Judge Thomas D. Long, Case Number: 23STCV28912, Date: 2024-08-27 Tentative Ruling

On January 22, 2024, Plaintiffs Georgette Sharp, Isabella Smith, Afework Tesfatsion, Ronnie Sims, James Owens, Roger Woodard, Harold Dyson, and Anthony Stillwell filed a first amended complaint (“FAC”) against Defendants Clark Residence Limited Partnership, Abode Communities LLC, and Abode Communities.

The FAC alleges (1) breach of contract; (2) breach of implied warranty of habitability; (3) breach of covenant of quiet enjoyment; (4) violation of Civil Code section 1942.4; (5) private nuisance; (6) negligence; (7) intentional infliction of emotional distress (“IIED”), and (8) violation of California’s Unfair Competition Law (“UCL”).

Defendants request that the Court take judicial notice of court records in three other cases (Items 1-3); settlement agreements from four other cases, including the previously identified three cases (Item 4/Exhibit A); and a settlement agreement in another case (Item 5/Exhibit B).

Defendants do not provide copies of the docket or any documents in the three cases (Items 1-3). Defendants do not show the relevance of these records. The request is DENIED for Items 1-3.

The request is also DENIED for Items 4-5/Exhibits A-B. The five settlement agreements are not judicially noticeable exhibits and cannot be considered on demurrer. If the FAC referred to the settlement agreements, they may be appropriate matters for judicial notice, but that is not the case here. (See Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 956 fn. 6.) Additionally, Plaintiffs dispute the validity of some signatures and dates on the settlement agreements. (See Opposition to RJN at p. 6.) Defendants’ own cited cases do not support taking judicial notice. (See Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 666 fn. 2 [taking judicial notice of settlement agreements when the complaint alleged violation of those agreements]; Chacon v. Union Pacific Railroad (2020) 56 Cal.App.5th 565, 571-573 [taking judicial notice of a settlement agreement where there was no opposition and no factual dispute that the document was genuine and accurate].)

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.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

A. The Court Cannot Determine That Claims are Barred by Settlement Agreements or Res Judicata (Entire FAC).

Defendants argue that the claims of Plaintiffs Sharp, Smith, Sims, and Stillwell are barred by prior settlement agreements. (Demurrer at pp. 2-4.) This cannot be decided without reference to external documents that are not subject to judicial notice.

Defendants also argue that the FAC is uncertain as to time and some claims may be barred by the statute of limitations or res judicata due to prior settlement agreements. (Demurrer at pp. 4-5.) The FAC clearly alleges at least the years in which Plaintiffs became tenants and dates on which the housing department served Defendants with notices. (FAC ¶¶ 5, 43-45.) For the undated allegations, Plaintiffs still allege uninhabitable conditions “[d]uring their respective tenancies” and “within the last four years.” (FAC ¶¶ 30, 56.) These allegations are not so uncertain as to prevent Defendants from responding to them.

The seventh cause of action alleges IIED based on the conditions of the property and Defendants’ failure to respond to complaints. “‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citation.] ‘Conduct, to be ‘outrageous’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259 (Huntingdon).) “Liability under the rule attaches only if the actor intended or should have recognized his conduct is likely to cause the resultant harm.” (Spackman v. Good (1966) 245 Cal.App.2d 518, 529.)

“This state has long recognized the right to recover damages for the intentional and unreasonable infliction of mental or emotional distress which results in foreseeable physical injury to plaintiff.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497 (Alcorn).) When a plaintiff does not suffer physical injury, the conduct must involve “extreme and outrageous intentional invasions of one’s mental and emotional tranquility.” (Id. at p. 498.)

Defendants argue the FAC does not allege intentional conduct. (Demurrer at pp. 5-6.) Plaintiffs allege that Defendants failed to repair habitability and safety issues after Plaintiffs’ complaints, and they ignored notices from the Housing Department “in reckless disregard for Plaintiffs’ health, safety and welfare,” including with respect to Plaintiffs’ emotional and physical distress. (FAC ¶¶ 43-44, 102.) Reckless disregard of the probability of causing emotional distress is sufficient. (Huntingdon, supra, 129 Cal.App.4th at p. 1259.) The demurrer is overruled on this ground.

