Judge Theresa M. Traber, Case Number: 24STCV15953, Date: 2024-11-13 Tentative Ruling

Judge: Theresa M. Traber, Case: 24STCV15953, Date: 2024-11-13 Tentative Ruling

Case Number: 24STCV15953 Hearing Date: November 13, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 13, 2024 TRIAL DATE: NOT SET

CASE: Hassan Halawi, et al. v. 596 New Hampshire, LLC

CASE NO.: 24STCV15953

DEMURRER TO COMPLAINT AND MOTION TO STRIKE PORTIONS OF COMPLAINT

MOVING PARTY: Defendant 596 New Hampshire, LLC

RESPONDING PARTY(S): Plaintiffs Hassan Halawi, Sylvia Kim, & Joseph Sundstrom (MTS Only—no response to Demurrer)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a habitability action that was filed on June 26, 2024. Plaintiffs allege that they leased an apartment from Defendant which contained numerous structural and habitability defects.

Defendant demurs to the third cause of action for unfair competition, the seventh cause of action for negligent infliction of emotional distress, and the eighth cause of action for intentional infliction of emotional distress. Defendant also moves to strike portions of the Complaint pertaining to punitive damages.

TENTATIVE RULING:

Defendant’s Demurrer is SUSTAINED without leave to amend as to the seventh cause of action, SUSTAINED with leave to amend as to the eighth cause of action and otherwise OVERRULED. This ruling is without prejudice to the assertion of claims for emotional distress under the fourth cause of action for negligence.

Defendant’s Motion to Strike is MOOT.

Plaintiffs shall have 30 days leave to amend the Complaint from the date of this order.

DISCUSSION:

Demurrer to Complaint

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet-and-confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet-and-confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Andrew M. Morrow states that Defendant’s counsel emailed Plaintiff’s counsel on September 25, 2024 seeking to meet and confer regarding the issues raised in this demurrer. (Declaration of Andrew M. Morrow ISO Dem. ¶ 2.) Plaintiffs’ counsel stated that he was not available until October 7, 2024. (Id. ¶ 2.) Defendant does not explain why this delay prevented the parties from meeting and conferring before bringing this motion. Defendant has thus failed to demonstrate a compliant meet-and-confer effort. Nevertheless, in the interest of expedience, the Court will address the Demurrer on its merits.

Third Cause of Action: Unfair Competition

Defendant demurs to the third cause of action for failure to state facts sufficient to constitute a cause of action.

California Business and Professions Code § 17200 prohibits any “unlawful, unfair or fraudulent business act or practice.” Ultimately, “an ‘unfair’ business practice occurs when that practice ‘offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.” (Davis v. Ford Motor Credit Co., LLC (2009) 179 Cal.App.4th 581, 585.) “Unlawful” practices are business practices forbidden by any law.” (Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 827.) “Unfair” practices must also be tethered to some underlying constitutional, statutory, or regulatory provision. (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.)

Defendant argues that this claim is inadequately pled because the Complaint does not identify any specific practices that are unfair, unlawful, or fraudulent. Defendant’s contention is specious. The Complaint plainly alleges that Defendants violated, inter alia, Civil Code sections 1927 (pertaining to the covenant of quiet enjoyment) and 3479 (nuisance) as well as Los Angeles Municipal Code sections 151.00 et seq. (Complaint ¶ 49.) These statutes correspond to the fifth and sixth causes of action for breach of the covenant of quiet enjoyment (¶¶ 57-67), the first cause of action for private nuisance, (¶¶ 32-40), and the second cause of action for unlawful collection of rent. (¶¶ 41-46.) The Court therefore does not share Defendant’s view that the third cause of action fails to state facts sufficient to support a claim for unlawful business practices.

Accordingly, Defendant’s Demurrer to the third cause of action is OVERRULED.

