Judge Upinder S. Kalra, Case 22STCV12385 2022-10-04 Tentative Ruling

1. An order sustaining the demurrer as the fifth, sixth, ninth, and tenth causes of action.

2. An order striking portions of the Complaint that refer to punitive damages, duplicative claims, and improper allegations.

2. Demurrer is SUSTAINED, without leave to amend, as to the sixth cause of action

On April 13, 2022, Plaintiff Cshediiz Coleman, Jonathan Margolis, Krystal Carpenter, Chukwudi Hodge, and Johnny Hobbs (“Plaintiffs”) filed a complaint against Defendants Sallie Shapiro, Phillip Smalec, and Barbara Brutzman (“Defendants”). The complaint alleged various causes of action based on violations of Civil Code § 1940 et. seq., breach of covenant of quiet enjoyment, negligence, and trespass. Plaintiffs allege that they were tenants of Defendants and the Subject Premises contained substandard living conditions. These conditions included, but not limited to, lack of running water and lack of clean water, sewage backup, collapsing walls and ceilings, and mold and mildew growth. Plaintiffs also allege that these substandard conditions were made known to Defendants, but they did not repair or address any of the defects.

The current Demurrer with Motion to Strike was filed on July 6, 2022. Plaintiffs’ opposition was filed on September 19, 2022. Defendants’ reply was filed on September 27, 2022.

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. In a demurrer proceeding, the 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; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶7:8. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn 147 Cal.App.4th at 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

Defendants’ counsel stated in the Declaration of Danielle Doumar that she contacted Plaintiffs’ counsel via email on June 3, 2022. The parties met and conferred on June 27, 2022, but failed to reach an agreement. (Dec. Doumar ¶ 2-5.)

The proofs of service attached to the motions indicate that the parties were served via email.

Defendants argue that the complaint does not allege any facts that would rise to the level of outrageous conduct required for an IIED cause of action. Further, the facts do not sufficiently allege that Defendants conduct was intentionally directed at Plaintiffs or so extreme that it exceeds the bounds tolerated by society. Plaintiff asserts that the conduct of Defendants, like failing to correct defects in the building for years and keeping the premises “clean, sanitary, and free from accumulation of debris, filth, rubbish, and garbage,” is extreme and outrageous conduct. (Opp. 5: 6-9.)

Intentional infliction of emotional distress requires the Plaintiff to 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.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160). The conduct alleged to be outrageous does not rise to the kind courts consider outrageous. Conduct is considered outrageous when it “is so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Id.).

A review of the complaint indicates that Plaintiffs have sufficiently pled the elements required for an IIED cause of action. Here, the complaint alleges that the property’s walls and ceilings collapsed (Comp. ¶ 30), contained mildew and mold (Id. at ¶ 32), had brown-colored water leak into units (Id. at 38), had untreated sewage water leak into kitchen sinks (Id. at 40), lack of hot water or running water (Comp. ¶ 50-51.) The complaint further alleges that Defendants knew of these issues but failed to repair the problems properly. (Comp. ¶ 131), acted with reckless disregard by failing to fix these problems, knowing it would cause Plaintiffs’ distress (Comp. ¶ 132-133), Plaintiffs suffered severe mental and emotional distress, including depression, anxiety, illness, physical injury (Comp. ¶ 134-135), and this was caused by Defendants’ conduct (Comp. ¶135.) Living without running water, or water that is brown in color would constitute conduct that would exceed bounds that are usually tolerated in society.

A “negligent causing of emotional distress is not an independent tort but the tort of negligence....’ [Citation.] ‘The traditional elements of duty, breach of duty, causation, and damages apply.’” (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729).

Plaintiff does not dispute Defendants’ argument and will amend the complaint and withdraw the sixth cause of action.

The Demurrer as to the Sixth Cause of Action is SUSTAINED, without leave to amend.

Defendant argues that the cause of action for gross negligence is defective and fatally uncertain. The limited circumstances in which gross negligence is permitted does not apply presently. Plaintiff argues that the ninth cause of action is sufficient.[1]

“Ordinary negligence”—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. [citation omitted.] “Gross negligence” long has been defined in California and other jurisdictions as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753–754.) “For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later.” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612.)

