Judge: Virginia Keeny, Case: 22VECV00533, Date: 2023-01-10 Tentative Ruling
Case Number: 22VECV00533 Hearing Date: January 10, 2023 Dept: W
bo bennike, et al. V. jmf development, et al.
demurrer and motion to strike Plaintiff’s second
amended complaint
Date of
Hearing: January 10, 2023 Trial Date:
Department: W Case No.: 22VECV00533
Moving
Party: Defendants, JMF Development LLC
and JMF Enterprises II LLC
Responding
Party: None
BACKGROUND
Plaintiffs Bo Bennike
and Shania Warren-Bennike (collectively, “Plaintiffs”) allege that they were tenants of the
property located at 13951 Moorpark St., Sherman Oaks, CA, 91423 (the “Subject
Property”), owned and operated by Defendants JMF Development LLC and JMF
Enterprises II LLC (collectively, “Defendants”). 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 filed a complaint on April
14, 2022. The FAC was filed on July 28, 2022. On September 9, 2022, Defendants
filed a demurrer as to the cause of action for intentional infliction of
emotional distress and a motion to strike as to the claims for punitive
damages. On October 13, 2022, the Court overruled Defendants’ demurrer and
granted the motion to strike with 20 days leave to amend.
Plaintiffs filed
the operative Second Amended Complaint (“SAC”) alleging: (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.
On November 28, 2022,
Defendants filed the instant demurrer and motion to strike. As of January 5,
2022, there has been no opposition filed.
Defendants
demur to the eighth cause of action for intentional infliction of emotional
distress on the grounds that the SAC 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
1.
Defendants’ demurrer to the eighth cause of action for
IIED is overruled.
2.
Defendants’ motion to strike is granted, without 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.) A demurrer tests the pleadings alone and not the
evidence or other extrinsic matters. Therefore, the defects must be apparent on
the face of the pleading or via proper judicial notice. (Code Civ. Proc., §§
430.30, 430.70; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th
968, 994.) At the pleading stage, a plaintiff need only allege ultimate facts
sufficient to apprise the defendant of the factual basis for the claim against
him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The court
assumes the truth of the complaint’s properly pleaded or implied factual
allegations. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) A “demurrer
does not, however, admit contentions, deductions or conclusions of fact or law
alleged in the pleading, or the construction of instruments pleaded, or facts
impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d
725, 732.)
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
Meet and
Confer
Defendants
have filed a declaration showing an attempt to meet and confer. (Buddingh Decl.
¶ 2). Defense
counsel states that parties met and conferred via email about issues on
November 21, 2022; however, the parties could not come to an agreement. (Buddingh
Decl. ¶ 2.)
Defendant has complied with the meet
and confer requirement.
Demurrer – Eighth Cause of Action –
IIED
The Court previously overruled
Defendants’ demurrer as to the IIED cause of action on October 13, 2022.
Case law is split on whether a defendant
may properly demur to the amended complaint on grounds overruled in the prior
demurrer. At lease one case holds such demurrers are improper because the court is “foreclosed from
rendering a new determination on the viability of those claims” absent a
timely motion for reconsideration under CCP § 1008.” (Bennett
v. Suncloud (1997) 56 Cal.App.4th 91, 96-97.) However, other courts
have allowed demurrers to amended pleadings on grounds previously overruled. (See Pacific States Enterprises, Inc. v.
City of Coachella (1993)
13 Cal.App.4th 1414, 1420.) Due to this split, the Court will consider Defendants’
demurrer.
However, the Court finds that Defendants’
demurrer largely repeats the same arguments in the previous demurrer, and thus
has the same deficiencies.
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 cause of
action for IIED fails because the SAC “makes contradictory general allegations
that Defendants failed to address their concerns, when earlier and more
specific allegations plead the contrary.” (Demurrer 6: 18-19.) In addition,
Defendants argue that there are no specific facts indicating that Defendants
engaged in any willful or intentional conduct.
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. (SAC ¶ 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. (SAC ¶
99.) 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.”].) This requirement is also satisfied where defendant is
aware of plaintiff’s presence and commits outrageous acts with reckless
disregard of the probability that those acts will cause plaintiff severe
emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6
Cal.4th 965, 1001-1002.)
Defendants argue that the complaint
fails to allege any specific facts that their actions were intentional or
reckless. (Demurrer 7:20-21.) Plaintiffs have adequately alleged at least reckless
disregard for the natural consequences of their action and inaction. Plaintiffs
allege various serious problems with the property that are likely to cause
health issues, e.g. water intrusion, black mold, sewage leakage. They allege
that Defendants should have known about the health effects of the exposure to
these problems, and that they intentionally failed to address these serious and
dangerous conditions. (Compl. ¶ 93, 99.) This is sufficient at this stage to at
least show reckless disregard for the natural consequences of their 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 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.)
Defendants argue that the complaint
does not allege any facts that would constitute severe or extreme emotional
distress. The court disagrees. Plaintiffs have alleged that plaintiffs suffered
sleeplessness, worry, fear, discomfort, and that their health deteriorated
due to the mold, water intrusion, and the stench of sewage. (SAC ¶ 93, 97.) These
allegations are sufficient to state a claim for IIED.
Inconsistent claims
Defendants argue that Plaintiff’s IIED
cause of action should be overruled because their claims are inconsistent. They
state that the allegation that the SAC allegation that “Starting in 12/2/21,
and periodically thereafter, Plaintiffs informed Defendants about the water
intrusion, moisture concerns, the existence of mold, the stench of sewage at
the Property and other health, safety, and nuisance concerns regarding the
Property” (SAC ¶ 91) is inconsistent because Plaintiffs allege also that “in
early January 2022, Plaintiffs smelled strong foul odors throughout their unit”
(SAC ¶ 18) and “In January 2022, there was a major sewage leak at the
Property’s main sewage line.” (SAC ¶ 15.)
Although it is unclear what Plaintiffs
had complained about starting in December of 2021 because the rest of the
problems seem to have been brought to Plaintiffs attention in early 2022, this inconsistency
does not render this cause of action insufficient. Plaintiff still has
sufficiently alleged outrageous conduct, intentional actions, and severe emotional
distress.
Defendants’ demurrer is
overruled.
Defendant’s Motion to Strike –
Punitive Damages
Defendants
move to strike paragraph 99 of the complaint and the prayer for punitive
damages. The Court previously granted the motion to strike as to these punitive
damages allegations. The court agrees that plaintiffs have again failed to
adequately allege a claim for punitive damages.
The SAC
provides the additional allegation that “Starting in 12/2/21, and periodically
thereafter, Plaintiffs informed Defendants property managers about the water
intrusion, moisture concerns, the existence of mold, the stench of sewage at
The Property and other health, safety and nuisance concerns regarding the
Property. Plaintiffs complained to Defendants property managers that the
condition of the Property displaced them from their home and caused them to
suffer emotional and physical damages. Defendants had the means to remedy to
issues that caused harm to Plaintiffs but intentionally failed to do so.
Instead of remediating the issues at the Property, Defendant’s property
managers harassed the Plaintiffs. The conduct alleged herein warrants an award
of punitive damages because Defendants’ conduct was willful, malicious and
oppressive.” (SAC ¶ 99.)
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 SAC only states
that the Plaintiffs complained to the property managers about the conditions of
the property. The SAC 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.
Plaintiffs have filed no opposition to
this motion to strike.
Because the court has already given
Plaintiffs leave to amend to remedy this deficiency and they have failed to do
so, the court does not grant leave to amend.
CONCLUSION
Defendants’ Demurrer
is OVERRULED. Defendants’ Motion to Strike is GRANTED without leave to amend.