Judge Upinder S. Kalra, Case Number: 23STCV23900, Date: 2024-08-14 Tentative Ruling

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CASE NAME: Pascual Salgado Espinoza, et al. v. Rosecrans Avenue Property LLC, et al.

1. Demurrer to the First Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (failure to plead contract);

2. Demurrer to the Second Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (lacks particularity);

3. Demurrer to the Third Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (failure to plead contract);

4. Demurrer to the Fourth Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (lacks particularity);

5. Demurrer to the Fifth Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (lacks particularity);

6. Demurrer to the Sixth Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (duplicative of fourth cause of action); and

7. Demurrer to the Seventh Cause of Action of the First Amended Complaint as to Plaintiffs Uriel Salgado Vega, Azmabeth Mesa, and Alma Meza for failure to state sufficient facts constituting a cause of action (lacks particularity).

1. Hwy 101’s Demurrer is OVERRULED as to the Fourth Cause of Action and SUSTAINED as to the remaining causes of action.

On October 2, 2023, Plaintiffs Pascual Salgado Espinoza, Blanca Salgado Vega, Edgar Salgado Vega, Uriel Salgado Vega, a minor by and through his guardian ad litem Pascual Salgado Espinoza, Abisai Meza, Jennifer Salgado, Azmabeth Meza, a minor by and through her guardian ad litem Jennifer Salgado, and Alma Meza, a minor by and through his guardian ad litem Jeniffer Salgado (Plaintiffs) filed a Complaint against Defendants Rosecrans Avenue Property LLC and Hwy 111 Hotel Group LP (Defendants) with sixth causes of action for: (1) Breach of Implied Warranty of Habitability; (2) Breach of Statutory Warranty of Habitability; (3) Breach of the Covenant of Quiet Enjoyment; (4) Negligence; (5) Violation of Civil Code Section 1942.4; and (6) Private Nuisance.

According to the Complaint, Defendant Rosecrans Avenue Property LLC (Rosecrans) owned and managed the subject property, 1750 E. Kay St., Compton, CA 90211 (the Property) from September 19, 2019 to present and Defendant Hwy 101 Hotel Group LP (Hwy 101) managed the Property from May 10, 2018 to September 19, 2019. Plaintiffs were tenants at the Property and allege that Defendants failed to keep the Property in a habitable condition. These conditions include electrical deficiencies, plumbing deficiencies, lack of hot water, water leaks, floors and walls containing mold and mildew, insect infestations, pest infestations, security and safety deficiencies, storage deficiencies, and loss of use for various time periods.

On October 31, 2023, Plaintiffs filed the operative First Amended Complaint (FAC) against the same Defendants.[1] However, Plaintiffs added a seventh cause of action for Violation of Unfair Competition Law (Bus. & Prof. Code §§ 17200-09). Plaintiffs also added additional Plaintiffs: Yesenia Amaro, Kiarra Drew, Ruben Rodriguez, Allal Santo III, a minor by and through his guardian ad litem Yesenia Amaro, Miguel Estrada, Porche Cherelle Johnson, Mason Herrera Velasquez, a minor by and through his guardian ad litem Jesus Herrera, Ignacio Alejandro Rubio, Elisa Rosales, Amalia Melendez Laria, Adrian Heredia, Cristal Heredia, Naomi Heredia, a minor by and through her guardian ad litem Adrian Heredia, Esther Heredia, a minor by and through her guardian ad litem Adrian Heredia, Victor Guerro, Karina Gallardo, Victor Guerrero, Jr., a minor by and through his guardian ad litem Victor Guerro, Kaylie Guerrero, a minor by and through her guardian ad litem Victor Guerrero, Evelyn Guerrero, a minor by and through her guardian ad litem Victor Guerrero, Idolina Suastegui, Emiliana Gallardo, Eliseo Gallardo, Marcelo Lorenzo, and Marlin Martinez. These additional Plaintiffs bring this Action against Rosecrans only. (FAC ¶ 3.)

On December 20, 2023, Plaintiff Mason Herrera Velasquez filed a Request for Dismissal as to Hwy 101 only.

On January 19, 2024, Plaintiffs filed an Amendment to Complaint changing Doe 1 to Inspiration Property Management, LLC.

On January 25, 2024, Plaintiffs filed an Amendment to Complaint changing Doe 2 to Inspiration Property Management, Inc.

On January 25, 2024, Plaintiffs filed a Request for Dismissal as to Defendant Inspiration Property Management, LLC.

