Judge Upinder S. Kalra, Case Number: 23STV11733, Date: 2023-10-18 Tentative Ruling

DEMURRER TO SECOND AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT[1]

MOVING PARTY: Defendants Grand Harbor Property Management, Inc., Damon Whitsitt and Lisa Whitsitt as Trustees of the 2011 Damon Whitsitt and Lisa Whitsitt Revocable Trust (Defendants)

1. Demurrer to the First Cause of Action for Breach of the Warranty of Habitability for failure to state facts sufficient to constitute a cause of action and for uncertainty. (CCP § 430.10(e) & CCP § 430.10(f).)

2. Demurrer to the Second Cause of Action for Nuisance for failure to state facts sufficient to constitute a cause of action and for uncertainty. (CCP § 430.10(e) & CCP § 430.10(f).)

3. Demurrer to the Third Cause of Action for Violation of Unfair Competition Law for failure to state facts sufficient to constitute a cause of action and for uncertainty. (CCP § 430.10(e) & CCP § 430.10(f).)

1. An Order striking Paragraph 25, page 4, line 24: “. . . attorney’s fees . . .”

2. An Order striking Paragraph 31, page 5, line 15: “. . . attorney’s fees . . .”

3. An Order striking Paragraph 34, page 5, line 27: “ . . . 1942.4, 1942.5 . . .”

4. An Order striking Paragraph 36, page 6, line 6: “ . . . attorney’s fees . . .”

5. An Order striking the Request for Relief, Request 2, line 11: “Statutory damages”

6. An Order striking the Request for Relief, Request 3, line 12: “double and treble damages”

7. An Order striking the Request for Relief, Request 4, line 3: “Punitive damages in amounts according to proof”

8. An Order striking the Request for Relief, Request 5, line 14: “Attorneys’ fees”

2. Defendants’ Demurrer is SUSTAINED with leave to amend as to the second, and third causes of actions.

3. Defendants’ Motion to Strike is GRANTED in its entirety with leave to amend.

Plaintiff Janelle Ralla (Plaintiff) filed a complaint on May 24, 2023 with three causes of action for: (1) Breach of Warranty of Habitability; (2) Nuisance; and (3) Violation of Unfair Competition Law.

The complaint alleges that Plaintiff moved to a property owned by Defendants located at 2801 Alma Ave., Manhattan Beach, California 90266 (the Property) on February 23, 2023. Plaintiff alleges she notified Defendants of significant water intrusion and leaking in the upstairs portion of the Property as well as mold. Plaintiff alleges that Defendants’ lack of repair allowed additional water intrusion and mold growth throughout the Property. Plaintiff alleges Defendants’ remediation efforts were insufficient, that Defendants failed to continue remediation efforts, and failed to provide adequate substitute accommodations. Plaintiff alleges that she moved out on April 18, 2023.

Defendants Grand Harbor Property Management, Inc., Damon Whitsitt and Lisa Whitsitt as Trustees of the 2011 Damon Whitsitt and Lisa Whitsitt Revocable Trust (Defendants) timely filed the instant demurrer and motion to strike on August 7, 2023.[2]

Plaintiff’s opposition was due October 5, 2023. None is on the court’s docket.

The court grants Defendants’ request for judicial notice as to Exhibits A and B. (Evid. Code § 452(g), (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.)¿

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.)

Here, the Declaration of Michael B. Lebow submitted with the demurrer indicates that Defendants’ counsel attempted to schedule a meet and confer with Plaintiff’s counsel but could not due to scheduling conflicts and lack of follow-up response from Plaintiff counsel’s office. (Lebow Decl. ¶ 4.) However, two phone calls with several days before the demurrer filing date, no emails, and no letters does 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.)

Defendant argues that Plaintiff’s first cause of action fails to state fact sufficient to establish a cause of action for breach of warranty of habitability because the alleged leak was due to unprecedented rainstorms, Plaintiff gave Defendants two weeks to make repairs, and the leaks were not a substantial defect but a minor inconvenience.

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.)

Here, after reviewing the complaint, Plaintiff sufficiently alleged a cause of action for breach of warranty of habitability. First, Plaintiff alleges that upon moving to the Property, she noticed “significant water intrusion and leaking” from “French doors, ceiling, walls, among others” that “saturated through the damaged area to the floor below” as well as “mold.” (Compl. ¶¶ 11, 12, 13, and 21.) Second, Plaintiff alleges that she “promptly notified” and “promptly reported” the water leaks and mold to the landlord. (Compl. ¶¶ 11, 12, 13, and 15.) Third, Plaintiff alleges a timeframe from February 23, 2023 move in date to March 17, 2023 for the landlord “to place fans” at the Property “to dry water intrusions caused by heavy rains.”[3] (Compl. ¶¶ 11, 13.) There are no facts that the landlord addressed Plaintiff’s complaints of mold. Further, Plaintiff alleges that the landlord had not fixed the water leaks by April 18, 2023 when she moved out. (Compl. ¶ 17.) Taken together, this could be a reasonable time for the landlord to act because it is at least 30 days.[4] Finally, Plaintiff alleges her child suffered “developing a medical condition related to the insufficient and untimely remediation efforts by Defendants” and that Plaintiff “was harmed by Defendants’ actions.” (Compl. ¶¶ 16, 25.)

Accordingly, Defendant’s demurrer to the first cause of action for breach of warranty of habitability is OVERRULED.

Defendant argues that Plaintiff failed to plead facts showing any unreasonable or substantial interference with her two month tenancy.

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.)

