Judge Yolanda Orozco, Case 22STCV07233 2023-01-25 Tentative Ruling

Judge: Yolanda Orozco, Case: 22STCV07233, Date: 2023-01-25 Tentative Ruling

Case Number: 22STCV07233 Hearing Date: January 25, 2023 Dept: 31

DEMURRER TO FAC WITH MOTION TO STRIKE

TENTATIVE RULING

The demurrer to the first, third, fourth, fifth, sixth, seventh, fourteenth, and fifteenth causes of action is OVERRULED.

The demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The demurrer to the eighth, ninth, and tenth cause of action is SUSTAINED WITH 30 DAYS LEAVE TO AMEND.

The Motion to Strike is GRANTED and DENIED, IN PART.

The Motion to Strike Paragraphs 72, 84, 139, 141, 145, and 163 is GRANTED WITH 30 DAYS LEAVE TO AMEND.

The Motion to Strike Paragraphs 107, 114, 182, 191, and Prayer for Punitive Damages is DENIED.

The Motion to Strike the second cause of action is MOOT.

Background

On March 01, 2022, Plaintiffs Carolyn Allred and Lola Selah Rois Allred, by and through her guardian ad litem, Carolyn Allred, filed a Complaint against Charmaine Collins Charles; Leslie Charles; and Does 1 to 10.

The First Amended Complaint (FAC) asserts cause of action for:

1) Negligent Maintenance of Premises;

2) Negligent Infliction of Emotional Distress;

3) Tortious Breach of Warranty of Habitability;

4) Breach of Implied Covenant of Quiet Enjoyment;

5) Nuisance;

6) Trespass;

7) Excessive Collection of Rent in Violation of Cal. Civ. Cod § 1942.4;

8) Violation of the Fair Housing Amendment Act of 1998;

9) Fair Employment and Housing Act (FEHA)-Disability Discrimination;

10) violation of the Unruh Civil Rights Act §§ 51, et seq.

11) Violation of the California Disabled Person Act §§ 54-55.2;

12) Retaliation in Violation of Civil Code section 1942.5

13) Violation of Long Beach Municipal Code § 8.101.030

14) Intentional Misrepresentation;

15) Intentional Infliction of Emotional Distress.

On August 04, 2022, Defendants filed a demurrer to Plaintiffs’ FAC.

On January 11, 2023, Plaintiff filed opposing papers.

On January 12, 2023, Defendants filed a reply.

MEET AND CONFER

Before filing a demurrer or 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. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)

The meet and confer requirement has been met. (Mantovani Decl. ¶¶ 3, 4, Ex. 1.)

Legal Standard

A. Demurrer¿¿¿

¿¿

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.)¿ For the purpose of testing 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.)¿¿

B. Motion to Strike¿¿

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 of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); 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”].)¿¿¿

¿¿

C. Leave to Amend¿¿¿

¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿

Discussion

Allegations in FAC

The Plaintiffs were tenants who resided in a unit on the subject property located in Long Beach, California from September 2019 to December 2021. (FAC ¶¶ 2, 3, 8.) Defendants are the managers and/or owners of the subject property. (FAC ¶¶ 3, 4.)

The Plaintiffs had a written contract with the Housing Authority of the City of Long Beach (the “Housing Authority”) wherein a portion of the rent was paid by the Housing Authority. (FAC ¶ 9.) The contract with the Housing Authority was not a lease. (FAC ¶ 10.) The Plaintiffs and Defendants had an oral lease agreement, and despite the Plaintiffs’ request, no written lease agreement was created. (FAC ¶ 11.) The FAC asserts that the Plaintiffs are disabled and that the Defendants had notice of their disability and the Plaintiffs’ request for reasonable accommodations. (FAC ¶¶ 12, 29, 41, 42.)

