Judge Timothy Patrick Dillon, Case 22STCV21491 2022-10-26 Tentative Ruling

Judge: Timothy Patrick Dillon, Case: 22STCV21491, Date: 2022-10-26 Tentative Ruling

Counsel for Defendant (Movant): Tiffanie Q. Spivey (Stratman & Williams-Abrego); Rachel M. Sanders, Karine Akopchikyan (Allen Matkins Leck Gamble Mallory & Natsis LLP)

Counsel for Plaintiff (Opposition): Alexandre I. Cornelius, Alexander S. Kasendorf, Timothy R. Crawford (Cornelius & Kasendorf, APC)

This action concerns an allegedly unhabitable home (the “Property”) that Plaintiff Cody Holmes (“Plaintiff”) leased from Defendants Jonah Van Bourg, Aurelie Van Bourg, and Does 1-20 (“Defendants”). According to Plaintiff, Defendants intentionally withheld the existence of defective conditions on the Property that have rendered it uninhabitable. Upon discovery of the defective conditions, Plaintiff notified Defendants and requested that they undertake the necessary repairs, which Defendants failed to do. On July 1, 2022, Plaintiff filed a Complaint alleging eight causes of action: (1) breach of contract; (2) negligence; (3) nuisance; (4) breach of the warranty of habitability; (5) breach of the covenant of quiet enjoyment; (6) violation of Civil Code § 1942.4; (7) fraud; and (8) intentional infliction of emotional distress.

On August 30, 2022, Defendants filed this Demurrer and Motion to Strike portions of the Complaint. Plaintiff filed opposition on September 15, 2022, and Defendants replied on October 19, 2022.

Defendants demur to every cause of action in the Complaint except for the second on the grounds that the Complaint fails to state a cause of action.

A demurrer tests the sufficiency of 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—any 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at p. 747.)

To state a cause of action for breach of contract, Plaintiff must establish “(1) existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) A contract should be pleaded in verbatim in the body of the complaint (“in haec verba”), as a copy attached and incorporated by reference, or according to its legal intendment and effect. (See Scolinos v. Kolts (1995) 37 Ca.App.4th 635, 640; 4 Witkin, Cal. Proc., § 526.)

Defendants argue that the Complaint fails to state sufficient facts to satisfy the first and fourth elements of a breach of contract claim. Specifically, Defendants contend that the Complaint does not (i) plead the alleged contract in verbatim or by reference, nor (ii) allege facts demonstrating that Plaintiff suffered damages because of a breach of contract.

These arguments lack merit. First, as Plaintiff notes in opposition, the Complaint describes the lease agreement concerning the Property and states its inclusion as an exhibit. (Opp., p. 3, lns. 15-17; Complaint ¶ 7.) The lease was not attached when Plaintiff originally filed the Complaint but Plaintiff has since been filed the lease as an exhibit. (See 09/09/22, Plaintiff’s Notice of Errata.) Thus, attaching a copy of the lease as an exhibit to the Complaint satisfies the first element.

Second, the Complaint sufficiently states damages as a result of the alleged breach. The Complaint alleges “as a result of the negligent installation of the front gate and Defendant’s refusal to repair it, Plaintiff was injured when the front gate slammed his hand shattering his fingers.” (Complaint ¶ 21.) The Complaint also alleges that Defendants’ failure to abide by the terms of the lease—which included an improperly installed gate, leaking and water damage, and electrical system violations—resulted in the Property being uninhabitable. (Complaint ¶¶ 11-22, 29.) The Court finds that this is sufficient to satisfy the damages element of a breach of contract claim.

Civil Code section 3479 defines nuisance, in part, as “[a]nything which is injurious to health, . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.” To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.)

Defendants argue that the nuisance claim is not independent of the negligence cause of action because it relies on the same facts regarding lack of due care to support the negligence claim. Therefore, the nuisance claim fails.

The Court disagrees. Courts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions. (See, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.) “The torts of negligence and nuisance . . . frequently are, coexisting and practically inseparable . . . . A nuisance, if not in most, instances, especially with respect to buildings or premises, presupposes negligence.” (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 104.) When the overriding issue involves a traditional tort, the claim should not be litigated under “the guise of a nuisance action.” (City of San Diego v. U.S. Gypsum Co. (1995) 30 Cal.App.4th 575, 584.) “When 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.) In such cases, the nuisance claim “stands or falls with the determination of the negligence cause of action.” (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 954.)

