Judge Upinder S. Kalra, Case Number: 23STCV04266, Date: 2023-11-21 Tentative Ruling

MOVING PARTY: Defendants Stephen Copen, individually and as Trustee for the Stephen Copen 2012 Irrevocable Trust.

1. Demurrer to the Second through Sixth Causes of Action in the Second Amended Complaint for failure to state facts sufficient and for uncertainty.

1. The court SUSTAINS the demurrer as to the Third Cause of Action and the Fourth Cause of Action with/without leave to amend;

2. The court SUSTAINS the demurrer as to the Sixth Cause of Action. Plaintiff must seek leave of court to amend.

3. The court OVERRULES the demurrer as to the Second and Fifth Causes of Action;

On February 27, 2023, Plaintiff John Bernard Carlin (Plaintiff) filed a Complaint against Defendants Stephen Copen, Stephen Copen Trustee of the Stephen Copen 2012 Irrevocable Trust, and City of Los Angeles with nine causes of action for: (1) Breach of Contract, (2) Harassment, (3) Intentional Infliction of Emotional Distress, (4) Negligent Infliction of Emotional Distress, (5) Gross Negligence, (6) Negligence Per Se, (7) Retaliatory Eviction, (8) Breach of the Implied Covenant of Quiet Enjoyment, and (9) Nuisance.

On May 2, 2023, Defendants Stephen Copen and Stephen Copen Trustee of the Stephen Copen 2012 Irrevocable Trust (Copen Defendants) filed a Demurrer and Motion to Strike.

On July 12, 2023, Defendant City of Los Angeles filed an Answer and a Cross-Complaint.

On August 16, 2023, Plaintiff filed a First Amended Complaint (FAC) with six causes of action for: (1) Breach of Contract, (2) Tenant Harassment, (3) Intentional Infliction of Emotional Distress; (4) Negligent Infliction of Emotional Distress; (5) Negligence; and (6) Nuisance. According to the FAC, the dispute concerns property located at 809 Toulen Drive, Pacific Palisades, Los Angeles County, California (the Property). Plaintiff alleges to have entered a one year lease of the Property with Defendant Copen on December 6, 2019 that would commence around February 1, 2020 and expire on January 31, 2021 with monthly rent at $7,500.00. The parties amended the lease around August 10, 2020 extending the term to July 30, 2023. Plaintiff paid Defendant Copen $94,000.00 via wire transfer on August 11, 2022. Plaintiff alleges that during the course of the tenancy, he observed rot and mold growing on tile on the Property, lack of chimney cap, requested copies of lead and asbestos reports, a severe sewage spill around October 22, 2022. Plaintiff further alleges that Defendant Copen prevented remediation companies Plaintiff hired from entering the Property. As to Defendant City of Los Angeles, Plaintiff alleges that they were responsible for the severe sewage spill and failed to reimburse Plaintiff for damage because he was not the Property owner. Finally, Plaintiff alleges that Defendant Copen sought ways to unlawfully terminate Plaintiff’s right to possession. Plaintiff vacated the Property on July 31, 2023.

On September 19, 2023, Copen Defendants filed a Demurrer and Motion to Strike which the court SUSTAINED with leave to amend and DENIED as moot.

On December 22, 2023, Plaintiff filed a Second Amended Complaint (SAC) with six causes of action for: (1) Breach of Contract, (2) Tenant Harassment, (3) Intentional Infliction of Emotional Distress, (4) Negligence, (5) Nuisance, and (6) Failure to Account for an Return Security Deposit.

On January 23, 2024, Defendants filed the instant Demurrer with Motion to Strike. On March 6, 2024, Plaintiff filed oppositions. On March 12, 2024, Defendants filed replies.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) According to the Declaration of Jennifer Volcy, Copen Defendant attempted to meet and confer via letter on January 12, 2024 and did not receive a response. (Volcy Decl. ¶ 3.) However, one letterdoes not evidence sufficient meet and confer efforts. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

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.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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. (CCP § 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 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.)

Copen Defendants contends Plaintiff invented facts that the Copen Defendants did not intent to have family live at the premises and that refusing to make timely repairs is conclusory. Plaintiff argues that he sufficiently plead facts supporting violation of City of Los Angeles Tenant Anti-Harassment Ordinance (TAHO) § 45.33.

TAHO § 45.33 defines tenant harassment as “a landlord’s knowing and willful course of conduct directed at a specific tenant or tenants that causes detriment and harm, and that serves no lawful purpose” including various actions. Plaintiff alleges violations of TAHO § 45.33 (1), (2), (3), (6), (7), (8), (15), and (16). These actions are:

(1) Reducing or eliminating housing services required by a lease, contract or law, including the elimination of parking if provided in the tenant’s lease or contract except when necessary to comply with a court order or local or state law, or to create an accessory dwelling unit or additional housing.

