Case Number: BC693774    Hearing Date: October 04, 2018    Dept: 47

Robert J. Girard II, et al. v. Christopher Smith, et al.

(1) – (4) DEMURRERS TO FIRST AMENDED COMPLAINT (x4);

(5) MOTION TO STRIKE RE: FIRST AMENDED COMPLAINT;

(6) NOTICE OF JOINDER IN MOTION TO STRIKE

MOVING PARTY:               (1) Defendant Patricia Smith;

                                                (2) Defendant Daniel Crisci;

                                                (3) Defendant Mark Rowlands;

                                                (4) Defendants Christopher Smith and Paradigm Management, Inc.;

                                                (5) Defendants Christopher Smith, Paradigm Management, Inc., Patricia Smith, and Daniel Crisci;

                                                (6) Defendant Mark Rowlands

RESPONDING PARTY(S): (1) – (5) Plaintiffs Robert J. Girard II, Joanna Girard, Robert G. and Jack G.;

                                                (6) No opposition filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Plaintiffs allege that Defendants lease a house to Plaintiffs which was contaminated with toxic mold that caused health problems for Plaintiffs.

            Defendants demur to the 1AC and move to strike portions thereof.

            TENTATIVE RULING:

            Defendant Patricia Smith’s demurrer to the 1AC is MOOT by virtue of her being dismissed on September 21, 2018.

            Defendant Daniel Crisci’s demurrer to the 1AC is SUSTAINED without leave to amend as to the first, second, third, eleventh and twelfth causes of action, unless Plaintiff demonstrates a reasonable possibility of successful amendment.  Defendant Crisci’s demurrer is SUSTAINED with one more opportunity to amend as to the seventh and eighth causes of action.   Defendant Crisci’s demurrer is OVERRULED as to the fourth, fifth, sixth, ninth and tenth causes of action

            Defendant Mark Rowland’s demurrer to the 1AC is SUSTAINED without leave to amend as to the eleventh and twelfth causes of action, unless Plaintiff demonstrates a reasonable possibility of successful amendment.

Defendants Christopher Smith and Paradigm Management, Inc.’s demurrer to the 1AC is SUSTAINED without leave to amend as to the eleventh and twelfth causes of action, unless Plaintiff demonstrates a reasonable possibility of successful amendment. Defendant’s demurrer is SUSTAINED with one more opportunity to amend as to the seventh and eighth causes of action.   Defendant’s demurrer is OVERRULED as to the fifth, ninth and tenth causes of action.

Defendants Christopher Smith, Paradigm Management, Inc., Patricia Smith, and Daniel Crisci’s motion to strike claims of fraud and/or intentional conduct at Pages 16, 17, 19 and 23, as specified in the notice of motion at Item 1 (page 2:3-10) is MOOT.

              The request to strike claims of conspiracy at Page 21:28 and 22:8 (Item 2) is MOOT.

              The request to strike claims of reckless conduct at Page 20:14-15, 18 (Item 3, re the IIED cause of action) is DENIED.

              The request to strike the prayer for a constructive trust at Page 25: 1 (Item 4) is GRANTED without leave to amend.

              The motion to strike the error in the 6th cause of action as “nuisance” instead of “negligence” at Page 15:2 (Item 5) is DENIED. The Court will simply amend that error by interlineation.

              The request to strike the punitive damage allegations at Pages 23-24 (as specified in Item No. 6, re: the eleventh and twelfth causes of action is MOOT.

              The request to strike the request for punitive damages at Page 24:26 (Item 7) is GRANTED without leave to amend.

              The request to strike the attorney’s fees allegations at Page 12:18-19 and 25:3 (Item 8) is GRANTED without leave to amend.

              Accordingly, Defendant’s joinder in the motion to strike is DENIED.

Where leave to amend is granted, Plaintiffs have 30 days leave to amend.

DISCUSSION:

Defendant Patricia Smith’s Demurer

            On September 21, 2018, Plaintiff voluntarily dismissed Defendant Patricia Smith without prejudice.  Plaintiffs had a statutory right pursuant to CCP § 581(b)(1) and CCP § 581(c) to dismiss Defendant without prejudice before the hearing on the demurrer and motion to strike:

(b) An action may be dismissed in any of the following instances:

(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.

