Judge Teresa A. Beaudet, Case Number: 24STCV05292, Date: 2024-07-03 Tentative Ruling

Plaintiff Jaclyn Vorgitch (“Plaintiff”) filed this action on March 4, 2024 against Defendants A.K. Madan, individually and as trustee of the Madan Family 2003 Trust dated March 26, 2003, and Manju Madan, individually and as trustee of the Madan Family 2003 Trust dated March 26, 2003 (jointly, “Defendants”).

The Complaint alleges causes of action for (1) negligence, (2) constructive eviction,

(3) breach of contract, (4) tenant harassment in violation of the Los Angeles anti-harassment ordinance, (5) nuisance, (6) trespass, (7) violation of Civil Code section 1942.5, (8) violation of Los Angeles Municipal Code section 152.03, (9) intentional infliction of emotional distress,

(10) unlawful rent increase in violation of the Los Angeles rent stabilization ordinance,

(11) unfair business practices, and (12) bad faith retention of security deposit.

Defendants now demur to Plaintiff’s causes of action for breach of contract and intentional infliction of emotional distress. Defendants also move to strike portions of the Complaint. Plaintiff opposes both.

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¿¿.)¿¿

In the Complaint, Plaintiff alleges that from January 2010 to May 31, 2023, she was a residential tenant at 4621 N. Figueroa Street, Los Angeles, California (the “Subject Property”). (Compl., ¶ 1.) Plaintiff lived in the garden unit at 4621 1/2 N. Figueroa Street, Los Angeles, California (the “Subject Unit”). (Compl., ¶ 3.) Defendants owned and managed the Subject Property. (Compl., ¶¶ 4-5.)

Plaintiff alleges that throughout her tenancy, the Subject Unit was in substantial disrepair. (Compl., ¶ 11.) “For Plaintiff’s entire tenancy, raw sewage flooded into the common area courtyard at least three times a year.” (Compl., ¶ 12.) “Plaintiff reported the sewage floods to Defendants, but they delayed several days in responding. When Defendants finally sent workers to address the overflows, they only authorized their workers to flush the sewage lines, leaving the feces and toilet paper littering the common area for Plaintiff and the other tenants to clean up…” (Compl., ¶ 12.) “From 2011 through 2018, the roof was old and dilapidated, causing water intrusion into the Subject Unit every time it rained. During rains, water leaked through the ceiling and saturated the walls of the Subject Unit. Each time the roof leaked, Defendants made a piecemeal repair to address the leak. Defendants finally replaced the roof in 2018. The repetitive leaking caused cracks in Plaintiff’s ceiling. Defendants never repaired the cracks in the Subject Unit during Plaintiff’s tenancy.” (Compl., ¶ 13.)

“For Plaintiff’s entire tenancy, the building exterior was peeling and chipping, allowing water to enter the building walls. On February 28, 2023, the City issued a Notice of Violation for the peeling paint.” (Compl., ¶ 14.) “Unbeknownst to Plaintiff, there was a major water leak in the kitchen wall from an open pipe that was also causing water to saturate the walls in the Subject Unit.” (Compl., ¶ 16.) “On December 13, 2023, with no plan from Defendants to abate the substantial water damage, Plaintiff felt she had no choice but to temporarily vacate her home. Plaintiff was forced to pay thousands of dollars to live in short-term rentals and eat meals out while she was displaced from the Subject Unit.” (Compl., ¶ 23.) “From mid-December 2023 through May 31, 2023 [sic], Plaintiff was displaced from her home with no communication from Defendants about when repairs would be completed or when she would be able to reoccupy the Subject Unit.” (Compl., ¶ 27.) “As a result of the water intrusions, water damage, and construction, Plaintiff suffered from tens of thousands of dollars of property damage to her personal belongings.” (Compl., ¶ 29.)

“In February 2023, only after being forced by the City to conduct the required testing for hazardous materials, Defendants discovered the walls demolished [sic] by their workers without protecting Plaintiff’s belongings from asbestos.” (Compl., ¶ 30.) “From March 2023 through May 2023, while Plaintiff was temporarily displaced from the Subject Unit, there was a rat and raccoon infestation…Plaintiff told Defendants about the evidence of pests entering the Subject Unit, but Defendants never made any attempt to close the points of entry or otherwise eradicate the pests.” (Compl., ¶ 31.) “For Plaintiff’s entire tenancy, there was a termite infestation at the Subject Unit. At least once a week, Plaintiff cleaned termite eggs and dust off the windowsills. Plaintiff complained about the termites, but Defendants never took any steps to abate the termite infestation during Plaintiff’s tenancy.” (Compl., ¶ 38.)

