Judge Thomas Falls, Case 22STCV13046 2022-08-25 Tentative Ruling

(1) Defendants HEINRICH VON DEN BENKEN and REBECCA VON DEN BENKEN’s Demurrer to Plaintiffs’ Complaint

(2) Defendants HEINRICH VON DEN BENKEN and REBECCA VON DEN BENKEN’s Motion to Strike to Portions of Plaintiffs’ Complaint

(1) Defendants HEINRICH VON DEN BENKEN and REBECCA VON DEN BENKEN’s Demurrer to Plaintiffs’ Complaint is OVERRULED.

(2) Defendants HEINRICH VON DEN BENKEN and REBECCA VON DEN BENKEN’s Motion to Strike to Portions of Plaintiffs’ Complaint is DENIED IN PART (i.e., as to punitive damages) and GRANTED IN PART with leave to amend (i.e., as to attorney fees).

This case arises from allegations of breach of habitability. Plaintiff Marina Garcia (“Plaintiff”) alleges the following against Defendants HEINRICH VON DEN BENKEN, an individual and REBECCA VON DEN BENKEN (collectively, “Defendants”): Plaintiffs leased a unit from Defendants. The unit had the following problems: (i) rat infestation, (ii), problems with the rain gutters wherein when it would rain, water would come into the rental unit leading to further mold exposure, (iii) no heating or a working stove at times, and (iv) insect infestation. The combination of all these problems amounted to toxic exposure. As a result of this repeated exposure, Plaintiff began suffering from exhaustion, brain fog, fatigue, high blood pressure, memory issues, difficulty breathing, intestinal pains, constipation, dry nose, red eyes, psoriasis and other personal injuries according to proof. (Complaint ¶¶18-29.)

On June 22, 2022, Plaintiffs filed their Opposition both the Demurrer and Motion to Strike.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.)

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. (Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.)

The sole issue on demurrer for failure to state a cause of action is whether the facts pleaded, if true, would entitle the plaintiff to relief. (Garcetti v. Superior Court, (1996) 49 Cal.App.4th 1533, 1547; Limandri v. Judkins, (1997) 52 Cal.App.4th 326, 339.) 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) (emphasis added). Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates, (1995) 36 Cal.App.4th 698, 709.)

Defendants Demurrer to the seventh Cause of Action, for Intentional Infliction of Emotional Distress (“IIED”) as they argue it fails to state facts sufficient to constitute a cause of action.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883).)

Plaintiffs’ Complaint for IIED sets forth the following pertinent allegations:

Plaintiff is informed and believes, and thereon alleges, that Defendants knew that the RENTAL UNIT had had ongoing problems with mold, bacteria, rodent infestation, other toxic substances and water leaks prior to the date Plaintiff discovered said problems.

Defendants knew that they stood in a position of relative power over Plaintiff as Plaintiff’s landlord. In spite of said knowledge and position, Defendants knowingly, intentionally and willfully committed acts of outrageous conduct against Plaintiff, including refusing to repair and remediate severe problems in the RENTAL UNIT, such as the presence of toxic mold, rodent infestation, contaminants and water intrusion . . . Defendants made no attempt whatsoever to alleviate the problems, including a failure to inspect, test and maintain the RENTAL UNIT free of said defective and dangerous conditions.

Plaintiff only generally alleges that Defendants had knowledge of the conditions and intentionally failed to repair or remediate the problems with no support beyond the allegations themselves . . . For example, Plaintiff fails to plead with particularity which specific defendant was given notice of the habitability issues reported by Plaintiff and when this notice was given beyond alleging generally that Plaintiff complained of the conditions. These allegations also fail to specify if this notice was given verbally, in writing, or by an applicable government notice which should be information available to the Plaintiff to support her general allegations

In Opposition, Plaintiffs point to allegations in the complaint wherein Plaintiffs informed Defendants of the problems.

