced intolerable noise at night emanating from nine old and unmaintained air conditioning units located directly above Plaintiffs’ unit on the roof, as well as the refrigerator in Plaintiffs’ unit.” (Compl., ¶ 14.) Hermankova made several complaints to Runway management regarding these conditions. (Compl., ¶ 14.) “On or about August 3, 2022, Hermankova was confronted by Runway’s apparent head of maintenance, ‘Dan,’ on the roof over Hermankova’s unit, who physically pushed her…” (Compl., ¶ 15.)

Plaintiffs allege that “[i]mmediately thereafter, instead of rectifying the situation, Runway served Hermankova with a Three-Day Notice,” and that “[t]he August 5, 2022 Three-Day Notice was not properly served and was never followed up upon.” (Compl., ¶ 16.) Plaintiffs further allege that “[a]fter Plaintiffs’ complaints continued to remain unaddressed, and even hostilely rebuffed, Hermankova entered into an arrangement with the lessee of Unit A424, Ivan Philip, to pay him rent to stay in his unit while he was away in Europe, so that Hermankova could recuperate in peace after her major cervical spine and neck surgery scheduled for January 17, 2023. Pursuant to her agreement with Ivan Philip, Hermankova and her minor 14-year-old son, Tomas, began occupying Unit A424 on or about December 14, 2022.” (Compl., ¶ 18.)

Plaintiffs allege that “[o]n January 28, 2023, Runway management called the police, and informed the police that Runway intended to change the door lock of Unit A424. After meeting with the police at Unit A424, and Plaintiff Hermankova providing appropriate paperwork concerning her arrangement with Mr. Philip and their payment of rent to Mr. Philip, the police advised Runway that changing the locks would be illegal and that the police did not recommend doing so. The police then left.” (Compl., ¶ 19.)

Plaintiffs allege that “on February 2, 2023, Runway conducted an illegal lockout of Plaintiff Hermankova and her minor son, Plaintiff Tomas from Unit A424, of which Hermankova and her minor son, were in possession. Runway employees changed the lock on the door of Unit A424 while Hermankova was at a medical facility receiving post-operative tests and treatment, and Tomas, her 14-year-old son, was walking their dog. Hermankova’s minor son returned to the unit with his dog and discovered that Plaintiffs had been locked out of Unit A424.” (Compl., ¶ 20.) “Police officers of the LAPD arrived at the scene, and advised Runway management that their lockout was illegal and directed them to return the keys for Unit A424 to Hermankova.” (Compl., ¶ 21.)

Plaintiffs further allege that “[o]n two more occasions, February 6 and on February 7, 2023, Runway personnel unlocked the door to Unit A424 and again attempted to illegally enter.” (Compl., ¶ 22.) Plaintiffs allege that “[i]n addition to the August 5, 2022 Three Day Notice, Runway served two subsequent Three Day Notices, one on January 25, 2023 and another on January 31, 2023.” (Compl., ¶ 23.) Plaintiffs allege that “Runway management forbade Hermankova or her minor son from entering, or even calling the leasing office. Moreover, Runway denied access by Hermankova to her account through the Runway portal. In fact, Runway’s management continued a pattern of terrorizing Hermankova, apparently with the intent to attempt to oust Plaintiff Hermankova and her minor son from the Premises by creating an environment so hostile that it amounted to a constructive eviction.” (Compl., ¶ 24.)

C.     Second Cause of Action for Breach of Implied Covenant of Habitability

In the demurrer, Runway argues that the second cause of action is subject to demurrer. Runway first asserts that “[t]he Complaint never pleads a claim for Section 1942.4 of the Civil Code. Plaintiff’s habitability claim under Section 1941.1 is not a standalone cause of action and thus cannot support a habitability claim.” (Demurrer at p. 13:9-11.) In the Complaint, Plaintiff alleges that “[p]ursuant to Civil Code Section 1941.1, a dwelling is deemed untenantable for the purposes of Civil Code Section 1941 for the reasons set forth herein.” (Compl., ¶ 36.) But Plaintiffs also allege that “[a]s a result of the existence of the above-identified defects, and other defects, and Defendants’ failure to repair and correct these defects, Defendants are in violation of Civil Code section 1941.1 et seq.” (Compl., ¶ 44.)

