Case Number: 18STCV09384 Hearing Date: August 28, 2019 Dept: 32

Lisa giasi,

Plaintiff,

v.

ELIZABETH BITNER, et al.

Defendants.

Case No.: 18STCV09384

Hearing Date: August 28, 2019

[TENTATIVE] order RE:

Demurrer to Complaint

BACKGROUND

Plaintiff Lisa Giasi (“Plaintiff”) commenced this action against Defendant Elizabeth Bitner (“Defendant”) on December 17, 2018. The Complaint asserts causes of action for (1) breach of contract, (2) breach of warranty, (3) fraud, (4) negligence – premises liability, (5) negligence, (6) violation of the Unfair Competition Law (“UCL”) (Bus. & Prof. Code §§ 17200, et seq.), (7) violation of the Consumer Legal Remedies Act (“CLRA”), and (8) intentional infliction of emotional distress (“IIED”). The Complaint alleges in pertinent part as follows.
Defendant owns and leases a rear studio unit at 23137 Dolorosa Street, Woodland Hills, CA (“Premises”). On April 1, 2016, Plaintiff moved into the Premises pursuant to a one-year lease agreement.

During the lease, Plaintiff experienced numerous issues with the Premises causing the Premises to become uninhabitable. On December 17, 2016, Plaintiff’s heater stopped working and reported the problem to Defendant. Defendant did not undertake prompt repairs nor obtain a qualified expert leaving Plaintiff without heat for several weeks. On December 20, 2016, ants infested the Premises. On January 27, 2017, Plaintiff’s front door lock stopped functioning precluding Plaintiff from securing the Premises. On February 9, 2017, water intruded onto the Premises resulting in mold and an extreme odor. Plaintiff repeatedly requested that Defendant hire a qualified expert to inspect and remediate the mold issue but Defendant refused. As a result, Plaintiff became physically ill and suffered extreme distress.

On August 31, 2017, Plaintiff gave proper notice and relocated. Defendant refused to return her deposit.

LEGAL STANDARD

A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true all the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

ANALYSIS

Defendant demurs to each cause of action in the Complaint on the grounds that some causes of action fail to allege facts sufficient to constitute a valid cause of action and that other causes of action are uncertain.

A. First Cause of Action for Breach of Contract

Defendant contends that Plaintiff’s first cause of action fails because the Complaint fails to identify which contract provides the underlying basis for her breach of contract claim. Defendant is incorrect. The Complaint clearly alleges that the parties entered into a “one year lease agreement” “pursuant to which Defendant agreed to provide Plaintiff with habitable premises.” (Compl. ¶¶ 4, 20.) This contract forms the basis for Plaintiff’s breach of contract claim.

In addition, Defendant cites to several appellate opinions for the following proposition: “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 459.) Defendant contends that Plaintiff has not complied with this rule of pleading. However, Defendant overlooks more recent case law that has clarified that a plaintiff may instead “plead the legal effect of the contract rather than its precise language.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.) Plaintiff has alleged the existence of a lease agreement and alleged that, under its terms, Defendant “agreed to provide Plaintiff with habitable premises, managed by competent personnel to treat Plaintiff fairly and to comply with the law.” (Compl. ¶ 20.) No more is necessary to understand the legal effect of the contract for purposes of this claim.

Defendant contends that the Complaint is uncertain insofar as it fails to state how Defendant breached the contract. The Court disagrees. The Complaint’s Factual Background section recites several alleged uninhabitable conditions on the Premises including no heat, an ant infestation, and mold growth. According to the Complaint, “Defendant breached the terms of the agreement by creating uninhabitable and unhealthy conditions for Plaintiff, which Defendant refused to repair in violation of the agreement.” (Compl. ¶ 23.) Reading these allegations together reflects how Defendant allegedly breached the contract.

Defendant’s demurrer to Plaintiff’s first cause of action is OVERRULED.

B. Second Cause of Action for Breach of Warranty

Defendant asserts that Plaintiff’s second cause of action is fatally uncertain because Plaintiff has attempted to plead several causes of action within one. Defendant cites to Paragraph 28 of the Complaint: “Defendant violated express and implied warranties of habitability, quiet enjoyment and Civil Code §§1940.3, 1941, and 1942, et seq., repeatedly, and harassed and retaliated against Plaintiff when she protested.” According to Defendant, pleading all these claims in one cause of action deprives her of the ability to properly defend against those claims.