i. Trespass / Nuisance / Harassment / Breach of Covenant of Quiet Enjoyment

The FAC alleges that Defendants breached Plaintiffs’ right to privacy and quiet enjoyment when Defendants installed cameras pointing at the front door and windows, and outside yard of the unit and that Defendants, with little to no notice, would regularly appear at the subject property to make repairs or harass Plaintiffs. (FAC ¶¶ 13-16.) Defendant Charmain is alleged to have entered the subject property without the required 24-hour notice in order to take unnecessary photos of the inside of the property and of Plaintiffs, including the minor Plaintiff. (FAC 21.) Defendant also parked their mobile home in the driveway directly adjacent to the property, hindering Plaintiffs’ ability to access the driveway. (FAC ¶ 23.) The fumes from the mobile home also exasperated the Plaintiffs’ respiratory ailments and disabilities. (FAC ¶¶ 24, 25.) Defendants refused to stop the motor home from running despite repeated requests that they stop due to the Plaintiffs’ medical conditions. (FAC ¶¶ 25, 26.)

Defendant Charmaine also demanded that Plaintiffs remove her small potted plants outside their door, as well as patio furniture, despite the neighboring tenant being allowed to have plotted plants and patio furniture. (FAC ¶¶ 17, 18.) Plaintiffs believe the differential treatment was due to the Plaintiffs’ low-income status and/or disability. (FAC ¶ 17.) Plaintiff Carolyn explained to Defendants that gardening was a form of occupational therapy but Defendants continued to refuse and/or limit how or where Plaintiff could place her potted plants. (FAC ¶ 18.)

For a period of months, Defendants locked up some of Plaintiff’s belongings in the garage and refused to allow Plaintiffs to access them, including Plaintiff Carolyn’s walker, as well as her cane. (FAC ¶ 20.) The Plaintiffs believe the conduct was discriminatory and deprived Plaintiff Carolyn of the tools she need to help her mobility. (FAC ¶ 20.)

On March 23, 2021, the Plaintiffs lodged a complaint with the DFEH, alleging disability discrimination as well as failure to provide a reasonable accommodation and refusal to engage in the interactive process due to the Defendants’ refusal to move the mobile home or change its direction and Defendants continued entrance or appearance of the subject property without 24-hour notice. (FAC ¶ 27.) However, before the DFEH complaint was served, Plaintiff Carolyn withdrew the complaint fearing retaliation. (FAC ¶ 28.)

In the Summer of 2021, Plaintiffs informed Defendants of their intent to set up an inflatable pool in the yard for water therapy and because of the temperatures in the property, but Defendants demanded the pool be removed despite allowing Plaintiffs to use an inflatable pool the previous summer. (FAC 30.)

ii. Failure to Maintain the Property in Habitable Condition

Plaintiffs allege Defendants failed to maintain the property in habitable condition and failed to make adequate repairs. (FAC ¶¶ 31, 32.) Unihabitable conditions included a rodent infestation and water intrusion to the front and rear doors. (FAC ¶ 32.) The FAC asserts the rodent infestation pre-dated Plaintiff’s tenancy and that Defendants neither abated the infestation nor informed Plaintiffs of its existence despite knowing about the infestation. (FAC ¶ 35, 37.) Defendants denied the existence of an infestation, repeatedly ignored Plaintiff’s request, and/or claimed an exterminator would not help in any way. (FAC ¶ 37.)

Due to the Defendants’ inaction, Plaintiff Carolyn made complaints to the Housing Authority about the untenable conditions at the Property. (FAC ¶ 39.)

On January 2021, the Housing Authority did a virtual inspection and confirmed the existence of a rodent infestation. (FAC ¶40.) On January 13, 2021, Plaintiff Carolyn sent a reasonable accommodation request via email to Defendants asking them to address the rodent infestation and professionally clean the subject property as it was exacerbating both Plaintiffs’ disabilities and causing physical illness and emotional distress. (FAC ¶¶ 41, 42.) After multiple requests and notices from the Housing Authority, Defendants finally arranged for a handyman to seal the holes in the home, set traps, and clean some of the rodents’ mess. (FAC ¶ 44.)

