Case Name: Stevens, et al. v. MacSwain
Case No.: 17-CV-316395

Defendant Bernice MacSwain (“Defendant”) demurs to the first amended complaint (“FAC”) filed by plaintiffs Francine Stevens (“Stevens”) and Scott Harris (“Harris”) (collectively, “Plaintiffs”) and moves to strike portions contained therein.

This action for retaliatory eviction arises out of a landlord-tenant dispute. According to the allegations of the FAC, on April 9, 2016, Stevens entered into a month to month lease agreement with Defendant for a rental property located in Campbell (the “Property”). (FAC, ¶¶ 9-10.) It was understood at the time of the signing that Harris was going to reside in the Property with Stevens. Plaintiffs allege that subsequent to the signing of the lease, Defendant unlawfully increased the rent on the Property in an amount not permitted under California law.

At the time Plaintiffs were to move in, the prior tenant’s possessions were still on the Property. In early June 2016, Plaintiffs obtained a court order requiring the prior tenant to remove her possessions, however, she failed to do so. (FAC, ¶ 21.) Defendant refused to pay anything towards the cost of removing the prior tenant’s possessions or inventory or store the items as required by law. (Id., ¶ 23.) Consequently, Plaintiffs were unable to fully move into the Property. (Id.)

On July 28, 2016, Plaintiffs received a 30-day eviction notice. (FAC, ¶ 25.) When they inquired about it, Defendant told them to ignore it as it had been issued by her son, who did not have the authority to do so. (Id.)

Approximately a year later, Plaintiffs paid Defendant sums for back rent as well as sums for future rents due; however, Defendant failed to apply the latter amounts to Plaintiffs’ future obligations. (FAC, ¶ 27.) Shortly thereafter, on July 27, 2017, Defendant posted a three-day notice to pay or quit as well as a 60-day notice to vacate, explaining to Plaintiffs that she wanted them to vacate so that she could sell the Property. (Id., ¶ 30.) Defendant then filed an unlawful detainer action to evict Plaintiffs. (Id.) Plaintiffs allege that this action was fraudulent, with Defendant overstating the amount of rent due from them. (Id.) Defendant ultimately dismissed the action without prejudice based on perceived problems with the amount of rent claimed to be due. (Id., ¶ 32.)

On October 6, 2017, Defendant filed a second unlawful detainer action based on Plaintiffs’ purported failure to vacate after the 60-day notice expired. (FAC, ¶ 31.) The parties settled the matter prior to trial pursuant to a written settlement agreement.

On December 22, 2017, based on allegations that the first unlawful detainer was filed in retaliation for them asserting their rights as tenants, Plaintiffs filed the FAC asserting the following “claims”: (1) breach of contract/“implied warranty of habitability”; (2) retaliatory eviction; (3) retaliatory eviction: was brought without probable cause; (4) retaliatory eviction: was initiated with malice; (5) retaliatory eviction: fraudulent intent; (6) intentional misrepresentation; (7) fraudulent suppression of material facts/fraudulent concealment; and (8) violation of California tenant’s rights.

On January 29, 2018, Defendant filed the instant demurrer to each of the eight “causes of action” asserted in the FAC on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (Code Civ. Proc., § 430.10, subds. (e) and (f).) Defendant also filed the motion to strike portions of the FAC, specifically those pertaining to punitive damages and emotional distress damages. (Code Civ. Proc., §§ 435 and 436.) Plaintiffs oppose the motions.

I. Defendant’s Request for Judicial Notice

In support of her demurrer and motion to strike, Defendant requests that the Court take judicial notice of the “Stipulation for Entry of Judgment” filed in the second unlawful detainer action on December 20, 2017. As this item is a court record, it is a proper subject of judicial notice pursuant to Evidence Code section 452, subdivision (d). Accordingly, Defendant’s request for judicial notice is GRANTED.

II. Demurrer

As set forth above, Defendant demurs to each of the eight causes of action asserted in the FAC on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty.

