Judge Yolanda Orozco, Case 21STCV44611 2022-09-15 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV44611, Date: 2022-09-15 Tentative Ruling

Case Number: 21STCV44611 Hearing Date: September 15, 2022 Dept: 31

DEMURRER TO FIRST AMENDED COMPLAINT IS OVERRULED, IN PART

Background

On December 06, 2021, Plaintiff Eveline Morel Cureteu filed a Complaint against Nellie A. Porrata, in her individual capacity and as a Successor Trustee of the The Angela M. Ordonez Revocable Trust, Frank Porrata, Carmen V. Ordonez-Clancy, Angels M. Ordonez, Juan Ramirez, and Does 1 to 20.

On February 09, 2022, Plaintiff filed aFirst Amended Complaint (FAC) which alleges:

1) Violation of FEHA, unlawful discrimination on account of disability and medical condition, Govt. Code §§ 12955, et seq.

2) Violation of the Unruh Act

3) Breach of the Covenant of Quiet Enjoyment asserted against Defendant Frank Porrrata

4) Breach of the Warranty of Habitability (common law) asserted against Defendant Frank Porrata

5) Breach of the Warranty of Habitability (statutory) asserted against Defendant Frank Porrata

6) Retaliation in violation of Civ. Code § 1942.5

7) Negligence

8) Intentional Infliction of Emotional Distress (IIED)

9) Invasion of Privacy

10) Violation of the Rent Stabilization Ordinance of Los Angeles (LAMC § 151.50)

11) Breach of Contract asserted against Defendant Frank Porrata

12) Violation of Civ. Code § 1940.2

13) Harassment in Violation of LAMC §151.33

14) Private Nuisance

15) Unfair Business Practices (Bus. & Prof. Code §§ 17200, et seq.)

On March 15, 2022, Defendants filed a demurrer without a motion to strike Plaintiff’s FAC.

On July 21, 2022, Plaintiff filed opposing papers. Defendants filed a reply on July 26, 2022.

Meet and confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred, in person or telephonically, to determine whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. (CCP) § 430.41.)

Plaintiff alleges that the meet and confer requirement was not met because defense counsel only met and conferred as to the first cause of action for disability discrimination but failed to meet and confer as to the other causes of action prior to filing the demurrer. (Obiamiwe Decl. ¶¶ 6-27.) The initial meet and confer as to the first cause of action occurred on December 12, 2021, and in response Plaintiff filed a FAC. (Id.) On March 15, 2022, Defendants filed this instant demurrer with meeting and conferring. (Id.)

Defense counsel does not deny Plaintiff’s counsel allegation but states that the attorney handling the case is no longer with the firm and asserts that further meet and confer efforts were carried out on April 4, 2022. (Prado Decl. ¶ 5.) Further meet and confer efforts were carried out on June 21, 2022, and July 8, 2022, but no agreement was reached by the parties. (Id. ¶¶ 6, 7.)

Although the Court finds that Defendant’s meet and confer efforts were deficient, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Accordingly, the Court addresses the demurrer on the merits and provides Plaintiff with the opportunity to amend the pleading.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿ “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.”¿ (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)¿ To test the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded.¿ (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)¿ A demurrer “does not admit contentions, deductions or conclusions of fact or law.”¿ (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿

Discussion

Plaintiff alleges she became a tenant of the subject property, located in Los Angeles, in or about October 2010, but had been living in the property since around 2003. (FAC ¶ 6.)

Plaintiff is a 52-year-old woman who has been diagnosed with generalized anxiety disorder. (FAC ¶ 25.) As a result, Plaintiff has always lived with one or two cats who are her emotional support animals (ESA). (FAC ¶ 9.) Plaintiff asserts that in late May 2021, Plaintiff presented Defendants with a letter from her therapist attesting to the need for an ESA. (FAC 28.)

Plaintiff asserts that Defendants waived the “no pet” policy when they failed to enforce the policy in October of 2010 when she first began to reside at the property, and that accommodation of her ESA was required due to her disability. (FAC ¶ 30.) Plaintiff asserts that as a result of having her ESA, she was the victim of retaliation and harassment and an unlawful eviction. (See generally FAC.)

Defendants demur to the FAC as to the 1st, 2nd, 3rd, 4th, 5th, 8th, and 12th causes of action on the bases that Plaintiff has failed to allege sufficient facts to support the causes of action alleged (CCP § 430.10(e).)

1st COA: Violation of the FEHA on Account of Disability and Medical Condition

Under Government Code Section 12955,

“It shall be unlawful:

(a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information of that person.”

(Gov. Code, § 12955)

Defendants assert that under section 12027, Defendants were only required to make “reasonable accommodations” when the “accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” (Govt. Code § 12927.) Accordingly, Defendants assert they were not required to accommodate Plaintiff when the chickens, cats, and other animals which were causing damage to the subject property and that Plaintiff’s request to live with her cat was unreasonable.

Defendants point to no defects that appear on the face of Plaintiff’s FAC. Taking Plaintiff’s allegations as true for purposes of demurrer, Plaintiff provided notice to Defendants about her need for an ESA in May of 2021, before the first 3-Day Notice to Perform Covenants or Quit was issued on October 2, 2021. (FAC ¶¶ 28, 31.)