Plaintiff Carolyn also informed Defendant Charmaine about a water leak from the water filtration line at the rear of the refrigerator. (FAC ¶ 45.) The Defendants’ representative of her homeowner’s insurance and/or technician assessed the damage and advised Defendant Charmaine that she needed to remove the wood trim around the leak to get into the walls and dry the area thoroughly. (FAC ¶ 46.) Defendant Charmaine stated she would not undertake that level of remediation as she was unsure of whether lead paint, asbestos, and/or mold were present in that area. (FAC ¶ 46.)

Defendants arranged for air dryers to run continuously in the house while Plaintiffs inhabited the unit. (FAC ¶ 49.) the dryers were extremely loud and took up significant space. (FAC ¶ 49.) The Plaintiffs had to pay for the energy used up by the air dryers and were not reimbursed. (FAC ¶ 49.) Due to the dryers, Plaintiff Carolyn suffered from nosebleeds. (FAC ¶ 51.)

On October 01, 2021, Defendant Charmaine appeared at the subject property with an inspector from the Housing Authority without providing 24-hour notice prior to entry. (FAC ¶ 52.) The inspector deemed the inspection “failed” due to the floor and wall condition and the moisture. (FAC ¶ 52.) The Housing Authority instructed the Defendants to replace the wood trim, dry the area, and then reinstall and repaint it. (FAC ¶ 52.) The Defendants did not conduct any repairs. (FAC ¶ 53.)

On October 01, 2021, Defendants left a 90-day Notice to Terminate the Tenancy. (FAC ¶ 55.) Defendants’ notice stated that “in good faith, seek to recover possession of the Property in order for use and occupancy as a primary place of residence by the Landlord or the Landlord’s spouse, registered domestic partner, children, grandchildren, parents, or grandparents.” (FAC ¶ 56.)

On November 01, 2021, the Inspector from the Housing Authority conducted an inspection and noted that the subject property did not meet the necessary standards and failed the property. (FAC ¶ 58.) Due to the failed inspection, on November 03, 2021, the Housing Department notified Defendants that the property had been abated due to the two failed inspections and that the Housing Authority would stop payment. (FAC ¶ 59.) Consequently, the Plaintiffs were constructively evicted since they had no choice but to vacate the property. (FAC ¶ 59.)

On November 19, 2021, the Housing Authority conducted a supplemental inspection of the repairs conducted by Defendants and deemed the inspection as failed. (FAC ¶ 66.) The Plaintiffs suffered an extraordinary amount of emotional distress because they had to relocate during the COVID-19 pandemic and incurred a significant amount of unplanned expenses. (FAC ¶ 68.) The FAC alleges the subject property remains unoccupied. (FAC ¶ 69.)

iii. Defendant’s Malicious, Fraudulent, and Oppressive Conduct

The FAC alleges that Defendants engaged in malicious, fraudulent, and oppressive conduct which justifies an award for punitive damages because the Defendants willfully disregarded the Plaintiffs’ rights to be free from trespass, nuisance, breach of the covenant of quiet enjoyment, and breach of the warranty of habitability. (FAC ¶ 73.)

The FAC alleges that Defendants harassed Plaintiffs, refused to provide a reasonable accommodation, subjected Plaintiffs to uninhabitable conditions, delayed necessary repairs to harm Plaintiffs, and trespassed wantonly, and unlawfully and fraudulently evicted Plaintiffs in retaliation for their complaints to the Housing Authority and because of their disability. (FAC ¶ 74.) The conduct is alleged to demonstrate a callous indifference to the law and to Plaintiffs’ rights. (FAC ¶ 74.)

The FAC also alleges the Defendants intended to cause emotional injury to the Plaintiffs by not complying with the applicable law, forcing the Plaintiffs to deal with habitability problems, lying to Plaintiffs about the condition of the Property and the work that had been done, harassing the Plaintiffs, and wantonly trespassing, and unlawfully and fraudulently evicting Plaintiffs in retaliation for their complaints. (FAC ¶ 75.) These actions are alleged to have been done with the intent to cause Plaintiffs severe emotional distress or without regard for the consequences on the Plaintiffs’ emotional well-being. (FAC ¶ 75.).