Demurrers for uncertainty are disfavored. Such demurrers are strictly construed, even where a complaint is uncertain in some respects, because ambiguities can reasonably be clarified under modern rules of discovery. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Demurrers for uncertainty will almost certainly be overruled where: (1) they are directed to inconsequential matters; (2) the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures; or (3) they are not dispositive of one or more causes of action. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 7:86.)

Defendant’s argument is unpersuasive. While the Complaint is not a model of clarity with respect to this claim, its general thrust — that Defendant violated the lease agreement’s implied covenant of quiet enjoyment and implied warranty of habitability — is clear enough. Plaintiff perhaps should have, but was not required to, allege these claims separately given that both derive from the same contract. Defendant can clarify any lingering ambiguities in discovery.

Defendant contends that she is “not aware” of a cause of action for express warranty of habitability and that Plaintiff should specify any express warranty in the lease agreement. However, Defendant’s contention attacks only a part of this cause of action, not its entirety. As such, it is not properly asserted on demurrer.

Defendant’s demurrer to Plaintiff’s second cause of action is OVERRULED.

C. Third Cause of Action for Fraud

Defendant contends that Plaintiff has failed to satisfy the heightened pleading standards applicable to fraud claims. Defendant notes that Plaintiff has failed to allege basic facts such as when or where purported misrepresentations were made.

The elements of fraud are (1) a 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. (Estate of Young (2008) 160 Cal.App.4th 62, 79.)

Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) This means that a plaintiff must plead every element of fraud with specificity (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157) and plead facts which show how, when, where, to whom, and by what means the representations were tendered (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614).

Defendant’s argument is well-taken. While Plaintiff has alleged that Defendant made a purportedly fraudulent promise that “she would have habitable premises during the tenancy …, and that she would repair and remediate” (Compl. ¶ 34), Plaintiff has not alleged how, when, where, or by what means this purported promise was tendered. Further, Plaintiff has not alleged that Defendant made this promise without the intent to fulfill it. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973.) At bottom, the factual allegations in the Complaint do not give rise to an intentional tort like fraud.

Defendant’s demurrer to Plaintiff’s third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

D. Fourth Cause of Action for Negligence – Premises Liability

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 832.)

Defendant contends that Plaintiff has failed to sufficiently allege how she breached any duty owed to Plaintiff. Defendant notes Plaintiff’s allegations that Defendant “made negligent attempts to alleviate the problems, including failing to properly inspect and maintain the premises free of said defective and dangerous conditions” (Compl. ¶ 39), but characterizes those allegations as overly vague and conclusory.

The Court disagrees. “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528.) Plaintiff has alleged that the Premises developed deficient conditions, that she notified Defendant about the same, and that Defendant took no or inadequate actions to cure the conditions. Plaintiff has plead sufficient facts to move forward with an ordinary negligence claim.

Defendant’s demurrer to Plaintiff’s fourth cause of action is OVERRULED.

E. Fifth Cause of Action for Negligence

Defendant contends that Plaintiff’s fifth cause of action fails because it is based on the same allegations in support of Plaintiff’s fourth cause of action and is thus duplicative. The Court disagrees. Negligence is a legal theory that is broader in scope. The standard of care in a negligence claim calls for reasonable care in the same situation (CACI 401) whereas the standard of care in a premises liability claim calls for reasonable care to keep property in a reasonably safe condition (CACI 1001). Likewise, negligence and premises liability consist of different jury instructions. Although these causes of action are substantially similar (Compare Compl. ¶ 39 with Compl. ¶ 46), the Court agrees with Plaintiff that these are still alternative theories of liability in terms of scope and that Plaintiff may consequently proceed with both.

Defendant’s demurrer to Plaintiff’s fifth cause of action is OVERRULED.

F. Sixth Cause of Action for Violation of the UCL

Business and Professions Code section 17200 prohibits unlawful, unfair, or fraudulent business acts or practices. Each of the three prongs is an independent basis for relief. (Smith v. State Farm Mutual Automobile Insurance Co. (2001) 93 Cal.App.4th 700, 718.) Unlawful conduct is defined as any practice forbidden by law. (Farmers Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 383.) Appellate courts are split on how a plaintiff can prove a business practice is unfair with respect to consumers. (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1418.) The Second District Court of Appeal holds that the following are factors to help determine unfairness: (1) the consumer injury must be substantial, (2) the injury must not be outweighed by any countervailing benefits to consumers or competition, and (3) it must be an injury that consumers themselves could not reasonably have avoided. (Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1403.) Finally, fraudulent conduct is conduct that is likely to deceive members of the public. (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 838.)