     CCP § 581(b)(1).

(c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.

     CCP § 581(c).

Until recently, the cases have not presented a completely clear or cohesive test to describe which situations deprive plaintiffs of their right to voluntarily dismiss their cases, nor have the cases articulated a precise rule providing guidance in all circumstances. (See Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th 187 for a compilation of cases discussing when a plaintiff is precluded from voluntarily dismissing a case.) However, recent authority suggests parties are not permitted to voluntarily dismiss their actions after the court has made a dispositive ruling or given some indication of the legal merits of the case, or when the procedural posture is such that it is inevitable the plaintiff will lose. After such occurrences, these cases hold that plaintiffs lose their right to voluntarily dismiss their case. (E.g., Franklin Capital Corp. v. Wilson, supra, at p. 200 [voluntary dismissal without prejudice ineffective where “in the light of a public and formal indication by the trial court of the legal merits of the case, or [¶] … in the light of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable”]; Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409 [92 Cal. Rptr. 2d 459] [exception to plaintiffs’ absolute right to dismiss where action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication]; accord, Gray v. Superior Court, supra, 52 Cal.App.4th 165 [plaintiff’s right to dismiss cut off by evidentiary proceedings before a referee]; Gogri v. Jack in the Box Inc., supra, 166 Cal.App.4th at p. 267 [voluntary requests for dismissals are untimely where “prior tentative rulings or other special circumstances [make] judgment for the defendant inevitable”].)

We agree with Franklin Capital Corp. v. Wilson, supra, 148 Cal.App.4th 187 and other authority that this is the most logical way to synthesize the cases. (See also Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 76–79 [94 Cal. Rptr. 3d 468].) When some events demonstrate it is inevitable that the plaintiff will not be successful, a plaintiff loses the right to voluntarily dismiss his or her case. (Id. at pp. 201–202, 204; cf. Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768, 771 [193 Cal. Rptr. 676] [informal tentative ruling does not cut off right to voluntary dismissal]; contra, Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175 [49 Cal. Rptr. 2d 562] [without much elaboration, Court of Appeal holds voluntary dismissal request ineffective when filed day before hearing on motion for terminating sanction in a discovery dispute].)

Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876-78 (bold emphasis added).

            Accordingly, Defendant Patricia Smith’s demurrer to the 1AC is MOOT.

Defendant Daniel Crisci’s Demurrer

Meet and Confer

The Court acknowledges that attorney Susan L. Caldwell submitted a meet and confer declaration in connection with Defendants’ motion to strike, which declaration indicates that on August 31, 2018, she met and conferred with Plaintiffs’ counsel as to the motion to strike and the accompanying demurrers.

Analysis

1First Cause of Action (Breach of Implied Warranty of Habitability); Second Cause of Action (Breach of Contract); Third Cause of Action (Breach of Covenant of Quiet Enjoyment); Fourth Cause of Action (Nuisance); Sixth Cause of Action (Negligence).

              Defendant Daniel Crisci demurs to the first, second, third fourth and sixth causes of action on the ground that there are facts pled against him which give rise to a duty for purposes of these causes of action.

  1.         First Cause of Action (Breach of Implied Warranty of Habitability).

            The implied warranty of habitability is an obligation imposed upon the landlord as a term of the lease.

The implied warranty of habitability recognizes “the realities of the modern urban landlord-tenant relationship” and imposes upon the landlord the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease. (Green v. Superior Court, supra, 10 Cal. 3d 616, 619.) But deriving from this implied warranty an obligation on the part of the landlord to insure the safety of leased premises by imposing strict liability for injuries to tenants caused by defects in the premises goes far beyond this laudable goal. Rather than restore the parties to a reasonable balance, the doctrine of strict liability places an undue burden upon the landlord–regardless of fault or ability to avoid injury. Rather than obligate the landlord to promptly repair defects of which the landlord knows or should know, the doctrine often will impose an onerous burden to discover and correct defects that would not be disclosed by a reasonable inspection. Rather than obligate the landlord to comply with applicable housing codes and maintain the dwelling in a habitable condition, application of the products liability doctrine imposes strict liability upon the landlord, even when the landlord has taken all reasonable steps to render the dwelling safe.

Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204.

Here, Defendant Crisci is only alleged to be the property manager, not the owner/landlord.  1AC, ¶ 24.  See also 1AC, Exh. A (Defendant Crisci is not named as the Landlord in the Lease.  Accordingly, the implied warranty of habitability is not imposed upon Crisci.)

The demurer to the first cause of action is SUSTAINED without leave to amend.  Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment.  Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.  In this instance, however, Plaintiffs must demonstrate this possibility at the hearing, otherwise no leave to amend will be given.

  1.         Second Cause of Action (Breach of Contract).

            The second cause of action is based upon the Lease Agreement.  1AC, ¶ 62.  However, as discussed above, Defendant Crisci is not a party to the Lease, and thus no contract exists between Plaintiffs and Crisci which Crisci could have breached.

It is essential to the existence of a contract that there should be:

  1. Parties capable of contracting;

  1. Their consent;

  1. A lawful object; and,

  1. A sufficient cause or consideration.

Civ. Code, § 1550.

            Accordingly, the demurrer to the second cause of action is SUSTAINED without leave to amend, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

  1. Third Cause of Action (Breach of Covenant of Quiet Enjoyment).

 In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 846 [122 Cal. Rptr. 114]; Guntert v. City of Stockton (1976) 55 Cal. App. 3d 131, 138 [126 Cal. Rptr. 690].) The covenant of quiet enjoyment “insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. (Green v. Superior Court [(1974)] 10 Cal.3d 616, 625, fn. 10 [111 Cal.Rptr. 704, 517 P.2d 1168]; 49 Am.Jur.2d, Landlord and Tenant, § 336, p. 351.)” (Petroleum Collections Inc. v. Swords, supra, 48 Cal. App. 3d at p. 846.)

The implied covenant of quiet enjoyment is partially codified in Civil Code section 1927, enacted in 1872, which provides: “An agreement to let [*589]  upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.” The statutory covenant “guarantees the tenant against rightful assertion of a paramount title.” (Guntert, supra, 55 Cal. App. 3d at p. 138.) Beyond the statutory covenant, the landlord is bound to refrain from action which interrupts the tenant’s beneficial enjoyment. (Ibid.)

Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-89.

As discussed above, Defendant Crisci is not the landlord, and thus, the covenant of quiet enjoyment was not an obligation imposed upon him.

Accordingly, the demurrer to the third cause of action is SUSTAINED without leave to amend, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

  1. Fourth Cause of Action (Nuisance).

As noted, Defendant Crisci is alleged to be the property manager.  1AC, ¶ 24.  Plaintiffs allege that the conditions of the property created a nuisance in that said defective conditions were and are injurious to the health and safety of Plaintiffs.  1AC, ¶ 72.  As the alleged property manager, Crisci would have a duty to maintain the condition in a manner that did not create such a nuisance.

The statutory definition of nuisance appears to be broad enough to encompass almost any conceivable type of interference with the enjoyment or use of land or property. As stated by Prosser: “There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word ‘nuisance.’ It has meant all things to all men, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition.” (Prosser, Law of Torts (4th ed. 1971) § 86, p. 571, fns. omitted.)

Nuisance liability is not precluded by the existence of a contractual relationship between the tenant and landlord. It is hornbook law that an act that constitutes a breach of contract may also be tortious. In Jones v. Kelly (1929) 208 Cal. 251 [280 P. 942], tenants husband and wife sued their landlord in tort for allegedly cutting off the tenants’ water supply, seeking both actual and exemplary damages. In reversing the trial court’s order sustaining a demurrer without leave to amend, the Supreme Court pointed out at page 255 that “‘every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights,'” citing Civil Code section 1708. This duty is independent of the contract and attaches over and above its terms; thus, the tenants may treat the injury to their tenancy as a tort or as a breach of contract at their election (208 Cal. at p. 255).  [*920]  “That [tenants] have a proprietary interest in the [leased] premises which goes by the name of estate is not open for debate.” (Ibid.)