I. Defendants’ Demurrer to FAC

Defendants demurrer to the FAC on the basis that the causes of action fail to state facts sufficient to sustain a cause of action against Defendants, the FAC is uncertain, and certain allegations in the FAC are duplicative causes of action. (Code Civ. Proc. § 430.10 subds. (e)(f).)

1st, 2nd, and 5th COAs: Negligent Maintenance of Property, NIED, and Nuisance

Plaintiffs’ claim for Negligent Maintenance of Property can properly be characterized as a negligence cause of action. “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [internal quotations omitted].)

The essence of an action for private nuisance is a substantial, unreasonable interference with the plaintiff’s use and enjoyment of his property. (See Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.) Residential tenants are typically deemed to have a sufficient property interest to confer standing to bring an action for nuisance. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) Moreover, California recognizes claims for nuisance based on residential habitability issues such as the ones alleged here. (Id.) “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 Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) The nuisance claim “stands or falls with the determination of the negligence cause of action” in such cases. (Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 954, fn. 1.)

Plaintiffs’ negligence cause of action is based on violations of Civil Code section 1941, failure to maintain habitable conditions.

Plaintiffs’ nuisance cause of action is based on violations of Civil Code sections 3497 et seq., in that the “defective conditions were injurious to the health and safety of Plaintiffs, and substantially interfered with Plaintiffs’ comfortable enjoyment of the Property.” (FAC ¶ 110.)

Civil Code section 3479 states:

“Anything which is injurious to health . . . or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any . . . street . . . is a nuisance.”

(Id.)

Plaintiffs sufficiently allege that Defendants’ mobile home obstructed Plaintiff’s ability to access the driveway and since it was left running for hours, due the mobile home’s position, exhaust fumes filled the property and exacerbated Plaintiff’s respiratory ailments, medical conditions, and disabilities. (FAC ¶¶ 23, 24, 35.)

Therefore, Plaintiff’s nuisance cause of action is based on different operative facts than the negligence cause of action and is not duplicative.

“Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis and the elements of duty, breach of duty, causation and damages must exist to support the cause of action.” (Klein v. Children’s Hospital Medical Center (1996) 46 Cal.App.4th 889, 894.)

In Stober v. Honeychuck (1980) 101 Cal.App.3d 903, the plaintiff asserted six causes of action, with included a cause of action for nuisance and negligent violation of a statutory duty. (Id. at 911.)

The Stober Court characterized the plaintiff’s negligence claim as an NIED claim:

“we observe that unlike the general rule in personal injury cases, the Negligent infliction of emotional distress anxiety, worry, discomfort is compensable without physical injury in cases involving the tortious interference with Property rights (Citations). Thus, if defendants' failure to repair the premises constitutes a tort grounded on negligence, appellant is entitled to prove her damages for emotional distress because the failure to repair not only allegedly caused water damage to appellant's furnishings, it also must be deemed to constitute an injury to her tenancy interest (right to habitable premises) which is a species of property (Citation).”

(Id. at 922-923; see also Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 [defendant’s failure to repair the premises ‘constitutes a tort grounded on negligence, appellant is entitled to prove his damages for emotional distress [as an NIED claim] because the failure to repair must be deemed to constitute an injury to his tenancy interest[.]’”].)

Accordingly, the Plaintiffs may properly maintain an NIED claim that is subsumed under the negligence cause of action.

“By utilizing Civil Code section 1714 as the standard of care owed by a landlord, the tenant will have the benefit of Evidence Code section 669 if the tenant is able to prove that the landlord violated a statute or regulation and the violation proximately caused injury to his person or property. Since Civil Code section 1941 and the housing codes of California were designed to protect the health and safety of tenants, a rebuttable presumption of negligence on the part of the landlord would arise provided the tenant proves that the landlord violated the statute and the violation proximately caused his injuries.”

(Stober, supra, 101 Cal.App.3d at 924.)

Plaintiffs sufficiently alleged that Defendant owed a legal duty under Civil Code section 1941 to keep the premises in a habitable condition. (FAC ¶¶ 78, 86.) “Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care.” (Erlach, supra, 226 Cal.App.4th at 1299 [internal citations and quotations omitted].)

