Judge: Yolanda Orozco, Case: 22STCV14713, Date: 2023-01-24 Tentative Ruling
Case Number: 22STCV14713 Hearing Date: January 24, 2023 Dept: 31
DEMURRER WITH MOTION TO STRIKE
TENTATIVE RULING
Defendants demurrer to the Complaint is OVERRULED.
Defendants Motion to Strike
is GRANTED IN PART, with leave to amend Item 9 and DENIED as to the rest of the
Motion.
Background
On May 03, 2022,
the Plaintiffs Jesus Xochimitl; Leonor Xochimitl; and Argelia Moran filed a
Complaint against Defendants Stacy Ramos; Adriana B. Ramos; and Adriana B.
Ramos as Trustee to the Adriana B. Ramos 2013 Laguna Trust; and Does 1 to 100.
The Complaint
alleges causes of action for:
1) Violation of
California Civil Code § 1942.4
2) Tortious
Breach of the Warranty of habitability
3) Private
Nuisance
4) Business and Professions
Code § 17200, et seq.
5) Negligence
6) Breach of
Covenant of Quiet Enjoyment
7) Intentional
Infliction of Emotional Distress
8) Negligent
Hiring, Retention, and Supervision
9) Negligence Per
Se
10) Violation of
Retaliatory Eviction and Anti-Harassment Ordinance
On July 21, 2022,
Defendants filed a Demurrer with a Motion to Strike Plaintiffs’ Complaint.
Plaintiffs filed
opposing papers on December 05, 2022.
Defendants filed
a reply on January 17, 2023.
MEET AND CONFER
The meet and confer requirement has been met. (Glantz Decl.
¶¶ 2-5, Ex. A.)
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 Complaint
The
Plaintiffs were tenants of the subject property located in Huntington Park,
California. (Compl. ¶ 1.) The Plaintiffs
have been residing in the subject property since 1994. (Compl. ¶ 33.)
Plaintiffs allege that due to Defendants’ negligent actions, Plaintiffs lived
in abysmal living conditions that included a cockroach and mice infestation,
mold contamination, improper ventilation, dysfunctional plumbing and electrical
systems, inoperable heater, and improper fire protection systems. (Comp. ¶¶ 20,
39, 54, 58.) This was in violation of various building codes and health and
safety regulations that exposed and/or continue to expose Plaintiffs and their
children to serious health and safety hazards. (Compl. ¶ 54.) Defendants
continued to demand and collect rent from Plaintiffs while the prohibited
conditions identified by public housing continued to exist without abatement.
(Compl. ¶ 85.)
The
Complaint alleges that the subject property has been subject to multiple
inspections by the Los Angeles Department of Public Health and/or the Los Angeles
and Community Investment Department (the “Housing Department) for multiple
violations of the California Civil Code, the California Health and Safety Code,
the Los Angeles Municipal Code or the respective city government municipal code
corresponding to the subject property. (Compl. ¶ 18.) Defendants failed to
repair and maintain the subject property in compliance with the habitability
requirements imposed by federal, state, county, or local law, including Civil
Code section 1941.1 and Health and Safety Code section 17920.3. (Compl. ¶ 21.)
Despite numerous Notices and Orders to comply from government entities,
Defendants failed to correct the cited deficiencies throughout the subject
property. (Compl. ¶ 44.)
Plaintiffs
allege that they notified Defendants of the issues with the subject premises,
but despite numerous complaints, Defendants ignored the problem and refused to
take action to adequately address the issue.
(Compl. ¶¶ 31, 32, 33, 35, 36, 37.) The Defendants’ conduct has been
ratified by their employees/agents who have either ignored or failed to take
reasonable corrective action to address the habitability problems. (Compl. 37.)
Defendants are alleged to have ignored direct requests from their tenants with
complete impunity. (Id.) When repairs were conducted, they were done so
in a haphazard and substandard manner by failing to hire professional or
licensed contractors, failing to actually repair the known substandard
conditions and instead performing piecemeal and cosmetic work, and failing to
adequately supervise repairs conducted at the subject property. (Compl. ¶ 46.)
