Case Number: BC606610??? Hearing Date: September 01, 2016??? Dept: J
Re: Suzette Pena, et al. v. Group I El Monte Properties, Ltd., et al. (BC606610)
DEMURRER TO COMPLAINT; MOTION TO STRIKE PORTIONS OF COMPLAINT
Moving Parties: Defendants Group I El Monte Properties, Ltd. and Nijar Realty, Inc.
Respondents: Plaintiffs, Suzette Pena and Rhea Mallory
POS: Moving OK; Opposing served by regular mail contrary to CCP ? 1005(c); Replies OK
This is a habitability and personal injury action pertaining to an apartment located at 632 N. Huntington Blvd. #7 in Pomona (?subject property?). The habitability component pertains to plaintiffs? alleged exposure to mold, black mold, roaches, water damage and other pestilence and vermin at the subject property. The personal injury component pertains to a shooting that allegedly took place on 1/9/14. The Complaint, filed on 1/8/16, asserts causes of action for:
1. Premises Liability
2. Negligence
3. Breach of Warranty of Habitability
4. Nuisance
5. Assault
6. Battery
7. Negligent Hiring/Retention/Supervision
On 7/5/16, this case was transferred to our department from Department 93 (personal injury hub).
A Status Hearing is set for 9/1/16.
(1) DEMURRER TO COMPLAINT:
Defendants Group I El Monte Properties, Ltd. and Nijar Realty, Inc. (?defendants?) demur, per CCP ?? 430.10(e), to the 3rd-6th causes of action in Plaintiffs Suzette Pena?s and Rhea Mallory?s (?plaintiffs?) complaint, on the basis that they fail to state facts sufficient to constitute causes of action. Defendants also demur, per subsection (f), to the 3rd, 4th and 7th causes of action on the basis of uncertainty.
THIRD CAUSE OF ACTION (BREACH OF WARRANTY OF HABITABILITY):
?[A] warranty of habitability is implied by law in residential leases in this state?[u]nder the implied warranty?, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease. This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ?bare living requirements? must be maintained.? Green v. Superior Court (1974)10 Cal.3d 616, 637.
?The implied warranty of habitability recognized in Green gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling and corrected any defects disclosed by that inspection that would render the dwelling uninhabitable. The tenant further reasonably can expect that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable. A tenant injured by a defect in the premises, therefore, may bring a negligence action if the landlord breached its duty to exercise reasonable care. But a tenant cannot reasonably expect that the landlord will have eliminated defects in a rented dwelling of which the landlord was unaware and which would not have been disclosed by a reasonable inspection.? Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1206.
Plaintiffs have sufficiently alleged that they are parties to a written lease agreement. (Complaint, ? 12). However, while plaintiffs allege a number of defects on the property and allege that they notified defendants to correct these problems, they concede that defendants made attempts to have the defects resolved. (Complaint, ? 59). Plaintiffs have failed to allege that following defendants? attempts to correct, defendants had any knowledge that defects remained.
The demurrer to the third cause of action is sustained.
FOURTH CAUSE OF ACTION (NUISANCE):
?Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, 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 navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.? CC ? 3579.
?Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land. (Venuto v. Owens-Corning Fiberglas Corp. [(1971)] 22 Cal.App.3d [116,] at p. 124). A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.? Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041. ??So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.? (Prosser & Keeton, Torts (5th ed. 1984) ? 87, p. 620, fns. omitted.).? Id.
Plaintiffs have failed to allege whether they are pursuing a nuisance claim under a public or private theory. Additionally, they have failed to plead facts showing that the purported nuisance was substantial and unreasonable. Plaintiffs? nuisance claim also appears derivative of their third cause of action; as such, the demurrer to the fourth cause of action is sustained.
FIFTH CAUSE OF ACTION (ASSAULT):
Plaintiffs expressly do not oppose defendants? demurrer to the fifth cause of action (Opposition, 7:24); accordingly, the demurrer to the fifth cause of action is sustained, without leave to amend.
SIXTH CAUSE OF ACTION (BATTERY):
Plaintiffs expressly do not oppose defendants? demurrer to the fifth cause of action (Opposition, 7:27); accordingly, the demurrer to the sixth cause of action is sustained, without leave to amend.
SEVENTH CAUSE OF ACTION (NEGLIGENT HIRING/RETENTION/ SUPERVISION):
?California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836). Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. (Id. at pp. 836-837).? Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.
Plaintiffs allege that defendants? building manager ?Martha? was not competent in performing her job duties and permitted/invited dangerous individuals, including Defendant Issac Serrano, onto the property on a regular basis. (Complaint, ? 101). They have not pled any facts, however, that defendants knew of Martha?s purported incompetence, or that they knew or should have known that hiring Martha created a particular risk or hazard.
The demurrer to the seventh cause of action is sustained.
(2) MOTION TO STRIKE PORTIONS OF COMPLAINT:
Based upon the foregoing tentative ruling on the demurrer, Defendants Group I El Monte Properties, Ltd.?s and Nijar Realty, Inc.?s motion to strike is moot.
The court will hear from counsel for plaintiffs as to whether leave to amend the third, fourth, and/or seventh causes of action is requested.