In addition, Plaintiffs’ second cause of action is for “breach of implied covenant of habitability.” Plaintiffs cite to Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914-915, where the Court of Appeal noted that “[o]f great importance to the decision which we reach today is the express holding in Green that the statutory remedies provided a tenant under Civil Code section 1941 et seq…were not intended by the Legislature as the tenant’s exclusive remedy for the landlord’s failure to repair. Although past cases have held that the Legislature intended the remedies afforded by section 1942 to be the sole procedure for enforcing the statutory duty on landlords imposed by section 1941…no decision has suggested that the Legislature designed these statutory provisions to displace the common law in fixing the respective rights of landlord and tenant. On the contrary, the statutory remedies of section 1942 have traditionally been viewed as additional to, and complementary of, the tenant’s common law rights.” (Internal quotations omitted.)

Runway also asserts that “[e]ven as to Plaintiffs’ sole complaint of a noisy air conditioner, it was extremely minor.” (Demurrer at p. 13:13, emphasis omitted.) Runway cites to Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 637-638, where the California Supreme Court noted that “[u]nder the implied warranty which we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease. This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that bare living requirements must be maintained…In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability we now recognize…As the Hinson court observed: [minor] housing code violations standing alone which do not affect habitability must be considered de minimus and will not entitle the tenant to reduction in rent…” (Internal quotations omitted.)

Runway argues that “the alleged noisy A/C in the building epitomizes a de minimus habitability issue.” (Demurrer at p. 13:18-19.) But as set forth above, Plaintiffs allege that “[f]rom the very beginning of Plaintiffs’ occupancy of Unit A408, pursuant to the Rental Agreement, Plaintiffs experienced intolerable noise at night emanating from nine old and unmaintained air conditioning units located directly above Plaintiffs’ unit on the roof, as well as the refrigerator in Plaintiffs’ unit.” (Compl., ¶ 14.) The Court does not find that Runway has demonstrated that Plaintiffs’ allegations pertaining to the alleged intolerable noise “do not affect habitability.” (Green v. Superior Court of San Francisco, supra, 10 Cal.3d at p. 638.)

            Runway also asserts that “Plaintiffs’ habitability claim duplicates their breach of contract cause of action because both rely upon the exact same violation of the exact same statutory provision: California Civil Code section 1941.” (Demurrer at p. 13:28-14:2.)[1] But in the first cause of action for breach of lease, Plaintiffs also allege, inter alia, that “Civil Code section 789.3 protects those occupying residential premises from specified actions by the landlord, including changing the locks, which are done with the intent to oust the resident,” and that “Defendants breached the Rental Agreement, as well as California law by, inter alia, failing to remediate the untenantable conditions as herein described in detail, within a reasonable time after notice was given by Plaintiff Hermankova, by unlawfully entering Plaintiffs’ Premises and unlawfully changing the locks.” (Compl., ¶¶ 30, 31.) In addition, in the second cause of action, Plaintiffs allege, inter alia, that “[a]s a further proximate result of Defendants’ breach of the implied warranty of habitability, Plaintiffs suffered property damage and economic loss, including but not limited to amounts paid for relocation costs,” and that “Defendants’ conduct caused Plaintiff Hermankova, and her minor son, Plaintiff Tomas, to suffer severe emotional distress, mental anguish, pain and physical injury…” (Compl., ¶¶ 49, 50.) Such allegations are not contained in the first cause of action for breach of lease. The Court does not find that Runway has demonstrated that the second cause of action for breach of implied covenant of habitability is duplicative of the first cause of action for breach of lease.[2]

Based on the foregoing, the Court overrules Runway’s demurrer to the second cause of action for breach of implied covenant of habitability.

D.    First Cause of Action for Breach of Lease

In the demurrer, Runway asserts that the first cause of action for breach of lease fails for a number of reasons.

