Lawzilla Additional Information
The Santa Clara Superior Court records indicate plaintiffs’ attorney is Thomas J. Ehrlich.

This is a landlord-tenant dispute in which the subject property—an apartment building—was allegedly infested with bedbugs and in a state of disrepair. According to the allegations of the complaint, plaintiffs Manuel Garcia, Lizette Gutierrez, Juan Flores, Maricela Magallon, Blanca Alvarado, William Velazquez, Juan Perez, Maria Zavala, Edwin, Lesbia and Bryan Orellana, Salvador Martinez, Vanesa Hernandez and Cindy Daniela Salas Hernandez (collectively, “Plaintiffs”) all resided at apartments located on S. 10th St. in San Jose. (See complaint, ¶ 5.) Despite notifying defendants Danny Hoady and 625 & 631 S. 10th Investments, LLC (collectively, “Defendants”) of the nuisance presented by the state of disrepair, safety problems and bedbug and cockroach infestations, Defendants either failed to respond or allowed the problems to continue. (See complaint, ¶¶ 8-10.)

Plaintiffs filed a complaint against Defendants, alleging causes of action for: breach of contract; breach of the implied covenant of good faith and fair dealing; breach of the implied warranty of habitability; breach of the covenant of quiet enjoyment; intentional misrepresentation; negligent misrepresentation; violation of Civil Code §§ 1941, et seq.; violation of Civil Code § 1942.4; negligence; imposition of a constructive trust; intentional infliction of emotional distress; negligent infliction of emotional distress; unfair business practices; and, violation of San Jose Housing Code §§ 17.20.270, et seq. and 17.20.099 (substandard housing). Defendants demur to each of the claims against it, except for the negligence cause of action and also move to strike the allegations supporting punitive damages.

Defendants’ request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d).)

Defendants’ demurrer to the first and second causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing is premised on its belief that it fails to attach a copy of the agreement or set forth verbatim the relevant provisions. The cited basis for the demurrer in the notice is “Code of Civil Procedure ‘430.19(e). There is no such statute. Moreover, the statement in Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, upon which Defendants rely, does not cite to subdivision (e) of section 430.10—presumably the statute to which Defendants meant to cite. Further, a plaintiff may allege the legal effect of the contract rather than setting forth verbatim the relevant provisions. (See Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239, 252.) Here, the complaint alleges such legal effect of the contract. (See complaint, ¶¶ 15-16.) The demurrer to the first and second causes of action is OVERRULED.

Defendants argue that the third, fourth, seventh, eighth and fourteenth causes of action fail to allege facts regarding dates of the existence of certain conditions. However, there is no such requirement. To the extent that Defendants are attempting to extricate dates so as to determine that it is barred by the statute of limitations, “a demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.” (Marshall v. Gibson, Dunn & Crutcher (1955) 37 Cal.App.4th 1397, 1403 (also stating that “[i]n order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred”).) Defendants also separately argue that the eighth cause of action fails to allege conditions that “arise to the level of uninhabitability”; however, each of the plaintiffs is alleged to have been subjected to bedbug infestations. The demurrer to the third, fourth, seventh, eighth, and fourteenth causes of action is OVERRULED.

The fifth and sixth causes of action for fraud and negligent misrepresentation are required to be alleged with particularity. (See Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal. 4th 631, 645 (stating that a fraud cause of action must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written”).) Here, as Defendants argue, there are no allegations of the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. The demurrer to the fifth and sixth causes of action is SUSTAINED with 10 days leave to amend.

Defendants argue that the tenth cause of action fails because “to state a cause of action or imposition of a constructive trust, a plaintiff must sufficiently allege an underlying cause of action for either fraud or breach of fiduciary duty.” (Defs.’ memorandum in support of demurrer (“Defs.’ memo”), p.7:4-5.) However, “[f]raud or intentional misrepresentation is not required for a constructive trust to be imposed.” (Ghk Assocs. v. Mayer Group (1990) 224 Cal.App.3d 856, 878, citing Calistoga Civic Club v. City of Calistoga (1983) 143 Cal.App.3d 111, 116.) “A breach of contract or intentional interference with contract can make the offending party a constructive trustee. (Id.) Defendants also argue that rents are not properly the subject of a constructive trust claim. (See Defs.’ memo, p.7-9.) To the contrary, rents have been found to be the proper subject of a constructive trust cause of action. (See Ghk Assocs., supra, 224 Cal.App.3d at pp.877-880.) Accordingly, the demurrer to the tenth cause of action is OVERRULED.