The Complaint alleges that Defendant engaged in an illegal business practice by failing to remediate the defective conditions on the Premises. (See Compl. ¶ 49.)

Defendant claims that Plaintiff’s sixth cause of action fails because Plaintiff provides only conclusory statements to show that Defendant engaged in deceptive practices and unfair competition. The Court disagrees. This claim rests on the same factual allegations as the preceding causes of action — Defendant’s alleged failure to remediate defective conditions on the Premises. Those allegations remain sufficiently pleaded.

Defendant also claims that this cause of action is meritless because Plaintiff has requested money damages, not injunctive relief or restitution. “Through the UCL a plaintiff may obtain restitution and/or injunctive relief against unfair or unlawful practices in order to protect the public and restore to the parties in interest money or property taken by means of unfair competition.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1338-39.) In advancing this argument, Defendant apparently overlooks Paragraph 50: “Defendant’s conduct resulted in profit to Defendant. Plaintiff seeks disgorgement of said profits and restitution to Plaintiff.”

Defendant’s demurrer to Plaintiff’s sixth cause of action is OVERRULED.

G. Seventh Cause of Action for Violation of the CLRA

The CLRA (Civ. Code §§ 1750, et seq.) prohibits “unfair methods of competition and unfair or deceptive acts or practices” in transactions involving the sale of goods or services to any consumer. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1249.) The CLRA defines “goods” as “tangible chattels bought or leased for use primarily for personal, family, or household purposes including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not severable from the real property.” (Civ. Code § 1761(a).) The CLRA defines “services” as “work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.” (Civ. Code § 1761(b).) The CLRA does not apply to objects that are neither goods nor services within the meaning of the Act. (See Berry v. American Express Publishing, Inc. (2007) 147 Cal.App.4th 224, 233.)

Defendant contends that the CLRA is inapplicable in this matter because the transaction in question involved the lease of real property, not a tangible chattel. The Court agrees. The plain language of the CLRA militates this conclusion. (See McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1488 (CLRA inapplicable to transaction resulting in sale of real property).)

Plaintiff argues that subdivisions (d) and (e) of Civil Code section 1761 indicate that the CLRA applies to lease transactions. These subdivisions are irrelevant. Subdivision (d) defines “consumer” for purposes of the CLRA as “an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.” This subdivision presses the point that the purchase or lease of goods and services is an element of this claim. Subdivision (e) defines “transaction” for purposes of the CLRA as “an agreement between a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.” As noted ante, the touchstone for application of the CLRA is not the presence of a transaction but a transaction involving goods or services to a customer. (Gutierrez, supra, 19 Cal.App.5th at 1249.)

Further, while the Complaint does allege that Defendant agreed to provide Plaintiff with “services” like providing a safe and habitable premises (Compl. ¶¶ 54-55), the Court concludes that these allegations are vague and (more important) ancillary to the main purpose of the lease agreement such that they do not convert this non-“service” into a “service.” (See Alborzian v. JPMorgan Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 40.)

Defendant’s demurrer to Plaintiff’s seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

H. Eighth Cause of Action for IIED

An IIED cause of action consists of three elements: (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 of severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

Defendant asserts that Plaintiff’s eighth cause of action fails because Plaintiff has insufficiently alleged each of its elements. The Court concurs.

As to the first element, a defendant’s conduct is “outrageous” when it is so “extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Hughes, supra, 46 Cal.4th at 1051.) IIED liability does not extend “to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Ibid.) In the Complaint, Plaintiff alleges that Defendant failed to make repairs to the Premises resulting in her living without an operating heater for several weeks, an ant infestation that lasted for several months, a non-functioning front door lock, and water intrusion that created mold, mildew, and a strong odor. This alleged conduct, while certainly undignified, does not arise to a sufficient level of outrageousness as reflected in case law.

As to the second element, severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it. (Potter, supra, 6 Cal.4th at 1004.) Plaintiff alleges that Defendant’s conduct caused her to suffer humiliation, mental anguish, and emotional distress. (Compl. ¶ 62.) Plaintiff also alleges that she became physically ill due to constant exposure to the unabated mold on the Premises. (Compl. ¶ 9.) While Plaintiff has alleged some degree of emotional distress, Plaintiff has not sufficiently alleged its substantial and enduring quality.

Defendant’s demurrer to Plaintiff’s eighth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

I. Conclusion

Defendant’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to Plaintiff’s third, seventh, and eighth causes of action and OVERRULED as to the remainder.