Judge: Virginia Keeny, Case: 22STCV14075, Date: 2025-03-27 Tentative Ruling

Case Number: 22STCV14075    Hearing Date: March 27, 2025    Dept: 45

LATANNYA BANKS, ET AL. v. INNES HEIGHT APARTMENTS, ET AL.

DEMURRER WITH MOTION TO STRIKE FIRST AMENDED COMPLAINT

Date of Hearing:          March 27, 2025                       Trial Date:       Not Set

Department:               45                                            Case No.:         22STCV14075

Moving Party:             Defendant Barker Management, Inc.

Responding Party:       Plaintiffs Latannya Banks and Lelah Banks

Meet and Confer:       Matta Decl., ¶¶ 6-10; Exh. A

BACKGROUND

Plaintiffs Latannya Banks and Lelah Banks, a minor, initiated this action on April 27, 2022. Plaintiffs filed the operative First Amended Complaint (“FAC”) on August 26, 2024 against Defendants Innes Heights Apartments, Barker Management, Inc, and Dionne Jupiter, alleging causes of action for: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Statutory Breach of Warranty of Habitability (Civil Code section 1941 and 1941.1); (5) Tortious Breach of Implied Warranty of Habitability; (6) Violation of Business and Professions Code section 17200; (7)  Breach of Covenant of Quiet Enjoyment; (8) Violation of Civil Code §1942.4; (9) Negligent Violation of Statutory Duty to Maintain Habitable Conditions; (10) Private Nuisance; (11) Public Nuisance; and (12) Breach of Contract.

Plaintiffs allege that they sustained injuries from carpet beetle bites during their stay at an apartment complex owned and operated by Defendants.

[Tentative] Ruling

Defendant Barker Management’s Demurrer is SUSTAINED in part and OVERRULED in part. The demurrer is sustained without leave to amend as to the eighth cause of action for Civil Code section 1942.4 and tenth cause of action for public nuisance. It is overruled as to the sixth cause of action under the UCL.

Defendant Barker Management’s motion to strike is GRANTED without leave to amend.

ANALYSIS

Defendant Barker Management (“Defendant”) demurs to the sixth cause of action for Violation of Business and Professions Code section 17200, the eighth cause of action for Violation of Civil Code section 1942.4, and the eleventh cause of action for public nuisance, arguing they fail to allege facts sufficient to constitute causes of action.

Request for Judicial Notice 

Defendant requests this court take judicial notice of ALPA Health & Wellness’s publicly availably Form 990 filed with the IRS.

Defendant’s Request for Judicial Notice is GRANTED. (Evid. Code § 452(c).)  

Sixth (Business and Professions Code section 17200) Cause of Action

Defendant demurs to the sixth cause of action arguing that Plaintiffs’ sixth cause of action for violation of Bus. & Prof. Code § 17200 is specifically alleged under the “unlawful” prong. (FAC, ¶ 110). However, Defendant argues, the allegations supporting the claim are vague, conclusory, and deficient.

California’s Unfair Competition Law (“UCL”) prohibits unlawful, unfair or fraudulent business acts or practices.¿ (Bus. & Prof. Code, § 17200.)¿ UCL actions for “unlawful” conduct may be based on violations of other statutes.¿ (See¿Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.)¿ To assert standing under the UCL, a party must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.)  The remedies available under the UCL are limited to injunctive, restitutionary and related relief. (Bus. & Prof.Code, § 17203; State v. Altus Finance, S.A. (2005) 36 Cal.4th 1284, 1303.)

The FAC alleges that Defendants engaged in unlawful business acts and practices in violation of Business & Professions Code §17200 et seq., by violating numerous state laws, including but not limited to Civil Code §1941. While Defendant takes issue with the language that states “not limited to” and says Plaintiffs do not put Defendant on notice of what other statutes they claim Defendant violated, a demurrer cannot be sustained as to only a part of a cause of action.

Defendant also argues that Plaintiffs cannot show an economic injury because violation of Civil Code §1941 does not disentitle Defendants to rent. However, Plaintiffs have also alleged other restitutionary relief, such as a decrease in the value of their leasehold, lost income, and other things. (FAC., ¶ 117.)

As a result, the demurrer to the sixth cause of action is overruled.

Eighth (Civil Code section 1942.4) Cause of Action

Defendant demurs to the eighth cause of action, arguing that the FAC fails to specify any government entity that notified Defendants of any violations, and thus, Plaintiffs’ cause of action for violation of Civil Code § 1942.4 fails.

Civil Code section 1942.4 provides that “[a] landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit . . . if all of the following conditions exist prior to the landlord’s demand or notice:

(1)   [t]he dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling[;]

(2)   [a] public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions[;]

(3)   [t]he conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause . . . [; and]

(4) [t]he conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.” (Civ. Code, § 1942.4.)  