Defendants argue that the eleventh and twelfth causes of action for intentional and negligent emotional distress fail to allege conduct that is “outrageous.” The eleventh cause of action alleges that Defendants intentionally subjected Plaintiffs to continued bedbug infestation and other substandard housing conditions with the intent to cause Plaintiffs emotional distress. These allegations arise to conduct that exceeds all bounds of that usually tolerated in a civilized community. Moreover, to allege a claim for negligent infliction of emotional distress, the defendant’s conduct need not be “outrageous,” only negligent. (See Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 493.) Defendants do not demur to the ninth cause of action for negligence. Accordingly, the demurrer to the eleventh and twelfth causes of action is OVERRULED.

In light of the above ruling, Defendants’ demurrer to the thirteenth cause of action for unfair competition is OVERRULED.

Defendants’ motion to strike paragraph 22 of the complaint is GRANTED without leave to amend. Plaintiffs concede that the paragraph 22 should be stricken.

Apparently contending that there are other individuals who comprise defendant 625 & 631 S. 10th Investments, LLC (“LLC”) other than defendant Danny Hoady (“Hoady”), Defendants argue that the complaint does not allege which individual engaged in the particular conduct that support the punitive damages allegations, citing to Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891. However, the complaint actually alleges that both Hoady and LLC engaged in all of the particular conduct that support the basis for punitive damages, thus this argument is without merit as to Hoady. As to LLC, the complaint also alleges that Hoady engaged in all of the particular conduct in his capacity as owner and manager of LLC. Thus, the complaint adequately alleges compliance with Civil Code section 3294, subdivision (b), the issue in Ebaugh, supra. The motion to strike is DENIED as to paragraphs 55, 62, 79 of the complaint and paragraph q from the prayer of the complaint.

Nevertheless, paragraphs 31 and 36 of the complaint are supporting contractual causes of action for which relief is restricted to contract damages and attorney’s fees, if provided for in the contract. (See Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1798-1799; see also Fairchild v. Park (2001) 90 Cal.App.4th 919, 924-930 (reversing trial court’s order denying attorney’s fees on claim for breach of implied warranty of habitability noting that such a claim is contractual in nature).) Although punitive damages are available for tort claims that are premised on the warranty of habitability such as a nuisance claim, punitive damages are not available for contractual claims. Accordingly, the motion to strike is GRANTED without leave to amend as to paragraphs 31 and 36.

Similarly, punitive damages are not available for negligence claims. Paragraph 67 seeks punitive damages for a negligence cause of action. The motion to strike is GRANTED without leave to amend as to paragraph 67.

Finally, Defendants briefly argue that the allegations “that the general public has been harmed in some way are completely unsupported by facts.” (Def.’s memo, p.6:7-9.) Here, there is no explicit cause of action for nuisance and Plaintiffs are not required to allege such a claim. (See McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254 (stating that “the injured party need not seek an abatement of the nuisance but may sue for damages”).) However, the complaint does allege that Defendants intentionally allowed for the continued harborage of bedbugs and cockroaches—insects that are known to be capable of producing human discomfort or injury. (See Health & Saf. Code § 2002, subds. (j) and (k) (stating that such “[a]ny activity that supports the development, attraction, or harborage of vectors, or that facilitates the introduction or spread of vectors” constitutes a public nuisance).) The complaint also alleges that the apartment buildings are uninhabitable due to their unsafe conditions. (See Takata v. Los Angeles (1960) 184 Cal.App.2d 154, 165 (in appeal from judgment affirming order to vacate and demolish apartment building, stating that such a building “which has so deteriorated as to be unsafe for human habitation, is a public nuisance”).) Here, Defendants’ argument is without merit. The motion to strike is DENIED as to paragraphs 6, 85 and 87.

Paragraphs 31, 36 and 67 are hereby stricken from the complaint.