Melton v. Boustred (2010) 183 Cal.App.4th 521 is instructive. In Melton, the trial court properly sustained defendant’s demurrer to plaintiffs’ nuisance cause of action because that claim “[relied] entirely on the facts asserted in plaintiffs’ causes of action for negligence and premises liability[,]” both of which were also properly sustained. (Melton, 183 Cal.App.4th at 540, 542.) As such, the “nuisance cause of action was merely a clone of the first cause of action using a different label.” (Id. at 543, citing El Escorial Owners’ Assn., supra, 154 Cal.App.4th at p. 1349.) Melton makes clear that a nuisance claim cannot survive demurrer if the facts upon which it rests mirror those of an unviable negligence claim, and nothing more.

Unlike Melton, Defendants do not demur to Plaintiff’s second cause of action for negligence. Thus, Defendants concede that the negligence claim is sufficiently pled. Moreover, although the negligence and nuisance claims rest upon the same facts, the Complaint alleges additional facts in support of the nuisance claim. (See Complaint ¶ 45 (“Defendants’ actions and omissions were knowingly intentional, willful, and done with full knowledge of the discomfort and annoyance that such omissions would cause Plaintiff and the severe emotional distress that would result, and did result, therefrom.).) Thus, Plaintiff’s nuisance cause of action is not a mere clone of the negligence claim. (Melton, 183 Cal.App.4th at 543.)

The fourth cause of action is breach of the warranty of habitability. To establish a breach of the implied warranty of habitability, Plaintiff must establish (1) “the existence of a material defective condition affecting the premises’ habitability,” (2) “notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,” (3) “the landlord was given a reasonable time to correct the deficiency, and” (4) “resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

Defendants contend that this cause of action fails for two reasons. First, the Complaint does not allege sufficient facts to establish that Defendants were notified within a reasonable time of the defects affecting habitability. Second, Defendants argue that this cause of action is a redundant claim that should be dismissed.

Both arguments lack merit. Defendants cite Quevedo v. Braga (1977) 72 Cal.App.3d Supp. 1 for the proposition that notice of the materially defective condition must be given to the landlord within a reasonable time after the tenant discovered or should have discovered the defect. Quevedo bases that proposition on Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374. In Pollard, the court upheld the trial court’s determination that the plaintiffs’ action for breach of the warranty of habitability was barred by unreasonable delay because plaintiffs waited nearly four years before notifying the defendants of the defective condition. (Pollard, 12 Cal.3d at p. 380.) Here, the Plaintiff alleges that he entered in the lease agreement with Defendants on or about May 6, 2021. (Complaint ¶ 7.) On May 10, 2021, Plaintiff discovered a leak in the backyard and driveway which damaged the driveway and the laundry room. On May 22, 2020,^{^[1]} and again on August 25, 2021, Plaintiff notified Defendants that the front gate was broken. (Complaint ¶¶ 16, 20.) On June 7, 2022, Plaintiff notified Defendants of leaking on the second floor which caused the formation of black mold. These allegations state that Defendants were notified of the defective conditions within months of the signing of the lease, which is well short of the four-year period described as unreasonable in Pollard.

As for Defendants’ second argument, they rely on Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371. However, Careau concerned a breach of the implied covenant of good faith and fair dealing. Assuming, arguendo, that Careau could be applied to other breaches of implied covenants—and it cannot—Defendants would have to show that the allegations undergirding this cause of action “do not go beyond the statement of a mere contract breach and [rely] on the same alleged facts, simply seek the same damages or other relief already claimed in a companion contract cause of action[.]” (Careau, 222 Cal.App.3d at p. 1395.) Only then may a Court disregard the cause of action as “superfluous.” (Id.) Here, the Complaint seeks damages that differ from the breach of contract cause of action. (See Complaint ¶¶ 30, 60.) As such, Careau is inapplicable. Defendants do not cite any other authority requiring dismissal of this cause of action.

The fifth cause of action is for breach of the covenant of quiet enjoyment. The elements of this claim are: (1) a lease agreement between plaintiff and defendant; (2) absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) act or omission of the landlord, or anyone claiming under the landlord, which “substantially interfere[s] with a tenant[’]s right to use and enjoy the premises for the purposes contemplated by the tenancy”; and (4) an applicable remedy. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)

Defendants again cite Careau, supra, to argue that the quiet enjoyment claim should be dismissed as duplicative of the first, second, and fourth causes of action. For the reasons, discussed above, this argument lacks merit. Further, the first two elements of this cause of action are easily satisfied. The Complaint includes a copy of the lease agreement between Plaintiff and Defendants and that agreement does not contain any language contrary to Plaintiff’s right to the implied covenant. The Complaint also alleges that Defendants’ failure to remedy and/or repair the habitability issues “severely interfered with Plaintiff’s tenancy and breached the warranty of quiet enjoyment owed to Plaintiff.” (Complaint ¶ 58.) In sum, the Complaint states facts sufficient to state a breach of warranty of quiet enjoyment claim.