Defendants also argue that Plaintiffs do not allege facts for outrageous conduct or severe emotional distress. (Demurrer at pp. 6-7.) Plaintiffs allege that they suffered “humiliation, mental anguish, and emotional and physical distress,” and “physical injuries and/or manifestations of stress caused by the above allegations and living conditions.” (FAC ¶ 48, 99, 101, 103.) As a result, “Plaintiffs were required to and did employ physicians and surgeons, and incurred medical expenses.” (FAC ¶ 104.)

“The physical consequences of shock or other disturbance to the nervous system are sufficient to satisfy the requirement that plaintiff has suffered physical injury from defendants’ conduct.” (Alcorn, supra, 2 Cal.3d at p. 498.) Plaintiffs’ “physical injuries and/or manifestations of stress” caused by Defendants’ conduct are sufficient physical injuries arising from emotional distress to allege a basis for IIED. The demurrer is overruled on this ground.

C. Plaintiffs Sufficiently Allege Unfair Business Practices (Eighth Cause of Action).

California’s 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.”].)

Defendants argue that Plaintiffs fail to allege any specific unlawful business acts or practices by Defendants. (Demurrer at pp. 7-8.) In addition to their common law claims, Plaintiffs allege that Defendants violated Civil Code section 1942.4 by demanding and collecting rent while the property was uninhabitable (fourth cause of action). Plaintiffs alleges specific facts supporting this alleged violation. (See FAC ¶¶ 30-40, 46, 110, 112.) This sufficiently alleges a basis for unfair business practices. The demurrer is overruled on this ground.

Defendants also argue that damages are not available, and Plaintiffs do not request injunctive relief. (Demurrer at p. 8.) 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.) Plaintiffs seek disgorgement of profits as a result of the unfair business practices. (FAC ¶ 116.) “[D]isgorgement is ordinarily viewed as an equitable remedy.” (Judicial Council of California v. Jacobs Facilities, Inc. (2015) 239 Cal.App.4th 882, 915.) The demurrer is overruled on this ground.

Defendants argue that Plaintiffs’ nuisance cause of action is redundant of the negligence cause of action because it does not seek injunctive relief. (Demurrer at p. 9.)

“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) “[C]ourts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions. But because of the broad definition of nuisance, whether a cause of action is viable depends on the facts of each case.” (Id. at p. 1348.)

In the nuisance cause of action, Plaintiffs seek damages for the deprivation of the use and enjoyment of their units caused by Defendants’ failure to carry out necessary repairs. (FAC ¶¶ 86-87.) In the separate negligence cause of action, Plaintiffs seek damages for their emotional/physical distress, “property, reputation and person” caused by Defendants’ negligent ownership, maintenance, and compliance with codes for the property. (FAC ¶¶ 95-96.) At this stage, the Court cannot find that the nuisance and negligence causes of action are identical and duplicative.

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).)

Defendants seek to strike paragraphs 72, 73, 82, 89, and 106, which relate to punitive damages. Defendants argue that the FAC does not allege specific intentional conduct that rises to the level of malice. (Motion at pp. 2-5.)

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.)

Plaintiffs allege that they “repeatedly notified Defendants and their agents of the uninhabitable conditions, or the conditions were obvious to Defendant[s] upon reasonable inspection, but Defendants failed to respond or adequately respond in a reasonable amount of time.” (FAC ¶¶ 31, 39.) The uninhabitable conditions included cockroaches, flea, mite, bedbug, or other vermin infestation; windows without screens; poorly maintained bathrooms, sinks, and plumbing; inadequate and poorly maintained lighting; and lack of smoke detectors; poorly maintained electrical equipment. (FAC ¶¶ 30.) Defendants were notified of code violations after investigations by the Housing Department, but Defendants ignored the notices and did not remedy the defects. (FAC ¶¶ 43-44, 62, 77-78.) These facts, if proven, would support a finding of oppression or malice.

Defendants also seek to strike the prayer for attorney fees because “Plaintiffs fail to attach any such lease which evidences that either Moving Defendant is a party to this lease/contract agreement or that includes recovery for attorneys fees.” (Motion at p. 5.) If the leases do not actually contain attorney fees provisions, then attorney fees cannot be awarded under contract, regardless what is pleaded. Moreover, Plaintiffs also request attorney fees under Civil Code sections 1942.4 and 1942.5, which provide a statutory basis for attorney fees.

Defendants are ordered to file an answer within 10 days. (See California Rules of Court, rule 3.1320(j).)

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