“For at least the last four years of Plaintiff’s tenancy, the wood flooring beneath the bathtub was damaged and soft from water damage. As a result of the compromised framing, the bathtub and floor were sinking, creating a structural hazard. On February 28, 2023, the City issued a Notice of Violation for the structural hazard, among other health and safety hazards.” (Compl., ¶ 32.)

“For Plaintiff’s entire tenancy, her rent included a garage parking spot. During the last six months of the tenancy, the manual garage door became waterlogged and no longer opened. Plaintiff told Defendants, but they delayed in fixing the garage door until two days before Plaintiff moved out. Plaintiff did not have access to garage parking for six months.” (Compl., ¶ 33.) “For Plaintiff’s entire thirteen-year tenancy, the windows were old and dilapidated. The wood frames were water-damaged, stained, and splintering. There were also gaps around the window frames where the wood framing splintered off. On February 28, 2023, the City issued a Notice of Violation for the dilapidated windows.” (Compl., ¶ 35.) In addition, “[f]or at least four years, the bedroom window glass was broken and missing. On February 28, 2023, the City issued a Notice of Violation for the missing windowpane.” (Compl., ¶ 36.)

“For the last year of Plaintiff’s tenancy, there was no lock on the security gate…in March 2023, while Plaintiff was temporarily displaced, her security camera recorded a vagrant attempting to break into the Subject Unit with a crowbar. Despite complaints from Plaintiff and other tenants, Defendants never fixed the security gate during Plaintiff’s’ tenancy.” (Compl., ¶ 34.) “For Plaintiff’s entire tenancy, there was no exhaust fan to vent the kitchen, exacerbating the already wet condition inside the Subject Unit. Plaintiff complained to Defendants, but they never installed sufficient ventilation in the kitchen during Plaintiff’s tenancy.” (Compl., ¶ 39.) “For the last three years of Plaintiff’s tenancy, there was a large, diseased oak tree hanging over the roof, creating a safety hazard for Plaintiff. Plaintiff asked Defendants to cut the branches over the roof, but Defendants never did…For Plaintiff’s entire tenancy, there were no smoke and carbon monoxide detectors in the Subject Unit. On February 28, 2023, the City issued a Notice of Violation for the missing smoke and carbon monoxide detectors, but they were not installed during Plaintiff’s tenancy.” (Compl., ¶¶ 40-41.)

Plaintiff further alleges that “[f]or her entire tenancy, Plaintiff was forced to endure harassment every time she complained about the serious health and safety hazards at the Subject Unit. Defendants belittled Plaintiff by dismissing her complaints and retaliated against her by demanding she vacate without just cause.” (Compl., ¶ 43.) “Plaintiff notified Defendant that she felt she had no choice but to move and would be permanently vacating by the end of May 2023.” (Compl., ¶ 45.) “In January 2010, Plaintiff paid a security deposit of $1,500 for the Subject Unit…On May 31, 2023, Plaintiff vacated the Subject Unit, leaving it in good condition with only normal wear and tear of a thirteen-year tenancy…Landlord Defendants improperly withheld Plaintiff’s full security deposit without providing the proper documentation itemizing deductions.” (Compl., ¶¶ 48-50.)

In the third cause of action for breach of contract, Plaintiff alleges that “[i]mplied in Plaintiff’s residential lease agreement is an implied warranty of habitability and an implied covenant of quiet enjoyment, wherein Landlord Defendants promised to inspect and maintain the Subject Property in a clean, safe, and habitable condition and to provide Plaintiff quiet enjoyment of the Subject Property.” (Compl., ¶ 70.) Plaintiff alleges that “Landlord Defendants breached the implied warranty of habitability and the implied covenant of quiet enjoyment by failing to inspect and maintain the Subject Property and Subject Unit in a clean, safe, and habitable condition, failing to abate habitability defects, nuisances, and trespasses, decreasing housing services without corresponding rent reduction, harassing and retaliating against Plaintiff, demanding that Plaintiff vacate without just cause, and interfering with Plaintiff’s quiet enjoyment, thereby forcing Plaintiff to vacate without just cause.” (Compl., ¶ 72.)

In the demurrer, Defendants assert that “Plaintiff has failed to attach a lease agreement or to properly plead the terms of a contract verbatim or through its legal effect to give rise to a breach of contract claim.” (Demurrer at p. 6:25-27.) Defendants cite to McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489, where the Court of Appeal noted that “[a] cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. In order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Internal quotations and citations omitted.)

