Case Number: BC552230??? Hearing Date: September 08, 2016??? Dept: 58
Hearing Date: Thursday, September 8, 2016
Calendar No: 11
Case Name: Cordova, et al. v. Schor, et al.
Case No.: BC552230
Motion: Demurrer and Motion to Strike
Moving Party: Defendants Elden-Fedora Real Estate Group, LLC; ROHCS Property Management Co.; and Rebah Maintenance Services, Inc.
Responding Party: Plaintiff Angel E. Cordova, et al.
Tentative Ruling: Demurrer is overruled. Motion to strike is denied. Defendants to answer within 15 days.
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On 7/21/14, Plaintiffs Angel E. Cordova, et al. filed this action against Defendants Fred Schor, trustee of the ROHCS Trust, Eldon-Fedora Real Estate Group, LLC, and Elden-Fedora Real Estate Group, LLC arising out of alleged inhabitable conditions in their apartment located at 1145 Elden Ave., Los Angeles, CA 90006. Plaintiffs assert causes of action for (1) violation of Civil Code ? 1942.4, (2) breach of the warranty of habitability, (3) private nuisance, (4) violation of Bus. & Prof. Code ? 17200, (5) negligence, (6) retaliation in violation of Civil Code ? 1942.5, and (7) illegal rent, and seek treble damages pursuant to LAMC ? 151.10. Pursuant to the parties? stipulation, the 4th COA and requests for punitive damages were stricken on 11/25/14. On 2/17/15, Plaintiffs voluntarily dismissed Schor without prejudice. On 4/20/15, Plaintiffs voluntarily dismissed Eldon-Fedora without prejudice. On 11/5/15, Plaintiffs named Rebah Maintenance Services, Inc. and ROHCS Property Management Co. as Doe 1 and 2, respectively. On 3/4/16, the Court sustained a demurrer filed by Rebah and ROHCS Property with leave to amend. Plaintiffs filed a First Amended Complaint on 3/23/16 which reasserts the 4th COA and seeks punitive damages. On 6/7/16, the Court sustained a demurrer filed by Elden-Fedora, Rebah, and ROHCS Property (?Defendants?) with leave to amend. Plaintiffs filed the operative Second Amended Complaint on 6/27/16. Trial is set for 2/21/17; FSC for 2/9/17; further status conference for 11/9/16.
Demurrer and Motion to Strike ?
Defendants have filed a demurrer and a motion to strike as to the FAC. The crux of the motions is that Plaintiffs fail to allege facts to distinguish between Defendants? relationship and liability for the claims. The Court previously sustained Defendants? demurrer on this ground, noting that although ROHCS Property is alleged to have acted as landlord no facts were alleged to support landlord liability as to Elden-Fedora or Rebah (see, e.g., Civil Code ?? 1942.4, 1942.5; Green v. Superior Court (1974) 10 Cal.3d 616, 626, 629 (warranty of habitability); Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369, 1373-74 (addressing duty for negligence and nuisance)) or to distinguish between Defendants? primary and secondary liability (see Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 134 n.12).
The SAC has cured these defects through more specifically alleged facts. Elden-Fedora is alleged to be the owner and titleholder of the property. SAC ? 2. ROHCS Property is alleged to be the managing member of Elden-Fedora, is listed as the owner in Plaintiffs? lease as ?ROHCS Investment Group,? and acted as landlord in determining rent increases and collecting rent. Id. ? 3. Rebah is alleged to be responsible for providing all management and maintenance services for the property. Id. ? 4. Defendants are alleged to be owned, managed, and controlled by two individuals who acted in concert with each other, Fred Schor and Tzi Haber. Id. ? 5.
At the pleadings stage, this is sufficient to support allege primary and/or secondary liability against Defendants. Defendants argue that there is a distinction between ROHCS Property and ?ROHCS Investment Group,? but this improperly attempts to dispute the factual allegations at the pleadings stage as to whether ROHCS Property is separate and distinct from ?ROHCS Investment Group.? Defendants argue that the actions taken by ROHCS Property and Rebah do not support landlord liability, but even if this is correct, the allegations might support agency liability (see Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 930-31). Defendants note that Plaintiffs continue to effectively assert the identical legal theories of liability against Defendants (see SAC ?? 18-23), but whatever further distinctions may be made as between Defendants should be made the subject of discovery (see Khoury v. Maly?s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616) and the subject of offers of proof at trial.
Finally, Defendants argue that Plaintiffs have failed to allege facts to support the claim for punitive damages, attorney fees, and other remedies. But Plaintiffs have identified Eli Wenick, Tzvi Haber, and Fred Schor as Defendants? managing agents who knew of the inhabitable conditions and failed to abate them, that the property was subject to an order of abatement from a public housing/health inspector (SAC ?? 9-10), and that Defendants increased Plaintiffs? rent within 6 months after Plaintiffs? complaints and commencement of judicial proceedings (id. ? 65). At the pleadings stage, this is sufficient to support punitive damages against Defendants (Civil Code ? 4294(c)), as well as the other remedies that are sought.
Therefore, the demurrer is overruled and the motion to strike is denied.