(2) Failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; or failure to follow applicable industry standards to minimize exposure to noise, dust, lead paint, asbestos, or other building materials with potentially harmful health impacts.[1]

(3) Abuse of the right of access into a rental unit as established and limited by California Civil Code Section 1954, including entering or photographing portions of a rental unit that are beyond the scope of a lawful entry or inspection.

(6) Misrepresenting to a tenant that the tenant is required to vacate a rental unit or enticing a tenant to vacate a rental unit through an intentional misrepresentation or the concealment or omission of a material fact.

(7) Threatening or taking action to terminate any tenancy including service of any notice to quit or other eviction notice or bringing action to recover possession of a rental unit based on facts which the landlord has no reasonable cause to believe to be true. No landlord shall be liable under this subsection for bringing an action to recover possession of a rental unit unless and until the tenant has obtained a favorable termination of that action.

(8) Threatening to or engaging in any act or omission which interferes with the tenant’s right to use and enjoy the rental unit or whereby the premises are rendered unfit for human habitation and occupancy.

(15) Interfering with a tenant’s right to privacy or requesting information that violates a tenant’s right to privacy, including, but not limited to, residency or citizenship status or social security number, except as authorized by law.

(16) Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of a tenant(s) and that cause, are likely cause, or are committed with the objective to cause a tenant(s) to surrender or waive any rights in relation to such tenancy.

Here, Plaintiff sufficiently alleged violation of TAHO § 45.33. Notably, Plaintiff alleges reduction of services provided for in the lease, entered the premises without legal notice of permission, attempting to evict Plaintiff for failing to pay rent while knowing Plaintiff had prepaid a full year’s rent, and repeatedly interfering with Plaintiff’s right to enjoy the premises via delayed remediation and repeated entry. (SAC ¶¶ 15 - 18, 20-31, 35-40, 59-61, 70.) While these factual allegations do not support every claimed TAHO violation presented by Plaintiff, they support some of them. And, since the court cannot split a cause of action, there are sufficient allegations alleged.

Accordingly, the court OVERRULES Copen Defendants’ demurrer to the Second Cause of Action.

Copen Defendants contend that Plaintiff has not plead facts showing extreme or outrageous conduct, that Plaintiff’s dispute about the sewage spill is rooted in contract, and that there is no evidence of malicious or oppressive conduct by Copen Defendants. Plaintiff argues that he sufficiently plead facts supporting IIED by alleging Copen Defendants engaged in a pattern of harassing conduct which rendered the Property uninhabitable and which was designed to cause Plaintiff to vacate despite collecting the full year’s rents.

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.) For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.)

Upon reviewing the SAC, the court agrees with Copen Defendants that Plaintiff failed to sufficiently allege a claim for IIED. First, Plaintiff alleges the following conduct to support his claim: terminating agreed-upon services (gardening), refusing to properly maintain the toilet from which sewage leaked, refusing to timely remediate damage caused by the sewage spill and preventing Plaintiff from doing so, refusing to refund Plaintiff rent, repeatedly entering the premises without consent (twice while Plaintiff was not home), removing the garbage cans, delaying repair of the refrigerator and delaying having it hauled away, threatening eviction despite having a years-worth of rent payments, representing to include damages claims to the City and/or insurance but failing to do so, and refusing to provide results of various testing after the sewage spill. (SAC ¶¶ 15-18, 74.) These are not the sort of allegations that “exceed all bounds of that usually tolerated in a civilized community.” (Huges, supra, at p. 1050-51.)

Accordingly, the court SUSTAINS Copen Defendants’ demurrer to the Third Cause of Action.

Copen Defendants contend that Plaintiff omitted prior allegations indicating that Defendant City was responsible for the leak and that failure to remediate on Plaintiff’s schedule is not negligent. Plaintiff argues he sufficiently plead negligence.

The elements of a negligence cause of action are duty, breach of that duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

Upon reviewing the SAC, Plaintiff has not sufficiently alleged a cause of action for negligence. Notably, Plaintiff has not changed his conclusory allegation of duty. (SAC ¶ 80.)

Accordingly, the court SUSTAINS Copen Defendants’ demurrer as to the Fourth Cause of Action.

Copen Defendants contend that Plaintiff failed to allege damage to property that was not personal property and failed to include facts about the alleged remediation delay. Plaintiff argues he alleged sufficient facts to support this cause of action because he was the lessee, Copen Defendants allowed a condition to exist that was harmful to health and was offensive to Plaintiff’s senses which interfered with Plaintiff’s use and enjoyment of the Property, and that Plaintiff was harmed by Copen Defendants’ conduct.