Here, a review of the Complaint indicates that the Plaintiffs have sufficiently pled either gross negligence, or alternatively as Plaintiffs pled, for ordinary negligence. Here, the Complaint sufficiently alleges that Defendants, as landlords, acted in a way that was an “extreme departure from the ordinary standard of conduct.” (City of Santa Barbara, supra, 42 Cal.4th at 753-754.) Specifically, the complaint alleged serious substandard living conditions, as mentioned above. Moreover, Defendants knew of these problems; specifically, the complaint alleges that Defendants were aware that Plaintiffs were exposed to carbon monoxide poisoning, but failed to repair or address the situation. (Comp. ¶ 171-172.) Defendants had a duty to ensure that any unsafe conditions were fix and breached that duty by failing to fix those conditions. (Comp. ¶ 166-169.)

Defendant argues that the tenth cause of action is duplicative of the eighth cause of action. The eighth cause of action alleges violations under Civil Code § 1940.2, which “is the same Code section at issue in Plaintiffs’ tenth cause of action.” (Motion 10: 20-22.) Plaintiff argues that the tenth cause of action makes no mention of Civil Code § 1940.2, and is based on an entirely different section of the Civil Code: § 1942.5.

A review of the complaint indicates that the tenth cause of action alleges completely different code section than that alleged in the eighth cause of action. Civil Code § 1940.2 deals with unlawful actions by a landlord to influence a tenant to vacate, while Civil Code § 1942.5 deals with retaliation by a lessor against a lessee. Thus, the tenth cause of action is not duplicative, but rather a separate, sufficiently pled cause of action.

1. All claims, allegations, and prayers for punitive and exemplary damages against Defendants as follows: Paragraphs 25, 80, 90, 111 – 113, 117, 125 – 128, 130, 133, 136, 137, 148, 149, 154, 155, 156, 157, 159, 171 – 173, 184, 189, 190, 191, 194, 208, 209, 218, 219, and Paragraph C of the Prayer, in their entirety.

Defendants contend that the claim for punitive damages should be struck from the Complaint. The FAC fails to plead with specificity and contains allegations with the words found within the code; the Plaintiff does not provide facts to support the claim for punitive damages. Plaintiff argues that the FAC sufficiently alleges facts that would be considered malicious. In paragraphs 12, 31, 34, 38, and 51, the FAC sufficiently alleges that Plaintiffs asked Defendants to remove encroaching structures but failed to take them down; Defendant’s refusal was willful.

Civil Code §3294 states that “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Subsection c of § 3294 defines malice as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Oppression is defined as “conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages. (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.) In addition, punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.)

The Court finds that the Complaint sufficiently alleges facts that support punitive damages. The cause of action for IIED was sufficiently pled, as stated above, and “punitive damages are recoverable for intentional infliction of emotional distress and breach of fiduciary duty.” (Heller v. Pillsbury Madison & Sutro (1996) 50 Cal.App.4th 1367, 1390.)

2. All defective, improper, and irrelevant claims and allegations referencing “gross negligence” and “carbon monoxide” against Defendants as follows: Paragraphs 171 – 173.

The Court finds that paragraphs 171 through 173 are properly pled because the complaint alleges that Defendants acted with gross negligence when it failed to address carbon monoxide issues and as a result acted with reckless disregard. (Comp. ¶¶ 171-173.)

3. All defective, duplicative, and improper claims and allegations as to the tenth cause of action for “Constructive and Retaliatory Eviction” against Defendants as follows: Paragraphs 177 – 191.

The Defendant moves to strike 15 paragraphs of the complaint, effectively moving to strike the entire tenth cause of action. However, as stated above, the tenth cause of action is not duplicative, improper, or defective. The tenth cause of action is based on an entirely different Civil Code section than the eighth cause of action.

Demurrer as to the fifth, ninth, and tenth causes of action is OVERRULED. Demurrer as to the sixth cause of action is SUSTAINED, without leave to amend.

[1] The Court notes that in Plaintiffs’ opposition as to the ninth cause of action, they argue about punitive damages, not whether gross negligence is sufficiently pled.