Judge Thomas D. Long, Case Number: 22STCV26847, Date: 2023-12-05 Tentative Ruling

On March 27, 2023, Plaintiffs Ricky Millan, Silvia Millan, Michael Millan, Samantha Millan, and Tommy Millan filed a first amended complaint (“FAC”) against Defendant Joan Plotkin, individually and as Trustee of Plotkin Trust Agreement Dated August 28, 1991. The Complaint alleges (1) negligence – premises liability; (2) negligence per se; (3) negligent hiring; (4) negligent infliction of emotional distress; (5) unjust enrichment; (6) nuisance; (7) breach of contract; (8) breach of the covenant of quiet enjoyment; (9) unfair business practices; and (10) fraudulent concealment.

On January 4, 2024, Defendant filed a Notice of Plaintiffs’ Lack of Opposition. The same day, Plaintiffs filed late oppositions to the motions.

Plaintiffs argue that the hearings “were scheduled on July 18, 2024 at 8:30. Plaintiff saw the court schedule it for January 11, 2024. Hence, the Court should overrule the demurrers to these claims, or, in the alternative, grant plaintiffs leave to amend.” At the December 5, 2023 Case Management Conference—which was attended by the same Plaintiffs’ counsel who signed the oppositions—the Court advanced the hearings from July 18, 2024 to January 11, 2024.

Plaintiffs also argue that the demurrer “is based solely on impermissible use of extrinsic evidence, an unsigned, unauthenticated paper (see Defendant’s Demurrer) which must not be considered” and “Defendant is attempting to insert her own interpretation to contract terms and construction.” Defendant’s demurrer is not based on any exhibits and does not argue the interpretation of any contract.

A demurrer for sufficiency 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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

A. Plaintiffs Allege Sufficient Facts for Negligence Per Se (Second Cause of Action).

A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “The doctrine of negligence per se is based on ‘the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation.’” (Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1226.)

Defendant argues that “Plaintiffs cannot state an independent cause of action for Negligence Per Se.” (Demurrer at p. 6.) Plaintiffs’ first four cases of action all allege different theories of negligence and should be combined into a single cause of action for negligence. The demurrer is sustained on this ground.

Defendant also argues that Plaintiffs do not plead sufficient facts to show how statutes were violated. (Demurrer at pp. 6-7.) The FAC alleges that “Defendants had a statutory duty to put and keep the Subject Property in a condition suitable for occupation by human beings,” citing “California Civil Code §§ 1941, 1941.1, 1942, 1942.4 and Health and Safety Code (H.&S.C.) § 17920.3(a)12.” (FAC ¶ 34.) Civil Code sections 1941 and 1941.1 require a landlord to maintain and repair a dwelling so it is tenantable, including effective waterproofing and weather protection of the roof and electrical wiring that is maintained in good working order. These are the defects that Plaintiffs allege. (See FAC ¶¶ 10, 19-20, 23-27, 35.)

Plaintiffs do not allege sufficient facts supporting violations of Civil Code section 1942 (tenant repair and deduction of expenses), Civil Code section 1942.4 (demanding or collecting rent for a substandard dwelling), or Health and Safety Code section 17920.3(a)(12) (infestation of insects, vermin, or rodents). However, the allegations are sufficient for other statutory violations. “A demurrer must dispose of an entire cause of action to be sustained. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

B. Plaintiffs Do Not Allege Facts for Negligent Hiring (Third Cause of Action).

An employer may be liable to a third person for negligent hiring or retention when the employer hired an employee who was incompetent or unfit, the employer had reason to believe an undue risk of harm would exist because of the employment, and harm occurred. (Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1213-1214.)

Defendant argues that Plaintiffs do not allege sufficient facts. (Demurrer at pp. 7-8.) The FAC alleges that Defendant hired employees who “were unfit and incompetent to perform the work for which they were hired, including maintaining the roof of the subject property to be safe and free from fire hazards, installing a swamp cooler, properly repairing the roof, and removing other dangerous conditions in the HOME.” (FAC ¶ 40.) This and related allegations are conclusory and only recite the required elements without alleging supporting facts. (FAC ¶¶ 39-43.)

Additionally, Plaintiffs’ first four cases of action all allege different theories of negligence and should be combined into a single cause of action for negligence.

C. Plaintiffs Do Not Allege Facts for Negligent Infliction of Emotional Distress (Fourth Cause of Action).

“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship. [Citation.]” (Potter v. Firestone Tire &Rubber Co. (1993) 6 Cal.4th 965, 984-985.)