In Acadia, California, Ltd. v. Herbert (1960) 54 Cal.2d 328 at page 337 [5 Cal.Rptr. 686, 353 P.2d 294], our Supreme Court stated: “It is settled that, regardless of whether the occupant of land has sustained physical injury, he may recover damages for the discomfort and annoyance of himself and the members of his family and for mental suffering occasioned by fear for the safety of himself and his family when such discomfort or suffering has been proximately caused by a trespass or a nuisance.”

Appellant’s tenancy is a sufficient property interest to give her standing to bring an action based on nuisance (Jones v. Kelly, supra, 208 Cal. at p. 255; Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125 [99 Cal.Rptr. 350]; see also Prosser, Law of Torts, supra, at p. 593).

The general requirements for pleading nuisance have been satisfied here. Appellant has alleged facts showing a substantial interference with the use and enjoyment of the premises — not merely de minimis interference. The fact that the defendants’ alleged misconduct consists of omission rather than affirmative actions does not preclude nuisance liability (see Prosser, Law of Torts, supra, pp. 575-577).

A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable (Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 321 [331 P.2d 1072]; see 47 Cal.Jur.3d, Nuisances, § 62, pp. 308-309; BAJI No. 14.71 (6th ed.) pp. 635-636). Appellant has pleaded sufficient facts to support her prayer for exemplary damages. She alleged that defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants “In maintaining said nuisance, . . . acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.”

Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919-20(bold emphasis and underlining added).

      The demurrer to the fourth cause of action is OVERRULED.

  1. Sixth Cause of Action (Negligence).

As noted above, because Defendant Crisci is alleged to have been the property manager, he had a duty to exercise reasonable care in managing the property so as not to cause harm to its occupants, Plaintiffs herein.

      The demurrer to the sixth cause of action is OVERRULED.

  1. Fifth Cause of Action (B & P Code § 17200).

            Plaintiffs allege they were harmed by Defendants’ practices by paying full monthly rent for a house with material deficiencies for nearly one year. 1AC, ¶ 80.  As noted, Defendant Crisci was responsible for managing the property and, presumably, he received a fee for doing so.  To the extent Plaintiffs paid full monthly rent for a house that was known to be uninhabitable due to the presence of toxic mold, they have suffered economic injury in fact.

A “private person has standing to sue under the UCL only if that person has suffered injury and lost money or property ‘as a result of such unfair competition.’ [Citation.]” (Daro, supra, 151 Cal.App.4th at p. 1098, italics omitted.) To satisfy the UCL standing requirement, the plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 [120 Cal. Rptr. 3d 741, 246 P.3d 877], italics omitted (Kwikset).)

Two Jinn, Inc. v. Government Payment Service, Inc. (2015) 233 Cal.App.4th 1321, 1331.

            The demurrer to the fifth cause of action is OVERRULED.

  1. Seventh Cause of Action (Fraud).

            “To establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. (Citations omitted.)”   Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498 (italics omitted).

Fraud must be pleaded with specificity rather than with “ ‘general and conclusory allegations.’ ” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [132 Cal. Rptr. 2d 490, 65 P.3d 1255].)  The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645.)

We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [197 Cal. Rptr. 783, 673 P.2d 660].) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, “the pleading should be sufficient ‘ “to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” ’ ” (Id. at pp. 216–217.)

West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.

            Here, the seventh cause of action fails to plead which Defendant said exactly what to whom, when and in what manner (orally or in writing), why such representation was known to be false when made, and Plaintiffs’ justifiable reliance thereon.

            Here, the 1AC alleges that three different defendants—Christopher Smith (owner), Crisci and Paradigm each represented to Plaintiffs’ unidentified agents that: the subject property was habitable and was in excellent condition.  1AC, ¶ 89.a & b.  Merely pleading the gist of what was represented is insufficient.

            The demurer to the seventh cause of action is SUSTAINED with leave to amend.  Plaintiffs will only be given one moreopportunity to amend.

  1. Eighth Cause of Action (Fraud—Concealment).

 

[T]he elements of a cause of action for fraud based on concealment are: “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. [Citation.]’ [Citation.]” (Citation omitted.)

Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850.