On April 15, 2024, Plaintiffs filed a Request for Dismissal as to Defendant Inspiration Property Management, Inc. only.

On June 14, 2024, Hwy 101 filed an Answer to Rosecrans’ Cross-Complaint and filed its own Cross-Complaint.

On July 31, 2024, Plaintiffs filed an Opposition to Hwy 101’s Demurrer to the FAC. On August 6, 2024, Hwy 101 filed a reply.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The parties met and conferred telephonically on April 3, 2024 and were unable to resolve the issues. (Declaration of Jeffrey J. Gillard ¶¶ 5-6.)

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.)¿

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Courts also consider exhibits attached to the complaint and incorporated by reference. (See Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 (Frantz).)

The court grants Plaintiffs’ request for judicial notice as to Exhibits A & B. (Evid. Code § 452(d), (h); See Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,37.) However, the court only takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)¿

Hwy 101 contends that Plaintiffs failed to sufficiently plead a contract and failed to plead facts with reasonable precision. Namely, Hwy 101 does not know which substandard condition(s) presented during their tenancy and their duration. Plaintiffs argue that they are not required to plead their claim with such specificity since Hwy 101 already knows this information.[2] Plaintiffs additionally argue they plead the legal effect of the lease which is sufficient and that Hwy 101 can determine the scope of the uninhabitable conditions during discovery if they do not already possess that information.[3] Plaintiffs otherwise argue they sufficiently plead a claim for breach of the implied warranty of habitability. Hwy 101 replies that Plaintiffs are actually in the better position to identify pertinent facts because they allegedly lived in the unit with the habitability problems.

“[P]ublic policy compels landlords to bear the primary responsibility for maintaining safe, clean and habitable housing in our state.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1296.) As such, “there is a warranty of habitability implied in residential leases in California.” (Ibid.) The elements of a cause of action for breach of the implied warranty of habitability “are the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.” (Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891 review denied (July 14, 2021)). A violation of a statutory housing standard that affects health and safety is a strong indication of a materially defective condition. (Ibid.)¿¿

Upon reviewing the FAC, the court agrees that Plaintiffs insufficiently alleged a claim for breach of the implied warranty of habitability. Simply stated, Plaintiffs failed to allege that they notified their landlord, in this instance Hwy 101, of the defective condition(s) within a reasonable time after they discovered the condition and that their landlord had a reasonable time to correct the deficiencies. The court declines to develop the other arguments now.

Accordingly, the court SUSTAINS the demurrer as to the First Cause of Action with leave to amend.

Hwy 101 contends that Plaintiffs failed to plead their statutory claim with the requisite particularity. Specifically, Hwy 101 contends that Plaintiffs failed to cite the provisions of Civil Code § 1941 and Health and Safety Code § 17920.3 that apply or the time periods they allegedly violated said provisions. Plaintiffs argue that they have sufficiently alleged statutory breaches, that Evidence Code § 699 codifies the doctrine of negligence per se, and that the statutes show duty of care and breach.

Civil Code 1941.1 provides that a “dwelling shall be deemed untenantable” for purposes of this statute “if it substantially lacks any” of the following:

“(1) Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors. (2) Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order. (3) A water supply approved under applicable law that is under the control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord, that produced hot and cold running water, furnished to appropriate fixtures, and connected to a sewage disposal system approved under applicable law. (4) Heating facilities that conformed with applicable law at the time of installation, maintained in good working order. (5) Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order. (6) Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin. (7) An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control. (8) Floors, stairways, and railings maintained in good repair. (9) A locking mail receptacle for each residential unit in a residential hotel . . . .” (Civ. Code § 1941.1(a)(1-9).)

Health & Safety Code 17920.3 identifies numerous conditions rendering a “building or portion thereof” substandard.

As above, Plaintiffs failed to sufficiently allege facts supporting a claim for breach of warranty of habitability. Namely, Plaintiffs allege that Hwy 101 had “repeated notice, both actual and constructive” and that their “failure to comply with the relevant habitability statutes can be interpreted as reckless or intentional refusal to comply with obligations imposed by statutes.” (FAC ¶ 17.) These are not facts but argument.

Accordingly, the court SUSTAINS the demurrer to the Second Cause of Action with leave to amend.

Hwy 101 contends that the minor Plaintiffs have not sufficiently alleged they were/are parties to the lease of the Property. Plaintiffs argue that they sufficiently alleged this claim.

