Judge: William A. Crowfoot, Case: 21STCV34582, Date: 2022-12-16 Tentative Ruling

Case Number: 21STCV34582    Hearing Date: December 16, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On September 20, 2021, plaintiff Cheryl Ann Thomas (“Plaintiff”) filed this action against defendants GZ Portfolio V 80 LLC, Golden Z Holdings LLC, and Golden Bee Management LLC (collectively, “Defendants”).  On November 29, 2021, Plaintiff filed a First Amended Complaint.  On February 22, 2022, Plaintiff filed a Second Amended Complaint (“SAC”).  On April 13, 2022, the parties filed a stipulation acknowledging that the SAC was the operative complaint.  On May 23, 2022, Defendants filed a demurrer and motion to strike.  The Court sustained Defendants’ demurrer, granted Defendant’s motion to strike Plaintiff’s prayer for punitive damages, and gave Plaintiff leave to amend to add a cause of action for negligent supervision.  Plaintiff was not given leave to amend her request for punitive damages but was directed to file a motion for leave to amend in the future. 

On October 4, 2022, Plaintiff filed the Third Amended Complaint (“TAC”).  The TAC violates the Court’s orders by adding causes of action for: (1) breach of warranty of habitability, (2) breach of statutory warranty of habitability, (3) breach of the covenant of quiet enjoyment, (4) private nuisance, and (5) violation of Civil Code sections 1942.4 and 1942.5. 

          On November 7, 2022, Defendants filed a demurrer and motion to strike.  Defendants only demur to the Ninth Cause of Action for Violation of Civil Code section 1942.4 and 1942.5.  Defendants move to strike Plaintiff’s prayer for punitive damages (TAC, Prayer, ¶ 9) and allegations of treble damages (TAC, ¶ 39.)

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.   Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

Defense counsel, Matthew E. Voss, declares that on October 31, 2022, he discussed the pleading deficiencies with Plaintiff’s counsel in a conference call.  (Voss Decl., ¶ 4.)  The meet and confer requirement is satisfied.

B.   Demurrer

Plaintiff alleges that Defendants violated Civil Code section 1942.4 by failing to correct uninhabitable conditions from 2018 to 2022, the conditions were not caused by her, and that there was no reasonable excuse for Defendants’ delay in making the required repairs.  (Compl., ¶ 95.)  Plaintiff claims she is entitled to rent abatement as well as actual and special damages, attorney’s fees, and costs.  (Compl., ¶ 96.)  Defendants demur to Plaintiff’s ninth cause of action for violation of Civil Code sections 1942.4 and 1942.5 on the grounds that Plaintiff has failed to allege sufficient facts to state a cause of action.

Civil Code section 1942.4 provides that a landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit if all these conditions exist prior to the notice or demand: (1) the dwelling “lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declares substandard as set forth in section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the swelling, (2) a public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions, (3) the conditions have existed and have not been abated 35 days beyond the date of service of the notice by the public officer or entity, and the delay is without good cause, and (4) the conditions were not caused by an act or omission of the tenant in violation of Section 1929 or 1941.2.  Civil Code section 1942.5 prohibits retaliation by a landlord against a tenant because of the tenant’s complaint as to the tenantability of a dwelling. 

Plaintiff fails to state a cause of action under Civil Code section 1942.4 because there are no factual allegations that: (1) a public officer or employee responsible for the enforcement of any housing law, after an inspection, notified Defendants in writing of any obligations to abate a nuisance or repair any substandard conditions, or (2) the substandard conditions have existed and have not been abated 35 days beyond the date that notice was served and the delay was without good cause.  Plaintiff also fails to state a cause of action under section 1942.5 because there are no allegations that Defendants retaliated against her after she complained to an agency as to the tenantability of a dwelling,

In opposition, Plaintiff does not refer to any allegations within the TAC to prove that a claim has been stated.  Accordingly, the Court sustains the demurrer.

Plaintiff suggests that amendment is possible by claiming that she was forced to involuntarily quit her apartment after she made a complaint about the conditions of her apartment unit.  She attaches a document showing that she made a complaint of a rat infestation on June 1, 2020, and that notice of her complaint was sent to GZ Portfolio V 80 and Golden Bee.  This document is insufficient to prove that Plaintiff can state a cause of action under section 1942.4 because the official inspection report states that “no evidence of active roden infestation was observed” and there was “no further action required.”  Therefore, Defendants were not obligated to abate a nuisance or repair any conditions. 

Given these circumstances, Plaintiff is granted 20 days’ leave to amend her ninth cause of action to state a claim for a violation of Civil Code section 1942.5 only. 

C.   Motion to Strike

Defendants move to strike Plaintiff’s request for punitive damages and treble damages associated with her claim for breach of statutory warranty of habitability. 

Plaintiff fails to plead specific facts showing an act of oppression, malice, or fraud, or authorization and ratification by a corporate officer, director, or managing agent.  Furthermore, Plaintiff’s request for treble damages is unsupported by any statute, and Plaintiff’s opposition does not provide any authority treble damages, either.  

IV.     CONCLUSION

Defendants’ demurrer is SUSTAINED. 

Defendants’ motion to strike is GRANTED. 

Plaintiff has 20 days’ leave to amend to add a cause of action for violation of Civil Code section 1942.5 and punitive damages under section 1942.5(h). 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.