 

“There are ‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.]’ ” (Citations omitted.) Where, as here, there is no fiduciary relationship, the duty to disclose generally presupposes a relationship grounded in “some sort of transaction between the parties. [Citations.] Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. [Citation.]” (Citation omitted.)

OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859.

 

            Moreover: “[c]oncealment is a species of fraud, and ‘[f]raud must be pleaded with specificity.’ (Citation omitted.) To plead tort liability based on false or incomplete statements, the pleader must set forth at least the substance of those statements.”  Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.  “If a fraud claim is based upon failure to disclose, and ‘the duty to disclose arises from the making of representations that were misleading or false, then those allegations should be described.’ (Citation omitted.)”  Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1262.

            Here, Plaintiffs allege that Defendants disclosed some facts to Plaintiffs regarding the premises but intentionally failed to disclose other important facts, making the disclosure deceptive.  ¶ 100.  However, the 1AC alleges that three different defendants—Christopher Smith (owner), Crisci and Paradigm each represented to Plaintiffs’ unidentified agents that: the subject property was habitable and was in excellent condition.  1AC, ¶ 1010.a & b.  Merely pleading the gist of what was represented is insufficient.

            The demurer to the eighth cause of action is SUSTAINED with leave to amend.  Plaintiffs will only be given one moreopportunity to amend.

  1. Ninth Cause of Action (Intentional Infliction of Emotional Distress).

“The elements of the tort 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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageousIt must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Ibid.)

Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-75.

In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921 [162 Cal. Rptr. 194], the appellate court concluded that the plaintiff tenant had stated a cause of action for intentional infliction of emotional distress by alleging that she had suffered “ ‘extreme emotional distress’ as a result of the [landlord’s and property manager’s] ‘knowing, intentional, and willful’ failure to correct defective conditions of the premises.” The Stoiber court observed that whether the failure to act was extreme and outrageous “under the present allegations, presents a factual question—it cannot be said as a matter of law that [plaintiff] has not stated a cause of action.” (Id., at p. 922.)

Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069.

            Here, the 1AC alleges at ¶ 111 that as early as 2014 and 2015 (the Lease began in April 2017—1AC, Exh. A), Defendants knew of the existence of leaks and repeated water intrusion, the presence of toxic mold, and the need to remediate mold growth, but willfully and knowingly refused to repair the property to a habitable condition.  Instead, Defendants caused cosmetic repairs to be made to cover up the mold issues with paint and carpet.  ¶ 112.  These facts, taken as true on demurrer, as sufficient to pled IIED against Defendant Crisci as property manager.

“The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff’s possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)”  Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.

The demurrer to the ninth cause of action is OVERRULED.

  1. Tenth Cause of Action (Negligent Infliction of Emotional Distress).

[B]ecause the only injury Wilson claimed in her lawsuit was emotional distress, she was required to show that Edison’s breach threatened physical injury to her. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984–985 [25 Cal. Rptr. 2d 550, 863 P.2d 795] (Potter) [“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element. [Citations.] That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.”].)  “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” (Potter, supra, 6 Cal.4th at p. 985.) Thus, at the very least, there could not have been a breach of duty during the period when no shocks were felt on the property.

Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 155-156.

As discussed above, because Defendant Crisci is alleged to have been the property manager, he had a duty to exercise reasonable care in managing the property so as not to cause physical harm to its occupants, Plaintiffs herein, such as the debilitating physical effects they suffered from mold exposure.

The demurer to the tenth cause of action is OVERRULED.

  1. Eleventh Cause of Action (Invasion of Privacy—Intrusion Into Seclusion).

A privacy violation based on the common law tort of intrusion has two elements. First, the defendant must intentionally intrude into a place, conversation, or matter as to which the plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur in a manner highly offensive to a reasonable person. (Shulman, supra, 18 Cal.4th 200, 231, approving and following Rest.2d Torts, § 652B; Miller v. National Broadcasting Co. (1986) 187 Cal. App. 3d 1463, 1482 [232 Cal. Rptr. 668] (Miller); accord, Taus v. Loftus (2007) 40 Cal.4th 683, 724–725, 731 [54 Cal. Rptr. 3d 775, 151 P.3d 1185] (Taus).) These limitations on the right to privacy are not insignificant. (Miller, supra, at p. 1482.) Nonetheless, the cause of action recognizes a measure of personal control over the individual’s autonomy, dignity, and serenity. (Shulman, supra, at p. 231.) The gravamen is the mental anguish sustained when both conditions of liability exist. (Miller, supra, at pp. 1484–1485.)