Runway asserts, inter alia, that Plaintiffs fail to adequately plead breach of contract for the alleged Unit A424 sublease. In the first cause of action, Plaintiffs allege that “Defendants breached the Rental Agreement…” (Compl., ¶ 31.) Plaintiffs allege that “[o]n or about May 16, 2022, Hermankova entered into a residential lease for the Premises (the ‘Rental Agreement’)” and that “on or about May 16, 2022, Plaintiff Hermankova leased premises from Defendants, located at 12760 W. Millennium Dr., Unit A408, Playa Vista, California (the ‘Premises’ and/or ‘Unit A408’).” (Compl., ¶¶ 11, 13, emphasis added.) Thus, Plaintiffs’ breach of lease cause of action appears to apply to Unit A408, not Unit A424.

Runway also asserts that Plaintiffs failed to plead a breach of contract for the Unit 408 lease. “To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant’s breach and resulting damage.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In the first cause of action, Plaintiffs allege that “Defendants breached the Rental Agreement, as well as California law by, inter alia, failing to remediate the untenantable conditions as herein described in detail, within a reasonable time after notice was given by Plaintiff Hermankova, by unlawfully entering Plaintiffs’ Premises and unlawfully changing the locks.” (Compl., ¶ 31.)

Runway argues that “[w]hile the Complaint includes a copy of the 2022 lease agreement, Plaintiff’s Complaint fails to set forth the material and applicable terms of the written contract which are the basis of Plaintiff’s breach of contract claims. The Complaint fails to provide even vague references to any specific language from the written agreement between the parties which were purportedly breached by Defendants.” (Demurrer at p. 15:16-19.) Plaintiffs do not appear to dispute this point in their opposition.[3]

In light of the foregoing, the Court sustains Runway’s demurrer to the first cause of action for breach of lease, with leave to amend.

E.     Third Cause of Action for Trespass

In the third cause of action for trespass, Plaintiffs allege that “Defendants committed trespass by frequently entering Plaintiff’s residence, without notice to Plaintiff Hermankova, or her minor son, Tomas, without Plaintiff’s permission, and not due to any emergency.” (Compl., ¶ 55.) Runway argues that Plaintiffs’ trespass claim fails because “Runway was authorized to enter their premises for lawful purposes in performing their duties and responsibilities as owners.” (Demurrer at p. 18:9-10.)

Runway cites to Civil Code section 1954, subdivision (a)(2), which provides that “[a] landlord may enter the dwelling unit only in the following cases:…(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.” But as noted by Plaintiffs, they allege that “on February 2, 2023, Runway conducted an illegal lockout of Plaintiff Hermankova and her minor son, Plaintiff Tomas from Unit A424, of which Hermankova and her minor son, were in possession. Runway employees changed the lock on the door of Unit A424…” (Compl., ¶ 20.) Plaintiffs further allege that “[o]n two more occasions, February 6 and on February 7, 2023, Runway personnel unlocked the door to Unit A424 and again attempted to illegally enter.” (Compl., ¶ 22.) Runway’s analysis of Civil Code section 1954, subdivision (a)(2) does not appear to take these allegations into account.

Runway also asserts without citing to any supporting legal authority that “Plaintiffs seem to believe that they had the right to exclude Defendant from its own home and property, which is not true.” (Demurrer at p. 18:15-16.) In the opposition, Plaintiffs cite to Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1042-1043, where the Court of Appeal noted that “[t]he cause of action for trespass affords protection for a possessory, not necessarily an ownership interest. For that reason, the plaintiff need not have legal rights in the land. Even one in peaceable though wrongful possession of real property may sue in tort for forcible interference with that possession even in the absence of injury to his person or goods…Furthermore, the fact that a defendant may have title or the right to possession of the land is no defense.” (Internal quotations and citations omitted.)

Runway also cites to Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1361, where the California Supreme Court noted that “the metaphorical application of real property rules would not, by itself, transform a physically harmless electronic intrusion on a computer server into a trespass…That is because, under California law, intangible intrusions on land, including electromagnetic transmissions, are not actionable as trespasses (though they may be as nuisances) unless they cause physical damage to the real property.” The Court does not see how Intel Corp is applicable to the facts here, and finds that Runway’s reliance on the case is misplaced.  

Based on the foregoing, the Court overrules Runway’s demurrer to the third cause of action for trespass.