After reviewing the complaint, Plaintiff did not sufficiently allege a cause of action for nuisance. Notably, Plaintiff does not allege actions by Defendants interfered with her use and enjoyment of the Property. Plaintiff alleges that the defective and dangerous condition was “mold and severe water flooding” but does not allege these conditions were caused by Defendants but by rainfall. (Compl. ¶¶ 10, 14, and 27.)

Accordingly, Defendants’ demurrer to the second cause of action for nuisance is SUSTAINED with leave to amend despite the court’s doubts that Plaintiff can amend to cure this defect.

Defendants argue that Plaintiff did not allege sufficient facts to show Defendants violated any statute identified by Plaintiff in the third cause of action let alone identified the unfair business practices Defendants alleged committed. Additionally, Defendants contend that based on Plaintiff’s own timeline, Defendants could not have violated Civ. Code §§ 1942.4 and 1942.5. Similarly, Defendants argue that Plaintiff did not allege facts of retaliatory eviction in violation of Civ. Code § 1942.5, of fraudulent business practices, or “lost money or property” aside from rent she already owed.

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 complaint, Plaintiff did not sufficiently allege facts supporting a claim for violation of unfair competition law. Particularly, Plaintiff does not identify what the alleged fraudulent business practice was and relies on contentions that Defendants “failed to follow statutory requirements and obligations” among other things. (Compl. ¶ 35.) This does not come close to satisfying the requirements to plead with “reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury, supra, at p. 619.)

Accordingly, Defendants’ demurrer to the third cause of action is SUSTAINED with leave to amend despite the court’s doubts that Plaintiff can amend to cure this defect.

Defendant argues that Plaintiff failed to attach any contract permitting her to recovery attorney’s fees and otherwise failed to specifically identify any statute supporting her prayer for attorney’s fees.

“A party may not recover attorney fees unless expressly authorized by statute or contract. [Citations.] In the absence of a statute authorizing the recovery of attorney fees, the parties may agree on whether and how to allocate attorney fees.” (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464, review denied (Oct. 20, 2021); see also, Civ. Code § 1717.)

After reviewing the Complaint, the court agrees with Defendant that Plaintiff did not sufficiently allege a contract or statute for attorney’s fees. (See Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1174-75 [noting that breach of the implied warranty of habitability is a contract claim that authorizes the recovery of fees pursuant to an attorney fee provision in the rental agreement.]) Here, Plaintiff refers to a lease agreement as “Exhibit A,” but it is not actually attached to the Complaint. (Compl. ¶ 10.) There are no other allegations supporting her request for attorney’s fees.

Accordingly, the court GRANTS with leave to amend Defendant’s Motion to Strike portions of the Complaint that refer to attorney’s fees.

Defendant argues that Plaintiff failed to plead sufficient facts that Defendants are guilty of oppression, fraud, or malice by clear and convincing evidence.

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.)

After reviewing the Complaint, the court agrees with Defendants that Plaintiff has not sufficiently alleged oppression, fraud, or malice to warrant punitive damages against Defendants. First, Plaintiff alleges insufficient remediation efforts or failure to make repairs, but the court does not see how this rises to “willful and conscious disregard of the rights or safety of others,” “cruel and unjust hardship in conscious disregard of that person’s rights” or fraud. (Compl. ¶¶ 14, 15, and 23.) Indeed, awareness of defective conditions and refusal to make repairs is not sufficient to state a claim for punitive damages in California. (McDonell v. American Trust Company (1955) 130 Cal.App.2d 296, 299-301.)

Accordingly, the court GRANTS without leave to amend Defendant’s Motion to Strike portions of the Complaint that refer to punitive damages.

Defendant contends that Plaintiff has not alleged any specific statutes supporting double/treble damages and that Civ. Code §§ 1942.4 and 1942.5 fail because Plaintiff has not alleged facts regarding citation by a public officer or retaliatory eviction.

After reviewing the Complaint, the court agrees with Defendants that Plaintiff has not sufficiently alleged facts to support her request for statutory damages, double and treble damages. The only reference to these damages appear in the Request for Relief. (Compl. Request for Relief Nos. 2 & 3.) Additionally, Plaintiff only lists statutes in her third cause of action.[5] (Compl. ¶ 34.) Referring to statutes are not factual allegations.

Accordingly, the court GRANTS with leave to amend Defendant’s Motion to Strike portions of the Complaint that refer to statutory damages, double or treble damages.

2. Defendants’ Demurrer is SUSTAINED with leave to amend as to the second, and third causes of actions.

3. Defendants’ Motion to Strike is GRANTED in its entirety with leave to amend.

[1] The motion papers erroneously refer to a Second Amended Complaint, but there is only the initial complaint on file.

[2] Personal service on GHPM on June 8, 2023, substituted service on Damon Whitsitt and Lisa Whitsitt on May 31, 2023. On July 6, 2023, Defendants’ counsel filed a declaration in support of automatic stay pending meet and confer pursuant to CCP §430.41(a)(2) and CCP § 435.5(a)(2). Defendants’ counsel declares that they were retained just before the responsive pleading deadline and did not have time to meet and confer at least 5 days before filing an anticipated demurrer. (Decl. of Michael B. Lebow re Meet & Confer at ¶ 3-5.) Accordingly, the instant motion is timely.

[3] Plaintiff has a conflicting allegation that she gave notice of the “various hazardous conditions” in March 2023 compared to when she moved in. (Compl. ¶ 22.)

[4] The court empathizes with Defendants’ argument that two weeks is a short period of time. But, Defendants did not cite to authority, and the court did not find such authority, that demonstrated that this timeframe was unreasonable as a matter of law.

[5] Plaintiff also refers to Civ. Code § 3479 in her second cause of action, but this code section does not provide for statutory damages, double or treble damages. (Compl. ¶ 27.)