As to the first element of the common law tort, the defendant must have “penetrated some zone of physical or sensory privacy … or obtained unwanted access to data” by electronic or other covert means, in violation of the law or social norms. (Shulman, supra, 18 Cal.4th 200, 232; see id. at pp. 230–231.) In either instance, the expectation of privacy must be “objectively reasonable.” (Id. at p. 232.) In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907 [85 Cal. Rptr. 2d 909, 978 P.2d 67] (Sanders), a leading case on workplace privacy that we discuss further below, this  [*287]  court linked the reasonableness of privacy expectations to such factors as (1) the identity of the intruder, (2) the extent to which other persons had access to the subject place, and could see or hear the plaintiff, and (3) the means by which the intrusion occurred. (Id. at p. 923; see Shulman, supra, 18 Cal.4th 200, 233–235.)

The second common law element essentially involves a “policy” determination as to whether the alleged intrusion is “highly offensive” under the particular circumstances. (Taus, supra, 40 Cal.4th 683, 737.) Relevant factors include the degree and setting of the intrusion, and the intruder’s motives and objectives. (Shulman, supra, 18 Cal.4th 200, 236; Miller, supra, 187 Cal. App. 3d 1463, 1483–1484.) Even in cases involving the use of photographic and electronic recording devices, which can raise difficult questions about covert surveillance, “California tort law provides no bright line on [‘offensiveness’]; each case must be taken on its facts.” (Shulman, supra, at p. 237.)

Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286-87 (bold emphasis added).

            Here, Plaintiffs allege that Defendant Crisci was one of the Defendants who conspired with Defendant Rowlands to fly a video-and/or high-resolution camera-equipped drone over Plaintiffs’ property and over Plaintiffs’ backyard and other private and secluded areas of the property where Plaintiffs were visible.  1AC, ¶ 125.  Moreover, the Defendants allegedly conspired so that Defendant Rowland would set up two video cameras in the exterior windows of Rowlands’ property, facing the secluded and private areas of Plaintiffs’ property, such that Rowlands could surreptitiously record Plaintiffs movements on and about the property and provide the video recordings to the other Defendants.  ¶ 126.

            Plaintiffs plead that they informed Defendants of their intent to return to the property to collect the items of personal property Plaintiffs left behind, and they did in fact return.  ¶¶ 125, 126.  However, Plaintiffs have not pled a reasonable expectation of privacy under these facts because: (1) the intruders responsible were the property owner (Christopher Smith) and the property manger (Crisci; Paradigm)—who would have an interest in monitoring the property for security reasons; (2) the means of intrusion were from outside the house—Rowlands’ house across the street; the airspace over/above/near the backyard of the house.  Because Plaintiffs do not allege that Defendants hid cameras inside the house—where Plaintiffs would have a heightened expectation of privacy—the fact that Defendants utilized electronic surveillance to monitor the property for security reasons and, indeed, to check to see if Plaintiffs were only retrieving their personal property and not returning for some other reason, weigh against a finding of intrusion upon seclusion.

            As such, the fact pled fail to state a cause of action for invasion of privacy—intrusion into seclusion.

            The demurrer to the eleventh cause of action is SUSTAINED without leave to amend, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

  1. Twelfth Cause of Action (Violation of Civil Code § 1708.8).

            This cause of action is based upon Defendants taking photographs and video as discussed above.  1AC, ¶ 135.

(a) A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.

(b) A person is liable for constructive invasion of privacy when the person attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use of any device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the device was used.

CCP § 1708.8.(a) & (b)(bold emphasis added).

            As discussed above re: the eleventh cause of action, the alleged surveillance was not conducted in a manner that is offensive to a reasonable person.  Nor do Plaintiffs allege that they engaged in a private, personal or familial activity which was captured in a manner offensive to a reasonable person.  A reasonable person would not be offended if they were captured retrieving their personal possession from a mold-infested house.