Defendant argues that no Plaintiff was physically harmed or contemporaneously witnessed the infliction of injuries. (Demurrer at pp. 8-9.)

A defendant may be liable for negligently inflicting emotional distress on a bystander when (1) the bystander was located near the scene of the accident; (2) the bystander’s shock resulted from a direct emotional impact upon him from the sensory and contemporaneous observance of the accident; and (3) the bystander and the accident victim were closely related. (Scherr v. Hilton Hotels Corp. (1985) 168 Cal.App.3d 908, 909.)

Plaintiffs allege that they suffered serious emotional distress “as a result of seeing a fire engulf their place of residence.” (FAC ¶ 46.) There is no allegation that any Plaintiff was injured and the other Plaintiffs contemporaneously observed the injury. Also, “‘[n]o California case has allowed recovery for emotional distress arising solely out of property damage.’” (Erlich v. Menezes (1999) 21 Cal.4th 543, 554.)

Defendants also argue that Plaintiffs do not allege facts that establish serious emotional distress. (Demurrer at p. 9.) Plaintiffs allege “extreme anguish, fright, horror, nervousness, grief, anxiety, worry, and shock.” (FAC ¶ 46.) Similar allegations of “discomfort, worry, anxiety, upset stomach, concern, and agitation” do not constitute “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, quotation marks omitted.)

Additionally, Plaintiffs’ first four cases of action all allege different theories of negligence and should be combined into a single cause of action for negligence.

D. Plaintiffs Do Not Allege Facts for Unjust Enrichment (Fifth Cause of Action).

“The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’ [Citation.]” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) Unjust enrichment is not a cause of action, but a court may construe a cause of action for unjust enrichment as a cause of action for quasi-contract seeking restitution. (Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231.) “[T]he quasi-contract, or contract ‘implied in law,’ is an obligation created by the law without regard to the intention of the parties and designed to restore the aggrieved party to his former position by the return of the thing delivered or the money expended.” (Masonite Corp. v. Pacific Gas & Electric Co. (1976) 65 Cal.App.3d 1, 10-11.)

Defendant argues that Plaintiff do not allege a basis for restitution. (Demurrer at pp. 9-10.) “The word ‘restitution’ means the return of money or other property obtained through an improper means to the person from whom the property was taken.” (Clark v. Superior Court (2010) 50 Cal.4th 605, 614.) Plaintiff alleges that Defendant “pocketed monies that should have been allocated to the: (1) hire of competent employees; (2) installation of a swamp cooler; (3) inspection and repair of kitchen areas where there were constant leaks; and (4) the implementation of routine inspections and procedures to protect against fires.” (FAC ¶ 50.) Some of these obligations are imposed on Defendant by statute, as discussed with the second cause of action. However, Plaintiffs do not allege facts showing that Defendant obtained money from Plaintiffs through improper means.

E. Plaintiffs Do Not Allege Facts for Breach of Contract (Seventh Cause of Action).

Defendant argues that only Silvia Millan is alleged to be a lessee of the property and the FAC alleges that a singular “Plaintiff” entered into the rental agreement. (Demurrer at p. 10; see FAC ¶¶ 2, 66.) This renders the cause of action uncertain, and the demurrer is sustained on this ground.

Defendant also argues that Plaintiffs fail to cite to any express contractual term that was purportedly breached. (Demurrer at p. 11.) Plaintiffs allege the existence of a rental agreement for possession and enjoyment of the premises, but “[t]he written Rental Agreement did not contain all terms of the rental, merely setting forth the parties, date, monthly payment amount, and certain other terms. One term that is not expressed in the Rental Agreement, but is implied in all contracts, is the covenant of good faith and fair dealing.” (FAC ¶¶ 68.)

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. The covenant thus cannot ‘“‘be endowed with an existence independent of its contractual underpinnings.’”’ [Citation.] It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350.)

Plaintiffs do not allege any contractual duty “to provide Plaintiff with habitable residences that are compliant with legal requirements, and knowingly, intentionally and willfully failing to repair, maintain, and remediate the non-compliant aspects of the Premises.” (FAC ¶ 69.) Accordingly, Defendant could not breach the contract “by incessantly failing to provide habitable residences to Plaintiff.” (FAC ¶ 70.)