Seventh Cause of Action: Negligent Infliction of Emotional Distress

Defendant demurs to the seventh cause of action for negligent infliction of emotional distress for failure to state facts sufficient to constitute a cause of action. As Defendant states, well-settled precedent holds that negligent infliction of emotional distress is not an independent tort, but merely the tort of negligence. (E.g., Christensen v. Superior Court (1991) 54 Cal.3d 868, 885.)

As Plaintiffs have separately alleged a cause of action for negligence, the Court concurs with Defendant that the seventh cause of action is improper. Accordingly, Defendant’s Demurrer to the seventh cause of action is SUSTAINED. This ruling is without prejudice to the assertion of any claims for emotional distress arising from Defendant’s negligence under the existing cause of action for negligence.

Eighth Cause of Action: Intentional Infliction of Emotional Distress

Defendants demur to the eighth cause of action for intentional infliction of emotional distress for failure to state facts sufficient to constitute a cause of action.

“The elements of the tort of intentional infliction of emotional distress are: ‘“(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-875.) The defendant’s conduct must be “directed primarily” at the plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.)

Defendant contends this cause of action is inadequately pled because Plaintiffs have not alleged conduct which was extreme and outrageous, nor have they alleged that the conduct was intentionally directed at Plaintiffs, and have not offered sufficient allegations of severe emotional distress.

The Complaint, as pled, alleges that Plaintiffs’ rental unit is uninhabitable because of (1) holes in the walls and ceiling (see Complaint ¶¶ 16-18); (2) nonfunctional electrical outlets (¶ 16), (3) obstruction of the front door (¶ 17); (4) rat infestation (¶ 19); (5) water leaks (¶ 20); (6) missing appliances and smoke detectors (¶ 21); (7) damaged railings at the front entrance (¶ 22); (8) birds nesting in the bathroom (¶23); and (9) office furniture and cubicles being stored in the bedrooms (¶ 24). The Complaint also includes images which, construed in the light favorable to Plaintiffs, evidence severe dilapidation in the rental unit. Although Defendant attempts to minimize the deficiencies alleged in the pleadings, the Court is not prepared to say that the deficiencies could not, as a matter of law, rise to the level of “severe and outrageous” conduct.

That said, the Complaint alleges that Defendant intentionally caused these conditions but offers no facts to support the bare conclusion that Defendant intended to cause emotional distress. (Complaint ¶¶ 26, 78.) Moreover, although Plaintiffs allege emotional distress, the Complaint offers no facts to support that contention, nor any specifics which would support a claim of severe emotional distress. (Complaint ¶¶ 27; 79.) The Court therefore concurs with Defendant that the eighth cause of action is inadequately pled insofar as it does not adequately allege intent to cause severe emotional distress and does not allege that severe emotional distress resulted.

Accordingly, Defendant’s Demurrer to the eighth cause of action is SUSTAINED.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Plaintiffs have not demonstrated how the seventh and eighth causes of action could be amended to cure the deficiencies identified in this demurrer. Moreover, as the Court has concluded that the seventh cause of action is duplicative of the fourth cause of action for negligence, leave to amend is not proper as to that claim. With respect to the eighth cause of action, however, as the Court has sustained the demurrer to that claim for lack of detail, the method of curing that deficiency is facially apparent. The Court will therefore exercise its discretion to permit amendment as to the eighth cause of action.

Conclusion

Accordingly, Defendant’s Demurrer is SUSTAINED without leave to amend as to the seventh cause of action, SUSTAINED with leave to amend as to the eighth cause of action and otherwise OVERRULED. This ruling is without prejudice to the assertion of claims for emotional distress under the fourth cause of action for negligence.

Motion to Strike

Defendant moves to strike portions of the Complaint. As the Court has sustained the accompanying Demurrer with leave to amend, Defendant’s Motion to Strike is MOOT.

CONCLUSION:

Defendant’s Motion to Strike is MOOT.

Plaintiffs shall have 30 days leave to amend the Complaint from the date of this order.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 13, 2024 ___________________________________

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.