Judge: William A. Crowfoot, Case: 22STCV00905, Date: 2022-07-26 Tentative Ruling

Case Number: 22STCV00905    Hearing Date: July 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On April 18, 2022, plaintiffs Jose Duenas Torres (“Torres”) and Bianca Yara Duenas (“Duenas”) (collectively, “Plaintiffs”) filed the operative First Amended Complaint (“FAC”) against defendant Connie J. Giron (“Defendant”), asserting causes of action for (1) wrongful death – negligence, (2) survival action, (3) negligence, (4) premises liability, (5) negligent infliction of emotional distress, (6) breach of implied warranty of habitability, (7) breach of implied warranty of quiet enjoyment, and (8) declaratory relief.

The FAC alleges the following.

Plaintiffs Torres and Duenas were decedent Dolores Santa-Duenas’s (“Decedent”) spouse and daughter, respectively. (FAC, ¶¶ 2-4.) Defendant owns, leases, manages or otherwise controls an apartment complex located at 12509 Oak Street, City of Lynwood, California (the “Property”). (FAC, ¶ 20.) The Plaintiffs and the Decedent were tenants of an apartment, Unit A, within the Property. (FAC, ¶ 22.)

A pervasive fire broke out in Unit A in the early morning of November 3, 2020, while the Plaintiffs and Decedent were asleep inside. (FAC, ¶ 24.) Unit A and the Property’s common areas did not have smoke detectors, carbon monoxide detectors, or fire extinguishers. (FAC, ¶ 25.) As a result, the fire poisoned and caused Unit A's occupants to become lethargic and unconscious. (FAC, ¶ 26.) Neither Plaintiffs nor the Decedent became aware of the fire until the fire had engulfed most of Unit A and significantly injured Torres and the Decedent. (FAC, ¶ 26.)

Although the exact reason why the fire started is unknown, the Property was suffering from longstanding electrical issues that had long remained unabated. (FAC, ¶ 27.) Plaintiffs further believe that during a recent repair in the apartment, the Defendants had hired an unlicensed and unqualified laborer to conduct electrical work. (FAC, ¶ 27.)

On April 22, 2022, Defendant filed a Cross-Complaint against Torres (individually and as successor in interest to Decedent and representative of Decedent’s Estate), Duenas, and the Estate of Dolores Duenas, asserting causes of action (1) breach of residential rental agreement, (2) negligence against Torres, (3) negligence against the Decedent’s Estate, and (4) declaratory relief.

The Cross-Complaint alleges the following.

Decedent and the Plaintiffs entered into a written contract, the Residential Rental Agreement (“Lease”), for the rental and exclusive use of Unit A. (Cross-Complaint (“XC”), ¶ 5.) A true and accurate copy of the rental/lease agreement is attached to the Cross-Complaint as Exhibit A. (XC, ¶ 5.)

The Lease provides: “each Lessee understands that said Smoke Detector(s) and Alarm is a battery operated unit and it shall be each Lessee’s responsibility to: ¶ 1. Ensure that the battery is in operating condition at all times, ¶ 2. Replace the battery as needed (unless otherwise provided law), [and] ¶ 3. If, after replacing the battery, the Smoke Detector(s) do not work, inform the Lessor immediately in writing.” (XC, ¶ 5 [p. 4:9-11].) The Lease also included a Smoke Alarm addendum, whereby Plaintiffs and the Decedent agreed “to test each week [the smoke detector] and install new battery as needed.” (XC, ¶ 5 [p. 4:20].) The Lease also required the Decedent and Plaintiffs to “notify[] the manager or owner if the tenant becomes aware of an inoperable smoke alarm within his or her unit.” (XC, ¶ 5 [p. 4:17-20], emphasis removed.)