F.      Fifth Cause of Action for Breach of Covenant of Quiet Enjoyment

In the demurrer, Runway cites to Clark v. Spiegel (1971) 22 Cal.App.3d 74, 79, where the Court of Appeal noted that “there is a clear obligation incumbent upon a lessee alleging an interference with the implied convenant of quiet enjoyment to vacate the premises within a reasonable time. Four or even three years cannot remotely be considered ‘reasonable.’” (Internal citations omitted.) Runway asserts that here, “this claim is silent as to whether Plaintiffs left the subject property within a reasonable period of time after the date(s) of interference; accordingly, there is no allegation of actual or constructive eviction as required.” (Demurrer at p. 19:3-5.) But as noted by Plaintiffs, the Complaint alleges that “Plaintiff Hermankova, and her minor son, occupied Unit A408 as their residence until December 13, 2022, when the conditions in Unit A408 became so intolerable that they were forced to relocate to Unit A424, where they resided until April 26, 2023, at which time they vacated, and surrendered possession of the Premises.” (Compl., ¶ 37.) Plaintiffs allege that “[s]ince on or about May 16, 2022, Plaintiff Hermankova leased premises from Defendants…” (Compl., ¶ 11.)

The Court does not find that Runway has demonstrated that Plaintiffs’ cause of action for breach of covenant of quiet enjoyment fails. Based on the foregoing, the Court overrules Runway’s demurrer to the fifth cause of action for breach of covenant of quiet enjoyment.

G.    Seventh Cause of Action for Constructive Eviction

Runway also asserts that Plaintiffs’ constructive eviction cause of action fails. Runway cites to Stoiber v. Honeychuck, supra, 101 Cal.App.3d at pages 925-926, where the Court of Appeal noted that “[a] constructive eviction occurs when the acts or omissions…of a landlord, or any disturbance or interference with the tenant’s possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises. Abandonment of premises by the tenant within a reasonable time after the wrongful act of the landlord is essential to enable the tenant to claim a constructive eviction.” (Internal quotations and citations omitted.)

Runway argues that here, “[t]he Complaint fails to specify that Plaintiff vacated the Subject [sic] within a reasonable time after the alleged wrongful acts of Defendant. Plaintiffs allege they moved into the apartment on May 16, 2022, at which point they allegedly endured uninhabitable conditions, resulting in their departure on April 26, 2023…While Plaintiffs claim this is a reasonable time, if the conditions of the Subject Property were so terrible as Plaintiffs contend, remaining in their apartment unit for nearly 1 full year appears unreasonable on its face.” (Demurrer at p. 19:13-18.) But Plaintiffs allege that “Plaintiff Hermankova, and her minor son, occupied Unit A408 as their residence until December 13, 2022, when the conditions in Unit A408 became so intolerable that they were forced to relocate to Unit A424, where they resided until April 26, 2023…” (Compl., ¶ 37, emphasis added.) Moreover, Runway does not cite any binding legal authority to support their assertion that a period of one year cannot be considered reasonable. In Stoiber, cited by Runway, the Court of Appeal noted that “[w]hether she abandoned within a reasonable time would constitute a jury question.” (Stoiber v. Honeychuck, supra, 101 Cal.App.3d at p. 926.)

Based on the foregoing, the Court overrules Runway’s demurrer to the seventh cause of action for constructive eviction.

H.    Sixth Cause of Action for Maintenance of Nuisance

In the demurrer, Runway asserts that Plaintiffs fail to adequately allege a private nuisance claim. Civil Code section 3479 provides that “[a]nything which is injurious to health…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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

Runway cites to San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937, where the Court of Appeal noted that “[i]n further distinction to trespass, however, liability for private nuisance requires proof of two additional elements.” “The first additional requirement for recovery of damages on a nuisance theory is proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer substantial actual damage.” (Id. at p. 938 [internal quotations omitted, emphasis in original].) “The second additional requirement for nuisance is superficially similar but analytically distinct: The interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. The primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account. Again the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.” (Ibid. [internal quotations and citations omitted, emphasis in original].)