Health and Safety Code section 17920.3 provides that a building or dwelling unit is declared to be a substandard building if there is an infestation of insects, vermin, or rodents as determined by a health officer. (Health & Safety Code, § 17920.3(12).)  

Here, the FAC alleges that Defendants were sent two notices from APLA Health & Wellness to remove the carpet due to the carpet beetle infestation. The FAC also alleges that APLA Health & Wellness is a Health Center Program grantee under 42 U.S.C. 254b and a government actor that receives funds from the government. Further, that APLA Health & Wellness is deemed Public Health Service employee under 42 U.S.C. 233(g)-(n), qualified for protection under the Federal Tort Claims Act. (FAC, ¶ 139.)

Defendant contends that the FAC merely alleges that a nonprofit, nongovernmental organization, APLA Health & Wellness, requested that Defendants replace the carpet in Plaintiff’s rental unit. Defendant argues that APLA is not a public health service employee under 42 U.S.C. 254b which is a federal statute that applies solely to provide for medical malpractice liability protection; the statute does not create “public officers or employees” under Civil Code § 1942.4. Defendant argues that in fact, APLA’s publicly available and judicially noticeable tax return indicates that APLA is a nongovernmental organization that receives substantial support from government entities.

The Court agrees. Plaintiffs have failed to allege that a public officer responsible for the enforcement of any housing law, has notified Defendants to abate the issue. Further, as Defendant points out, the FAC similarly fails to allege that a public officer responsible for the enforcement of any housing law, even inspected the premises before notifying Defendants of the carpet beetles. It also fails to allege that the condition remained unabated without good cause for more than 35 days from the notice. For these reasons, the eight cause of action in Plaintiffs’ FAC fails to state sufficient facts to constitute a cause of action.

The demurrer to the eighth cause of action under Civil Code section 1942.4 is sustained.

Tenth (Public Nuisance) Cause of Action

Defendant demurs to the tenth cause of action for public nuisance arguing that the condition must impact a considerable number of people, and Plaintiffs fail to allege that it did.

A cause of action for public nuisance must allege the following elements: (1) defendant, by acting, or failing to act, created a condition that was: (a) harmful to health; or (b) obstructed the free use of the property so as to interfere with the comfortable enjoyment of life or property; (2) the condition affected a substantial number of people at the same time; (3) an ordinary person would be reasonably annoyed or disturbed by the condition; (4) the seriousness of the harm outweighs the social utility of the conduct; (5) plaintiff did not consent to the conduct; (6) plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm.  (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.) 

The FAC alleges that this carpet beetle infestation affects the community at large as this type of infestation is easily spread (1) from one apartment unit to another through wall voids, plumping and electrical outlets, light switches, any cracks or voids present, etc.; (2) through personal property of those occupying the units and/or apartments, including Plaintiffs’ furniture, bedding, clothing/apparel, shoes, and other personal belongings and tangible personal property that were exposed to the carpet beetle infestation, all of which can easily cause the spread of the infestation into the community and into another individuals’ residence thereby creating a risk of carpet beetle infestation in other individuals’ homes; and (3) spread of carpet beetle infestation from the home to the public and into their residence which can affect the community at large. (FAC, ¶ 159.)

As the Court noted in its ruling to Defendant’s prior demurrer, there are no facts alleging other people were also bitten by the carpet beetle. Moreover, simply because there is a risk of carpet beetles spreading does not mean that it did spread, or that others were bitten. As such, the FAC fails to allege that a substantial number of people were affected.

The demurrer is sustained on this ground.

Leave to Amend

As Plaintiffs were given an opportunity to amend the pleadings to cure these same deficiencies, and have failed to do so, and have also failed to show how the pleadings can be amended successfully, leave to amend is not permitted. Plaintiffs argue that discovery is ongoing. If Plaintiffs discover additional facts that may cure these deficiencies, they may move for leave to amend the FAC.

Motion to Strike

Defendant also moves to strike Plaintiffs’ request for attorney fees.

Attorney fees are allowable as costs when authorized by contract, statute, or law. (CCP 1033.5(a)(10)(A)-(C).)

Defendant argues that claims under Business and Professions Code are not subject to attorneys’ fees unless the underlying statute on which the unlawful violation is based authorizes an attorney fee award. The only statute referenced in the pleadings for this cause of action is Civil Code § 1941, which does not itself authorize recovery of attorneys’ fees. The Court agrees.

Next, Civil Code Section 1942.4(b)(2) provides, “The prevailing party shall be entitled to recovery of reasonable attorney’s fees and costs of the suit in an amount fixed by the court.” (Cal. Civ. Code, § 1942.4(b)(2).) As the demurrer to this cause of action is sustained, Plaintiffs are not entitled to attorney fees under this section either.

The motion to strike is therefore granted without leave to amend.