Here, although the specifics of those allegations are not provided, the court must take all of Plaintiffs’ allegations as truthful (i.e., that Plaintiffs told Defendants of the problems). Moreover, to the extent Defendants argue that “Plaintiff lived at the subject property for ten years and fails to acknowledge that fact alone seems to suggest some satisfaction with the conditions and Defendants’ management of the property during her long tenancy especially when no issues are mentioned in the Complaint prior to 2017 as conceded by the Opposition,” resolving the truthfulness of those contradicting allegations would be inappropriate at this stage. (Reply p. 2.) Thus, for purposes of a demurrer, Plaintiffs have pleaded sufficient facts (i.e., that they did indeed communicate the problems to Defendants).

As for whether those allegations rise to the level of IIED, the court turns to Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920. In Stoiber v. Honeychuck, supra, 101 Cal.App.3d 903 (Stoiber), the court held that a tenant may maintain a tort action against his landlord for damages suffered by way of annoyance or discomfort or for injury to his personal property caused by the landlord's failure to keep the premises in a habitable condition under the expansive rationale of Rowland v. Christian (1968) 69 Cal.2d 108. The Stoiber court concluded “that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord's acts are extreme and outrageous and result in severe mental distress.” (Id. at p. 922.) Whether this is so under the present allegations presents a factual question; however, it cannot be said as a matter of law that a plaintiff has not stated such a claim. Thus, here, if Defendants’ failure to repair the premises constitutes a tort grounded on negligence, Plaintiffs are entitled to prove their damages for emotional distress because the failure to repair must be deemed to constitute an injury to his tenancy interest (right to habitable premises). (Id. at p. 923.)[1]

Defendants move to strike punitive damages and attorney fees from Plaintiffs’ complaint.

Under California law, a landlord’s failure to repair can support a claim for punitive damages. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.)

For reasons discussed above, Defendant’s motion to strike punitive damages is DENIED.

Defendants argue that absent statutory authorization, Plaintiffs are not entitled to attorney fees.

In opposition, Plaintiffs argue “[a]n action by a tenant alleging a breach of the warranty of habitability is an action on the contract that authorizes the recovery of fees under certain circumstances.” (Opp. pp. 4-5.)

Here, Plaintiffs reliance on various authority is misplaced. First, Plaintiffs cite to Fairchild v. Park (2001) 90 Cal. App. 4th 919, 924–25 for the proposition that Plaintiffs are entitled to attorney fees because Plaintiffs allege a breach of the implied warranty of habitability in her third cause of action. Fairfield is inapposite because there the lease agreement provided for reasonable attorney's fees under the lease pursuant to Civil Code section 1717. Here, however, Plaintiffs have not alleged that the lease agreement provides for such recovery. Therefore, it is inapplicable.

Second, while Civil Code section 1942.4 does allow for the recovery of attorney fees, the court agrees with Defendants that Plaintiffs fail to set forth entire statute. (Reply pp. 4-5.) Civil code section 1942.4 applies when all three conditions are met, one condition being that a public officer responsible for enforcement of housing laws had notified the landlord of the obligations to repair a substandard condition and that the government notice to be pending for at least 35 days. Here, however, not only do Plaintiffs fail to make such an allegation but they also fail to bring forth their request for attorney fees based upon section 1942.4.

Therefore, the court GRANTS Defendants’ motion to strike attorney fees, with leave to amend.

Based on the foregoing, the court GRANTS in part and DENIES in part the motion to strike.

[1] To the extent that Defendants attempt to distinguish the instant case from Stoiber because “the plaintiffs’ complaint in the Stoiber case had a copy of the Kern County Health Department’s notice to vacate and demolish the premises citing those same issues and even more habitability issues cited including heavy cockroach infestation and fire hazards” (Reply p. 2), Defendants miss the mark as Stoiber stands for the overall importance of a tenant’s rights. (Id. at 915.) In fact, even in the Stoiber court’s discussion of IIED, the fact that the complaint had a citation attached was not mentioned, implying that such a fact was not dispositive in determining whether an IIED cause action has been adequately pleaded. (See id. at p. 921.)