Judge: Virginia Keeny, Case: 22VECV00917, Date: 2022-10-28 Tentative Ruling
Case Number: 22VECV00917 Hearing Date: October 28, 2022 Dept: W
Raul Aguila, et al. v. hunt
properties inc., et al.,
demurrer
Date of Hearing: October 28, 2022 Trial Date: None set.
Department: W Case
No.: 22VECV00917
Moving Party: Cross-Defendant
Raul Aguila and Orley Onofre
Responding Party: None.
BACKGROUND
Hunt Properties, Inc. (“Hunt”) is the
owner of the commercial real property located at 7108 De Soto Avenue in Canoga
Park, California (“Subject Property”). Henry Becker (“Becker”) is a
manager and/or employee of Hunt. Since about 2015, Raul Aguila (“Aguila”)
was a tenant of the Subject Property. Orley Onofre (“Onofre”) is an
employee of Aguila. Aguila and Onofre (collectively, “Plaintiffs”),
allege, beginning in January of 2022, Becker has engaged in pattern of racist
and harassing behavior in an effort to drive-out Plaintiffs from the Subject Property,
and force Plaintiffs to terminate the governing lease agreement. Becker’s
harassment included physical harassment, and verbal harassment. Plaintiffs made clear they refused to vacate
the Subject Property despite Becker’s harassing behavior, Becker then served
Plaintiffs with a 30-day Notice to Quit, notifying Plaintiffs the tenancy had
ended and Plaintiffs would be required to vacate the Subject Property within
thirty days. Plaintiffs allege Hunt’s employment and failure to properly
train Becker constitutes negligence. Plaintiffs further allege Becker’s
conduct caused Plaintiffs’ emotional distress.
On July 5, 2022, Plaintiffs initiated
the present action by filing a Complaint against Hunt and Becker.
Plaintiffs allege causes of action for: (1) Negligence; (2) Negligent Retention
and Supervision; (3) Threats of Violence in Violation of Cal. Civ. Code §§
51.7(B); and (4) Intentional Infliction of Emotional Distress.
On September 8, 2022, Becker
(hereinafter “Defendant”) filed a Cross-Complaint against Plaintiff alleging causes
of action for: (1) Nuisance; (2) Intentional Infliction of Emotional Distress;
and (3) Negligence.
Plaintiffs Demur to Defendant’s
Cross-Complaint. Defendant did not file
any opposition.
[Tentative] Ruling
Plaintiffs’ Demurrer to
Defendant’s nuisance cause of action is OVERRULED.
Plaintiffs’ Demurrer to
Defendant’s IIED and Negligence causes of action are SUSTAINED, with 20 days
leave to amend.
LEGAL
STANDARD
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. (Taylor
v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th
1216, 1228.) 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. Therefore, it lies only where the defects appear on the
face of the pleading or are judicially noticed.” (SKF Farms v.
Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, 147
Cal.App.4th at p. 747.)
ANALYSIS
Plaintiffs demur to all of the causes of action in
the Cross-Complaint.
Nuisance
Virtually any disturbance of the enjoyment of property may
amount to a nuisance, so long as the interference is substantial and
unreasonable. (See Monks v. City of
Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302; see also Melton v.
Boustred (2010) 183 Cal.App.4th 521, 542.)
“The essence of a private nuisance is an interference with
the use and enjoyment of land.” (Friends
of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Thus, to allege a cause of action for private
nuisance, the plaintiff must allege injury specific to the use and enjoyment of
his land. (See Adams v. MHC Colony
Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.)
Whether the interference is substantial and unreasonable is
a question of fact requiring determination of all the circumstances of the
case. (See Mendez v. Rancho Valencia
Partners, LLC (2016) 3 Cal.App.5th 248, 263-64.)
Plaintiffs contend that Defendant fails to allege facts showing
interference that is substantial and unreasonable.
The Cross-Complaint alleges in relevant that Plaintiffs made
disruptive noise between midnight and 5:00 a.m., including banging on the walls
connected with Defendant’s unit, and smoked cigarettes in the common
areas. (Cross-Compl., ¶¶ 28-29.)
Here, the Court finds that making disruptive noises between
midnight and 5:00 a.m., which included banging on walls, would be substantial
and unreasonable. Whether in fact it occurred
and was substantial and unreasonable is a matter to be decided by the trier of
fact and not at the demurrer stage.
While the Court agrees with Plaintiffs that Defendant failed to allege
the specific facts constituting a nuisance under the allegations for this
specific cause of action, looking at all of the allegations in the
Cross-Complaint as a whole, the Court finds that Defendant has stated
sufficient facts to constitute a cause of action.
