Judge: Virginia Keeny, Case: 22VECV00533, Date: 2022-10-13 Tentative Ruling

Case Number: 22VECV00533    Hearing Date: October 13, 2022    Dept: W

Bo Bennike, et al. V. jmf development, et al. 

[demurrer with motion to strike] 

Date of Hearing:          October 13, 2022                    Trial Date:        None set.

Department:               W                                             Case No.:          22ECV00533

Moving Party:             Defendants JMF Development, LLC and JMF Enterprises II, LLC

Responding Party:       Plaintiffs Bo Bennike and Shania Warren-Bennike

BACKGROUND 

Plaintiffs allege that as tenants of Subject Property, they were forced to live under uninhabitable conditions. They allege that the subject property suffered a major sewage leak that resulted in the stench of sewage for several months. At one point there was toxic black mold in the apartment. During the remediation to address the mold problem, their apartment had no heat for seven days during the winter. There was a water leak in Plaintiffs’ unit due to faulty dishwasher, and Defendants had to remove the floor and wall from the kitchen. The also allege that the security gates don’t close and make excessive noise, the hardwood floors were improperly installed and cause excessive noise, as does the elevator.  Plaintiffs claim they have complained about these defects, but Defendants ignored their complaints and subjected them to harassment.

Plaintiffs Bo Bennike and Shania Warren-Bennike filed a complaint on April 14, 2022. The FAC was filed on July 28, 2022. The FAC alleges eight causes of action:

(1) Negligence,

(2) Breach of Implied Warranty of Habitability,

(3) Intentional Violation of Statutory Duty to Maintain Habitable Conditions,

(4) Negligent Violation of Statutory Duty to Maintain Habitable Conditions,

(5) Breach of Contract,

(6) Breach of the Covenant of Quiet Enjoyment,

(7) Nuisance, and

(8) Intentional Infliction of Emotional Distress.

Defendant’s current Demurrer with Motion to Strike was filed September 9, 2022. Plaintiffs’ Opposition was filed on September 30, 2022. Defendants’ reply was filed on October 6, 2022. The moving papers are timely.

Defendants demur to the eighth cause of action for intentional infliction of emotional distress on the grounds that the FAC fails to state sufficient facts to support the cause of action and the cause of action is uncertain, ambiguous, and unintelligible.  [The court notes that there are only eight causes of action, but the last cause for IIED is sometime referred to as the eighth and sometimes as the ninth cause of action.  The court will refer to it as the eighth cause of action in this decision. 

[TENTATIVE] RULING 

 Demurrer as to the IIED claim is overruled.

Motion to Strike is sustained with leave to amend.

LEGAL STANDARD 

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. (Code Civ. Proc., § 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:

Defendants demur to the ninth cause of action on the grounds that the FAC fails to state sufficient facts to constitute a cause of action and the ninth cause of action is uncertain, ambiguous, and unintelligible.

 Eigth Cause of Action: Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress requires the Plaintiff to show “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160). Conduct is considered outrageous when it “is so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Id.).

Defendants argue that the IIED cause of action fails to allege outrageous conduct, fails to allege Defendants’ intent to cause emotional distress, and fails to allege Plaintiffs suffered any severe or extreme emotional distress. (Demurrer 6: 21 – 7: 7.)

            Outrageous Conduct

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.) Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Id.)

Defendants argue that the conduct alleged is not outrageous. Specifically, the complaint alleges that Plaintiffs informed Defendants of various conditions that needed to be repaired and that in response to those complaints, Defendants made repairs. (FAC ¶ 16 [hired company to clean up raw sewage], ¶ 23 [hired mold remediation specialists], ¶ 29 [replaced floorboards], and ¶ 33 [removed floor and wall of kitchen].)  While it is true that some of the allegations in the complaint do not rise to the level of outrageous conduct (e.g., a noisy elevator or squeaky security gate), many of the allegations are of far more serious conditions.  Plaintiffs allege that defendants knew of leaking sewage but allowed the condition to continue unabated for months, despite the obvious health and safety issues posed; that defendants allowed the allegedly toxic mold to remain unabated for a lengthy period; and when remediating it, forced plaintiffs to live without heat for a week during the winter months; that defendants undertook repairs in such a manner that they allowed vermin infestations and other health issues.  A jury could find that such conduct, if proven, was outrageous and not to be tolerated in a civilized society. 

            Intentional Conduct

For an IIED, the complaint must allege that the defendant intended to cause emotional distress. (Yau, supra, 229 Cal.App.4th at pg. 160.) “The tort calls for intentional, or at least reckless conduct -- conduct intended to inflict injury or engaged in with the realization that injury will result.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210, citing to Spackman v. Good (1966) 245 Cal.App.2d 518, 530 [“Where the offensive conduct was not undertaken for the purpose of causing the harm received proof of the intent of the actor to cause such harm, in substance, may be supplied by proof of circumstances showing the conduct was of that nature which reasonably should have been recognized as likely to cause the harm sustained.”].) Defendants argue that the complaint fails to allege any specific facts that their actions were intentional or reckless. (Demurrer 6: 21-26.)

Plaintiffs argue that their intent or reckless disregard can be inferred from their knowing failure to maintain the property. Plaintiffs rely on Erlach for the proposition that intent can be inferred from a landlord’s action. In Erlach, the intent to evict can be evidence by creating circumstances forcing tenants to leave. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300 [“[A]ny disturbance of the tenant's possession by the lessor or at his procurement ... which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time.”].)  The court agrees that plaintiffs have adequately alleged intentional conduct on the part of the landlord to cause emotional distress on plaintiffs, or reckless disregard for the natural consequences of their action and inaction. 

            Severe or Extreme Emotional Distress

Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal. App. 4th 1354, 1376.)  Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.)

Under the forgoing authority, allegations that a defendant’s conduct caused a plaintiff to suffer a heart attack, was sufficient for an IIED cause of action.  (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal. App. 3d 222.)  Similarly, allegations that a plaintiff suffered depression, anxiety, and physical illness, including vomiting, stomach cramps, and diarrhea, were adequate for an IIED claim. (Hailey v. California Physicians' Service (2007) 158 Cal. App. 4th 452, as modified on denial of reh'g (Jan. 22, 2008).)  In contrast, allegations that a plaintiff lost sleep, had symptoms of anxiety, and suffered from nervousness, but sought no medical treatment, are not adequate to state a claim for IIED.  (Girard v. Ball (1981) 125 Cal. App. 3d 772.)

Defendants argue that the complaint does not allege any facts that would constitute severe or extreme emotional distress. (Demurrer 7: 13-18.) The court disagrees.  Plaintiffs have alleged that plaintiffs suffered sleeplessness, worry, fear, and that their health deteriorated due to the mold, exposure to cold and vermin, and the presence of noxious fumes.  These allegations are sufficient to state a claim for IIED. 

Motion to Strike

Defendants move to strike paragraph 99 of the complaint and the prayer for punitive damages.  The court agrees that plaintiffs have failed to adequately allege a claim for punitive damages.  Although the conduct alleged is sufficient to support a finding of “malice, oppression or fraud,” as required for punitive damages, the complaint fails to identify or allege that the required advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice was undertaken by an officer, director or managing agent of the corporate defendants.   The court grants the motion to strike with 20 days leave to amend.