Judge: Virginia Keeny, Case: 22VECV00917, Date: 2023-03-27 Tentative Ruling
Case Number: 22VECV00917 Hearing Date: March 27, 2023 Dept: W
RAUL AGUILA,
et al. v. hunt properties inc., et al.
Demurrer to the first amended
complaint
Date of Hearing: March
27, 2023 Trial
Date: None Set.
Department: W Case No.: 22VECV00917
Moving Party: Cross-Defendant Raul Aguila and Orley Onofre
Responding Party: Cross-Complainant
Henry Becker
BACKGROUND
Hunt Properties, Inc. is the owner of
the commercial real property located at approximately 7108 De Soto Avenue in
Canoga Park, California (“Subject Property”). Henry Becker (“Defendant Becker”)
is a manager and/or employee of Defendant Hunt.
Since about 2015, Raul Aguila (“Plaintiff Aguila”) was a tenant of the
Subject Property. Orley Onofre
(“Plaintiff Onofre”) is an employee of Plaintiff Aguila. Plaintiffs Aguila and Onofre (collectively,
“Plaintiffs”), allege, beginning in January of 2022, Defendant Becker has
engaged in pattern of racist and harassing behavior in an effort to drive-out
Plaintiffs from the Subject Premises, and force Plaintiffs to terminate the
governing lease agreement. Defendant Becker’s harassment included physical
harassment, and verbal harassment.
Plaintiffs allege, when Plaintiffs made clear they refused to vacate the
Subject Property despite Defendant Becker’s harassing behavior, Defendant
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 Defendant Hunt’s
employment and failure to properly train Defendant Becker constitutes
negligence. Plaintiffs further allege
Defendant Becker’s conduct caused Plaintiffs’ emotional distress.
On July 5, 2022, Plaintiffs initiated
the present action by filing a Complaint against Defendant Hunt and Defendant
Becker (collectively, “Defendants”). Plaintiff’s Complaint alleges the
following causes of action: (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.
Defendant Becker filed an amended
cross-complaint against Plaintiffs on November 17, 2022 asserting causes of
action for (1) Nuisance; (2) Intentional Infliction of Emotional Distress; and
(3) Negligence.
Request for entry of default was
entered September 13, 2022. Plaintiff filed an amendment to complaint to correct
Defendant Hunt’s name to H.U.N.T. Properties, Inc.
The court set aside the request for
entry of default on February 28, 2023.
[Tentative] Ruling
Cross-Defendants
Aguila and Onofre’s Demurrer to the Second and Third Causes of Action is
SUSTAINED WITH LEAVE TO AMEND.
DISCUSSION
Cross-Defendants
Aguila and Onofre (“Cross-Defendants”) move this court for an order sustaining Cross-Defendants’
demurrer to the first, second, and third causes of action on Cross-Complainant
Becker’s Cross-Complaint. Cross-Defendants make the demurrer on the grounds that
the complaint fails to state facts sufficient to constitute any cause of action
against Cross-Defendants and is uncertain.
Nuisance
Cross-Defendants
demur to the first cause of action for nuisance. However, this court has
previously overruled Cross-Defendants demurrer to Cross-Complainant Becker’s
nuisance cause of action. (See October 28, 2022 Minute Order.)
Accordingly,
Cross-Defendants demurrer to the first cause of action is OVERRULED.
Intentional
Infliction of Emotional Distress
Cross-Defendants
demur to the second cause of action for intentional infliction emotional
distress on the grounds the cross-complaint fails to allege Cross-Defendants
intended to injure Becker and there can be no finding of “outrageous conduct”
where Cross-Defendant’s conduct was passive.
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.)¿¿
The court
previously found Becker failed to allege sufficient facts to show that Cross-Defendants
intended or acted with reckless disregard of the probability of causing emotional
distress. (Minute Order, October 28, 2022.) Cross-Complainant’s amended complaint
did not correct these issues.