The facts as alleged in the FAC, regarding the rodent infestation and water damage, are sufficient facts to support a finding that Defendants owed a duty under section 1941 to maintain the premises in a habitable condition.

Accordingly, the Demurrer to the first cause of action is OVERRULED, and the demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND as they are duplicative causes of action.

3rd, 4th, and 5th COAs: Tortious Breach of Warranty of Habitability, Nuisance, and Breach of Implied Covenant of Quiet Enjoyment

Defendants demurrer to the fifth cause of action for nuisance on the basis that it is duplicative of the third cause of action for breach of warranty of habitability. A cause of action for breach of the implied warranty of habitability requires “the existence of a material defective condition affecting the premises' habitability, notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.” (Erlach, supra, 226 Cal.App.4th at 1297.) A nuisance cause of action is authorized by Civil Code section 731.

Defendants fail to cite any legal authority holding that a cause of action for nuisance is duplicative of a cause of action for breach of warranty of habitability. Second, the causes of action are based on different operative facts. The nuisance cause of action is based on the Defendants’ interference with Plaintiffs’ comfortable enjoyment of the premises due to Defendants’ harassment (FAC ¶¶ 13, 22, 49, 103) and Defendants’ failure to make adequate repairs to maintain the subject property in a habitable condition (FAC ¶¶ 33, 53, 58, 64, 66,109).

Defendants demurrer to the fourth cause, Breach of the Implied Covenant of Quiet Enjoyment, on the basis that it is duplicative to the nuisance cause of action.

Every lease includes a covenant of quiet possession and enjoyment. (See Civ. Code § 1927, Erlach, supra, 226 Cal.App.4th at 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].) “[A] landlord's failure to fulfill an obligation to repair or to replace an essential structure or to provide a necessary service can result in a breach of the covenant if the failure substantially affects the tenant's beneficial enjoyment of the premises.” (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.)

Both Erlach v. Sierra Asset Servicing, LLC (2014) and Stoiber v. Honeychuck (1980) support the proposition that “a tenant may maintain a tort action against his landlord for damages suffered by way of annoyance or discomfort or for injury to his personal property caused by the landlord's failure to keep the premises in a habitable condition” while also alleging statutory violations regarding habitability. (See Erlach, supra, 226 Cal.App.4th at 1298-1299.) Defendants fail to cite a single authority holding that a cause of action based on nuisance, breach of the implied warranty of habitability, and breach of the covenant of quiet possession and enjoyment are duplicative causes of action as a matter of law.

The third, fourth, and fifth cause of action represent different theories of recovery and Plaintiff has the right to plead alternative theories of recovery. “When a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.”(Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) In certain instances, a plaintiff cannot recover both statutory penalties and punitive damages for the same alleged conduct, unless the legislature provides otherwise. (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890.) The plaintiff may make an election between the two remedies provided, but the risk of double recovery does not prevent a Plaintiff from pleading alternative theories of recovery. (See id.)

Defendants also assert that the third, fourth, and fifth causes of action fail to state sufficient facts but fail to state what facts are missing or what elements of the cause of action Plaintiffs failed to plead. The Court will not speculate as to what facts Defendants believe are missing from the third, fourth, and fifth causes of action when a cursory view of the FAC shows it is amply supported by sufficient facts.

The Demurrer to the third, fourth, and fifth cause of action is OVERRULED.

6th and 7th COA: Trespass and Excessive Collection of Rent in Violation of Cal. Civ. Cod § 1942.4

The Court finds that Plaintiffs’ Trespass and Section 1942.4 claims are not duplicative of any of the other causes of action alleged. Moreover, because the Demurrer did not specifically challenge these two causes of action, any Demurrer to the sixth or seventh cause of action is OVERRULED.

8th, 9th, 10th, and 11th COA: Violation of the Fair Housing Amendment Act of 1998; Fair Employment and Housing Act (FEHA)-Disability Discrimination; Violation of the Unruh Civil Rights Act; and Violation of the California Disabled Person Act.