In the opposition, Plaintiff asserts that “the legal effect of the lease was pled…” (Opp’n at p. 8:3.) Plaintiff notes that the Complaint alleges that “[f]rom January 2010 to May 31, 2023, Plaintiff…was a residential tenant at 4621 N. Figueroa Street, Los Angeles, California.” (Compl., ¶ 1.) Plaintiff points to paragraph 3 of the Complaint, which alleges that “Plaintiff lived in the garden unit at 4621 1/2 N. Figueroa Street, Los Angeles, California (the ‘Subject Unit’)…Plaintiff’s rent also included two off-street parking spots, a private front yard, and a shared backyard. Plaintiff rented the Subject Unit pursuant to a written rental agreement with an attorney fee provision.” (Compl., ¶ 3.) Plaintiff also points to paragraph 70 of the Complaint, which alleges, as set forth above, that “[i]mplied in Plaintiff’s residential lease agreement is an implied warranty of habitability and an implied covenant of quiet enjoyment, wherein Landlord Defendants promised to inspect and maintain the Subject Property in a clean, safe, and habitable condition and to provide Plaintiff quiet enjoyment of the Subject Property.” (Compl., ¶ 70.)

But as noted above, “[i]n order to plead a contract by its legal effect, plaintiff must allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Ibid. [internal quotations omitted].) Here, Plaintiff alleges that she “rented the Subject Unit pursuant to a written rental agreement with an attorney fee provision.” (Compl., ¶ 3.) However, Plaintiff does not appear to point to any allegations discussing the substance of the relevant terms of the rental agreement.

In light of the foregoing, the Court sustains Defendants’ demurrer to the third cause of action of the Complaint, with leave to amend.

“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, Defendants contend that the allegations of the Complaint “amount to disputes over the tenancy, but do not meet the standard of conduct so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Demurrer at p. 7:26-27.) The Court disagrees. As discussed in further detail above, Complaint alleges that there were a number of habitability defects at the Subject Unit, including, inter alia, “raw sewage floods,” improper weatherproofing causing excessive moisture and water damage, “friable” asbestos, pest infestation, structural hazards, dilapidated garage door and security gate, dilapidated windows, termite infestation, insufficient ventilation, and fire and safety hazards. (See Compl., ¶¶ 11-42.) Plaintiff alleges that “[t]hroughout Plaintiff’s tenancy, the Subject Unit was in substantial disrepair. Plaintiff complained about these defects, and/or Defendants knew or should have known about these defects but failed to address Plaintiff’s complaints or failed to adequately remedy the defects.” (Compl., ¶ 11.) The Court finds that Plaintiff has sufficiently alleged “extreme and outrageous conduct” for purposes of her intentional infliction of emotional distress cause of action.

Defendants also cite to Girard v. Ball (1981) 125 Cal.App.3d 772, 787-788, where the Court of Appeal found that “[i]n order for appellant to recover for intentional infliction of emotional distress, he must have suffered severe or extreme emotional distress. The trial court properly considered whether any triable issue of fact existed in this and other regards. The evidence presented by appellant does not arise to any triable issue. As was stated in Fletcher v. Western National Life Ins. Co. (1970), supra, 10 Cal.App.3d 376, at page 397 ‘. . . ‘severe’ means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.’” The Girard Court noted that “[a]ppellant responded in answers to interrogatories that he suffered as follows: ‘couldn’t sleep -- anxiety symptoms -- nervous.’ He sought no medical treatment for his condition. In his opposition declaration, filed some four months later, after the motion for summary judgment had been made, appellant then claimed more extensive symptoms. In view of the great weight to be given appellant’s earlier answers to interrogatories, as discussed at the outset of this opinion, it cannot be said that his later declaration raises triable issues. It is not believable. The suggestion that appellant, an attorney, banker, builder, investor and businessman, suffered extreme emotional distress from respondent’s two letters and some phone calls requesting payment is absurd and does not present a triable issue of fact.” (Id. at p. 788.)

Defendants contend that “[s]imilarly, here, Plaintiff’s Complaint fails to allege sufficient facts to support an inference that Plaintiff suffered distress of the ‘substantial quality or enduring quality’ required for an IIED cause of action.” (Demurrer at p. 8:10-12.) But the Court finds that the facts of Girard are distinguishable from the facts alleged in the Complaint here. In addition, Plaintiff alleges that she “suffered severe emotional distress, including mental anguish, loss of enjoyment of life, annoyance, sleeplessness, anxiety, worry, fear, discomfort, embarrassment, and humiliation.” (Compl., ¶ 118.)