The first cause of action appears to allege a breach of contract based on a breach of the implied warranty of habitability. As a general matter, a “warranty of habitability” is implied as a matter of law in all residential rental agreements. (Green v. Superior Court (1974) 10 Cal.3d 616, 629, 631, 637.) This implied warranty “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 throughput the term of the lease.” (Peterson v. Superior Court (1995) 10 Cal.App.4th 1185, 1204.) Defendant asserts that because Harris was not a party to the rental agreement with Defendant, which is attached to the FAC as Exhibit 1, he cannot maintain this claim. This argument is well taken, as it is clear that the rental agreement was entered into between Stevens and Defendant only, and the implied warranty arises out of that agreement. An individual who is not a party to an agreement has no standing to enforce a breach of its terms. (See, e.g., Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162.) Thus, no claim has been stated by Harris against Defendant.

As for Stevens, Defendant maintains that the claim is uncertain because it is not clear from the allegations of the FAC who the source of alleged breach of the implied warranty of habitability is: Defendant or the prior tenant, Kristen Harris. The Court, however, does not find this contention persuasive based on what is actually pleaded in the operative pleading and the nature of a demurrer based on uncertainty. Such a ground is generally disfavored, and will be sustained only where the allegations of the pleading are so unintelligible that the defendant cannot respond to them. (See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616 [stating that “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures”].) Here, Plaintiffs allege that Defendant breached the implied warranty of habitability by: failing to repair or replace the broken window in the master bedroom; failing to disclose a rat/mice/termite infestation on the Property; and failing to remove the prior tenant’s personal property as required by law. (FAC, ¶¶ 40-45.) None of the foregoing can be properly characterized as “unintelligible.” Consequently, Defendant’s argument with respect to Stevens is without merit. In accordance with the foregoing analysis, Defendant’s demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND as to Harris and her demurrer to this claim on the ground of uncertainty is OVERRULED.

Turning to the second cause of action, Defendant maintains that no claim for retaliatory eviction has been stated because Plaintiffs have not affirmatively alleged that they were not in default on the payment of rent on the Property, i.e., that they were current, as of the date of service of the 60-day notice to vacate on July 27, 2017. Alternatively, Defendant continues, this claim is uncertain because of the lack of clarity regarding whether Plaintiffs were current with their rent obligations.

As a matter of public policy, the law protects tenants against “retaliatory eviction,” i.e., actual or constructive eviction motivated by an intent on the part of the landlord to “punish” tenants for their exercise of legally-protected rights. (See Barela v. Superior Court (1981) 30 Cal.3d 244, 249; Civ. Code, § 1942.5.) Statutorily, Civil Code section 1942.5 broadly prohibits landlords from evicting residential tenants, raising their rent or decreasing housing services in retaliation against the exercise of lawful tenant rights.

While Defendant is correct that relief under the aforementioned statute for retaliatory eviction is not available to tenants who are in default of the payment of rent (see Civ. Code, § 1942.5, subd. (a)), she cites no authority for the proposition that a tenant asserting such a claim needs to affirmatively plead that he or she is current with an applicable rental obligations in order to state a claim for retaliatory eviction. Because retaliatory eviction can also be asserted as an affirmative defense to an unlawful detainer, it is easy to see why, in such a circumstance, that a tenant defendant would be expected to plead whether or not he or she was in default where the action is based on nonpayment of rent. The same cannot necessarily be said where the claim is asserted remedially in an action for damages. Thus, the Court does not find this argument persuasive, nor does it find persuasive Defendant’s contention that Stevens’ failure to clarify whether she was in default or not when the 60-day notice was served renders this pleading uncertain within the meaning of Code of Civil Procedure section 430.10, subdivision (f). Consequently, Defendant’s demurrer to the second cause of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty is OVERRULED.

Defendant next makes the same argument with respect to the third, fourth and fifth causes of action, which all appear to assert some variation of retaliatory eviction, arguing that none are recognized causes of action in California. The Court agrees, noting that Plaintiffs have cited no authority as the basis for claims for “retaliatory eviction without probable cause,” “retaliatory eviction initiated with malice” and “retaliatory eviction fraudulent intent” and do not otherwise, in their opposition, dispute Defendant’s assertion that the foregoing claims do not exist under the law. Therefore, Defendant’s demurrer to the third, fourth and fifth cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs’ sixth cause of action is for intentional misrepresentation, based on allegations that Defendant made false or misleading statements in the first unlawful detainer action. The essential elements of fraud are: “(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.’ [Citation.]” (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474.) Plaintiffs maintain that they relied on these statements to their detriment, but upon review of this cause of action, the Court is in agreement with Defendant that it is entirely unclear how this was the case. As Defendant notes in her supporting memorandum, claims for fraud must be pleaded with specificity, which necessitates pleading facts which show “how, when, where, to whom, and by what means the representations were tendered. (Stansfield v. Starkey (1990) Cal.App.3d 59, 73.) Plaintiffs’ sixth cause of action falls well short of this standard. Consequently, Defendant’s demurrer to the sixth cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