The sixth cause of action is a violation of Civil Code section 1942.4. Section 1942.4 prohibits a landlord from demanding rent, collecting rent, issuing a notice of a rent increase, or issuing a three-day pay rent or quit if all of the following conditions exist prior to the landlord’s demand or notice:

“(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.”

Defendants argue that the Complaint fails to set forth facts to satisfy the second statutory element under Civil Code § 1942.4. The Court agrees. The Complaint is devoid of any factual allegations to show that a public officer or employee inspected the Property and notified the Defendants of their obligation to repair substandard conditions. Plaintiff’s reference to paragraph 66 of the Complaint does not lend itself to the reasonable inference that a public officer inspected the Property and notified the Defendants of the existence of substandard conditions. For this reason, the Court further notes that the Complaint necessarily does not set forth facts to satisfy the third statutory element.

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Defendants argue that the Complaint fails to plead this cause of action with the requisite specificity. The Court agrees. The Complaint alleges that the “Defendants represented to Plaintiff through their misrepresentations and omissions that the Premises was livable and habitable.” (Complaint ¶ 71.) While an omission constitutes a nondisclosure in satisfaction of the first element of fraud, the Complaint alleges, without more, that Defendants affirmatively misrepresented the condition of the Property. The Complaint does not state what Defendants said that may have induced justifiable reliance. Thus, the first and fourth elements of a fraud claim are not satisfied. As pled, the Complaint fails to provide the specificity to state a claim for fraud.

The eighth cause of action is for intentional infliction of emotional distress. “The elements of a prima facie case for the tort of intentional infliction of emotional distress (IIED) 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.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Defendants argue that the Complaint does not allege facts to show that Defendants’ conduct rises to the level of extreme or outrageous. Nor does the Complaint state facts to show that Plaintiff suffered severe or extreme emotional distress. The Court agrees.

Plaintiff contends that paragraph 81 alleges that Plaintiff has continued to suffer severe and extreme emotional distress due to habitability issues, to seek treatment for anxiety caused by bedbugs and to pay for medical expenses resulting from the habitability issue. However, the Complaint is devoid of any reference to bedbugs, medical expenses incurred, or treatment for any anxiety. Plaintiff cites Stoiber, supra, for the proposition that a tenant may recover damages pursuant to an IIED claim. However, Plaintiff points to a portion of Stoiber that recognized the availability of damages “for mental suffering occasioned by fear for the safety of himself and his family” that has been proximately caused by the landlord’s trespass or nuisance. (Stoiber, 101 Cal.App.3d at 920.) As such, Stoiber is unavailing to Plaintiff. As pled, the Complaint sets forth in conclusory fashion the elements of IIED. This is insufficient to state a claim.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Because a demurrer has not previously been sustained to this Complaint, the Court GRANTS leave to amend.

A motion to strike lies only where the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Civ. Proc. Code § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Defendants request the Court to strike all references to punitive damages in the Complaint on the grounds that they are irrelevant, false, or improper matter, conclusions of law, items of non-recoverable damages, and/or not supported by the facts. References to punitive damages are as follows:

1. Page 6, ¶ 45: “Defendants’ conduct was wrongful and despicable, intentional, malicious and oppressive and constitutes clear and convincing evidence of despicable, outrageous, oppressive and malicious conduct pursuant to Section 3294 of the Code of Civil Procedure, entitling Plaintiff to punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.”

2. Pages 7-8, ¶ 54: “Defendants’ conduct was wrongful and despicable, intentional, malicious and oppressive and constitutes clear and convincing evidence of despicable, outrageous, oppressive and malicious conduct pursuant to Section 3294 of the Code of Civil Procedure, entitling Plaintiff to punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.”

3. Pages 8-9, ¶ 62: “Defendants’ conduct was wrongful and despicable, intentional, malicious and oppressive and constitutes clear and convincing evidence of despicable, outrageous, oppressive and malicious conduct pursuant to Section 3294 of the Code of Civil Procedure, entitling Plaintiff to punitive and exemplary damages in an amount sufficient to punish Defendants and deter them from similar future conduct.”