The elements for a private nuisance cause of action are: (1) interference with use and enjoyment of plaintiff’s property that is (2) substantial and (3) unreasonable. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5^th 248, 262-63.) Plaintiff must plead and prove interference with plaintiff’s use and enjoyment of the property – i.e., defendant’s activity must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (San Diego Gas & Elec. Co. v. Sup. Ct. (Covalt) (1996) 13 Cal.4th 893, 938.)

Upon reviewing the SAC, Plaintiff has sufficiently alleged a claim for nuisance. First, Plaintiff alleges that the sewage-contaminated carpet, walls, and surrounding materials remained for nineteen days before remediation and then during remediation those contaminated materials remained in the foyer of the premises until February 3, 2023. (SAC ¶ 87.) In total, Plaintiff alleges 100 days from October 22, 2022 to February 3, 2023 where there was sewage-infused materials inside the premises. (Ibid.) Second, while Plaintiff did not explicitly say this was substantial and unreasonable, taking the SAC in context, 100 days of sewage-infused materials coupled with mold and construction debris inside the premises while Plaintiff was living there is enough to survive demurrer.

Accordingly, the court OVERRULES Copen Defendants’ demurrer as to the Fifth Cause of Action.

Sixth Cause of Action – Failure to Account for and Return Security Deposit

Copen Defendants demur to this cause of action in their notice but do not provide argument. Plaintiff contends he sufficiently alleged this cause of action. Copen Defendants provided no further argument on reply.

As a threshold matter, the court notes that this is an entirely new cause of action and it is outside the scope of prior leave the court provided at the previous demurrer hearing. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) Plaintiff has not sought leave to amend.

Accordingly, the court SUSTAINS the demurrer as to the Sixth Cause of Action. Plaintiff may request leave of court to amend.

Copen Defendants move to strike the Prayer for Relief No. 3 requesting punitive damages. Plaintiff argues that the outrageous and harassing conduct stems from taking one year of prepaid rent and then acting to force Plaintiff to vacate the premises. Copen Defendants reply that the type of conduct Plaintiff alleges as interfering with his lease does not arise to the level warranting punitive damages (i.e., not paying for a gardener).

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(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.) Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “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.” (Ibid.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Ibid.) Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿(Ibid.)¿

As a threshold matter, Plaintiff’s First Cause of Action for Breach of Contract does not warrant punitive damages. (Purcell v. Schweitzer (2014) 224 Cal.App.4th 969, 976 [no punitive damages for breach of contract action.]) Plaintiff’s Second Cause of Action for Tenant Harassment under TAHO calls for civil penalties for each violation – not for punitive damages. Plaintiff has not provided authority that the TAHO allows an award of punitive damages in addition to civil penalties. The court has sustained the demurrer to Plaintiff’s Third Cause of Action for IIED which, if properly pled, could allow for punitive damages. The court also sustained the demurrer as to the Sixth Cause of Action for Failure to Account for and Return Security Deposit and neither party briefed whether punitive damages are recoverable for that claim. The court does not think they are. As such, the two causes of action that may warrant punitive damages are the Fourth and Fifth Causes of Action for Negligence and Nuisance. As pled, however, neither do.

To start, both claims do not allege malicious, oppressive, or fraudulent conduct by the Copen Defendants. As to the negligence claim, Plaintiff alleges that Copen Defendants failed to properly maintain the toilet, moldy tiles, the chimney, and the refrigerator. (SAC ¶¶ 82, 83.) This is not oppressive, malicious, or fraudulent conduct. As to the nuisance claim, Plaintiff alleges untimely remediation. (SAC ¶ 87.) While living with malodorous debris for 100 is not pleasant, the alleged delay is simply not oppressive, malicious, or fraudulent. To the extent Plaintiff argued otherwise, those arguments interpreted these facts with the tenant harassment cause of action. There are no allegations in the nuisance claim concerning malicious, oppressive, or fraudulent conduct.

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.¿ (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)¿ The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349).

Here, Plaintiff requested leave to amend. The court is not convinced that Plaintiff can sufficiently amend his claim for IIED. Plaintiff must also separately seek leave of court to add his Sixth Cause of Action. Plaintiff is granted leave to amend his claim for negligence. Similarly, Plaintiff may amend to add allegations supporting his claim for punitive damages.

1.;The court SUSTAINS the demurrer as to the Third Cause of Action and the Fourth Cause of Action] with/without leave to amend;

2.The court SUSTAINS the demurrer as to the Sixth Cause of Action. Plaintiff must seek leave of court to amend.

[1] TAHO § 45.33(f) provides: “A civil proceeding . . . initiated under this article alleging any violation of Section 45.33 (2) may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.” There are no allegations in the SAC that Plaintiff complied with this provision. However, there are facts alleged supporting violations of other sections.