Judge: Upinder S. Kalra, Case: 24STCV13422, Date: 2024-12-05 Tentative Ruling
Case Number: 24STCV13422 Hearing Date: December 5, 2024 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: December
5, 2024
CASE NAME: Salvatore
Stabile, et al. v. Martin Hendlish, individually and as trustee of the Mah
Trust
CASE NO.: 24STCV13422
DEMURRER
WITH MOTION TO STRIKE
MOVING PARTY: Defendant
Martin Hendlish, individually and as trustee of the Mah Trust
RESPONDING PARTY(S): Plaintiffs Salvatore Stabile,
Kim Stabile, Ever Stabile, by and through his guardian ad litem Salvatore Stabile,
and Avery Stabile, by and through his guardian ad litem Salvatore Stabile
REQUESTED RELIEF:
1. Demurrer
to the Seventh, Eighth, Tenth, and Eleventh Causes of Action for failing to
state a claim against Defendant;
2. Motion
to Strike portions of the Complaint pertaining to punitive damages.
TENTATIVE RULING:
1. Demurrer
by Defendant individually is OVERRULED;
2. Demurrer
to the Seventh, Tenth, and Eleventh
Causes is OVERRULED;
3. Demurrer
to the Eighth Cause of Action is SUSTAINED;
4. Motion
to Strike is GRANTED in full;
5. Plaintiffs
shall have 20 days’ leave to amend from notice of this ruling.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On May 29, 2024, Plaintiffs Salvatore Stabile, Kim Stabile,
Ever Stabile, by and through his guardian ad litem Salvatore Stabile, and Avery
Stabile, by and through his guardian ad litem Salvatore Stabile (Plaintiffs)
filed a Complaint against Defendant Martin Hendlish, individually and as
trustee of the Mah Trust (Defendant), with eleven causes of action for: (1)
Negligence, (2) Premises Liability, (3) Tortious Breach of Statutory Warranty
of Habitability, (4) Breach of Implied Warranty of Habitability, (5) Breach of
Covenant of Quiet Enjoyment, (6) Nuisance, (7) Violation of the LA Tenant
Anti-Harassment Ordinance, (8) Intentional Infliction of Emotional Distress,
(9) Constructive Eviction, (10) Violation of Civil Code § 1950.5; and (11)
Unfair Business Practices – Bus. & Prof. Code § 17200, et seq.
According to the Complaint, Plaintiffs rented property owned
by Defendant located at 1410 Joneboro Dr., Los Angeles, CA 90049 (the Property)
from August 15, 2022 to November 30, 2022. Plaintiffs allege the Property was
uninhabitable for a variety of reasons.
On August 2, 2024, Defendant filed the instant demurrer with
motion to strike.
On November 8, 2024, Defendant filed a Cross-Complaint
against Salvatore Stabile, Kim Stabile, Kimberly Bigsby, Dr. Pejman Katiraei,
D.O., dba Wholistic Kid and Families, Wholistic Kids and Families Inc., and
Wholistic Minds with twelve causes of action for: (1) Negligence, (2) Unfair
Business Practices, (3) Negligent Infliction of Emotional Distress, (4)
Negligent Interference with Prospective Economic Advantage, (5) Breach of
Contract, (6) Intentional and Negligent Misrepresentation, (7) Conversion, (8)
Slander of Title, (9) Defamation, (10) Indemnification, (11) Apportionment of
Fault, and (12) Declaratory Relief.
On November 20, 2024, Plaintiffs filed oppositions to the
demurrer and motion to strike. Reply briefs were due on or before November 26,
2024. As of December 2, 2024, the court has not received any replies.
LEGAL STANDARD:
Meet
and Confer
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 parties met and conferred via
letter and email. (Bridwell Decl. ¶¶ 3-4.)
Demurrer
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.)¿¿
Motion
to Strike
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.)¿
ANALYSIS:
Demurrer
Individual
Defendant
Defendant contends that he is an improper defendant
in his individual capacity. Plaintiffs argue they alleged breach of the lease
and other torts committed by Hendlish individually.