F. Plaintiffs Allege Sufficient Facts for Unfair Business Practices (Ninth Cause of Action).

California’s Unfair Competition Law (“UCL”) includes any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code, § 17200.) The UCL embraces “anything that can properly be called a business practice and that at the same time is forbidden by law.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) “By proscribing any unlawful business practice, section 17200 borrows violations of other laws and treats them as unlawful practices that the unfair competition law makes independently actionable.” (Ibid.; see Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 [“Virtually any law can serve as the predicate for a section 17200 action.”].)

Defendant argues that Plaintiffs cannot bring this claim because they have vacated the premises. (Demurrer at p. 12.) A UCL claim is an equitable in nature. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144; Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) Although a tenant who is no longer in possession of the premises has no standing to seek injunctive relief (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928), Plaintiffs here seek restitution (another equitable remedy), not an injunction. (FAC ¶ 88.)

Defendant argues that Plaintiffs do not allege facts for violation of any statutes upon which this cause of action may be based. (Demurrer at p. 12.) Plaintiffs allege violation of “California Civil Code §§ 1941, 1941.1 and 1942.4.” (FAC ¶ 86.) As discussed with the second cause of action, Plaintiffs state sufficient facts for violations of Civil Code sections 1941 and 1941.1.

Defendant also argues that “Plaintiffs fail to allege that the other Plaintiffs were parties to any contract with Defendants nor that they paid any rents.” (Demurrer at p. 12.) Although Plaintiffs do not sufficiently allege that they were all parties to the rental agreement, they do allege payment of rent for which they may seek restitution. (FAC ¶¶ 55, 84.)

G. Plaintiffs Do Not Allege Sufficient Facts for Fraudulent Concealment (Tenth Cause of Action).

Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)

Plaintiffs allege that “Defendants knew of dilapidated conditions at the Subject Property and Plaintiff’s HOME. However, Defendants intentionally withheld this information from Plaintiff.” (FAC ¶ 90.) If Plaintiffs had known of the poor conditions, they would have sought alternative housing. (FAC ¶ 91.)

Defendant argues that there is no allegation that she was aware of any poor conditions. (Demurrer at pp. 14-15.) Plaintiffs allege that Defendant would temporarily fix the kitchen ceiling leak, but the leaks persisted. (FAC ¶¶ 19, 24.) Defendant “failed to take additional reasonable steps to make sure that the constant leaks would not cause an electrical fire in the future.” (FAC ¶ 26.) However, Plaintiffs also allege that Defendant “eventually fixed the roof.” (FAC ¶¶ 19, 24.) The only other allegations of poor conditions are related to the absence of a swamp cooler, which was previously in place. (FAC ¶ 24.) Plaintiffs allege that “[t]he presence of the swamp cooler which was previously present was necessary to prevent a fire in the poorly cared for HOME due to the landlord’s negligence.” (FAC ¶ 25.) There are no factual allegations about Defendant knowing this was required and created poor conditions. Additionally, Plaintiffs do not allege facts showing that they were unaware of the conditions.

The demurrer to the third, fourth, fifth, seventh, and tenth causes of action is SUSTAINED with 30 days’ leave to amend.

The demurrer to the second, third, and fourth causes of action is SUSTAINED with 30 days’ leave to amend as a single combined negligence cause of action.

The court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b).)

Defendant seeks to strike paragraphs 64, 82, 98-101, which relate to punitive damages, as well as the prayer for punitive damages.

A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code § 3294, subd. (a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

For the nuisance cause of action, Plaintiffs allege that Defendant “airing the defective, dangerous and uninhabitable conditions of the Subject Property or causing them to be repaired for an unconscionably extended period (over three months).” (FAC ¶ 64.) For breach of the covenant of quiet enjoyment, Plaintiffs allege that Defendant breached her duty by “failing to provide reasonable fire safety measures, including using a swamp cooler, properly repairing the roof, and removing other dangerous conditions in the HOME that caused an electric fire in the kitchen (specifically, dilapidated conditions), for an unconscionably extended period (over three months).” (FAC ¶ 77.) These facts, if proven, would support a finding of oppression or malice.

However, Plaintiffs allege that Defendant’s liability is “based on its support of, aiding and abetting of, approval of and ratification of their managing agents’ conduct.” (FAC ¶ 99.) A corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation 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, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) Plaintiffs do not allege facts showing Defendant’s knowledge of unfit agents or her authorization or ratification of the wrongful conduct.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court