The Decedent and the Plaintiffs breached their obligations under the Lease by (1) removing, disabling and failing to maintain the smoke detectors in Unit A, and (2) failing to notify the landlord that the smoke detectors were missing or inoperable. (XC, ¶ 6.) Moreover, the Decedent and the Plaintiffs left candles burning and unattended in the living room of Unit A, next to a wall and flammable objects. (XC, ¶ 6.) Duenas saw the unattended candles but failed to extinguish the flames or request Torres and Decedent to do so. (XC, ¶ 6.) Those acts and omissions were the legal cause of, among other things, the fire, injuries, and deaths resulting from the fire. (XC, ¶ 6.)

On June 10, 2022, the Plaintiffs filed the instant motion to strike portions of the Cross-Complaint.

Defendant opposes the motion.

II.        LEGAL STANDARD

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 through judicial notice. (Code Civ. Proc., § 437.)

III.      DISCUSSION

            Plaintiffs move to strike the following portions of the Cross-Complaint:

1. First Cause of Action for Breach of Residential Rental Agreement.

2. Prayer 5 on page 17, lines 7 to 9: “For attorney fees pursuant to the Residential Rental Agreement, legal costs and expenses allowed by law, and for such other and further relief as the Court deems just and proper.”

3. The following portions of Paragraph 3: “it is unknown whether a formal ‘estate’ has been created, and if not, the ‘ESTATE OF DOLORES DUENAS’ will or should be created for Cross-Defendant JOSE DUENAS to have standing as representative and alleged ‘successor-in-interest’ to prosecute and defend the choses [sic] of actions, damages and claims made by and against Dolores Duenas arising from and caused by the November 3, 2020 fire. The ESTATE OF DOLORES DUENAS is sued as the surviving estate and holder of assets and choses in action of decedent Dolores Santana Duenas, and as the entity liable for the damages and requested relief herein.”

4. Third Cause of Action for Negligence against the Estate of Dolores Santana Duenas.

5. Language on page 16, lines 11 to 15: “and the ESTATE OF DOLORES SANTANA DUENAS.”

1. Meet and Confer

Before filing a motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Code Proc., § 435.5, subd. (a).) 

The Court finds that the Plaintiffs met and conferred with Defendant concerning the motion to strike the first cause of action for breach of contract and related prayer for relief. (Motion, Zabetian Decl., ¶ 3; Exhibit 1 [email exchange between the parties’ counsels].)

However, the Court agrees with Defendant that the Plaintiffs failed to meet and confer at all regarding the motion’s request to strike portions of the Cross-Complaint mentioning and concerning Decedent’s alleged “estate.” (Opposition, p. 12:12-17.) The Plaintiffs have not produced any evidence to the contrary.

Accordingly, the Court will not consider the Plaintiffs’ arguments concerning the Decedent’s alleged “estate.”  

1. First Cause of Action for Breach of Contract

The Plaintiffs argue that the Court should strike the first cause of action for breach of contract for the following reasons.

The first cause of action is based on an alleged breach of a covenant in the Lease, which states that the “maintenance” of the smoke alarm “is the tenant’s responsibility.” (Motion, p. 5:8-10.) However, under Health and Safety Code section 13113.7, it is the owner’s responsibility to maintain the smoke detectors. (Motion, p. 5:11-12.) Further, Civil Code section 1942.1 renders void as against public policy any lease agreement which waives and modifies that obligation. (Motion, p. 5:12-13.) Therefore, since the Lease at issue explicitly waives and modifies Defendant’s responsibility to maintain the smoke alarms,  the Court should strike the first cause of action (and its related prayers for relief) from the Cross-Complaint.

In opposition, Defendant argues (among other things) the following. None of the statutes Plaintiffs cite state that a lease requiring the tenant to (1) test smoke detectors and (2) alert the landlord as to any inoperable or missing smoke detectors is “void” under Civil Code section 1942.1. (Opposition, p. 2:15-18.) To the contrary, Health and Safety Code section 13113.7, subdivision (d)(2)(B) states that the tenant shall be responsible for notifying the landlord if the tenant becomes aware of an inoperable or missing smoke alarm. (Opposition, p. 2:18-20.)