“A trustee is personally liable for obligations arising from
ownership or control of trust property only if the trustee is personally at
fault” and “a trustee is personally liable for torts committed in the course of
administration of the trust only if the trustee is personally at fault.” (Galdjie v. Darwish (2003) 113
Cal.App.4th 1331, 1343 [citing Probate Code §§ 18001 and 18002.]) These
statutes were meant to “make clear that trustees would not be personally
liable, and generally need not fear loss of their personal assets, when acting
on behalf of a trust in dealing with third parties.” (Id. at p. 1347.) A plaintiff needs to demonstrate
that the trustee “intentionally or
negligently acted or failed to act in a manner that establishes
personal fault.” (Id. at pg. 1348
[italics in original, internal citation omitted.]) Galdjie does not discuss whether a trustee may be sued both
individually and in their capacity as a trustee of a trust.
Here, the court declines to develop this argument because
Defendant did not provide authority supporting their position. Indeed, their argument consists of a conclusion that
Defendant should not be named individually, too.
Accordingly, the court OVERRULES the demurrer as to
Defendant individually.
Seventh
Cause of Action: Violation of TAHO
Defendant contends Plaintiffs failed to
sufficiently allege harassment under TAHO. Plaintiffs argue they sufficiently
alleged a claim under TAHO because Defendant failed to repair the HVAC system
in violation of Civ. Code § 1941, attempted to enter the premises without
proper notice in violation of Civ. Code § 1954, threatened to make Plaintiffs
move back into the premises, and substantially interfered with Plaintiffs’
right to quiet enjoyment.
Los Angeles Municipal Code § 45.33 (TAHO) defines
tenant harassment as “a landlord’s knowing and willful course of conduct
directed at a specific tenant that seriously alarms or annoys the tenant, and
that serves no legitimate purpose. . . .” This
includes: “Failing to perform and timely complete necessary repairs and
maintenance required by 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.” and “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.” (TAHO § 45.33
subds. (2), (7).)
Here, Plaintiffs sufficiently alleged a claim under TAHO.
First, Plaintiffs allege the premises “suffered from gas leaks, water
intrusion, a termite infestation, an improperly installed HVAC that was not up
to code, and dangerous mold growth . . . .” (Complaint ¶ 15.) Plaintiffs
further allege that Defendant did not remediate these conditions when notified,
delayed investigation, and ignored reports confirming unsafe conditions.
(Complaint ¶¶ 18, 19, 20, 21, 22, 27-33.) This is enough to show violation of TAHO
§ 45.33, subd. (2). The court need not analyze further alleged violations of
TAHO to survive demurrer.
Accordingly, the court OVERRULES the demurrer to the Seventh
Cause of Action.
Eighth
Cause of Action: Intentional Infliction of Emotional Distress (IIED)
Defendant contends Plaintiffs failed to
sufficiently allege outrageous conduct and failed to allege specific facts
supporting the remaining elements of the claim. Plaintiffs argue they did
sufficiently allege outrageous conduct.
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.)¿
Here, Plaintiffs insufficiently alleged a claim for IIED. Notably,
Plaintiffs allege Defendant failed to timely remediate problems with the
premises, fought with Plaintiffs about terminating a lease, and failed to
timely return a security deposit. (See generally, Complaint.) Plaintiffs point
to allegations that Defendant “hired someone to follow Plaintiffs Salvatore and
Kimberly” which “exacerbated an already stressful situation.” These are not the
sort of allegations that “exceed all bounds of that usually tolerated in a
civilized community.” (Hughes, supra, at p. 1050-51.)
Accordingly, the court SUSTAINS the
demurrer to the Eighth Cause of Action.
Tenth
Cause of Action: Violation of Civil Code § 1950.5
Defendant contends Plaintiffs lack facts
showing how Defendant violated Civ. Code § 1950.5 and that Plaintiffs allege
Defendant remitted the deposit to their attorney. Plaintiffs argue the
providing the deposit to counsel without an accounting is not providing the
deposit to Plaintiffs (as the tenant). Neither party provides authority
supporting these positions.
