Judge William A. Crowfoot, Case Number: 23AHCV00797, Date: 2024-01-12 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV00797, Date: 2024-01-12 Tentative Ruling

On April 10, 2023, plaintiffs Bianca Duong (“Duong”) and James Nino (“Nino”) (collectively, Plaintiffs”) filed this action against defendant Katherine Hsiao (“Defendant”) asserting causes of action for: (1) breach of contract, (2) violation of Civil Code section 1942.4, (3) tortious breach of warranty of habitability, (4) breach of the covenant of quiet enjoyment, (5) violation of Business and Professions code section 17200 (“UCL”), et seq., (6) nuisance, and (7) negligence.

On October 10, 2023, Defendant filed this demurrer to Plaintiffs’ causes of action for violation of Civil Code section 1942.4 (Second Cause of Action), violation of the UCL (Fifth Cause of Action), and nuisance (Sixth Cause of Action). Defendant also moves to strike Plaintiffs’ prayer for punitive damages at paragraph 65, page 9, lines 6 to 7 of the Complaint.

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.)

Plaintiffs allege that they are tenants of real property located at 419 N. Ynez Avenue in Monterey Park, California (the “Property”), which is owned by Defendant. (Compl., ¶¶ 8-9.) Plaintiffs moved into the Property on or about April 14, 2021. (Compl., ¶ 9.) Plaintiffs almost immediately noticed trouble breathing and unexplained rashes. (Compl., ¶ 10.) Duong sought medical treatment and was prescribed various medications for her “difficulties breathing fungal rashes [sic], and elevated white blood cells.” (Ibid.) On or about October 24, 2021, Duong notified Defendant of a rat infestation on the Property. (Compl., ¶ 11.) Defendant hired an exterminator, who removed two rats from the attic and discovered that rats had eaten through a hole in the closet floor and created a tunnel that went all the way down to the foundation of the Property. (Ibid.) The exterminator advised Plaintiffs to keep the closet door close and stated he would return to patch it up, but he never did so. (Ibid.) On or about January 22, 2022, Plaintiffs inspected the hole and discovered mold in and around the hole in the closet, on the walls, the floorboards, and on Plaintiffs furniture. (Compl., ¶ 12.) Plaintiffs immediately notified Defendant of the mold and Defendant, along with her “repair person”, came to examine the mold the following day. (Compl., ¶ 13.) Defendant purchased mold remover/cleaner and advised Plaintiffs to clean it themselves. (Ibid.) Plaintiffs declined to do so and left the Property immediately to avoid any further exposure. (Compl., ¶ 14.) On or about February 1, 2022, Defendant notified Plaintiffs that she was sending a handyman to resolve the mold issue. (Compl., ¶ 15.) The handyman scrubbed the visible mold from the wall and said he would return to paint the closet; he also advised Plaintiffs that it was likely an issue in the foundation that was causing the mold but indicated that Defendant only instructed him to clean and repaint the wall. (Ibid.) Despite the handyman's scrubbing, there were still several areas of mold visible throughout the Property. (Ibid.)

On or about February 9, 2022, Plaintiffs again advised Defendant that the handyman's cleaning did not resolve the mold issue on the Property. (Compl., ¶ 16.) Defendant acknowledged the presence of the mold on the Property and attempted to minimize the severity of its presence and the damage caused to Plaintiffs' health and personal belongings, including telling Plaintiffs to, "keep the windows open", 'just wipe it down", and "leave it outside in the sun." (Ibid.) Defendant also began the process of evicting Plaintiffs and sent Plaintiffs a Notice to Vacate the Property on or about February 17, 2022. (Compl., ¶ 17.) Plaintiffs subsequently arranged for a mold inspection on March 4, 2022, and on March 14, 2022, forwarded the inspection report to Defendant, who took no action. (Compl., ¶¶ 18-19.)

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 pursuant to [C.C.P. §1161(2)], if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially 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 declared 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 dwelling.

