Demurrer & Motion to Strike (Judge Benny Osorio)


Case Number: BC591433??? Hearing Date: April 25, 2016??? Dept: 97

34

CAROLINA HOYOS, et al,
Plaintiff,
v.

S & R PARTNERS LLC, et al.,
Defendants.
Case No.: BC591433

Hearing Date: April 25, 2016

[TENTATIVE] ORDER RE:
DEMURRER AND MOTION TO STRIKE PORTION OF PLAINTIFF?S COMPLAINT BY S & R PARTNERS LLC

Facts Alleged
In August 2012, Plaintiffs Carolina Hoyos, Luis Hoyos and David Herrera entered into a lease agreement with Defendant S & R Partners, LLC (?S & R?) for the property at 647 Lamar St., Los Angeles, CA, 90031. (Complaint ??2, 28.) The property was infested with bedbugs and beginning in the summer of 2013, the property was rendered uninhabitable by the bedbugs. (Complaint ?? 29, 31.)
Plaintiffs allege nine causes of action for: (1) Breach of Warranty of Habitability under Civil Code ?1941.1, (2) Breach of Warranty of Habitability under Health and Safety Code ?17920.3, (3) Breach of Warranty of Habitability under Civil Code ?1942.4, (4) Negligence ? Premises Liability, (5) Nuisance, (6) Intentional Infliction of Emotional Distress, (7) Negligent Infliction of Emotional Distress, (8) Breach of Contract, and (9) Breach of the Covenant of Quiet Enjoyment.
Procedural History
This action was filed August 14, 2015. The only named defendant is S & R. S & R filed a Demurrer and Motion to Strike on November 24, 2015. No opposition has been filed to either motion.
Discussion
Demurrer
A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (California Code of Civil Procedure (?CCP?) ? 430.10(a).) 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; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) All properly pled material facts are taken as true, so long as they do not contradict judicially noticed facts. (Burt v. County of Orange (2004) 120 Cal.App.4th 273, 277.) Judicially noticeable facts may be considered if they are specified in the demurrer or its supporting points and authorities. (CCP ?430.70). No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881). A complaint may plead inconsistent causes of action as long as there are no contradictory or antagonistic facts. (Steiner v. Rowley (1950) 35 Cal.2d 713, 718-719.) The plaintiff bears the burden of proving there is a reasonable possibility of amendment that will cure the defect in the pleading. (Blank, 39 Cal.3d at 318.)
S & R only demurs to: (1) Plaintiffs? second cause of action for breach of the warranty of habitability on the grounds that Health & Safety Code section 17920.3 does not grant a private right of action, (2) Plaintiffs? third cause of action because Plaintiffs have not pled the issuance of written notice to Defendants by a public official of the conditions, (3) Plaintiffs? sixth cause of action for intentional infliction of emotional distress because Plaintiffs have not and cannot plead outrageous conduct under the circumstances, and (4) Plaintiff?s eighth cause of action for breach of contract because Plaintiffs did not attach the contract or set out its terms verbatim in the complaint.
Second Cause of Action: Health & Safety Code ?17920.3
Health and Safety Code section 17920.3 defines when a dwelling unit is a ?substandard building.? Unlike sections 1941 or 1942.4 of the Civil Code, section 17920.3 of the Health and Safety Code does not create a duty on the part of a landlord or right of action against a landlord, but serves to define conditions that a tenant may seek to have abated by the landlord, and, eventually, bring suit over against the landlord under the Civil Code statutes.
Here, in addition to suing the landlord under Civil Code sections 1941.1 and 1942.4, Plaintiffs are also alleging a breach of the warranty of habitability directly under the definitional section, Health & Safety Code section 17920.3, which cannot serve as a basis for a cause of action on its own. Because there is no cause of action under this section, this defect cannot be remedied and the demurrer is sustained without leave to amend as to this cause of action.
Third Cause of Action: Civil Code ?1942.4
Civil Code section 1942.4 allows suit against a landlord who demands or collects rent for an uninhabitable dwelling after a ?public officer or employee, who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or landlord?s agent in writing? and the conditions have not been abated 35 days after the notice. ?1942.4(a)(1)-(3).