“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.” (Civ. Code § 1950.5(g)(1).) “After
either the landlord or the tenant provides notice to terminate the tenancy, the
landlord and tenant may mutually agree to have the landlord deposit any
remaining portion of the security deposit electronically to a bank account or
other financial institution designated by the tenant.” (Ibid.) “After either the landlord or the tenant provides notice to
terminate the tenancy, the landlord and the tenant may also agree to have the
landlord provide a copy of the itemized statement along with the copies
required by paragraph (2) to an email account provided by the tenant.” (Ibid.)
Here, Plaintiffs sufficiently alleged a claim that Defendant
violated Civ. Code § 1950.5(g)(1). Notably, Plaintiffs allege
that Defendant remitted the security deposit to Plaintiffs’ counsel with
instructions to hold it pending resolution of this action. (Complaint ¶ 32.) The
plain reading of the statute indicates payment to the “tenant.” (Civ. Code §
1950.5(g)(1).) There is no authority before the court that “tenant” includes
their counsel in lawsuit against the landlord. Thus, Plaintiffs alleged that
Defendant failed to “furnish the tenant, by personal delivery or by first-class
mail, . . . a copy of an itemized statement . . . and . . . any remaining
portion of the security to the tenant.” (Civ. Code § 1950.5(g)(1).)
Accordingly, the court OVERRULES the
demurrer to the Tenth Cause of Action.
Eleventh
Cause of Action: Unfair Business Practices, Bus. & Prof. Code § 17200 et
seq.
Defendant contends Plaintiffs failed to
plead each element of the alleged wrongful business practice with
particularity. Additionally, Defendant contends this claim is duplicative of
other causes of action. Plaintiffs argue they sufficiently plead this claim and
it is not duplicative.[1]
California Business and Professions Code section 17200
prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus.
& Prof. Code § 17200; see Clark v.
Superior Court (2010) 50 Cal.4th 605, 610.) A business practice is unfair
when it offends an established public policy or when the practice is immoral,
unethical, oppressive, unscrupulous, or substantially injurious to
consumers." (Community Assisting
Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal.App.4th 886, 894.)
A business practice is unlawful if it violates another law. (Berryman v. Merit Property Management, Inc.
(2007) 152 Cal.App.4th 1544, 1554.) A business practice is fraudulent if
“members of the public are likely to be deceived." (See Wang v. Massey Chevrolet (2002) 97 Cal. App. 4th 856, 871.) “A
plaintiff alleging 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.)¿
Here, Plaintiffs sufficiently alleged a
claim for unfair business practices. While there are no allegations of
fraudulent business practices that concern the public—only allegations of
wrongdoing against the Plaintiffs themselves— the complaint does allege
violations of other laws.
Accordingly, the court OVVERRULES the
demurrer to the Eleventh Cause of Action.
Motion to Strike
Defendant seeks to strike the following portions of the
Complaint:
1. Page
25, lines 6-8: “Defendant’s intentional infliction of emotional distress has
been despicable, malicious, willful, knowing, cruel, unjust and oppressive,
thereby entitling Plaintiffs to punitive damages in an amount to be determined
at trial.”
2. Prayer,
Paragraph 4: “For punitive damages, according to proof on each cause of action
for which such damages are available.”
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.)
Here, Plaintiffs have
insufficiently alleged facts warranting punitive damages. First, Plaintiffs
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. 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 Defendant’s motion to
strike in full.
Leave to Amend
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 burden is on Plaintiff to establish that
the defect is reasonably capable of cure with leave to amend. (Hendy v. Losse (1991) 54 Cal.3d 723,
742.) Here, Plaintiffs requested leave to amend and there is a reasonable
possibility that they can cure the defects discussed above.
Accordingly, the court GRANTS leave to amend to address
the above defects.
CONCLUSION:
For
the foregoing reasons, the Court decides the pending motion as follows:
1. Demurrer
by Defendant individually is OVERRULED;
2. Demurrer
to the Seventh, Tenth, and Eleventh
Causes of Action is OVERRULED;
3. Demurrer
to the Eighth Cause of Action is SUSTAINED;
4. Motion
to Strike is GRANTED in full;
5. Plaintiffs
shall have 20 days’ leave to amend from notice of this ruling.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: December 5, 2024 __________________________________ Upinder
S. Kalra
Judge
of the Superior Court