The
uninhabitable conditions of the subject premises caused the Plaintiffs to
suffer mental suffering, frustration, and emotional distress. (Compl. ¶¶ 22,
38.) The Plaintiffs experienced immense stress, anxiety, depression,
fearfulness, worry, loss of appetite, loss of sleep, nightmares, disgust,
shame, and embarrassment. (Compl. ¶ 38.) The Plaintiffs have minor children and
the situation has caused them to suffer additional anxiety due to feeling
desperate and helpless to protect their children from the unsafe and
uninhabitable conditions at the subject property. (Compl. ¶ 38.)
I. Demurrer to Complaint
Defendants
demurrer to the Complain on the basis that it is uncertain and that the first
and sixth causes of action fail to state sufficient facts. (Code Civ. Proc., §
430.10 subds. (e), (f).)
The
Complaint is Not Uncertain
Defendants
assert that the Complaint is uncertain, vague, and ambiguous because the Adriana
B. Ramos 2013 Laguna Trust does not exist.
Defendants admit
that Adriana Ramos was erroneously sued as the trustee of the La Laguna Trust.
Defendants fail to explain or cite any legal authority as to why the fact of an
erroneously sued party is grounds to grant a demurrer to the entire complaint.
A special
demurrer for uncertainty is insufficient unless the demurrer points out
specifically which portions or allegations in the pleading is ambiguous, uncertain,
or unintelligible. (Coons v. Thompson (1946) 75 Cal.App.2d 687,
690.) Furthermore, a demurrer for uncertainty will be sustained only where the
complaint is so bad that the defendant cannot reasonably respond,
meaning he or she cannot reasonably determine what issues must be admitted or
denied, or what counts or claims are directed against him or her. (Khoury v.
Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
Having
reviewed Plaintiff’s Complaint, the Court finds the Complaint is not uncertain.
The
demurrer for uncertainty is OVERRULED.
1st COA:
Violation of California Civil Code § 1942.4
California Civil Code section 1942.4 states that a landlord may not demand, collect, or increase rent, or issue a three-day notice to pay rent or quit if: (1) the dwelling is substandard and violates Civil Code section 1941.1 or Health & Safety Code sections 17920.10 or 17920.3; (2) a public officer has notified the landlord in writing after inspecting the unit that he/she must abate or repair the conditions; (3) the conditions have not been abated 35 days beyond the date the of the notice in subsection 2; and (4) the conditions were not caused by the tenant. (Civ. Code, § 1942.4.) In order for there to be a section 1942.4 claim, the government entity must at some point have reported to the landlord a violation, the cause of the violations was not due to the tenant’s acts or omissions, and 35 days have passed to give the landlord an opportunity to cure. (Civ. Code, § 1942.4, subd. (a).)
Defendants demurrer to the first cause of action on the basis that violations of section 1942.4 are not pled with specificity because Plaintiffs do not identify the dates of the inspection, the number of notices, and the dates on which the notices were issued, whether a public officer issued each notice, and whether the notice was in writing.
Plaintiffs allege that the subject property was subject to multiple inspections by the Los Angeles Housing and Community Investment Department and/or the Los Angeles Department of Public Health that resulted in citations against Defendants for multiple violations, including violations of Civil Code section 1941.1 and Health and Safety Code section 17920.3. (Compl. ¶¶ 18, 21.) Despite the Notices and Orders, Defendants failed to correct the cited deficiencies. (Compl. ¶ 44.)
The
Complaint also alleges that the subject property was inspected by the
Los Angeles County of Department of Health and Defendants were provided with
notice of repair of the holes and water damage in the Subject Property. (Compl.
¶ 71.) Defendants were given until April 20, 2022, to make the repairs, but no
actions have been taken to make timely repairs. (Compl. ¶ 71.) Despite the
uninhabitable and deteriorated state of the subject property, Defendants
provided Plaintiffs with notice of a 25% rent increase. (Compl ¶ 73.)