The Fair Housing Amendments Act of 1988 (FHA), 42 U.S.C. § 3601 et seq., allows “[a]n aggrieved person” to “commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice, or the breach of a conciliation agreement entered into under this subchapter, whichever occurs last, to obtain appropriate relief with respect to such discriminatory housing practice or breach.” (42 U.S.C.A. § 3613.)

The FAC alleges that Defendants breached the FHA by:

· discriminating against Plaintiffs in the terms, conditions, and privileges of the rental of a dwelling because they experience disability in violation of 42 U.S.C. § 3604(f), including by refusing to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling;

· coercing, intimidating, threatening or interfering with persons in their exercise or enjoyment of, or on account of their having exercised or enjoyed, or on account of their having aided or encouraged any other person in the exercise or enjoyment of, any right granted by or protected by the Fair Housing Act in violation of 42 U.S.C. § 3617.

(FAC ¶ 134.)

Plaintiffs allege they are both aggrieved persons under section 3602(i) of the FHA without specifying what their alleged disability is. In their opposing papers, Plaintiff asserts that they do not need to disclose their diagnosis in a publicly filed document when the Plaintiffs and their physician provided Defendants a note. (FAC ¶¶ 12, 25, 29.) Under the FHA, the failure to provide an accommodation requires a showing that the requested accommodation was “necessary” not just suitable or convenient. (See U.S. v. California Mobile Home Park Management Co. (9th Cir. 1997) 107 F.3d 1374, 1381.)

The Plaintiffs’ conclusory allegation that they were disabled, and the requested accommodation was necessary, without specific facts as to what the alleged disability is and the specific accommodation requested, are insufficient to sustain a claim for violation of the FHA. If Plaintiffs do not wish to state their disability in a public document, they can file a motion to seal portions of the complaint. The Plaintiffs are obligated to plead their claims with sufficient specificity that "gives notice of the issues sufficient to enable preparation of a defense." (Okun v. Superior Court (1981) 29 C.3d 442, 458.) The Plaintiffs failure to plead specific facts regarding their alleged disability is a defect that appears on the fact of the pleading and is proper grounds for granting a demurrer. (Code Civ. Proc. § 430.30.)

The Plaintiffs’ conclusions of law that they are disabled, unsupported by ultimate facts, is insufficient to show that they have a disability protected by the FHA. Similarly, Plaintiffs’ conclusory allegation that they have a disability under Government Code section 12926 subdivisions (m) or (j) are conclusions of law unsupported by any facts. (FAC ¶¶ 143, 148, 154.) Accordingly, the Court cannot ascertain if the Plaintiffs have standing to assert violations of Government Code section 12955 of the Fair Housing Act (Ninth Cause of Action), disability discrimination under the Unruh Act (Tenth Cause of Action); and violations of the Disabled Persons Act (DPA) (Eleventh Cause of Action). Defendants must have a disability that meets a statutory definition of disability, and without specific facts, the Court cannot make that determination as a matter of law. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 257.)

Moreover, Plaintiffs are seeking damages under section 54.3 of the DPA which is only authorized if Plaintiffs were denied equal access to a public facility. (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 265–266 [“while virtually any disabled person can bring an action to compel compliance with the DPA under section 55, a plaintiff cannot recover damages under section 54.3 unless the violation actually denied him or her equal access to some public facility.”].) Here, Plaintiffs have not alleged that the subject property is a public facility.

Accordingly, the demurrer to the eighth, ninth, tenth, and eleventh causes of action are SUSTAINED WITH LEAVE TO AMEND.

12th COA: Retaliation in Violation of Civil Code section 1942.5

Civil Code section 1942.5 permits a cause of action for retaliatory eviction. (Western Land Office, Inc. v. Cervantes (1985) 175 Cal.App.3d 724, 737.) Section 1942.5 prohibits retaliation against a lessor because they exercised the right to complain to an appropriate agency about tenability issues of a dwelling. (Civ. Code § 1945.2.) “The existence or nonexistence of a landlord's retaliatory motive is ordinarily a question of fact.” (Western Land Office, Inc., supra, 175 Cal.App.3d at 731.)

