Judge Theresa M. Traber, Case 21STCV40506 2023-04-17 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV40506, Date: 2023-04-17 Tentative Ruling

Case Number: 21STCV40506 Hearing Date: April 17, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 17, 2023 TRIAL DATE: None set.

CASE: Soledad Gallegos, et al. v. Lurdes Medina, et al.

CASE NO.: 21STCV40506

(1) DEMURRER TO FIRST AMENDED COMPLAINT;

(2) MOTION TO STRIKE PUNITIVE DAMAGES PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY: (1) & (2) Defendant Lurdes Medina

RESPONDING PARTY(S): (1) & (2) Plaintiffs Soledad Gallegos and Mario Gallegos

CASE HISTORY:

11/3/21: Complaint filed.
9/12/22: First Amended Complaint (“FAC”) filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that Plaintiff Soledad entered into a written lease agreement with Defendants. Plaintiffs’ FAC alleges: (1) breach of contract; (2) breach of covenant of quiet enjoyment; (3) breach of warranty of habitability; (4) negligence; (5) violation of unfair business practices; (6) premises liability; and (7) tenant harassment.

Defendant Lurdes Medina demurs to the seventh cause of action of the First Amended Complaint and moves to strike portions related to punitive and exemplary damages, attorney’s fees, and treble damages.

TENTATIVE RULING:

The Court SUSTAINS Defendant’s demurrer as to the seventh cause of action WITH LEAVE TO AMEND.

The Court GRANTS WITH LEAVE TO AMEND Defendant’s request to strike the prayer for treble damages but DENIES Defendant’s request to strike the prayers for punitive damages attorney’s fees.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Attorney Whitney L. Bost reflects that the parties could not informally resolve the dispute as Plaintiffs’ counsel stated they disagreed with Defendant’s objections to the FAC which was outlined in Defendant’s meet and confer letter. This satisfies CCP § 430.41(a)(3)(B).

Seventh Cause of Action (Tenant Harassment)

Civil Code Section 1954

Defendant argues that Plaintiffs’ cause of action for tenant harassment, brought under Civil Code Section 1954, fails as a matter of law, because that statute does not create an independent cause of action. Defendant also argues that Plaintiffs fail to allege any specific facts as to when Defendants’ alleged entry was made and for what purpose they repeatedly entered the property without notice to Plaintiffs or permission, constituting tenant harassment.

In opposition, Plaintiffs argue that the seventh cause of action is sufficiently pleaded and that their claim does not fail because they have not pleaded a violation of Civil Code Section 1954. Plaintiffs contend that they are entitled to allege legal theories in the alternative and have done so here because violation of Civil Code Section1954 provides for different remedies (e.g., statutory fees, civil penalties, etc.). Thus, Plaintiffs argue that they such should be allowed to assert a claim under a “tenant harassment” theory.

In reply, Defendant reiterate their initial arguments, emphasizing a need for greater specificity by contending that the statute sets forth circumstances when a landlord may enter a tenant’s unit, and the circumstances when notice may or may not be required. Defendant also points out that while section 1954 was the sole statute cited to support this cause of action, Plaintiffs cite to section 1940.2(a)(4) for the first time as a basis for this claim.

The Court finds that Plaintiffs’ seventh cause of action is insufficiently pleaded. Plaintiffs do not dispute that section 1954 creates no independent cause of action. As Defendant argues, Plaintiffs cannot cite to another statute to support its cause of action. Here, the FAC cites only to section 1954: “A landlord who enters a unit without complying with California Civil Code § 1954 or who performs work in an unreasonable manner and unnecessarily disturbs the tenant’s beneficial use and enjoyment of the premises for the purpose of influencing the tenant to vacate his or her dwelling is liable for tenant harassment.” (FAC ¶ 69.) However, even if they had a basis to do so, the Court finds that there are no facts to support an allegation of tenant harassment. Section 1954(a) allows a landlord to enter in the following circumstances:

(1) In case of emergency.

(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.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

(5) For the purposes set forth in Chapter 2.5 (commencing with Section 1954.201).

(6) To comply with the provisions of Article 2.2 (commencing with Section 17973) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code.

(Civil Code, § 1954, subd. (a).) Subdivision (e) also provides when notice is not required:

(1) To respond to an emergency.

(2) If the tenant is present and consents to the entry at the time of entry.

(3) After the tenant has abandoned or surrendered the unit.

(Civil Code, § subd. (e).)

Here, the FAC states: “Defendants repeatedly entered the Subject Property without due notice to Plaintiffs or permission from Plaintiffs in violation of California Civil Code § 1954, constituting tenant harassment.” (FAC ¶ 70.) The facts common to all causes of action also fail to provide any further allegations concerning when and why Defendants entered Plaintiffs’ premises. Thus, Plaintiffs fail to state sufficient facts to support a cause of action for tenant harassment.

The Court SUSTAINS Defendant’s demurrer to the seventh cause of action for tenant harassment, with leave to amend to allege the specific factual basis for the conclusory allegation that Defendants entered the property “without permission” and “in violation of California Civil Code § 1954.”

Motion To Strike

Meet and Confer

The Declaration of Attorney Whitney L. Bost reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Discussion

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A request for punitive damages may be made pursuant to Civil Code section 3294 which provides that “[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.” (Civ. Code, § 3294, subd. (a).)

Under the statute, malice is defined as “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” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc., 3294, subds. (c)(1), (2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

Plaintiffs allege that Plaintiff Soledad sustained injuries after falling due to broken concrete on the premises, that Defendants set out on a campaign of harassment through other tenants, pretextual letters, and by shutting of the Plaintiffs’ utilities for nearly three months. (See FAC ¶¶19-26.) Further, Plaintiffs allege that they notified Defendant constantly and consistently about these issues, yet Defendants did nothing to stop these issues and that Defendants’ actions were undertaken to force Plaintiffs to vacate the Subject Property. (See FAC ¶¶ 14.) The Court finds Plaintiffs’ allegations do not arise solely from contractual obligations and that they are sufficient to support the assertion that Defendants acted with malice and/or oppression.

Thus, the Court DENIES Defendant’s request to strike Plaintiffs’ requests for punitive damages.

Plaintiffs also seek attorney’s fees for bringing this action. (FAC, Prayer.) Parties cannot recover attorney’s fees unless expressly authorized by a statute or contract. (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464.) However, unsupported attorneys fee allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699.)

Thus, the Court DENIES Defendant’s request to strike Plaintiffs’ requests for attorney’s fees.

Finally, Plaintiffs seek treble damages which are usually statutory in nature, but Plaintiffs did not identify a basis for their treble damages request.

Thus, the Court GRANTS Defendant’s requests to strike the treble damages request WITH LEAVE TO AMEND.

Conclusion

The Court SUSTAINS Defendant’s demurrer as to the seventh cause of action WITH LEAVE TO AMEND.

The Court GRANTS WITH LEAVE TO AMEND Defendant’s request to strike the prayer for treble damages but DENIES Defendant’s request to strike the prayers for punitive damages attorney’s fees.

Defendant is ordered to give notice.

IT IS SO ORDERED.

Dated: April 17, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.