The implied covenant of quiet enjoyment is breached when there is an eviction, actual or constructive, of the tenant. (Marchese v. Standard Realty & Development Co. (1977) 74 Cal.App.3d 142, 148.) Actual eviction occurs when there is an expulsion or ouster of the tenant by the landlord. (Giraud v. Milovich (1938) 29 Cal.App.2d 543.) Constructive eviction occurs when there is a substantial and material interference with the tenant’s beneficial use and enjoyment of the premises, causing the tenant to vacate. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.) An interference by the landlord amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals following his eviction. Upon surrendering possession of the premises, the tenant is relieved of the obligation to pay rent and may sue for damages, or may plead damages by way of offset in an action brought by the landlord to recover any unpaid rent that accrued prior to surrender. (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590.) Alternatively, a tenant may elect to stand upon the lease, remain in possession and sue for breach of contract damages as well as for injunctive relief. (Ibid.) Minor inconveniences and annoyances are not actionable. (Id., at pp. 589-590.)

Upon reviewing the FAC, Plaintiffs failed to sufficiently allege a claim for breach of the covenant of quiet enjoyment. Here, Hwy 101’s argument concerning the leasehold interest is well taken. Plaintiffs do not allege eviction, rather, they allege diminished value of their leasehold interest, illness, physical injury, mental stress, emotional distress, discomfort, annoyance, anxiety, property damage, loss of use, and lost income. (FAC ¶¶ 23-24.) The court is not persuaded that Plaintiffs sufficiently plead the existence of a contract (the lease) with the minor Plaintiffs.

Accordingly, the court SUSTAINS the demurrer to the Third Cause of Action with leave to amend.

Hwy 101 contends that Plaintiffs failed to sufficiently plead this cause of action because they rely on a statute for liability and did not plead alleged statutory breaches with the requisite particularity. Plaintiffs argue that they sufficiently plead this claim.

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.) “ ‘ “[T]he threshold element of a cause of action for negligence is the existence of a duty to use care toward an interest of another that enjoys legal protection against unintentional invasion.” ‘ [Citations.] ‘ “Duty is a question of law for the court.” ’ [Citation.] It is ‘ “to be determined on a case-by-case basis.” ’ [Citations.] ‘ “A duty may arise through statute, contract, or the relationship of the parties.” ’ [Citation.] Additionally, ‘ “California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. [Citation.]” [Citation.] Civil Code section 1714, subdivision (a) provides in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” ’[Citation.]” (Shipp v. Western Engineering, Inc. (2020) 55 Cal.App.5th 476, 489-90.)¿

Upon reviewing the FAC, Plaintiffs have sufficiently alleged a claim for negligence. First, Hwy 101 owed Plaintiffs a duty as the landlord to maintain the Property. (FAC ¶ 26.) Second, Hwy 101 allegedly breached that duty by failing to maintain the Property and correct substandard conditions. (FAC ¶¶ 9, 27.) Third, these breaches caused damage to Plaintiffs, who allegedly suffered and continue to suffer illness, physical injury, mental stress, emotional distress, anxiety, annoyance and discomfort, property damage, and lost income as well as diminished value of their leasehold interest. (FAC ¶¶ 28-29.)

Accordingly, the court OVERRULES the demurrer to the Fourth Cause of Action.

Hwy 101 contends that Plaintiffs did not allege whether their unit was subject to Los Angeles Department of Public Health violations and applicable violations. Plaintiffs argue that the statute does not require that the violations occurred in their unit, that it is disingenuous to claim they do not know which violations they received while they owned the Property, and their interpretation of Civil Code § 1942.4 is novel and incorrect.[4] Plaintiffs propose that the statute applies to a tenant living in an apartment building with a violation anywhere in the building and not just in that tenant’s specific unit. (Opp. 11:2-7.) Hwy 101 does not address this argument in reply. Rather, Hwy 101 replies that only one violation may have applied to their unit during Hwy 101’s ownership period and Plaintiffs are in a better position to state whether their unit was subject to the inspection violation.

“[A] residential landlord may not demand or collect rent, increase rent, or serve a three-day notice to pay rent or quit if (1) the dwelling is untenantable . . . or deemed and declared substandard; (2) a public officer inspects the premises and gives the landlord written notice that it must abate the nuisance or repair the property; (3) the conditions have not been remedied within 35 days of the notice; and (4) the substandard conditions were not caused by the tenant’s acts or omissions.” (Erlach v. Sierra Asset Servicing, LLC, supra, 226 Cal.App.4th at p. 1298; Civ. Code § 1242.4(a).)