Here, the FAC appropriately states that the Plaintiffs complained about tenability regarding the water intrusion and rodent infestation to the Housing Authority that resulted in a failed inspection in January 2021 and February 10, 2021. (FAC ¶¶ 40, 43.) On October 1, 2021, the subject property failed a third inspection, and on the same day, the Defendants delivered a 90-day Notice to Terminate the Tenancy. (FAC ¶¶ 53, 55.)

Therefore, the Plaintiffs have stated sufficient facts to support a cause of action for retaliatory eviction and the Demurrer to the twelfth cause of action is OVERRULED.

13th COA: Violation of Long Beach Municipal Code § 8.101.030

The Long Beach Municipal Code (LBMC) section 8.101.030 prohibits tenant harassment:

“(A) Interrupt, terminate, or fail to provide housing services required by a rental agreement or by Federal, State, County, or local housing, health, or safety laws, . . .

(B) Acting in bad faith, (i) fail to timely perform repairs and maintenance required by a rental agreement or by Federal, State, County or local housing, health or safety laws; (ii) fail to exercise due diligence in completing such repairs once undertaken; (iii) fail to follow appropriate industry repair, containment, or remediation protocols designed to minimize exposure to noise, dust, lead, paint, mold, asbestos, or other building materials with potentially harmful health impacts; or (iv) conduct elective renovation or construction of a rental housing unit for the purpose of harassing a tenant.

(C) Abuse the right of access into a rental housing unit as established by California Civil Code Section 1954 or other applicable law. Such abuse includes, without limitation, entries for inspections that are not related to necessary repairs or services; entries excessive in number; entries or demands for entry at times outside normal business hours; entries contrary to a tenant's reasonable request to change the date or time of entry; photographing or otherwise recording portions of a rental housing unit that are beyond the scope of a lawful entry or inspection; and misrepresenting the reasons for accessing a rental housing unit.

[. . .]

(F) Violate any law which prohibits discrimination based on. . . disability [.]”

(LBMC § 8.101.030.)

Although the Plaintiffs’ harassment claim due to disability under section 9.101.030 may not be cognizable as currently pled, the Plaintiffs have pled that they experienced harassment when Defendants failed to make the appropriate repairs as required by law and when Defendants abused the right to enter the rental unit without proper notice.

Accordingly, the Demurrer to the thirteenth cause of action is OVERRULED.

14th COA: Intentional Misrepresentation

The elements of a misrepresentation claim are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Civ. Code § 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Plaintiffs allege that Defendants made an intentional misrepresentation in or around October 2021, when they represented to Plaintiffs that they were terminating the tenancy because a close family member was moving into the subject property. (FAC ¶ 173.) The representation was made during the State-ordered COVID-19 eviction moratorium. (FAC ¶ 73.) The 90-day Notice to Terminate the Tenancy was left on the Plaintiffs’ door and stated that Defendants “in good faith, seek to recover possession of the Property in order for use and occupancy as a primary place of residence by the Landlord or the Landlord’s spouse, registered domestic partner, children, grandchildren, parents, or grandparents.” (FAC ¶ 56.) The FAC alleges that at the time the misrepresentation was made, Defendant knew that the representation was false and fraudulent and intentionally made the representation. (FAC ¶ 175.) Defendants knew that Plaintiffs would rely on the representation by vacating the property. (FAC ¶ 176.)

Whether the Defendants’ misrepresentation was actually false remains a question of fact. Plaintiffs have also sufficiently alleged that they were harmed by Defendants’ conduct in the costs incurred to vacate the property and “loss of the value of their leasehold” and rental payment made during the leasehold, as well as suffering mental and emotional distress. (FAC ¶¶ 180, 181.)

The Court finds that Plaintiffs’ intentional misrepresentation claim is sufficiently pled and the Demurrer to the fourteenth cause of action is OVERRULED.

