Case Number: BC600262 Hearing Date: August 31, 2016 Dept: J
Re: Darlene Cardona, et al. v. Jing Tan, et al. (BC600262)
DEMURRER TO PLAINTIFFS’ COMPLAINT
Moving Party: Defendant Daxin Investment, LLC
Respondents: Plaintiffs Darlene Cardona, Deandre Bell, Gloria Gonzalez, Federico Centero, Araceli Gonzalez, David Centeno, Ricardo Gonzalez, Dulce Gonzalez, Edgar Meza, Bernadino Reyes, Yorllana Tziwruw, Irving Tellez, Francisco Fuentes, Lucia Gonzalez and Carlos Gonzalez
POS: Moving OK; Opposing OK; Reply OK
Plaintiffs are current and/or former tenants of the residential apartment complex located at 1191 E. Pasadena Street in Pomona (“subject property”). Plaintiffs claim that the subject property is uninhabitable. The Complaint, filed on 11/4/15, asserts causes of action for:
1. Failure to Provide Habitable Dwelling
2. Breach of Covenant and Right to Quiet Enjoyment and Possession of the Property
5. Intentional Infliction of Emotional Distress
On 5/19/16, Plaintiffs Maria Ruelas, Randall Davis, Rogelia Escamilla and Antonio Gonzales dismissed their complaint, without prejudice. On 6/30/16, this case was transferred to our department from Department 91 (personal injury hub).
A Status Hearing is set for 8/31/16.
Defendant Daxin Investment, LLC (“defendant”) demurs, per CCP § 430.10(e)&(f), to the 5th cause of action in plaintiffs’ complaint, on the basis that it fails to state facts sufficient to constitute a cause of action and is uncertain.
FIFTH CAUSE OF ACTION (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS):
“The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s
outrageous conduct.” KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th
“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 injury through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946;
Wallis v. Superior Court (1984) 160 Cal.App.3d 1109, 1120).” Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 637.
Plaintiffs complain that the subject property substantially lacks effective waterproofing and weather protection of roof and exterior walls, plumbing/gas, electrical lighting and heating facilities maintained in good working order, and a
water system that produces hot and cold running water furnished to appropriate fixtures. (Complaint, ¶ 16). They further complain that the common areas are not
kept sanitary and free of debris and vermin. (Id.). Although plaintiffs allege that they “complained to Defendants about the unlawful and substandard conditions at the property” (Id., ¶ 17), they have failed to support this conclusory statement with
any facts. They likewise fail to provide any facts in support of their conclusory statements that defendants “had actual or constructive notice of the untenantable
and substandard conditions at the Property” (Id., ¶ 39) and that defendants “refused to make repairs, despite the fact that they knew Plaintiffs were suffering and knew the property was uninhabitable and untenantable” (Id., ¶ 19).
Inasmuch as plaintiffs have failed to plead any facts evidencing that defendant intentionally engaged in behavior that was either extreme or outrageous, the
demurrer to the fifth cause of action is sustained.
The court will hear from counsel for plaintiffs as to whether leave to amend is requested, and will require an offer of proof if so.