Runway asserts that “[h]ere, the Complaint neither alleges [Runway’s] perceived interference with Plaintiffs’ enjoyment of their property was ‘substantial’ or even ‘unreasonable’…Further, Plaintiffs fail to allege the gravity of the harm outweighs any social utility.” (Demurrer at p. 20:5-7.) Indeed, Plaintiffs do not appear to allege that “plaintiff’s interest in the use and enjoyment of the land was substantial,” or that “[t]he interference with the protected interest…[was] unreasonable.” (San Diego Gas & Electric Co. v. Superior Court, supra, 13 Cal.4th at p. 938 [emphasis omitted].)

Based on the foregoing, the Court sustains Runway’s demurrer to the sixth cause of action for maintenance of nuisance, with leave to amend. 

I.        Eighth Cause of Action for Intentional Infliction of Emotional Distress

“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. A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [internal quotations and citations omitted].)

In the demurrer, Runway argues that “[t]here are no allegations that [Runway] actually intended to injure Plaintiffs beyond conclusory statements to that effect.” (Demurrer at p. 21:15-16.) Plaintiffs do not address or dispute this point in the opposition. Indeed, the Complaint does not appear to allege that Runway’s conduct was “intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.)

Based on the foregoing, the Court sustains Runway’s demurrer to the eighth cause of action for intentional infliction of emotional distress, with leave to amend.

J.       Ninth Cause of Action for Negligent Infliction of Emotional Distress

Runway asserts that Plaintiffs’ ninth cause of action for negligent infliction of emotional distress fails, because no such claim exists. Runway cites to Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072, where the California Supreme Court noted that “[w]e have repeatedly recognized that [t]he negligent causing of emotional distress is not an independent tort, but the tort of negligence.” (Internal quotations omitted, emphasis in original.) Runway also cites to Lawson v. Management Activities (1999) 69 Cal.App.4th 652, 656, where the Court of Appeal noted that “as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress.” (Internal emphasis omitted.) Plaintiffs do not address these authorities in the opposition.

Based on the foregoing, the Court sustains Runway’s demurrer to the ninth cause of action for negligent infliction of emotional distress, without leave to amend.

K.    Uncertainty

Lastly, Runway argues that the Complaint is uncertain. Runway asserts that “the Complaint lumps both ‘Defendant[s]’ together, rendering it impossible to determine which defendant committed each alleged wrongdoing.” (Demurrer at p. 24:20-21.) But Plaintiffs define the term “Defendants” as it is used in the Complaint. Specifically, Plaintiffs allege that “(Runway and Bozzuto are collectively referred to as ‘Defendants’).” (Compl., ¶ 4.) The Complaint specifies that each of the causes of action are alleged “Against All Defendants.”

Runway also asserts that “the Complaint fails to identify the roles each of the two defendants played in leasing the property to Plaintiffs.” (Demurrer at p. 24:27-28.) But Plaintiffs allege that “[s]ince on or about May 16, 2022, Plaintiff Hermankova leased premises from Defendants…” (Compl., ¶ 11.)

The Court does not find that Runway has shown that the Complaint is so confusing that Runway cannot tell what it is supposed to respond to.¿In Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, footnote 2, the Court of Appeal noted that “under 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...” In addition, in Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, cited by Plaintiffs, the Court of Appeal noted that “¿[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.¿”

Based on the foregoing, the Court overrules Runway’s demurrer on the grounds of uncertainty.

            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¿.)¿¿ 

A.    Attorney’s Fees

In the Complaint, Plaintiffs seek “attorney’s fees” in connection with all causes of action. (Compl., p. 20, ¶ 2.) Runway moves to strike this allegation. Runway also moves to strike Plaintiffs’ request for attorney’s fees in connection with the second cause of action for breach of implied covenant of habitability. (Compl., ¶ 49.)

“Code of Civil Procedure section 1033.5, subdivision (a)(10)…provides that allowable costs under Code of Civil Procedure section 1032 include attorney fees whenever they are authorized by contract or statute.” (Khavarian Enterprises, Inc. v. Commline, Inc. (2013) 216 Cal.App.4th 310, 327 [emphasis omitted].) Runway asserts that “no statute whatsoever authorizes recovery of attorneys’ fees for causes of action for torts of Negligence, common law Breach of Warranty of Habitability, Breach of the Covenant of Quiet Enjoyment, Nuisance, Negligent Infliction of Emotional Distress, and Intentional Infliction of Emotional Distress.” (Mot. at p. 12:26-13:2.)

