Judge William A. Crowfoot, Case Number: 23AHCV01063, Date: 2024-04-19 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01063, Date: 2024-04-19 Tentative Ruling

On May 10, 2023, plaintiff Elijah Carder (“Plaintiff”) filed this action against defendant KAN Investment LTD LLC (erroneously sued as “South Pasadena Heights Apartments” and referred herein as “KAN Investment”) and T-Mobile USA, Inc. (“T-Mobile”). On September 14, 2023, Plaintiff filed the operative First Amended Complaint asserting causes of action for: (1) battery, (2) negligence, (3) nuisance, (4) products liability, (5) intentional infliction of emotional distress (“IIED”), (6) breach of lease, and (7) breach of implied covenant of quiet enjoyment.

Plaintiff alleges that he was a tenant at the premises located at 435 Garfield Avenue, Unit 307, South Pasadena, CA 91030 (the “Property”). The Property was leased to him by KAN Investment and T-Mobile “was the owner, installer, manufacturer, designer, and operator of a collection antenna” which was placed “on the outside wall of the [Property] at which [Plaintiff] was residing.” (Compl., ¶¶ 3-4.) Plaintiff alleges he was exposed to excessive radiation emitted from this antenna, which was place on a wall with KAN Investment’s knowledge and consent. (Compl., ¶ 3.)

On October 10, 2023, KAN Investment filed a demurrer and motion to strike arguing that Plaintiff’s claims for battery, products liability, IIED, breach of lease, and breach of implied covenant of quiet enjoyment fail to state facts sufficient to constitute a cause of action and are too uncertain, vague, and ambiguous. KAN Investment also moves to strike Plaintiff’s prayer for punitive damages.

On December 20, 2023, T-Mobile filed a demurrer and motion to strike. T-Mobile’s demurrer argues that Plaintiff’s claims are preempted by federal law, Plaintiff fails to state facts sufficient to constitute any cause of action, and the FAC is uncertain. Like KAN Investment, T-Mobile also moves to strike Plaintiffs prayer for punitive damages.

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.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “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 the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

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.)

T-Mobile demurs to the entire FAC on the grounds that it is preempted by federal law. T-Mobile argues that “[a]ll of Plaintiff’s state law claims are premised on alleged health effects from RF [radiofrequency] levels that the [Federal Communications Commission (“FCC”)] has already determined to be safe under its Congressionally delegated authority.” (Demurrer, p. 16.)

Here, Plaintiff claims that he was exposed to “excessive radiation” emitted from the antenna, without specifying whether those radiation levels allegedly exceed the FCC’s prescribed limits. If Plaintiff is contending that the radiation emitted is “excessive” despite being within the FCC’s limits, then Plaintiff’s claims are preempted. However, if Plaintiff is contending that T-Mobile’s antenna does not comply with the FCC’s regulations, then his claims are not preempted. Plaintiff states in his opposition brief that he “opposes the Demurrer on the basis that the radiation at issue does exceed the levels allowed by the FCC regulations.” However, this essential allegation is not pleaded in the FAC, making the pleading uncertain and subject to demurrer.

The Court also addresses T-Mobile’s claim that Plaintiff fails to state sufficient facts to state any cause of action and SUSTAINS T-Mobile’s demurrer to the First Cause of Action for Battery, the Second Cause of Action for Negligence, the Fourth Cause of Action for Products Liability, and the Fifth Cause of Action for IIED for failure to state a claim.

First, the Court agree with T-Mobile that Plaintiff fails to allege the element of intentional conduct required for his battery and IIED claim. A plaintiff claiming a battery is required to show that the defendant touched the plaintiff or caused plaintiff to be touched, with the intent to harm or offend the plaintiff. (So v. Shin (2013) 212 Cal.App.4th 652, 669.) Similarly, an IIED plaintiff must show that the defendant intended to cause emotional distress or acted with reckless disregard of the probability of causing emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

Here, Plaintiff alleges that he was exposed to excessive amounts of radiation from an antenna that T-Mobile installed. (Compl., ¶¶ 3-5.) Plaintiff does not allege that T-Mobile intended to harm, offend, or inflict emotional distress upon him. Also, with respect to Plaintiff’s IIED claim, Plaintiff does not allege what conduct by T-Mobile was extreme or outrageous or that it was directed to him. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204 [“Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. The defendant’s conduct must be directed to the plaintiff, but malicious or evil purpose is not essential to liability.”]) Accordingly, the demurrer to the First and Fifth Causes of Action is SUSTAINED.

Next, T-Mobile argues that Plaintiff’s Second Cause of Action for negligence fails to adequately plead the existence of a legal duty. To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Here, Plaintiff fails to allege that T-Mobile owed him a duty. Therefore, the Court SUSTAINS T-Mobile’s demurrer to the Second Cause of Action.