            The demurrer to the twelfth cause of action is SUSTAINED without leave to amend, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

Defendant Mark Rowlands’ Demurrer

Meet and Confer

              The Declaration of Michael A. Amaro reflects that counsel for demurring party attempted to meet and confer as required by CCP § 430.41 and § 435.5, but Plaintiff did not respond.

Analysis

  1. Eleventh Cause of Action (Invasion of Privacy—Intrusion Into Seclusion).Twelfth Cause of Action (Violation of Civil Code § 1708.8).

              Defendant Rowlands is the property owner whose house was directly across the street from the subject property, who engaged in electronic surveillance of Plaintiffs.  1AC., ¶¶ 125, 126.  For the reasons discussed above re: Defendant Crisci’s demurrer, the 1AC fails to plead facts sufficient to state a cause of action for invasion of privacy—intrusion into seclusion and violation of Civil Code § 1708.8.

            The demurrer to the eleventh and twelfth causes of action is SUSTAINED without leave to amend, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

Defendants Christopher Smith and Paradigm Management, Inc.’s Demurrer

Meet and Confer

Attorney Susan L. Caldwell submitted a meet and confer declaration in connection with Defendants’ motion to strike, which declaration indicates that on August 31, 2018, she met and conferred with Plaintiffs’ counsel as to the motion to strike and the accompanying demurrers.

Analysis

  1. Seventh Cause of Action (Fraud—Intentional Misrepresentations);    Eighth Cause of Action (Fraud—Concealment).

              Defendant Christopher Smith (referred to as “Chris” in the 1AC) is the alleged owner of the property, and is the Landlord named in the Lease.  1AC, ¶ 23; Exh. A.  Paradigm Management is Defendant Crisci’s management company.  1AC, ¶ 24.

              For the reasons discussed above re: Defendant Crisci’s demurrer, the fraud—intentional misrepresentation and fraud—concealment causes of action are not sufficiently pled against these Defendants.  These causes of action fail to plead which Defendant said exactly what to whom, when and in what manner (orally or in writing), why such representation was known to be false when made, and Plaintiffs’ justifiable reliance thereon.  Here, the 1AC alleges that three different defendants—Christopher Smith (owner), Crisci and Paradigm each represented to Plaintiffs’ unidentified agents that: the subject property was habitable and was in excellent condition.  1AC, ¶ 89.a & b.  Merely pleading the gist of what was represented is insufficient.

            The demurer to the seventh and eighth causes of action is SUSTAINED with leave to amend.  Plaintiffs will only be given one more opportunity to amend.

  1. Fifth Cause of Action (B & P Code § 17200).

 

              For the reasons discussed above re: Defendant Crisci’s demurrer, Plaintiffs allege they were harmed by Defendants’ practices by paying full monthly rent for a house with material deficiencies for nearly one year. 1AC, ¶ 80.  Defendant Smith, as owner, would have received the rent.  Defendant Paradigm, as property management company, would presumably have received a fee.  Both would have responsible for disclosing and remediating the mold, as pled in the 1AC.

              The demurrer to the fifth cause of action is OVERRULED.

  1. Ninth Cause of Action (Intentional Infliction of Emotional Distress); Tenth Cause of Action (Negligent Infliction of Emotional Distress).

              Defendant Smith, as owner, and Defendant Paradigm, as property management company, owed a duty to Plaintiffs to manage the property in such a way that Plaintiffs would not suffer debilitating physical injury due to the presence of toxic mold.  For the reasons discussed above re: Defendant Crisci’s demurrer, the demurrer to the ninth and tenth causes of action is OVERRULED.

  1. Eleventh Cause of Action (Invasion of Privacy—Intrusion Into Seclusion).Twelfth Cause of Action (Violation of Civil Code § 1708.8).

 

            Defendant Smith, as owner, and Defendant Paradigm, as property management company, are alleged to have conspired with Crisci and Rowland to conduct electronic surveillance upon the property where Plaintiffs went back to retrieve their personal belongings.  For the reasons discussed above re: Defendants Crisci and Rowlands’ demurrers, hereby incorporated by reference, the demurrer to the eleventh and twelfth causes of action is SUSTAINED without leave to amend, unless Plaintiffs demonstrate a reasonable possibility of successful amendment.