As an initial matter, as set forth above, the Court sustains Runway’s demurrer to Plaintiffs’ causes of action for nuisance, intentional infliction of emotional distress, and negligent infliction of emotional distress. Thus, the Court denies Runway’s motion to strike Plaintiffs’ request for attorney’s fees in connection with these causes of action as moot.

In addition, as Runway acknowledges, Plaintiffs allege that they seek “[a]ttorneys’ fees pursuant to the Rental Agreement.” (Compl., p. 18:4.) As set forth above, Code of Civil Procedure section 1033.5, subdivision (a)(10)…provides that allowable costs under Code of Civil Procedure section 1032 include attorney fees whenever they are authorized by contract or statute.” (Khavarian Enterprises, Inc. v. Commline, Inc., supra, 216 Cal.App.4th at p. 327 [emphasis omitted, underline added].) Runway argues that “language in the Lease agreement caps any potential attorney’s fees at just $12,000. Therefore, at most, Plaintiffs would only be able to recover $12,000 in attorney’s fees should they be found to be the prevailing party, which is unlikely.” (Mot. at p. 13:26-14:2.) But the Court does not see why the existence of such purported language is grounds to strike Plaintiffs’ request for attorney’s fees.

In light of the foregoing, the Court denies Runway’s motion to strike Plaintiffs’ request for attorney’s fees.

B.     Punitive Damages

Runway also moves to strike Plaintiffs’ request for punitive damages. Plaintiffs seek punitive damages in connection with the second cause of action for breach of implied covenant of habitability (Compl., ¶ 51), the third cause of action for trespass (Compl., ¶ 58), the fifth cause of action for breach of covenant of quiet enjoyment (Compl., ¶ 69), the sixth cause of action for nuisance (Compl., ¶ 77), the seventh cause of action for constructive eviction (Compl., ¶ 83), and the eighth cause of action for intentional infliction of emotional distress (Compl., ¶ 90).

As set forth above, the Courts sustains Runway’s demurrer to, inter alia, the sixth and eighth causes of action of the Complaint. Thus, the Court denies as moot the motion to strike Plaintiffs’ request for punitive damages in connection with the sixth and eighth causes of action.

Runway raises a number of arguments in its motion to strike regarding Plaintiffs’ request for punitive damages. Runway argues, inter alia, that “Plaintiffs do not plead specific facts alleging Runway ratified malicious, oppressive, or fraudulent conduct...” (Mot. at p. 23:25-26.)

Pursuant to Civil Code section 3294, subdivision (b), “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Emphasis added.)

 Runway asserts that here, “[a]t no point in the Complaint do Plaintiffs allege how or when Runway’s unnamed managing agent came to know of the alleged wrongdoings of which Plaintiffs complains.” (Mot. at p. 24:23-24.) Plaintiffs do not respond to this point or address Civil Code section 3294, subdivision (b) in their opposition. In addition, as noted by Runway in the reply, Plaintiffs’ Complaint also does not identify any officer or director of Runway “who engaged in the wrongful conduct or who had ‘advance knowledge’ and/or authorized or ratified the alleged wrongdoing.” (Reply at p. 6:26-7:1.)

Based on the foregoing, the Court grants Runway’s motion to strike Plaintiffs’ punitive damages allegations (other than those pertaining to the sixth and eighth causes of action), with leave to amend. 

Conclusion

Based on the foregoing, Runway’s demurrer to the first, sixth, and eighth causes of action is sustained, with leave to amend. Runway’s demurrer to the ninth cause of action is sustained, without leave to amend. Runway’s demurrer to the second, third, fifth, and seventh causes of action is overruled.

Runway’s motion to strike is granted in part and denied in part, as set forth above.

Plaintiffs are ordered to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders Runway to file and serve its answer to the Complaint within 30 days of the date of this order.

Runway is ordered to give notice of this order.

DATED:  December 13, 2023                        ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court