While Plaintiff?s pled that ?Plaintiffs and public officials informed Defendants about health and safety risks of the Premises associated with bed bug and insect infestation,? they did not plead that public officials gave written notice as required by Civil Code section 1942.4 (Complaint ?49.). Consequently, sufficient facts are not pled to maintain this cause of action, but because there is a reasonable possibility of amendment to cure that deficiency, the demurrer is sustained with leave to amend as to this cause of action.
Sixth Cause of Action: Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires: ?(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of emotional distress.? Stoiber v. Honeychuck, (1980) 101 Cal.App.3d 903, 921. ?Behavior 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.? Id.
Here, Plaintiffs plead that S & R knew or should have known about bedbugs in the property prior to renting it to Plaintiffs in August of 2012, and that Plaintiffs became aware of the bedbugs in the summer of 2013. (Complaint ??28, 29, 31, 113, 114). The facts that S & R had knowledge of bedbugs in 2012 and Plaintiffs only gained knowledge of bedbugs in 2013 are material and not in and of themselves contradictory, and thus taken as true. To the extent that any judicially noticeable information about bedbugs, their latency time, and ability to spread throughout a property may exist, it was not properly specified pursuant to CCP ?430.70 and thus cannot be considered.
Further, Plaintiffs adequately plead that the knowing and intentional failure of S & R or its agent to inform Plaintiffs of the presence of bedbugs before renting them the unit would likely result in illness through emotional and mental distress, for example, sleepless nights, and thus constitute outrageous conduct. (Complaint ??113-16. See also Demurrer at 7:3-4, ?Had defendant rented a bed bug infested unit, with full knowledge, as alleged in Paragraph 113, that may be considered outrageous conduct (emphasis in original).) Based on the face of the complaint, Plaintiffs have adequately pled a cause of action for intentional infliction of emotional distress, and the demurrer is overruled as to this cause of action.
Eighth Cause of Action: Breach of Contract
In an action based on breach of contract, the legal effect of the contract may be pled rather than its precise language. Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, as modified (Nov. 14, 2002). In Construction, an action for breach of contract was validly pled even when the contract in question was an insurance policy that was not attached to the complaint. Otsworth v. South Pacific Transportation Co.?s statement, cited to Defendant that ?the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference? ((1985) 166 Cal. App. 3d 452, 459; see also Hillman v. Sutter Cmty. Hosps., (1984) 153 Cal.App.3d 73, 749-50), is not controlling because it has been subsequently disapproved of (Miles v. Deutsche Bank National Trust Co., (2015) 236 Cal.App.4th 394, 401) and is at odds with the language of the California Supreme Court in Construction.
Here, Plaintiffs have adequately alleged the existence of a written contract, and that its effect was for Defendant to lease to Plaintiffs the property as a dwelling in exchange for a monthly sum. (Complaint ?129). Plaintiffs also allege that it contains the implied warranty of habitability and a provision for attorneys? fees. (Complaint ??131, 134.) Therefore, because Plaintiffs have adequately pled the legal effect of the contract between them and S & R, the demurrer is overruled as to this cause of action.
Motion to Strike
The court may strike any ?irrelevant, false or improper matter? from a pleading. (CCP ?436). A demand for relief that is not supported by the allegations of the complaint is an irrelevant matter. (CCP ?431.10(b)(3), (c)). The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP ?437).
S & R moves to strike paragraphs 48, 69, 70, 110, 134, 140, 144 and 145 from plaintiff?s complaint.
Paragraph 48: 25 California Code of Regulation ?40
25 California Code of Regulation section 40 refers to the requirements for linens in a hotel or furnished apartment rental. Plaintiffs have not pled that the property was furnished, and thus this regulation is immaterial to this litigation and is stricken from the complaint.
Paragraph 145: Award of Attorney?s Fees – Generally
