Judge Virginia Keeny, Case 22VECV01087 2023-01-03 Tentative Ruling

On August 2, 2022, Plaintiffs Octavio Martinez, Yajaira Martinez, Octavio Martinez Jr., Jessica A. Flores, Alexis Alas, Chalsea Ruiz, Kinia Gudiel, David Rosales, Juana Lopez, and Sandy Avarez filed a complaint against Defendants Isaac E Weizer Trust, Marquis Property Investments LLC and Wyandotte LLC for breach of warranty of habitability, negligent maintenance of premises, nuisance, breach of quiet enjoyment, and intentional infliction of emotional distress.

Plaintiffs allege in violation of federal and state anti-discrimination laws, Defendants have engaged in concerted and unlawful efforts to push out the tenant Plaintiffs because Plaintiffs are Latino tenants with children. Plaintiffs allege Defendants have targeted Plaintiffs in order to raise rents on those units and market the units to childless, English-speaking people of means.

Defendant Wyandotte, LLC’ Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant Wyandotte’s Motion to Strike is MOOT.

Defendant Marquis Property Investments, LLC’s Demurrer to the Fourth Causes of Action is SUSTAINED WITH LEAVE TO AMEND. The remainder of the demurrer is overruled. Defendant’s Motion to Strike is GRANTED WITH LEAVE TO AMEND.

I. DEFENDANT WYANDOTTE, LLC’S DEMURRER WITH MOTION TO STRIKE PLAINTIFFS’ COMPLAINT

Defendant Wyandotte, LLC demurs to the complaint on the grounds the entire complaint fails to state facts sufficient to constitute a cause of action and is uncertain.[1]

Defendant first demurs to the complaint on the grounds all of Plaintiffs’ claims are time-barred by the applicable statute of limitations. Defendant argues all five causes of action are based on a landlord-tenant relationship existing by virtue of Defendant Wyandotte’s ownership of the Property where Plaintiffs resided. However, as reflected in the records recorded with the Los Angeles County Recorder’s Office, Defendant Wyandotte sold the Property in August 2014 and had no ownership interest in the Property after that date.[2]

Breach of warranty of habitability and breach of quiet enjoyment are contract actions and therefore subject to the statute of limitations governing contracts. The statute of limitations is four years if based on a written contract (written lease agreement) or two years if based on an oral contract. (See CCP §337(a); 339(1).) The statute of limitations for intentional infliction of emotional distress is two years. (See CCP§ 335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.) As for nuisance, the statute of limitations is three years (CCP §338(b) and the statute of limitations for negligent maintenance of premises is two years (CCP §335.1).

In opposition, Plaintiffs argue Defendant Wyandotte fails to recognize that Plaintiffs Rosales, Lopez and Avarez have been tenants of the subject property since 2006 and had complained of the violations during the time Defendant Wyandotte owned the subject property and notwithstanding the divestment, the violations continued from the period of Wyandotte’s ownership until now. Plaintiffs further argue the delay discovery rule bars the applicability of statute of limitations and because of the special relationship between the parties involving a fiduciary duty, public policy requires that any claims against Defendants is not statute barred.

The court finds the claims against Defendant Wyandotte are barred by the statute of limitations. In the complaint, Plaintiffs allege Plaintiffs Octavio Martinez, Yajaira Martinez, Octavio Martinez Jr., Jessica A. Flores, Alexis Alas, Chelsea Ruiz, and Kinia Gudiel resided at the property starting 2017 – three years after Defendant Wyandotte sold the property. (RJN Exh. A.) Plaintiffs do not address how Defendant Wyandotte would be liable for breach of warranty of habitability, negligent maintenance of premises, nuisance, breach of quiet enjoyment, or intentional infliction of emotional distress when these Plaintiffs were not tenants of the subject property when Defendant owned the property. Furthermore, the court finds Plaintiffs argument regarding Plaintiffs Rosales, Lopez, and Alvarez is without merit. Plaintiffs in the same breath argue they had complained of the violations during the time Defendant Wyandotte owned the subject property in 2014 but the delayed discovery rule bars the applicable statute of limitations. In other words, Plaintiffs contend they knew close to eight years ago of the violations (which far exceed any of the applicable statute of limitations) but the accrual should be delayed. Plaintiffs make this argument on the basis of a fiduciary relationship. However, Plaintiffs have failed to allege any fiduciary relationship between Plaintiffs and Defendant Wyandotte.

Plaintiffs have not established that they can add facts to cure this deficiency in the complaint. Accordingly, Defendant Wyandotte’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Wyandotte moves to strike the phrase “and punitive” from paragraph 7, the entirety of paragraphs 122 and 156 and Item 6, line 20 on page 34 in the Prayer for Relief.

Because the court sustains the demurrer without leave to amend, the court finds the motion to strike moot.

II. DEFENDANT MARQUIS PROPERTY INVESTMENTS LLC’S DEMURRER WITH MOTION TO STRIKE

Defendant Marquis Property Investments, LLC demurs to the first, third, fourth, and fifth causes of action of the complaint on the grounds Plaintiffs do not state facts sufficient to constitute a claim against Defendant.