Thus, it would be improper for the Court to turn this demurrer into an evidentiary hearing to assess whether Plaintiff’s request was reasonable or whether the Defendants’ assertions that the animals were damaging the subject property constituted an unreasonable request. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.)

Having failed to allege any defects on the face of the FAC, the demurrer to the 1st cause of action is OVERRULED.

2nd COA: Violation of Rights Under the Provisions of The Unruh Civil Rights Act

Section 51 of the Unruh Act states:

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

(Civ. Code, § 51)

The Unruh Act “broadly outlaws arbitrary discrimination in public accommodations.” (See Brennon B. v. Superior Court of Contra Costa County (2020) 57 Cal.App.5th 367, 405.)

The FAC properly alleges that Defendants owed an operated a business establishment under the Unruh Act and that Defendants violated the act in refusing to provide her with the same advantages, privileges, or services, and imposing additional terms and conditions related to her residency at the subject property. (FAC ¶¶ 119, 121.)

Defendants’ demurrer to the second cause of action on the basis that they were only required to make a reasonable accommodation. Defendants again assert that damages to Plaintiff’s unit were caused by her pets such that Plaintiff’s accommodation became unreasonable because the pets caused great risk to the health and safety of others.

Defendants again fail to allege what defects exist on the face of the FAC and instead reference allegations and facts outside of the pleadings to assert that Plaintiff’s requested accommodation was unreasonable. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The fact that Plaintiff’s requested accommodation may be unreasonable or caused harm to other tenants is something that cannot be judicially noticed and considered by the Court on demurrer.

Accordingly, the demurrer to the second cause of action is OVERRULED.

3rd COA: Breach of the Covenant of Quiet Enjoyment

Defendants assert that Plaintiff has failed to state sufficient facts to support a cause of action for breach of the covenant of quiet enjoyment.

Every lease includes a covenant of quiet possession and enjoyment. (See Civ. Code § 1927, Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299.) In California, the covenant of quiet enjoyment has been expanded to “insulate[] the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Id. [citations omitted].) Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. 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. (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.)

Further, “[i]t is not necessary to show that the landlord acted with the subjective intent to compel the tenant to leave the property or deprive the tenant of quiet enjoyment. [Citation.] There is a ‘presumption that a landlord intends the natural and probable consequences of his acts; and where the acts of the landlord effectively deprive the tenant of the use and enjoyment of the premises, the intent to evict is implied from the character of the acts done. [Citations.]’ [Citation.]”. (Erlach, supra, (2014) 226 Cal.App.4th at 1300.)

Plaintiff’s FAC incorporates by reference the following allegations, that Defendants breached the covenant of quiet enjoyment by violating California Civil Code section 1941 and 1941.1(a) by failing to keep the premises in a habitable condition and provided a dwelling with defective waterproofing and weather protection of the roof, exterior walls, windows, and doors (FAC ¶¶ 63 -65.); that after informing Defendants about her ESA, Plaintiff was cited with a 3-Day Notice to Perform Covenant or Quit in retaliation for having an ESA (FAC ¶ 30, 31.); that Plaintiff was forced to make a complaint to the Los Angeles Housing Department Code Enforcement Division (LAHD) after the Defendants failed to make the requested Repairs. (FAC ¶ 38, 40) Plaintiff also alleges Defendants failed to comply with LAHD’s Order (FAC 60-62.) and that Defendants sought to increase her rent by “strongly and menacingly suggesting that [she] move to a vacant unit” with a significant increase in monthly rent and instead made false allegations and sought to eject her from the subject property without just cause. (FAC ¶ 52.) Defendants also issued unlawful retaliatory notices to quit and initiated an unlawful retaliatory eviction action. (FAC ¶¶ 46, 54.)

Plaintiff also alleges she was harassed due to her need for an ESA and her refusal to move to another unit with higher rent. (FAC ¶ 75.) This included failing to make and complete necessary repairs and maintenance, damaging her potted plants, insisting she remove her antique patio furniture, being screamed at in a loud and belligerent manner at all hours of the day, tampering and removing Plaintiff’s packages and envelopes, video and audio surveillance of Plaintiff and her guests, ignoring the required 24 hours written notice of entry prior to entering Plaintiff’s unit, ignoring her request for reasonable accommodation, serving a retaliatory Three Day Notice to Perform Conditions and Covenants or Quit based on fabrications and misrepresentations, and being served with an Unlawful Detainer Action a mere three days before Thanksgiving. (FAC ¶ 75(a)-(n).)

The Court finds Plaintiff has pled sufficient facts and the demurrer to the third cause of action is OVERRULED.

4th and 5th COA: Breach of the Warranty of Habitability (Common Law and Statutory)

The warranty of habitability is implied by law in residential leases and is based on the tenant’s reasonable expectation “that the product [i.e., the unit] he is purchasing is fit for the purpose for which it is obtained, that is, a living unit. Moreover, since a lease contract specifies a designated period of time during which the tenant has a right to inhabit the premises, the tenant may legitimately expect that the premises will be fit for such habitation for the duration of the term of the lease. It is just such reasonable expectations of consumers which the modern ‘implied warranty’ decisions endow with formal, legal protection. [Citation.]” (Green v. Superior Court (1974) 10 Cal.3d 616, 627.)

