2012-00130106-CU-BC

Tamera Livingston vs. BFS Investment Grou, LLC

Nature of Proceeding: Motion to Strike

Filed By: Wayland, Gregory P.

Defendants’ Motion to Strike the Punitive Damage Allegations is GRANTED, without
leave to amend.

The contract causes of action fail to support a claim of punitive damages, no matter
how gross or willful. see Myers Building Industries, Ltd. v. Interface Technology, Inc.
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(1993) 13 Cal.App.4th 949, 962. Thus, Plaintiff’s 2 , 4 and 5th causes of action fail to
support any punitive damages claim by Plaintiff.

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The 1 cause of action for tortious breach of the implied warranty of habitability; Civil
Code, sec. 1941, alleges damages in that plaintiff “paid excessive rent, suffered out of
pocket expenses and emotional distress”. (FAC, para. 22) The cause of action fails to
allege malice, oppression or fraud to support punitive damages.

The 3rd for violation of Civil Code, sec. 1942.4, alleges plaintiff was damaged by
suffering out of pocket expenses and spending her time attempting to resolve the
problems existing in her unit. (FAC, para. 35.) The cause of action fails to allege
malice, oppression or fraud to support punitive damages.

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The 6 for private nuisance alleges that she made several complaints. The allegation
is that defendants “allowing the conditions . . . to exist after being informed of their
existence and being given an ample opportunity to correct these conditions.” (FAC,
para. 48) Plaintiff alleges that she was “reasonably annoyed and/or disturbed” and
plaintiff was harmed. (FAC, para. 51)

Although plaintiff relies upon Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 920
for the proposition that tenants may allege and recover emotional distress and
exemplary damages against a landlord, in that case the court held that “A nuisance
may be either a negligent or an intentional tort. If the latter, then exemplary damages
are recoverable.” Id. at 920.

In this case, the nuisance allegation sounds in negligence, not intentional tort. The
cause of action fails to allege malice, oppression or fraud to support punitive damages.

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The 7 for premises liability does not support punitive damages. Mere negligence,
even gross negligence is not sufficient to justify an award of punitive damages.
Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894. The 8 for retaliation in violation of C.C.P., sec. 1942.5, fails to allege sufficient facts in
support of punitive damages. Again, plaintiff alleges that she suffered out of pocket
expenses and emotional distress as the result of her requests for repairs and
defendants denying repairs. (FAC, para. 63) The cause of action fails to allege malice,
oppression or fraud to support punitive damages.

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The 9 for negligence does not support punitive damages. Mere negligence, even
gross negligence is not sufficient to justify an award of punitive damages. Ebaugh v.
Rabkin, supra, 22 Cal. App. 3d 891, 894.

As plaintiff proffers no additional facts to support an amended pleading, leave to
amend is denied.

As defendants have filed their Answer to the FAC, no further pleading is required.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 6 2012-00130106-CU-BC

Tamera Livingston vs. BFS Investment Group, LLC

Nature of Proceeding: Hearing on Demurrer

Filed By: Wayland, Gregory P.

Defendants’ Demurrer to the Plaintiff’s First Amended Complaint is SUSTAINED,
without leave to amend as to all defendants except BFS Investment Group, LLC.

Plaintiff’s First Amended Complaint (“FAC”) sets forth nine causes of action against all
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defendants arising out of a residential lease agreement: the 1 for tortious breach of
the implied warranty of habitability; Civil Code, sec. 1941, the 2nd for contractual

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breach of the implied warranty of habitability; Civil Code, sec. 1941, the 3 for violation
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of Civil Code, sec. 1942.4, the 4 for breach of contract, the 5 for breach of quiet
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enjoyment, the 6 for private nuisance, the 7 for premises liability, the 8 for
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retaliation in violation of C.C.P., sec. 1942.5, the 9 for negligence and a claim for
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exemplary damages. Defendants demur only to the 2 , the 4 and the 5 causes of
action.

Demurrers to the 2nd for contractual breach of the implied warranty of habitability, the 4
th for breach of contract, and to the 5th for breach of quiet enjoyment, are SUSTAINED,
without leave to amend.

The demurrer to the original complaint was sustained with leave to amend, as to these
causes of action. Plaintiff has amended paragraphs 7 and 8 in the FAC, but the result
is the same.

The Court declines to consider the extrinsic evidence offered by plaintiff in opposition.

Defendants contend that the 2nd Cause of Action for Contractual Breach of the Implied
Warranty of Habitability, the 4 Cause of Action for Breach of Contract, and the 5
Cause of Action for Breach of Quiet Enjoyment cannot be asserted against the
Defendants who are not parties to the lease agreement. Exhibit A to the FAC reflects
that BFS Investment Group LLC is the Owner and Tamara Livingston is the Resident.
These are the only named parties to the lease.

The implied covenant of quiet enjoyment implies a term in a contract, and a breach of
the covenant gives rise to an action in contract. ( Ginsberg v. Gamson (2012) 205
Cal.App.4th 873, 896.) Further, “[a]n action by a tenant alleging a breach of the
warranty of habitability is an action on the contract…” (Fairchild v. Park (2001) 90
Cal.App.4th 919, 924-925.) Plaintiff alleges no other contractual agreement between
any of the Defendants other than BFS.

In opposition, Plaintiff contends that Frances Ung, individually and as Trustee of the
Ung Family Trust, Sip Ung, individually and as Trustee of the Ung Family Trust, and
the Ung Family Trust were the owners of the real property at issue, and thus owe
duties to Plaintiff arising out of their ownership interest.

Plaintiff also argues that an agency relationship existed between the other Defendants
and BFS, and that the other Defendants were beneficiaries under the contract. Agency
does not establish contractual liability for a non-party to the contract. Zumbrun v.
University of Southern California (1972)25 Cal. App. 3d 1, 11.

None of these sources of liability give rise to a cause of action to enforce a contract
against a defendant who is not a party to the contract at issue. Although Plaintiff may
allege these theories against the other Defendants in her non-contract-based causes
of action, they cannot support causes of action based upon the lease agreement itself
because these Defendants were not parties to that agreement. “The purpose of the
law of contracts is to protect the reasonable expectations of the parties.” (Ben-Zvi v.
Edmar Co. (1995) 40 Cal.App.4th 468, 475.) A lease agreement establishing a
landlord-tenant relationship is a contract and is subject to the general rules governing
the formation and interpretation of contracts. (Medico-Dental etc. Co. v. Horton &
Converse (1942) 21 Cal.2d 411, 418-419; Vallely Investments v. BancAmerica
Commercial Corp. (2001) 88 Cal.App.4th 816, 822.).” ASP Properties Group, L.P. v.
Fard, Inc. (2005) 133 Cal. App. 4th 1257, 1268.

As defendants have filed their Answer to the FAC, no further pleading is required.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.