Defendants Christopher Smith, Paradigm Management, Inc., Patricia Smith, and Daniel Crisci’s Motion To Strike

 

Meet and Confer

 

Attorney Susan L. Caldwell submitted a meet and confer declaration in connection with Defendants’ motion to strike, which declaration indicates that on August 31, 2018, she met and conferred with Plaintiffs’ counsel as to the motion to strike and the accompanying demurrers.

Analysis

              The request to strike claims of fraud and/or intentional conduct at Pages 16, 17, 19 and 23, as specified in the notice of motion at Item 1 (page 2:3-10) is MOOT by virtue of the ruling on the demurrer.

              The request to strike claims of conspiracy at Page 21:28 and 22:8 (Item 2) is MOOT by virtue of the ruling on the demurrer.

              The request to strike claims of reckless conduct at Page 20:14-15, 18 (Item 3, re the IIED cause of action) is DENIED.  Based on the analysis in connection with the demurrer to this cause of action, such allegations are proper.

              The request to strike the prayer for a constructive trust at Page 25: 1 (Item 4) is GRANTED without leave to amend.  Plaintiffs do not allege an interest in the subject real property which would entitle them to a constructive trust relative to that property.

“A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.] [P] The principal circumstances where constructive trusts are imposed are set forth in Civil Code sections 2223 and 2224. Section 2223 provides that ‘[o]ne who wrongfully detains a thing is an involuntary trustee thereof, for the benefit of the owner.’ Section 2224 states that ‘[o]ne who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act, is, unless he or she has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.’ Under these statutes and the case law applying them, a constructive trust may only be imposed where the following three conditions are satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a complaining party to that res; and (3) some wrongful acquisition or detention of the res by another party who is not entitled to it.” (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal. App. 4th 980, 990 [41 Cal. Rptr. 2d 618], italics in original.) “[A] constructive trust may be imposed in practically any case where there is a wrongful acquisition or detention of property to which another is entitled.” (Weiss v. Marcus (1975) 51 Cal. App. 3d 590, 600 [124 Cal. Rptr. 297].)

Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1069.

              The request to strike the error in the 6th cause of action as “nuisance” instead of “negligence” at Page 15:2 (Item 5) is DENIED.  The Court will simply amend that error by interlineation.

              The request to strike the punitive damage allegations at Pages 23-24 (as specified in Item No. 6, re: the eleventh and twelfth causes of action is MOOT in light of the ruling on the demurrer to these causes of action.

              The request to strike the request for punitive damages at Page 24:26 (Item 7) is GRANTED without leave to amend.  By virtue of the ruling on the demurrer to the twelfth cause of action, treble damages under Civil Code § 1708.8 are not available.

              The request to strike the attorney’s fees allegations at Page 12:18-19 and 25:3 (Item 8) is GRANTED without leave to amend. Plaintiffs have not pled that they attempted to resolve this matter through mediation, and thus, per ¶ 39.A of the Lease, they are deemed to have waived the right to recover attorney’s fees thereunder.  1AC, Exh. A.

Defendant Mark Rowlands’ Notice of Joinder in the Motion To Strike

              A notice of joinder must be filed pursuant to the same deadlines as the papers in which the joinder is made.  Seee.g.Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719.  Here, Defendant Rowland’s notice of joinder was served by mail on September 19, 2018—only 7 court days prior to hearing.  At least 16 court days plus 5 calendar days notice is required for notice served by mail—CCP § 1005(b).

Moreover, the “Points and Authorities” do not set forth any reason why Defendant Rowland is similarly situated to the moving Defendants such that the basis set forth in their motion to strike applies to him.

              Accordingly, Defendant’s joinder in the motion to strike is DENIED.

            Where leave to amend is granted, Plaintiffs have 30 days leave to amend.

            Defendant Christopher Smith to give notice.

IT IS SO ORDERED.

Dated:  October 4, 2018                                             ___________________________________

                                                                                    Randolph M. Hammock

                                                                                    Judge of the Superior Court

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