First, Defendants allege that Plaintiff failed to state facts to show she informed Defendants of said rodent infestation or other defective conditions.

The FAC alleges that the Defendants knew or had reason to know that the subject property was “substandard, dangers and unfit to be used as a rental property.” (FAC ¶ 55) Defendants ignored Plaintiff’s repair requests and ignored the Notice and Order to Comply by the LAHD. (FAC ¶¶ 56, 49, 60-62.) Based on the foregoing, the Court finds that Defendants’ argument lacks merit.

Second, Defendants do not deny that there was a rodent infestation, but infer that Plaintiff is to blame for the infestation because “Plaintiff kept compost and trash near her unit.” References to extrinsic evidence is improper on a demurrer because the defects must appear on the face of the complaint.

Finding that Defendants have failed to show that there are defects in Plaintiff’s 4th and 5th causes of action, the demurrer is OVERRULED as to those causes of action.

8th COA: IIED

The tort of intentional infliction of emotional distress (IIED) is committed when the defendant's conduct is intentionally intrusive and outrageous and has a traumatic effect on the plaintiff’s emotional tranquility. (Alcorn v. Anbro Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Bogard v. Employers Cas. Co. (1985) 164 Cal. App. 3d 606, 616.

Defendants assert Plaintiff fails to state sufficient facts to show that Defendants’ alleged conduct was outrageous rather than merely upsetting.

Plaintiff makes general allegations of outrageous conduct but fails to state with specificity who engaged in the conduct. General allegations that Defendants violated the FEHA and Unruh Act are insufficient without reference to specific instances of conduct. Plaintiff also failed to allege how Defendants’ ignoring of Plaintiff’s repair requests was not just merely negligent behavior but constituted “outrageous” behavior intentionally directed at Plaintiff and with intent to harm Plaintiff.

For conduct to be “outrageous,” it must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) And the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. (Id.) Liability for¿intentional¿infliction¿of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Id.)

Plaintiff makes reference to certain acts of retaliation and harassment, some of which can be classified as “annoyances, petty oppressions, or other trivialities” such as the moving of her patio furniture and trashcans. (FAC ¶ 75.) As to references about the destruction of her potted plants and property, no time frame or frequency of the conduct is stated. Furthermore, Plaintiff alleges harassing conduct by Tiffany, Defendant Frank Porrata’s adult daughter, but Plaintiff fails to state if Frank Porrata ratified Tiffany’s conduct or if Tiffany acted on behalf of Frank Porrata when she specifically engaged in the harassing conduct and whether Plaintiff asked Tiffany and Frank to stop the conduct. Also missing are allegations about the frequency and time frame of the alleged conduct.

Without the specific facts, the Court cannot assess who engaged in the “outrageous” conduct and if the conduct was in fact “outrageous.” Courts have dismissed IIED claims on demurrer when the facts alleged do not amount to outrageous conduct as a matter of law. (See, e.g., Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1608–1609, Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416–417, Ricard v. Pacific Indemnity (1982) 132 Cal.App.3d 886, 895.)

The demurrer to the 8th cause of action is SUSTAINED WITH LEAVE TO AMEND.

12 COA: Harassment in violation of Civil Code § 1940.2

“Civil Code section 1940.2 makes it unlawful for a landlord to commit certain specified acts ‘for the purpose of influencing a tenant to vacate a dwelling.’ (Civ. Code, § 1940.2, subd. (a).) The Purpose of Civil Code section 1940.2 is to prohibit a landlord’s use of ‘constructive self-help eviction’ techniques (Citation), such as theft, extortion, interference with a tenant’s quiet enjoyment, or trespass ‘for the purpose of influencing a tenant to vacate a dwelling.” (Erlach, supra, (2014) 226 Cal.App.4th at 1300 [internal citations omitted].)

Defendants assert that Plaintiff has failed to disclose supporting facts to show that Defendants partook in willful threats or menacing conduct to support this cause of action.

The FAC makes allegations that Defendants ignored repair requests and refused to make repairs, even after LAHD issued a citation. (FAC ¶¶55, 56 60-62.) Plaintiff also makes reference to several instances of harassing conduct, including a three-day notice to quit and unwillingness to accommodate her request to allow an ESA on the premises. (FAC ¶¶ 31, 40, 43, 45, 54, 75, 81.) Plaintiff also alleges she was pressured to move to another vacant unit with significantly higher monthly rent. (FAC 51.)

Accordingly, the Court finds that Plaintiff has pled sufficient facts to support a cause of action for violation of section 1940.2. The demurrer as to the 12th cause of action is OVERRULED.

Conclusion

Defendants’ demurrer to Plaintiff’s 1st, 2nd, 3rd, 4th, 5th, and 12th causes of action is OVERRULED.

Defendants’ demurrer to Plaintiff’s 8th cause of action is SUSTAINED WITH LEAVE TO AMEND. Leave to amend is 20 days.

Defendants to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.