Moreover, “after inspecting the premises, public officer housing and health inspectors provided written notice to the Defendants of their obligation to repair prohibited conditions on the dates as alleged herein.” (Compl. ¶ 83.) Defendant failed to abate or repair the conditions identified and they continued to exist without abatement. (FAC ¶ 85.)
Defendants fail to cite any authority that requires Plaintiffs to plead violations of section 1942.4 with the requisite specificity such as providing dates for each notice and the number of notices issued. The fact that alleged citations were not corrected, implies that conditions were not abated within 35 days as required by the statute. (Civ. Code, § 1942.4 subd. (a)(3). Plaintiffs also allege that a public officer issued a written notice to Defendants regarding their obligation to make repairs within the requisite time. (Civ. Code, § 1942.4 subd. (a)(2).
Accordingly, the Demurrer
to the first cause of action is OVERRULED.
7th COA:
Intentional Infliction of Emotional Distress (IIED)
The elements of the tort for 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, 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 that Plaintiffs fail to allege how Defendants abused a relation or position, how Defendants acted intentionally and unreasonably with the recognition that the acts were likely to result in illness through mental distress, or that Defendants’ conduct was outrageous.
Plaintiffs sufficiently allege that the Defendants abused the landlord/tenant relationship by ignoring Plaintiffs’ request for repairs or carrying out inadequate repairs of the subject property. (Compl. ¶¶ 30, 34, 37, 46, 48, 49, 63, 72.) Defendants are alleged to know that Plaintiffs are low-income, unsophisticated tenants, with little to no knowledge about the law or access to resources that would have enabled Plaintiffs to protect themselves from Defendants’ unscrupulous conduct in failing to repair and maintain the subject property. (Compl. ¶ 51.) Defendants are alleged to have knowledge of the uninhabitable conditions of the subject property because they themselves inspected the property and blamed the Plaintiffs for the issues. (Compl. ¶¶ 32, 51.) “Defendants knew that the Subject Property was not fit for human occupation but made the conscious decision to subject Plaintiffs to the substandard and illegal living conditions therein[.]” (Compl. ¶ 80.) This was done with reckless disregard to the rights of the Plaintiffs and with “the probability that the Plaintiffs would suffer emotional distress, knowing that the Plaintiffs were present and living in the leased property that was substandard and had untenantable conditions” despite the Defendants’ legal obligations. (Compl. ¶¶ 35, 137.)
Defendants “had the means, opportunity and ability to abate the substandard conditions, and failed to do so in spite of knowledge regarding its impact and effect on the families residing therein.” (Compl. ¶ 80.) “Defendant acted purposely in order to vex, injure and annoy Plaintiffs for the purpose of forcing Plaintiffs to accept the substandard premises without further complaints to relevant governmental agencies, for the sole economic benefit of Defendants.” (Compl. ¶ 49.) Defendants ignored Plaintiffs’ complaints over months and years and blamed Plaintiffs for the substandard conditions. (Compl. ¶ 49.) “Defendants and their agents were hostile and dismissive when Plaintiffs complained about the substandard conditions, the repair and relocation process, including responding with arrogant, belittling and sometimes threatening language.” (Compl. ¶ 50.)
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 seventh cause of action.
II. Motion to Strike
Defendants move to strike language in the Complaint that references intentional conduct, attorney’s fees, and/or punitive damages. Defendant’s Motion seeks to strike the following:
· Paragraph
13, 16, 40, 41, 42, 43, 47, 48, 49, 52, 80, 106, 124, and 167 in their
entirety;
· Item 6 in
the Prayer for Relief;
· Item 9 in
the Prayer for Relief;
· Item 10
in the Prayer for Relief; and
· Item 13 in the Prayer for Relief.
Item 6
Since the demurrer was overruled as to the first cause of
action for violations of Civil Code section 1942.4, Plaintiffs are entitled to
attorney’s fees if they prevail in their claim. Moreover,
Defendants have failed to show that Plaintiffs are not entitled to recover attorney’s fees for violations of the California Code of Civil Procedure section 1021.5 and the Civil Code section 3304.