Plaintiffs’ seventh cause of action for fraudulent suppression of material facts/fraudulent concealment is very similar to the preceding cause of action in that it sounds in fraud and is based on the first unlawful detainer filing by Defendant. Where it differs is that rather than involving affirmative misrepresentations, the claim is predicated on the allegation that Defendant suppressed the fact that Plaintiffs were current with their rent when she filed the action to evict them based on nonpayment of rent. (FAC, ¶¶ 81-83.) In demurring to this claim, Defendant asserts that the filing and dismissal of an unlawful detainer action in and of itself does not amount to an intentional misrepresentation and that Plaintiff appears to be alleging a claim for malicious prosecution, but fails to plead the specific facts necessary to state such a claim, or even for fraud. Thus, Defendant concludes, no claim for fraudulent concealment has been stated.

None of the foregoing arguments are well taken. First, the filing and dismissal of the first unlawful detainer action is not alleged to itself qualify as the fraudulent concealment; rather, conduct which occurred within the action, i.e., Defendant’s failure to disclose to Plaintiffs that they were not in default, is. Second, the Court is not persuaded that Plaintiffs’ intention is to plead malicious prosecution, as they have pleaded, while in conclusory terms, the elements of fraudulent concealment. Finally, the heightened pleading standard attendant to most claims for fraud is not strictly applied to claims for fraudulent concealment specifically, given the absence of affirmative misrepresentations. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 [stating “[h]ow does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?”].) As none of the arguments asserted by Defendant in support of her demurrer to the seventh cause of action are persuasive, her demurrer to this claim on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is OVERRULED.

Finally, Plaintiffs allege an eighth cause of action for “violation of California Tenant’s Rights” in the Judicial Complaint portion of the FAC, but none in the actual body of the pleading in which they set forth the specific facts of their claims. Plaintiffs do not dispute the deficiencies in this claim in their opposition. Consequently, it is not clear what the basis of this claim is, and therefore Defendant’s demurrer to the eighth cause of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty is SUSTAINED WITHOUT LEAVE TO AMEND.

III. Motion to Strike

In her motion to strike, Defendant moves to strike Plaintiffs’ request for punitive damages, allegations relating thereto, and allegations regarding their alleged emotional distress. It is Defendant’s contention that Plaintiffs have failed to plead facts entitling them to punitive damages and damages for emotional distress.

As a general matter, the right to exemplary or punitive damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.” (Civ. Code, § 3294, subd. (a).) For pleading purposes, in order to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages, but only to the extent that the complaint pleads facts to support those allegations. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) However, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct. (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).

Here, malice and fraud serve as the foundation for Plaintiffs’ request for punitive damages. Under the punitive damages statute, Civil Code section 3294, “malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Despicable conduct,” in turn, has been described as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Finally, “fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Upon review of the FAC in total, the Court is in agreement with Defendant that Plaintiffs have failed to plead facts which support the imposition of punitive damages. As currently pleaded, there is nothing in the FAC that describes malicious conduct on her part in her dealings with Plaintiffs and their tenancy of her property. The allegation that Defendant acted with malice is conclusory and insufficient, without more, to support the imposition of damages pursuant to Civil Code section 3294. Accordingly, to the extent that Defendant’s motion seeks to strike Plaintiffs’ request for punitive damages and allegations relating thereto, it is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

As for damages based on emotional distress, Defendant asserts that this type of damages “appears” to be requested by Plaintiffs in the FAC. However, while the phrase “emotional distress” is contained in the FAC, it is not clear that Plaintiffs are seeking these types of damages, or that such damages are being sought only in connection with the breach of contract claim which, as Defendant notes, is generally impermissible. (See, e.g., Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 188.) Importantly, emotional distress damages are recoverable in actions based on a breach of the warranty of habitability. (See McNairy v. C.K. Realty (2007) 150 Cal.App.4th 1500.) Given this fact, Defendant’s assertion that Plaintiffs’ “request” for emotional distress damages and allegations relating thereto must be stricken is unavailing and thus to the extent that her motion seeks to strike these items, it is DENIED.