4. Page 10, ¶ 77: “Defendants’ conduct, acts and omissions were oppressive, fraudulent and/or malicious and, therefore, Plaintiff is entitled to an award of punitive damages and exemplary damages in an unascertained amount, according to proof, pursuant to Civil Code §3294.”

5. Page 11, ¶ 82: “As alleged herein, Defendants acted in a manner that was outrageous, oppressive and/or malicious and, in addition to other damages, Plaintiff is entitled to exemplary and punitive damages to make an example of and to punish said Defendants, in an amount according to proof, pursuant to Civil Code §3294.”

6. Page 12, ¶ 5: “For exemplary and punitive damages against Defendants pursuant to Civil Code § 3294.”

7. Page 12, ¶ 7: “Punitive and exemplary damages pursuant to Civil Code § 3294 in an amount according to proof.”

8. Page 12, ¶ 9: “Punitive and exemplary damages pursuant to Civil Code § 3294 in an amount according to proof.”

9. Page 12, ¶ 15: “Punitive and exemplary damages pursuant to Civil Code § 3294 in an amount according to proof.”

10. Page 12, ¶ 17: “Punitive and exemplary damages pursuant to Civil Code § 3294 in an amount according to proof.”

As a threshold matter, because the Court sustains the Demurrer as to the sixth, seventh, and eighth causes of action, the Motion to Strike is mooted as to requests four, five, nine and ten.

Defendant moves to strike the remaining references seeking punitive damages because the Complaint does not allege specific facts of malice and oppression. Plaintiff contends that oppression, fraud, or malice may be established by alleging “despicable conduct.” Civil Code § 3294 (a) permits a plaintiff to recover punitive damages “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice . . . .” “Malice” means an intent to cause injury or despicable conduct done with a willful and conscious disregard of the rights or safety of another. (Civ. Code § 3294 (b)(1).) “‘Despicable conduct’ is conduct that is so vile, base or contemptible that it would be looked down on and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.¿ (Turman¿v. Turning Point of Cent. California, Inc.¿(2010) 191 Cal.App.4th 53, 63; Cal. Civ. Code § 3294(a).)

The Complaint sets forth conclusory allegations that Defendants’ conduct was wrongful, despicable, intentional, malicious, and oppressive. The Complaint only alleges that “Defendants chose to ignore all of the foregoing [habitability issues] in a calculated effort to force Plaintiff to confer improvements on the Premises for the Defendants’ benefit.” (Complaint ¶¶ 45, 54, 62.) This is in sharp contrast to the claims in Stoiber v Honeychuck, supra, 101 Cal.App.3d at p. 912 (eg., leaking sewage, dangerous electrical wiring, structural weaknesses in the walls, deteriorating flooring, falling ceiling, leaking roof, dilapidated doors, broken windows, government notice to vacate and demolish the premises based on heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard.)

Additionally, the Court notes that punitive damages have been awarded in actions alleging breach of warranty of habitability where there are allegations of serious and prolonged intentional wrongdoing. (See, e.g., Rivera v. Sassoon (1995) 39 Cal.App.4th 1045; Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) With regards to nuisance, punitive damages may also be proper only when the nuisance is based on intentional conduct. (See Stoiber, supra, 101 Cal.App.3d at p. 919 (recognizing that tenant may seek punitive damages against a landlord upon a nuisance theory based on intentional conduct.).) The nuisance cause of action here is based on negligence, not intentional conduct.

Punitive damages are not available for a breach of the covenant of quiet enjoyment since that claim is based in contract. (See Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 901 (noting that the court in Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1005 “explicitly distinguished between a claim for breach of the implied covenant of quiet enjoyment, which it identified as a contract claim, and a claim for wrongful eviction, which it identified as a tort.” However, “tort damages have been permitted in contract cases . . . where the contract was fraudulently induced.” (Las Palmas Associates, supra, 235 Cal.App.3d at p. 1238-1239.) The court, however, has sustained the demurrer to the fraud cause of action.

At this stage, the Court finds that the Complaint alleges insufficient facts to support the claims for punitive damages.

The Demurrer is sustained as to the sixth, seventh, and eighth causes of action with 10 days leave to amend.

^{^[1]} This date is likely a typo that should read “May 22, 2021”. A review of the attached lease agreement (Ex. A) confirms that the parties entered into the agreement on May 6, 2021.