Upon reviewing the FAC, Plaintiff has not sufficiently alleged a claim for violation of Civil Code § 1942.4. None of the alleged violations cited by Plaintiffs occurred during Hwy 101’s ownership of the Property. (FAC ¶¶ 1, 32.) As such, Plaintiffs have not plead facts that Hwy 101 was given written notice by a public officer after inspection to abate the nuisance or repair the property.

Accordingly, the court SUSTAINS the demurrer to the Fifth Cause of Action with leave to amend.

Hwy 101 contends that this claim fails because it is duplicative of Plaintiffs’ negligence claim. Additionally, Hwy 101 contends that Plaintiffs failed to allege Hwy 101 engaged in an affirmative act to create the alleged nuisance.[5] Plaintiffs argue that they sufficiently plead this claim and did not address Hwy 101’s duplicity contention at all.

A nuisance is defined as follows: “[a]nything which is injurious to health,¿including, but not limited to, the illegal sale of controlled substances,¿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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park,¿square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)¿¿

Private “[n]uisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1373.) The elements of a private nuisance are: (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, i.e., that it cause[s] the plaintiff to suffer “substantial actual damage” ’ ”; and (3) “ ‘ “[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable” [citation], 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.” ’ [Citation.]” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63.) Tenants may sue their landlords for a nuisance. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.)¿¿

Upon reviewing the FAC, Plaintiffs have not sufficiently alleged a claim for nuisance. Notably, Plaintiffs allegations are conclusory rather than factual. For instance, Plaintiffs allege the condition were injurious to the health and safety of Plaintiffs, indecent and offensive to Plaintiffs, and interfered substantially with their comfortably enjoyment of the Property. (FAC ¶ 35.) Plaintiff similarly alleges “general, special and property damage” but does not allege facts showing substantial actual damages.

Accordingly, the court SUSTAINS the demurrer to the Sixth Cause of Action with leave to amend.

Seventh Cause of Action – Violation of Unfair Competition Law (Bus. & Prof. Code Sections 17200-09)

Hwy 101 contends that Plaintiffs failed to plead statutory violations with requisite particularity and that, as alleged, the claim is constrained to the landlord-tenant relationship rather than unfair or unlawful business practices. Plaintiffs argue that they did identify the specific statutory violations. Hwy 101 replies that Plaintiffs failed to plead any misrepresentations, risk of public deception, lost money or property, and lack of particularity.

Unfair competition is any unlawful, unfair, or fraudulent business practices or act and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code § 17200.)¿ A plaintiff needs to identify statutory, regulatory, or decisional law that the defendant has violated.¿ (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 352.)¿Unfair competition “borrows” violations of other laws and authorizes a separate action pursuant to unfair competition. (See Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 383.) Unfair conduct in unfair competition actions must be violative of public policy and “tethered to specific constitutional, statutory, or regulatory provisions.”¿ (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.) As a statutory cause of action, allegations of unfair business practices must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The statutory violations must be specifically delineated and said violations must relate to a business activity.¿ (Ibid.)¿

Upon reviewing the FAC, Plaintiffs have not sufficiently alleged violation of Business and Profession Code Sec. 17200 et seq. Plaintiffs allege that because Hwy 101 violated various habitability codes, they committed unlawful business practices. (FAC ¶¶ 45-46.) The court does not see factual allegations supporting this cause of action with reasonable particularity.

Accordingly, the court SUSTAINS the demurrer to the Seventh Cause of Action with leave to amend.

1. Hwy 101’s Demurrer is OVERRULED as to the Fourth Cause of Action and SUSTAINED as to the remaining causes of action with 20 days leave to amend

[1] The original adult Plaintiffs bring this action against Rosecrans only while the minor Plaintiffs bring this action against both Rosecrans and Hwy 101. (FAC ¶ 2.)

[2] Plaintiffs’ reliance on Comm. On Children’s Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197 is misplaced.

[3] Plaintiffs incorporate this argument about vague and uncertain allegations throughout.

[4] Plaintiffs argue that since the statute says “dwelling” and not “dwelling unit” the Legislature intended an expansive application. (Opp. 9:16-25.)

[5] Hwy 101 relies on El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337 (El Escorial) for the proposition that Plaintiff cannot plead both negligence and private nuisance if the claims rely on the same facts and request the same monetary damages.