Judge: Timothy Patrick Dillon, Case: 22STCV21491, Date: 2023-02-21 Tentative Ruling

Case Number: 22STCV21491    Hearing Date: February 21, 2023    Dept: 73

CODY HOLMES v. JONAH VAN BOURG et al. 

Counsel for Plaintiff/opposing party:  Alexandre Cornelius (Cornelius & Kasendorf, APC)

Counsel for Defendant/moving party:  Tiffanie Q. Spivey (Stratman & Williams-Abrego)

demurrer with motion to strike first amended complaint (filed 12/02/23)

TENTATIVE RULING

The court overrules Defendant’s demurrer.

The court grants the motion to strike as to the statutory damages and denies the motion to strike as to the attorney’s fees.

Discussion

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 October 26, 2022, the Court overruled Defendants’ demurrer to the complaint as to the first, third, fourth, and fifth causes of action. The Court sustained Defendants’ demurrer to the sixth, seventh, and eighth causes of action with leave to amend.

On November 3, 2022, Plaintiff filed a First Amended Complaint (“FAC”) alleging seven 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; and (7) violation of Civil Code § 1950.5.

On December 2, 2022, Defendants filed a demurrer to the FAC to the sixth and seventh causes of action on the grounds that the FAC fails to state a cause of action against Defendants.

ANALYSIS

A.      Legal Standard for Demurrer

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.)

B.      Civil Code § 1942.4

Defendants demur to the sixth cause of action for 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 1941.1 or 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.

FAC states that “[o]n or around February 25, 2021, Defendants were served with a formal notice of violation of Civil Code § 1941.1 and or/defects which are set forth in the Health and Safety Code § 17920.3 resulting from noise produced by the pool and air conditioning equipment on the Premises.” (FAC ¶ 70.) In opposition, Plaintiff also files a Notice of Errata that includes Attachment B, which is a Notice of Code Violation. This Notice of Code Violation from the City of Los Angeles states that a subsequent physical inspection revealed that the property is in violation of L.A.M.C. §§ 112.02(a) and 12.21A.1.(a). The Notice orders landlord to reduce the noise of the fixed equipment (pool pump) to a permitted level.

L.A.M.C. section 112.02(a) states “it shall be unlawful for any person, within any zone of the city to operate any air conditioning, refrigeration or heating equipment for any residence or other structure or to operate any pumping, filtering or heating equipment for any pool or reservoir in such manner as to create any noise which would cause the noise level on the premises of any other occupied property or if a condominium, apartment house, duplex, or attached business, within any adjoining unit.to exceed the ambient noise level by more than five (5) decibels.” The Notice states “pool pump db level at 58.” Section 17920.3 discusses substandard building conditions including “any nuisance.” (Civ. Code § 17920.3(c).) Furthermore, Plaintiffs have alleged that Defendants failure to maintain the premises “endangered the life, limb, property, safety, or welfare of Plaintiff.” (FAC ¶ 68.)

Accordingly, Defendants’ demurrer to the sixth cause of action is overruled.

C.      Civil Code § 1950.5

Defendants demur to the seventh cause of action for violation of Civil Code § 1950.5.

Civil Code section 1950.5 provides a statutory cause of action against a landlord who does not return a security deposit to a tenant. (Civ. Code § 1950.5.) Civil Code section 1950.5 subdivision (g)(1) states “No later than 21 calendar days after the tenant has vacated the premises… the landlord shall furnish the tenant, by personal delivery or by first-class mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security, and shall return any remaining portion of the security to the tenant.” A landlord may claim an amount of the security deposit for amounts that are reasonably necessary for the purposes of: (1) The compensation of a landlord for a tenant’s default in the payment of rent; (2) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant; (3) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy; (4) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement. (Civ. Code § 1950.5, subds. (b), (e).

Plaintiff alleges that “Plaintiff delivered a security deposit of $50,000 to Defendants pursuant to the Lease.” (FAC ¶ 75.) Plaintiff also alleges that it has been more than 21 days since he has surrendered the premises. (FAC ¶ 78.) Plaintiff alleges that “Defendants failed to return the security deposit to Plaintiff and failed to provide a code compliant itemized list of damages to retain any amount of the security deposit.” (FAC ¶ 79.)

Defendant argues that this cause of action fails because Plaintiff alleges that the list was not code-compliant, but does not allege that that Defendants did not provide an itemized list at all. Rather, Plaintiff admits that “Defendants sent an itemized list for maintenance and improvements to the Premises” and the “itemized list included improvements to the Property including, but not limited to new mulch, upgrading of the pool pump and electrical work and other improvements and maintenance repairs that are the sole responsibility of Defendants.” (FAC ¶ 25.) Defendant argues that there are no facts showing that the repairs in the list were not the product of damages caused by the tenant.

The Court disagrees and finds that this cause of action is sufficiently plead as it states that the improvements and maintenance included on the list are the sole responsibility of Defendant.

Accordingly, the demurrer to the seventh cause of action is overruled.

D.     Motion to Strike

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 attorneys’ fees and statutory fees as follows:

1.      Page 9, ¿ 73: “Plaintiff is further entitled to reasonable attorney's fees.”

2.      Page 10, ¿ 80: “and to statutory damages of up to $100,000.00 pursuant to Civil Code § 1950.5(l).”

3.      Page 11, Prayer for Relief: “Attorneys’ fees pursuant to Civil Code § 1942.4(b).”

4.      Page 11, Prayer for Relief: "Statutory damages of $100,000.00 pursuant to Civil Code § 1950.5(l).”

5.      Page 11, Prayer for Relief: “For attorneys’ fees”

First, Defendant argues that Plaintiff may not recover attorneys’ fees under section 1942.4(b) because he has failed to state a viable cause of action. California Civil Code Section 1942.4(b)(2) states: “The prevailing party shall be entitled to recovery of reasonable attorney’s fees and costs of the suit in an amount fixed by the court.” As Plaintiff has stated a viable cause of action under 1942.4, the court denies the motion to strike attorney’s fees.

Although Defendant argues that the Lease states that a party must first demand mediation before “resorting to court action” and if the party refuses to mediate after a request has been made, then that party shall not be able to recover attorney fees. However, at the demurrer stage, the court can only consider defects apparent on the face of the pleading.

Thus, Defendant’s motion to strike attorney’s fees is denied.

Second, Defendant argues that Plaintiff may not recover statutory damages. Under Civil Code section 1950.5, a bad faith claim or retention successfully brought against a landlord “may subject the landlord or the landlord’s successors in interest to statutory damages of up to twice the amount of the security, in addition to actual damages.” (Civil Code section 1950.5, subd. (l).) Defendant argues that Plaintiff has failed to allege Defendants retained the security deposit in bad faith. The Court agrees. The FAC only states that Defendant “failed to return the security deposit to Plaintiff and failed to provide a code compliant itemized list of damages.” The FAC contains no facts as to Defendant retaining the security deposit in bad faith.

Thus, the Court grants Defendant’s motion to strike (1) Page 10, ¿ 80: “and to statutory damages of up to $100,000.00 pursuant to Civil Code § 1950.5(l).” and (2) Page 11, Prayer for Relief: "Statutory damages of $100,000.00 pursuant to Civil Code § 1950.5(l).”