The Motion to Strike is DENIED as to item 6.
Item 9
Item 9 seeks “compensatory damages, reasonable attorney's fees, and the imposition of civil penalties up to $10,000 per violation pursuant to Los Angeles Municipal Code § 45.35.” (Compl. Prayer For Relief.)
The Plaintiffs reference violations of the Los Angeles Municipal (“LAMC”) code but fail to provide any specificity as to which sections of the municipal code were violated. Moreover, section 45.35 requires the tenant to provide written notice to the landlord of the alleged violation. (LAMC § 45.35(F).) Since the Complaint fails to allege that the Plaintiffs provided written notice to Defendants about the alleged municipal code violations, the Plaintiffs have not shown they are entitled to recover attorney’s fees under section 45.35.
The Motion to Strike Item 9 is GRANTED with leave to amend.
Item 10
Item 10 seeks “reasonable attorney fees, in addition to any liability for damages imposed by law, pursuant to California Code of Civil Procedure § 1021. 9.” Section 1021.9 provides:
“In any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.”
(Id.)
The Complaint alleges that “Defendants agents failed to give to give adequate notice of entry for repairs, and abused the right of entry by frequently entering without making repairs.” (Compl. ¶ 49.) Since Defendants fail to explain why Plaintiffs are not entitled to recover damages for violations of section 1021.9, the Motion to Strike item 10 is DENIED.
Punitive Damages
To state a claim for punitive damages under Civil Code
section 3294, a plaintiff must allege specific facts showing that the defendant
has been guilty of malice, oppression, or fraud. (Smith v. Superior
Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive
damages must be pled with specificity; conclusory allegations devoid of any
factual assertions are insufficient. (Id.)
“Malice” is defined in section 3294 subdivision (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id.) “Oppression” is defined in section 3294 subdivision (c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c) (3).)
Defendants argue that Item 13 and Paragraphs 3, 16, 40, 41, 42, 43, 47, 48, 49, 52, 80, 106, 124, and 167 that reference punitive damages should be stricken because the conduct alleged, even if grossly negligent, does not support a claim for punitive damages. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894 [“Mere spite or ill will is not sufficient; and mere negligence, Even gross negligence is not sufficient to justify an award of punitive damages.”].) Ebaugh v. Rabkin (1972) involved an appeal from a jury trial awarding punitive damages and focuses on the prerequisite of malice as the basis for exemplary damages where the defendant did not know he was operating on the wrong person, thus negating the requirement of either express or implied malice. (Id.) Moreover, the California Supreme Court has held that gross negligence and wanton and reckless misconduct can support an award for punitive damages. (Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869; see also (Civ. Code, § 3294, subd. (c) (1).)
Since the demurrer was OVERRULED as to the seventh cause of
action, the Plaintiffs can recover punitive damages on their IIED claim. (See Spinks
v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,
1055.) Moreover, Plaintiffs may also be able to recover punitive damages on
their private nuisance cause of action. (Stoiber v. Honeychuck (1980)
101 Cal.App.3d 903, 920 [“A nuisance may be either a negligent or an intentional tort.
If the latter, then exemplary damages are recoverable.”].)
Plaintiffs have sufficiently pled facts to show that Defendants had knowledge of the uninhabitable conditions at the subject property, willfully ignored the conditions of the subject property, and failed to make adequate repairs in violation of their legal duties all of which forced Plaintiffs, including children, to live in uninhabitable and unsafe conditions. Such allegations support a showing of “despicable conduct” sufficient to support an award for punitive damages. (See Civ. Code, § 3294, subd. (c)(1).)
Defendants’ Motion to strike punitive damages from the Complaint is DENIED.
Conclusion
Defendants demurrer to the Compliant is OVERRULED.
Defendants Motion to Strike is GRANTED IN PART, with leave to amend, Item 9 and DENIED as to the rest of the Motion.
Moving party to give notice.