Lastly, Defendants assert that “Plaintiff has not specifically pled any facts to suggest that Defendants engaged in conduct with the intention of causing them emotional distress or with conscious disregard.” (Demurrer at p. 8:16-18.) But Plaintiff alleges that “Defendants intended to cause Plaintiff emotional distress or acted with reckless disregard of the probability that Plaintiff would suffer emotional distress.” (Compl., ¶ 117.)

In light of the foregoing, the Court overrules Defendants’ demurrer to the ninth cause of action of the Complaint.

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¿.)¿¿

Runway moves to strike Plaintiff’s punitive damages allegations. Plaintiff seeks punitive damages in connection with the fourth, fifth, seventh, and ninth causes of action. (Compl., ¶¶ 81, 91, 102, 120.)

Pursuant to Civil Code section 3294, subdivision (a), “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” As used in Civil Code section 3294, “‘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, § 3294, 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 assert that here, “Plaintiff’s Complaint does not contain sufficient facts beyond mere conclusory allegations to state a cause of action for punitive damages under the…standard in Civil Code, Section 3294.” (Mot. at p. 7:6-8.)

In the opposition, Plaintiff asserts that the Complaint alleges sufficient facts to support a claim for punitive damages.[1] As discussed in further detail above, the Complaint alleges that there were a number of habitability defects at the Subject Unit, including, inter alia, raw sewage floods, improper weatherproofing causing excessive moisture and water damage, “friable” asbestos, pest infestation, structural hazards, dilapidated garage door and security gate, dilapidated windows, termite infestation, insufficient ventilation, and fire and safety hazards. (See Compl., ¶¶ 11-42.) Plaintiff alleges that “[t]hroughout Plaintiff’s tenancy, the Subject Unit was in substantial disrepair. Plaintiff complained about these defects, and/or Defendants knew or should have known about these defects but failed to address Plaintiff’s complaints or failed to adequately remedy the defects.” (Compl., ¶ 11.) The Court finds that Plaintiff has adequately alleged “malice” and “oppression” for purposes of her request for punitive damages. Accordingly, the Court denies Defendants’ motion to strike Plaintiff’s punitive damages allegations.

In the Complaint’s prayer for relief, Plaintiff alleges that she seeks, inter alia, “expert witness fees.” (Compl., p. 23, ¶ 9.) Defendants contend that “it is improper and premature to pray for ‘expert witness fees,’ as pled in Plaintiff’s Complaint.” (Mot. at p. 8:11-12.) Defendants cite to Code of Civil Procedure section 1033.5, which provides in part that “[t]he following items are allowable as costs under Section 1032:…(8) Fees of expert witnesses ordered by the court.” (Code Civ. Proc., § 1033.5, subd. (a)(8).)

In addition, in her declaration in support of the motion, Defendants’ counsel states that “[o]n April 23, 2024, Ms. Murphy and I met and conferred telephonically to discuss Defendants’ arguments in advance of the instant Motion to Strike and concurrently filed Demurrer. We failed to reach an agreement as to the punitive damages but agreed to strike any reference to expert witness fees from the Complaint.” (Buzo Decl., ¶ 9.) In the opposition, Plaintiff states that she “agrees to strike the prayer for expert witness fees, as this remedy is premature at this time.” (Opp’n at p. 2:22-23.)

Based on the foregoing, the Court grants Defendants’ motion to strike Plaintiff’s request for “expert witness fees.” (Compl., p. 23, ¶ 9.)

Based on the foregoing, Defendants’ demurrer to the third cause of action of the Complaint is sustained, with leave to amend. Defendants’ demurrer to the ninth cause of action is overruled.

The Court denies Defendants’ motion to strike Plaintiff’s punitive damages allegations. The Court grants Defendants’ motion to strike Plaintiff’s request for “expert witness fees,” without leave to amend. (Compl., p. 23, ¶ 9.) As discussed, Plaintiff states that she “agrees to strike the prayer for expert witness fees, as this remedy is premature at this time.” (Opp’n at p. 2:22-23.)

Plaintiff is 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 Defendants to file and serve their answer(s) to the Complaint within 30 days of the date of this order.

[1]Plaintiff also cites to Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055, where the Court of Appeal noted that “[a]s long-standing authority makes clear, punitive damages may be awarded in an action by a residential tenant based on the landlord’s interference with peaceful possession. Punitive damages likewise are recoverable for retaliatory eviction and for the infliction of emotional distress. Causes of action for forcible entry and detainer and for trespass also support the award of exemplary damages.” (Internal quotations and citations omitted.)

Superior Court of California

County of Los Angeles

Department 50