Attorney?s fees shall only be recoverable as provided for by statute, contract or other law. (CCP ??1021, 1033.5(a)(10)). Plaintiffs assert claims for attorney?s fees pursuant to Civil Code sections 1021.5, (Complaint ??69, 70) 1717 and 1942.4 (Complaint ?134) and in their general prayer for relief (Complaint ?144). Because Plaintiffs adequately plead statutory and contractual bases for attorneys? fees, as discussed below, there is a basis to include it in the prayer for relief , and consequently should not be stricken. (Complaint ?145.)
Paragraph 69, 70: Attorneys? Fees ? Civil Code ?1021.5
?There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of . . . judgment[.]? (Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 583.) The request for fees is ancillary and may be made for the first time after judgment becomes final. (United Firefighters of Los Angeles v. City of Los Angeles (1991) 231 Cal.App.3d 1576, 1584.)
Because fees under section 1021.5 of the Civil Code are ancillary to this action, and may be awarded on a request that comes even after final judgment, the request is currently immaterial to the matter at hand and should be stricken from the complaint.
Paragraph 134: Attorney?s Fees ? Civil Code ??1717, 1942.4
Defendant?s arguments to strike these paragraphs are founded in the assumption that its demurrer will be sustained without leave to amend as to the third and eighth causes of action. As this is not the case, as discussed above, paragraph 134 will not be stricken, and consequently, neither will the aforementioned general prayer for attorneys? fees.
Paragraph 110: Punitive Damages: Nuisance
In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Civ. Code, ? 3294.) ?Malicious? conduct is that which is intended to cause injury or ?despicable conduct? that willfully and consciously disregards the rights or safety of others. (?3294(c)(1).) ?Oppression? is ?despicable conduct? that subjects a person to cruel and unjust hardship in conscious disregard of that person?s rights. (?3294(c)(2).) ?[D]espicable conduct? is that which is ?base, vile, or contemptible. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) In Pfeifer, a manufacturer that understood the dangers of asbestos, but failed to warn customers of the dangers was deemed to have acted with malice. (Id. at 1300-03.)
Plaintiffs do not allege that S & R intended they suffer harm from bedbugs, but rather that it and its agents were aware of the bedbugs and failed to act, in the line of willful and conscious disregard. Here, based on the Plaintiff?s complaint, S & R knew of the bedbugs prior to renting to the Plaintiffs, (Complaint ?31,), rented it anyway without informing Plaintiffs, (Complaint ??28, ?31), and did not take action to abate the bedbugs afterwards. (Complaint ??104, 105.) The facially pled pattern of S & R as a knowing defendant who did not warn the Plaintiffs, who later suffered harms to their health is analogous to Pfeiffer and allows a plea for punitive damages. Because paragraph 110 will not be stricken, the prayer for punitive damages in paragraph 145 is also supported.
Paragraph 140: Punitive Damages ? Covenant of Quiet Enjoyment
Punitive damages are not recoverable in an action for breach of contract. (Purcell v. Schwitzer (2014) 224 Cal.App.4th 969, 976.) A breach of the implied covenant of quiet enjoyment implies a term in a contract, and may only permit tort damages in connection with a wrongful eviction claim. (Ginsberg v. Gamson, 2205 Cal.App.4th 873, 896-902.)
By pleading a breach of the covenant of quiet enjoyment, Plaintiffs sound their ninth cause of action in contract. They do not plead that they were wrongfully evicted, instead pleading that they are present in the property and continuing to suffer damages. (Complaint ?45). Consequently, this paragraph is unsupported and will be stricken.
Conclusion and Order
For all the reasons discussed above, S & R?s demurrer to Plaintiffs? second cause of action is sustained without leave to amend. S & R?s demurrer to Plaintiffs? third cause of action is sustained with leave to amend. S &R?s demurrer to Plaintiffs? sixth and eight causes of action is overruled. S & R?s motion to strike paragraphs 48, 69, 70, and 140 of Plaintiffs? complaint is granted. S & R?s motion to strike paragraphs 110, 134, and 145 of Plaintiffs? complaint is denied. Plaintiffs shall file an amended complaint within twenty days of notice of this order. S & R is ordered to provide notice of this order.