(2) A public office 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 specified in paragraph (2) and the delay is without good cause…

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

Defendant demurs to this cause of action on the grounds that it fails to state sufficient facts. (Demurrer, p. 3.) Defendants state that Plaintiffs do not identify (either in an allegation or by attaching any exhibits) the housing law enforcement agency which inspected the premises, gave notice to Defendant, nor do Plaintiffs allege how notice was given, or that the notice informed Defendant of her obligations to abate the nuisance or repair the substandard conditions. (Ibid.) The Court agrees; Plaintiffs do not allege that notice was given by any housing law enforcement agency or employee of such. A violation of Civil Code section 1942.4 requires that “a public office or employee who is responsible for the enforcement of any housing law, after inspecting the premises” to have notified the landlord or landlord’s agent “in writing of their obligations to abate the nuisance or repair the substandard conditions.” (Civil Code, § 1942.4, subd. (a)(2).) This allegation is absent from the complaint; therefore, Plaintiffs’ cause of action for violation of section 1942.4 is not sufficiently pleaded and Defendant’s demurrer to the Second Cause of Action is sustained.

The UCL, set forth in Business and Professions Code section 17200 et eq., prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." (Bus. & Prof Code § 17200.) Section 17200 “borrows” violations from other laws by making them independently actionable as unfair competitive practices. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) The purpose of the Unfair Practices Act is to terminate ongoing, unlawful and unfair conduct, not to remedy past wrongs. (Mangini vs. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1156.) A plaintiff must establish the following elements to assert a claim for UCL: (1) a business practice; (2) that is unfair, unlawful, or fraudulent; and (3) an authorized remedy. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676.)

Defendant argues that Plaintiffs’ have only alleged liability in a single landlord-tenant dispute and does not allege an ongoing practice. Citing to no authority, Defendant argues that the UCL does not apply to claims between a tenant and a landlord in an “isolated transaction” because the UCL targets wrongful conduct aimed at the public at large. “[V]irtually any law or regulation—federal or state, statutory or common law—can serve as [a] predicate for a ... [section] 17200 ‘unlawful’ violation.’” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1383.) Plaintiffs allege that Defendant violated Civil Code section 1941.1 by failing to correct and resolve the toxic mold present on the Property. A UCL claim made be based on a single code violation. (Klein v. Earth Elements, Inc. (1997) 59 CA4th 965, 968, n. 3.) Accordingly, the demurrer to the Fifth Cause of Action is overruled.

A cause of action for private nuisance requires the following elements: (1) interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff's use and enjoyment involves substantial actual damage; and (3) interference is unreasonable as to the nature, duration, or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; see also Civil Code §3479 [“Anything which is injurious to health, including, but not limited to… an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property… is a nuisance.”])

Defendant argues that Plaintiffs have not adequately pleaded a nuisance cause of action because the facts of nuisance claim are the same as those in the negligence claim. “Where negligence and nuisance causes of action rely on the same facts about lack of due care the nuisance claim is a negligence claim.” (El Escorial Owner’s Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

However, “a nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) Because proving intentional nuisance would entitle plaintiffs to different damages than negligent nuisance, the Court rejects Defendants’ arguments that the nuisance and negligence causes of action are duplicative.

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

Defendant argues that Plaintiffs fail to offer specific or material facts to support the award of punitive damages. In response, Plaintiffs copy and paste several paragraphs from the Complaint which describe Defendant’s response to Plaintiffs’ complaints about the mold, which include: (1) purchasing mold remover/ cleaner and advising Plaintiffs to clean it themselves, (2) hiring a handyman to scrub and repaint the wall, but not addressing the mold issue in the foundation, and (3) failing to take action and instead telling Plaintiffs to “keep the windows open”, “wipe [the mold] down”, and “leave [personal belongings” outside in the sun,” even after receiving an inspection report and being continually notified about the toxic mold conditions on the Property. (Compl., ¶¶ 13, 15-16-17, 22.)

These allegations are sufficiently specific to demonstrate conscious disregard for the safety of others. Plaintiffs informed Defendant about the effect of the mold on their health and provided Defendant with an inspection report, only for Defendant to minimize their concerns. Also, if Plaintiffs can prove that Defendant instructed the handyman to only clean and scrub the wall, but instructed him not to address the cause of the mold in the foundation, this would be sufficient to demonstrate that Defendant deliberately failed to avoid the negative consequences suffered by Plaintiffs as a result of the mold.

In light of the foregoing, Defendant’s demurrer is SUSTAINED with respect to the Second Cause of Action and OVERRULED with respect to the Fifth and Sixth Causes of Action.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.