Defendant Marquis demurs to the first cause of action for breach of warranty of habitability for failure to state facts sufficient to constitute a claim against Defendant Marquis.

There is an implied warranty of habitability in all residential leases in California. This mean that a landlord must ensure that a leased premises is maintained in a habitable condition- that is, the landlord will maintain “bare living requirements.” (Green v. Superior Court (1974) 10 Cal.3d 616, 637.) The elements for a breach of the implied warranty of habitability cause of action are: (1) the existence of a material defective condition affecting the premises’ habitability; (2) notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition; (3) the landlord was given a reasonable time to correct the deficiency; and (4) resulting damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

Defendant Marquis first argues Plaintiffs’ failure to attach a contract or allege its terms renders Plaintiffs’ contract-based claims subject to demurrer. However, the court disagrees. Plaintiffs have sufficiently alleged the existence of the rental agreement between Plaintiffs and Defendant. Next, Defendant argues Plaintiffs fail to allege specific pleading requirements to support their first cause of action. Specifically, Plaintiffs do not allege the condition was unknown to the tenant at the time of the occupancy, the effect of the condition on habitability was not apparent on reasonable inspection, and the landlord was given a reasonable time in which to correct the defect. However, the first two are not required to plead a breach of habitability cause of action. Moreover, Plaintiffs have sufficiently alleged Defendants were given a reasonable time to correct the defects.

Lastly, Defendant Marquis argues the claim is terminally uncertain, vague and ambiguous. Defendant argues while this action may be brought on the basis of an allegation of violation of Civil Code § 1942.4, it is unclear in the instant matter since the only section in which this section of the Civil Code is invoked is in the prayer for relief and no allegations to this effect appear anywhere in the text of in Plaintiffs’ first cause of action.

The express language in Civil Code section 1942.4, subdivision (b)(1) provides, “[a] landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000).” Therefore, as long as Plaintiffs have alleged facts which could show a violation of the section, Plaintiffs may state a claim for a Civil Code section 1942.4 violation. The court finds Plaintiffs have sufficiently alleged violation of section 1942.4.

Defendant Marquis demurs to the third cause of action for nuisance on the grounds Plaintiffs inadequately allege facts necessary to constitute essential elements of a private nuisance cause of action within the meaning of Civil Code, sections 3479, et seq.

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.) A nuisance claim is a negligence claim if the negligence and nuisance causes of action rely on the same facts about lack of due care. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 542; El Escorial Owners’ Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) This means that there must still be facts regarding duty and breach of duty.

Defendant Marquis argues Plaintiffs’ allegations are neither substantial or unreasonable nor have they alleged specifically Defendant Marquis’ involvement in the nuisance. Defendant Marquis further argues Plaintiffs’ allegations of past activity cannot serve as a basis for private nuisance and moreover, Plaintiffs’ private nuisance claim is subsumed by their negligence claim.

Plaintiffs allege Defendants created a nuisance by creating a defective and dangerous condition on the premises. (Compl. ¶107.) This includes leaving the property with mold, holes everywhere, water leaks, mold in the hallway and closet, fungi, and black spots as well as roaches, gnats, rats, and bed bug. (Compl. ¶108.) As a result of the infestation, Plaintiffs allege they had trouble sleeping and lost sleep, fearing they would be eaten by the roaches, rats, and bed bugs during the night. (Compl. ¶108.) As a result of Defendants’ maintenance of the nuisance, Plaintiffs have suffered extreme discomfort and annoyance. (Compl. ¶109.)

Based on these allegations, the court finds Plaintiffs have sufficiently alleged a substantial and unreasonable interference with the enjoyment of the property for the purposes of a demurrer. Plaintiffs have alleged they were unable to enjoy sleep in their unit due to Defendants’ failure to correct the substandard and uninhabitable conditions of the property. The court further finds Plaintiffs have sufficiently alleged Defendant Marquis’ active participation in the creation of nuisance by failing to make necessary repairs and maintaining the unit. Furthermore, the court finds Plaintiffs have not improperly alleged past activity. The allegations do not allege Defendants have abated the nuisance. Rather, the allegations state the units remain infested with toxic mold and fungi. Lastly, the court finds any duplicativeness of the negligence and nuisance cause of action is not appropriate at the demurrer stage. Van Zyl did not arise on demurrer, and Defendant does not cite any legal authority for the proposition that demurrer is appropriate or must be sustained to a nuisance claim that is predicated on the same factual basis as a negligence claim.

Defendant Marquis demurs to the fourth cause of action for breach of covenant of quiet enjoyment for failure to state facts sufficient to constitute a claim against Defendant Marquis and the claim is uncertain.

“[E]very lease includes a covenant of quiet possession and enjoyment.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 (citing Civ. Code, § 1927).) “Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) “To be actionable, the [landlord’s] act or omission must substantially interfere with a [tenant’s] right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Id.)