T-Mobil also demurs to Plaintiff’s Fourth Cause of Action for products liability. “A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.” (Greenman v. Yuba Power Prods., Inc. (1963) 59 Cal.2d 57, 62.) Here, Plaintiff fails to allege that the collections antenna was “placed in the stream of commerce.” Plaintiff also does not specify any particular manufacturing or design defect, nor does he allege that T-Mobile failed to provide adequate warnings or instructions. Thus, Plaintiff fails to state a claim for products liability.

The Court additionally notes that Plaintiff stated in his opposition brief that he “agrees that [sic] fourth cause of action for products liability is not a proper cause of action when its directed at the landlord.” (Opp., p. 5.) Although T-Mobile is not Plaintiff’s landlord, it does not appear that Plaintiff is opposing T-Mobile’s demurrer to this cause of action. Therefore, the demurrer to the Fourth Cause of Action is SUSTAINED without leave to amend.

The motion to strike Plaintiff’s prayer for punitive damages and his related allegations is MOOT because T-Mobile’s demurrer to the entire FAC is sustained.

As an initial matter, Plaintiff concedes that the Fourth Cause of Action for products liability cannot be directed against KAN Investment as a landlord. Accordingly, KAN Investment’s demurrer to the Fourth Cause of Action is SUSTAINED without leave to amend and the Court will only analyze KAN Investment’s demurrer to Plaintiff’s causes of action for battery, IIED, breach of lease, and breach of implied covenant of quiet enjoyment. KAN Investment did not demur to the Second and Third Causes of Action for Negligence and Nuisance.

Like T-Mobile, KAN Investment demurs to Plaintiff’s FAC on the grounds that it is uncertain. The Court sustains the demurrer in its entirety for uncertainty for the same grounds stated above and proceeds to discuss how Plaintiff fails to state a cause of action for battery, IIED, and breach of lease against KAN Investment.

Like T-Mobile, KAN Investment argues that Plaintiff’s claims for battery and IIED fail because he fails to allege intent. The Court incorporates its discussion of T-Mobile’s demurrer to these two causes of action and SUSTAINS KAN Investment’s demurrer to them for the same reasons.

KAN Investment demurs to Plaintiff’s causes of action for breach of lease on the grounds that Plaintiff does not identify the applicable provisions of the lease which were allegedly violated or prohibit an antenna from being installed. Instead, Plaintiff only broadly alleges that the installation of the antenna “was performed in violation of the terms of said written lease.” (Comp., ¶ 40.)

In opposition, Plaintiff argues that the applicable portion of the lease is Paragraph 9, which requires a landlord to make repairs to a condition which make the premises “untenantable” as defined in Civil Code section 1941.1. But section 1941.1 identifies a list of 9 characteristics, none of which apply to these circumstances; also, there are no allegations that any repair was needed, requested, or denied. Plaintiff also cites to an indemnification clause in Paragraph 12, but again fails to explain what indemnification has to do with the case. Therefore, the demurrer to the Sixth Cause of Action is SUSTAINED.

KAN Investment moves to strike Plaintiff’s prayer for punitive damages and allegations in support of those damages in Paragraphs 9, 26, 36, 45, and 53 of the FAC. Because the Court sustains KAN Investment’s demurrer in its entirety, only paragraph 26 of the FAC and the prayer for punitive damages remains pertinent to this motion to strike.

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).) An employer shall not be liable for punitive damages based on the acts of an employee, 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 for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).)

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.) 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.)

Here, Plaintiff fails to support his request for punitive damages with the requisite specificity. There are no facts alleging that KAN Investment intended to cause injury, engaged in despicable conduct or acted with conscious disregard for Plaintiff’s safety. Also, Plaintiff does not identify the officer, director, or managing agent as required to vicariously impose punitive damages on a corporate entity.

· KAN Investment’s Demurrer is SUSTAINED with 20 days’ leave to amend as to Plaintiff’s First, Fifth, Sixth, and Seventh Causes of Action for Battery, IIED, Breach of Lease, and Breach of the Implied Covenant of Quiet Enjoyment.

· KAN Investment’s Demurrer is SUSTAINED without leave to amend as to the Fourth Cause of Action for Products Liability.

· KAN Investment’s Motion to Strike is GRANTED with 20 days’ leave to amend.

· T-Mobile’s Demurrer is SUSTAINED with 20 days’ leave to amend as to Plaintiff’s First, Second, Third, and Fifth Causes of Action for Battery, Negligence, Nuisance, and IIED.

· T-Mobile’s Demurrer is SUSTAINED without leave to amend as to the Fourth Cause of Action for Products Liability.

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.