Cross-Complainant
Becker has added new allegations, however, that on April 18, 2022, two men had
come to beat up Raul Aguila. (FAC ¶9.) Becker alleges he happened to be
sleeping that night in the office and as a result, “this event and many other
outrageous tortious acts have caused the dramatic interruption of sleep,
causing worry, stress and anxiety that has caused changes to regular planned
daily routines even weight gain of the Cross-Complainant.” (FAC ¶9.) However, it
is unclear how this altercation was intended to cause Becker emotional
distress. Cross-Complainant Becker also adds allegations that when
Cross-Defendants invited transients to live on the property, it caused Becker
dramatic interruption of sleep, worry stress and anxiety that has caused him to
change his regular planned daily routines. (FAC ¶26.) Again, it is unclear how
such an event was an intention to cause or reckless disregard of the
probability of causing emotional distress.
Similarly,
Cross-Complainant Becker has not sufficiently alleged they engaged in extreme
and outrageous conduct. Becker alleges Cross-Defendants belligerently yelled
out “how much do you want for your building?” “Do you want to sell your car for
$3,000.00” while smoking and laughing then speaking Spanish to his customer or
co-workers, which Plaintiff alleges, was meant to humiliate, intimidate, and to
instill strife and dissention. (FAC ¶29.) Cross-Complainant Becker also alleges
Cross-Defendant was put on notice for entering the women’s bathroom, which has
worried Becker for the safety of his tenants and has caused continuous stress
and anxiety. (FAC ¶31.) The act of asking whether Becker was selling his
building or car then speaking Spanish does not rise to the level of extreme and
outrageous. (See Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496
[stating that IIED does not extend to “mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.”].)
Accordingly,
Cross-Defendants’ demurrer to the second cause of action is SUSTAINED WITH
LEAVE TO AMEND.
Negligence
Cross-Defendants demurrer to the third cause of action for
negligence on the grounds Cross-Complainant fails to plead that the
Cross-Defendant had any legal duty to use due care as a commercial tenant in
the subject property; the breach by Cross-Defendant of any such legal duty (if
any); and the reach as the proximate or legal cause of the resulting injury.
Becker now alleges Cross-Defendants owed a legal duty under Code
of Civil Procedure section 1161(3) and (4) but because Cross-Defendants could
have prevented wrongdoing’s, they have breached their duty. Code of Civil Procedure
section 1161(3) says that a tenant can be evicted if the tenant is violating a
term of the lease or rental agreement. Code of Civil Procedure 1161(4) allows a
landlord to evict a tenant if the tenant is causing a nuisance at the rental
property. This statute does not create a duty, but rather states the actions a
landlord may take when a tenant has violated the terms of a lease or is causing
a nuisance.
Accordingly,
Cross-Defendants’ demurrer to the third cause of action is SUSTAINED WITH LEAVE
TO AMEND.
Uncertainty
Cross-Defendants demur to the complaint on the grounds it is
uncertain. Cross- Defendants contend the Cross-Complaint is ambiguous and
uncertain as to how they can maintain their causes of action and Cross-Complainant
appears to be attempting to twist their basic landlord/tenant dispute into an
unsupported and inadequately plead intentional tort-based cause of action,
which is not proper.
The court sustains Cross-Defendants
demurrer for uncertainty. “A demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly’s of
California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty
will be sustained only where the complaint is so bad that defendant cannot
reasonably respond—i.e., he or she cannot reasonably determine what issues
must be admitted or denied, or what counts or claims are directed against him
or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) §
7:85 (emphasis in original).) The court agrees that the Cross-Complaint is so
uncertain that Cross-Defendants cannot reasonably respond thereto. Cross-complainants
need to clearly articulate what conduct by cross-defendants was directed at
them or affected them, a sufficient description of that conduct including when
and where it occurred, and how it impacted or injured the
cross-complainants. The demurrer is
sustained with one more opportunity to amend.