In reply, Plaintiffs avoid addressing Defendant’s argument regarding Health and Safety Code section 13113.7, which provides: “At the time that a new tenancy is created, the owner shall ensure that smoke alarms are operable. The tenant shall be responsible for notifying the manager or owner if the tenant becomes aware of an inoperable smoke alarm within his or her unit. The owner or authorized agent shall correct any reported deficiencies in the smoke alarm and shall not be in violation of this section for a deficient smoke alarm when he or she has not received notice of the deficiency.” (Health & Saf. Code, § 13113.7, subd. (d)(2)(B) [emphasis added].) Instead, Plaintiffs focus on subdivisions that outline a building owner’s duty. (Reply, p. 4:2-3 [citing Health & Safety Code, § 13113.7, subds. (a)(1) and (d)(3) to emphasize that the “lessor ‘shall install’ smoke detectors in accordance with the specification of the Code”].)

In any event, contrary to the Plaintiffs’ argument, Civil Code section 1942.1 (“Section 1942.1”) does not “render void as against public policy,” a lease term that allegedly waives and modifies a landlord’s obligation to install smoke detectors.

The statute states: “Any agreement by a lessee of a dwelling waiving or modifying his rights under Section 1941 or 1942 shall be void as contrary to public policy with respect to any condition which renders the premises untenantable ….” (Civ. Code, § 1942.1 [emphasis added].)

However, neither Civil Code sections 1941 nor 1942 discuss smoke detectors.

Section 1942 outlines a tenant’s remedies when dilapidations of a property render the premises untenantable.

Section 1941 imposes a duty on a lessor of a building for human occupancy to repair all dilapidations that render the building untenantable. (Civ. Code, § 1941 [emphasis added] [“The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine”].)

“A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics or is a residential unit described in Section 17920.3 or 17920.10 of the Health and Safety Code: [For example] ¶ (1) Effective waterproofing and weather protection of roof and exterior walls, …. ¶ (2) Plumbing or gas facilities … maintained in good working order.”

However, failure to install or maintain smoke detectors is not one of the conditions that render a property “untenantable for purposes of Section 1941” because that condition is not (1) listed as an affirmative standard characteristic under Section 1941.1, (2) mentioned under Health and Safety Code section 17920.10, which concerns lead hazards, or (3) included in Health and Safety Code section 17920.3’s list of conditions that render a building substandard. (Health & Saf. Code, § 17920.3 [“Any building or portion thereof including any dwelling unit, … in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building: [For example] ¶ (a) Inadequate sanitation shall include, but not be limited to, the following: ¶ (1) Lack of, or improper water closet, lavatory, or bathtub or shower in a dwelling unit”].)

Plaintiffs have not cited, and the Court has not found, any case that holds that failure to maintain smoke detectors renders a property untenantable for the purposes of Civil Code sections 1941 or 1942.

Accordingly, Civil Code section 1942.1, which Plaintiffs concede states that “[a]ny agreement by a lessee of a dwelling waiving or modifying his rights under Section 1941 or 1942 shall be void as contrary to public policy,” is inapplicable in this instance.

For the reasons set forth above, the Court denies the Plaintiffs’ request to strike the first cause of action for breach of residential rental agreement and its related prayer for relief on page 17, lines 7 to 9.

1. Allegations and Cause of Action Against Decedent’s Alleged Estate

Plaintiffs move to strike the third cause of action for negligence against the Decedent’s “estate” and related allegations in the Cross-Complaint concerning that estate.

However, as stated above, the Court finds that the Plaintiffs failed to meet and confer concerning that issue before filing their motion to strike.

Accordingly, the Court denies the Plaintiffs’ request to strike the third cause of action, portions of Paragraph 3, and language in the Cross Complaint against or concerning the Estate of Dolores Santana Duenas.  

Notwithstanding the Court declining to do so for the reasons just stated, the Court notes that there is cause to strike the third cause of action against Decedent’s estate and related allegations because Defendant concedes in her opposition that the estate does not exist.

IV.      CONCLUSION

The Motion to Strike Portions of the Cross Complaint is DENIED.

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’s 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.