Defendant Marquis argues Plaintiffs’ breach of quiet enjoyment claim is silent as to whether Plaintiffs left the subject property within a reasonable period of time after the date(s) of interference and whether Plaintiffs vacated the premises at all; accordingly, there is no allegation of actual or constructive eviction as required. The court disagrees. Plaintiffs do not necessarily need to plead vacating the premises. The “rule requiring ouster or surrender prior to suit for wrongful eviction does not preclude the tenant from his election to stand upon the lease, remain in possession and sue for breach of contract damages.” (Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 141; see also Andrews v. Mobile Aire Estates, supra, 125 Cal.App.4th at p. 590.) However, here, Plaintiffs have not sued for breach of contract damages. Plaintiffs’ allegations are based on tort damages. Punitive damages and/or consequential tort damages are recoverable only if the implied covenant of quiet enjoyment is breached by a wrongful eviction or another basis for finding tort liability. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 897-902.)

Accordingly, the court sustains the demurrer to Plaintiffs’ fourth cause of action.

Defendant Marquis demurs to the fifth cause of action for intentional infliction of emotional distress on the grounds does not allege Defendant acted with the intention of causing, or reckless disregard of the probability of causing, emotional distress. Defendant also demurs on the ground the alleged failure to remedy uninhabitable conditions does not rise to the level of “outrageous conduct.”

The elements of a cause of action for intentional infliction of emotional distress are (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.) Liability for “In order to avoid a demurrer, the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]” (Id. at 160-61.)

The court finds Plaintiffs sufficiently alleged a claim for intentional infliction of emotional distress for the purposes of a demurrer. Plaintiffs have alleged outrageous conduct by the Defendant including allowing Plaintiffs’ apartment to be flooded with water and mold infested, defective plumbing and water leaks or flooding’s, which caused mildew or mold infestations, and refusing to cure the infestations or to repair defective conditions after being notified. Plaintiffs further alleged Defendants intentionally acted without disregard because Plaintiffs’ are Latino and non-English speaking.

Defendant Marquis moves to strike several paragraphs from the prayer for relief as well as portions of paragraphs 69, 34, 36, 39, 40, 46, 48, 49, 50, 52, 53, 54, 60, 68, 90, 127, 128, 130, 131, 134, 138, 139, 142, 145, 148, 150, 151, 153, and 156.

Defendant Marquis moves to strike Plaintiffs’ allegations regarding attorney fees on the grounds attorney fees are not recoverable on any of the five causes of action.

Plaintiffs seek attorney fees solely pursuant to Section 1942.4(b). As such, Defendant’s other arguments against attorney fees is irrelevant. As for Defendant’s Civil Code section 1942.4 contention, Defendant argues although Section 1942.4 does allow for attorney fees, Plaintiffs make no attempt to specifically identify any citation or other notice by any public officer or employee and rather merely generally allege that such citation or other notice existed at some indeterminable point in the past. As noted above, Plaintiffs have failed to sufficiently allege a Civil Code section 1942.4 violation. As such, the court grants Defendant’s motion to strike attorney fees with leave to amend.

Next, Defendant argues not only are punitive damages unavailable for Plaintiffs’ causes of action for Breach of Implied Warranty of Habitability and Breach of Covenant of Quiet Enjoyment as a matter of law, but Plaintiffs have also not alleged this responding Defendant acted with malice and/or oppression sufficiently to support a claim for punitive damages as required under Civil Code 3294 of the Civil Code for any of the causes of actions.

Plaintiffs seek punitive damages in their fourth and fifth causes of action. Punitive damages and/or consequential tort damages are recoverable only if the implied covenant of quiet enjoyment is breached by a wrongful eviction or another basis for finding tort liability. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 897-902.) Punitive damages for intentional infliction of emotional distress may be sought if properly alleged. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 404.)

While Plaintiffs may have sufficiently alleged some tort liability against Defendant, “[a]n employer shall not be liable for [punitive] damages ..., based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct.... With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, [or] ratification ... must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code § 3294.) The California Supreme Court interpreted the “latter statement as requiring the officer, director, or managing agent to be someone who ‘exercise[s] substantial discretionary authority over decisions that ultimately determine corporate policy.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577.) “[A] corporate defendant cannot be punished for harassment merely because one of its employees has harassed another employee in the workplace; rather, the focus of the punitive damages inquiry must be on the corporation's institutional responsibility, if any, for that harassment.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714.)

Accordingly, Defendant’s motion to strike Plaintiffs’ allegations for punitive damages is GRANTED WITH LEAVE TO AMEND.

[1] The court notes the parties met and conferred via e-mail. Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer. (CCP 430.41(a)(1).) As a result, the parties meet and confer is not code compliant. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Id. at subd. (a)(4).)

[2] In support of their demurrer, Defendant requests this court take judicial notice of a copy of the Grant Deed recorded on September 30, 2014, Instrument No. 20141034736. The court grants Defendant’s request.