15th COA: Intentional Infliction of Emotional Distress (IIED)

The elements for the tort of intentional infliction of emotional distress are “‘(1) Extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct...The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

The tort of intentional infliction of emotional distress 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.)

The FAC sufficiently alleges that Defendants abused the landlord/tenant relationship by failing to maintain the premises in a habitable and safe condition, creating an unhealthy nuisance by having the motor home running, and fraudulently terminating the Plaintiffs’ tenancy. Plaintiffs also sufficiently allege that the Defendants’ conduct caused them severe emotional distress (FAC ¶ 75, 80, 188, 190.) Moreover, the FAC alleges that Defendants had knowledge of about the conditions of the property and failed to make the required repairs. (FAC ¶ 59.)

Based on the facts alleged in the Complaint, the Court finds that the Plaintiffs have pled sufficient facts to sustain a cause of action for IIED.

The demurrer is overruled as to the fifteenth cause of action.

II. Motion to Strike

Defendants move to strike language in the FAC that references punitive damages. Defendants seek to strike the following Items:

1) Paragraph 72 relating to malicious, fraudulent and oppressive conduct that justifies an award of punitive damages;

2) Paragraph 84 relating to malicious, fraudulent and oppressive conduct that justifies an award of punitive and exemplary damages;

3) Paragraph 107 relating to malicious, grossly negligent fraudulent and oppressive conduct that justifies an award of punitive damages;

4) Paragraph 114 relating to despicable, malicious, willful, knowing, cruel, unjust and oppressive conduct that justifies an award of punitive damages;

5) Paragraph 139 relating to willful, malicious and oppressive conduct that justifies an award of punitive and exemplary damages;

6) Paragraph 141 relating to punitive damages;

7) Paragraph 145 relating to an award of punitive damages;

8) Paragraph 163 relating to malicious, oppressive and fraudulent conduct;

9) Paragraph 182 relating to intentional misrepresentation being despicable, malicious, willful, knowing, cruel, unjust and oppressive conduct that justifies an award of punitive damages;

10) Paragraph 191 relating to intentional infliction of emotional distress being despicable, malicious, willful, knowing, cruel, unjust and oppressive conduct that justifies an award of punitive damages;

11) Second Cause of Action paragraphs 85-92 in its entirety on the basis that there is no such cause of action; and

12) The prayer at paragraph 4 seeking punitive damages on each cause of action.

Items 1, 2, 8, 5, 6, and 7

The Defendants’ request to strike Paragraphs 72, 84, and 163 in their entirety is granted WITH LEAVE TO AMEND since the allegations are legal conclusions unsupported by any specific facts showing malice, fraud, or oppression.

Moreover, since the Demurrer to the eighth, ninth, and tenth causes of action was SUSTAINED WITH LEAVE TO AMEND, the MOTION TO STIKE IS GRANTED WITH LEAVE TO AMEND as to Paragraphs 139, 141, and 145.

Items 3 and 4

The Defendants’ request to strike Paragraph 107 is DENIED because the FAC sufficiently alleges that the parking of the RV immediately outside the property for days was done maliciously or oppressively.

The Defendants’ request to strike Paragraph 114 is DENIED since the Plaintiffs sufficiently allege that the failure to make the requisite repairs was a nuisance that impacted the Plaintiffs’ health and Defendants acted with malice or willful or oppressive conduct in failing to abate the nuisance. (FAC ¶¶ 111, 114.)

Items 9, 10, 11 and 12

Defendants Motion to Strike Paragraph 182 is DENIED since the Demurrer to the fraud cause of action was OVERRULED.

Similarly, the Motion to Strike Paragraph 191 is DENIED since the Demurrer to the fifteenth cause of action is OVERRULED and the request for punitive damages is supported by specific facts showing malicious and oppressive conduct by Defendants. (FAC ¶ 189.)

Defendants’ Motion to strike the second cause of action in paragraphs 85-92 is Moot because the second cause of action is subsumed under the first cause of action for negligence.

The Motion to Strike the prayer for punitive damages as allowed by law is also DENIED.

Conclusion