The Court notes that Plaintiffs’ contention that this cause
of action is duplicative of Defendant’s negligence cause of action is
misguided, as, is discussed below, Defendant failed to set forth the basic
elements to establish a cause of action for negligence.
Thus, Plaintiffs’ Demurrer to Defendant’s nuisance cause of
action is OVERRULED.
IIED
The elements of an intentional
infliction of emotional distress cause of action are: (1) extreme and
outrageous conduct by the defendant; (2) intention to cause or reckless
disregard of the probability of causing emotional distress; (3) severe
emotional suffering; and (4) actual and proximate causation of the emotional
distress. (See Moncada v. West Coast Quartz Corp. (2013) 221
Cal.App.4th 768, 780; Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)
To satisfy the element of extreme and outrageous conduct, defendant’s conduct
“‘must be so extreme as to exceed all bounds of that usually tolerated in a
civilized society.’” (Moncada, supra, 221 Cal.App.4th at 780 (quoting
Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878,
883).)¿¿
Behavior may be considered
outrageous if a defendant (1) abuses a relation or position which gives him
power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible
to injuries through mental distress; or (3) acts intentionally or unreasonably
with the recognition that the acts are likely to result in illness through
mental distress.” (McDaniel v. Gile (1991) 230 Cal.App.3d 363,
372.)¿¿
¿
“[I]t is not enough that the
defendant has acted with an intent which is tortious or even criminal, or that
he has intended to inflict emotional distress, or even that his conduct has
been characterized by ‘malice,’ or a degree of aggravation which would entitle
the plaintiff to punitive damages for another tort.” (Cochran v.
Cochran (1998) 65 Cal.App.4th 488, 496.) “Liability has been found
only where the conduct has been so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” (Id.)
While there is no bright-line as to what constitutes outrageous conduct and
thus this involves a case-by-case analysis, courts can determine whether
conduct was sufficiently outrageous at the demurrer stage. (Id. at
494.)¿
“Severe emotional distress means
emotional distress 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.)¿¿
Plaintiffs contends that
Defendant failed to allege facts to show that they intended to injure
Defendant, and allege facts to show outrageous conduct. The Court agrees.
A review of the Cross-Complaint
reveals that Defendant failed to allege sufficient facts to show that
Plaintiffs intended or acted with reckless disregard of the probability of
causing emotional distress.
In addition to the facts alleged above,
Defendant alleges that Plaintiffs were connected to multiple crimes at the
Subject Property, created tortious acts against Defendant, Plaintiffs were
served with subpoenas for crimes committed at the Subject Property, Aguila has
been in prison and reprimanded for tax fraud, Defendant has over 60 notices
related to Plaintiffs’ tortious acts, Plaintiffs have invited guests to the
Subject Property to threaten and intimidate Defendant, Plaintiffs left the air
conditioning and lights on and caused financial damage to Defendant, and
Plaintiffs filed false police report.
(Cross-Complaint ¶¶ 6-31.)
Here, some of the allegations
included by Defendant do not relate to Plaintiffs acts against Defendant, but
relate to their acts against other persons.
In addition, Defendant’s conclusory allegations that Plaintiffs committed
tortious acts against Defendant is insufficient to establish that they engaged
in extreme and outrageous conduct.
Furthermore, Defendant fails to allege that he suffered emotional
distress.
Thus, Plaintiffs’ Demurrer to
Defendant’s IIED cause of action is SUSTAINED, with 20 days leave to amend.
Negligence
The elements for negligence are:
(1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3)
causation; and (4) damage to the plaintiff. (County of Santa Clara v.
Atlantic Richfield Co.¿(2006) 137 Cal.App.4th 292, 318.)¿¿
Plaintiffs contend that Defendant
failed to allege what duty they owed him, that there was a breach of that duty,
and that they caused Defendant’s injury.
Defendant’s allegations reveals
that Defendant simply alleges that Plaintiffs “for years, has been put on
notice with complete disrespect for any building rules or regulations,
cross-defendant has lost tenant income, customers.” (Cross-Compl., ¶ 42.) In addition, Defendant alleged that as a
result of Plaintiffs “negligence,” he suffered financial damages. (Id. at ¶ 43.)
Defendant’s Cross-Complaint
reveals that Defendant failed to allege the duty that Plaintiffs’ owed him,
that they breached that duty, and that as a result of breaching that duty they
caused Defendant’s injuries.
Thus, Plaintiffs’ Demurrer to Defendant’s
Negligence cause of action is SUSTAINED, with 20 days leave to amend.
CONCLUSION
Plaintiffs’ Demurrer to
Defendant’s nuisance cause of action is OVERRULED.
Plaintiffs’ Demurrer to
Defendant’s IIED and Negligence causes of action are SUSTAINED, with 20 days
leave to amend.