Case Number: BC534590    Hearing Date: July 28, 2014    Dept: 34

SUBJECT: Demurrer to first amended complaint, motion to strike

Moving Party: Defendants Victor M. Rex and Golden Estate Management Inc. (“defendants”)

Resp. Party: Plaintiffs Ehud Shamay and Tamar Lien (“plaintiffs”)

Defendants’ demurrer is OVERRULED. Defendants’ motion to strike is DENIED.

PRELIMINARY COMMENTS:

Defendant’s demurrer and motion to strike are complementary pleadings — they both rise or fall together. Had the court sustained the demurrer to the eighth cause of action for IIED, it would have granted the motion to strike. Since the court is overruling the demurrer, it similarly will deny the motion to strike.

BACKGROUND:

Plaintiffs commenced this action on 1/28/14 against defendants for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) breach of the warranty of habitability; (4) breach of the warranty of habitability; (5) breach of the covenant of quiet enjoyment; (6) breach of the covenant of quiet enjoyment; (7) negligence; (8) IIED; (9) NIED; and (10) nuisance. Plaintiffs filed a first amended complaint (FAC) on 5/29/14 which deleted the tenth cause of action. Plaintiffs entered into a rental agreement for the subject premises on 5/1/13. (FAC ¶ 11, Exh. A.) Upon moving into the premises, plaintiffs noticed a foul odor and reported it to defendants. (Id., ¶ 12.) On 6/25/13, defendants arranged for a professional mold inspection of the premises, but defendants have refused to provide plaintiffs with a copy of the mold inspection report. (Id., ¶ 13.) The inspector had told plaintiffs that he would not live there because he believed it to be unhealthy and unsafe because of the mold contamination. (Id., ¶ 14.) Plaintiffs allege that they and their children suffered illnesses because of the mold contamination. (Id., ¶ 15.) Plaintiffs allege that defendants knew of the mold contamination before renting the premises to plaintiffs. (Id., ¶ 16.) On 7/18/13, defendants hired workers to remediate the mold contamination. (Id., ¶ 17.) This work took place in the bedrooms of plaintiffs’ two children and the bedrooms remain uninhabitable. (Ibid.) Plaintiffs have continued to pay rent despite the fact that the they have lost the use of the bedrooms. (Id., ¶ 18.)

ANALYSIS:

Defendants demur to plaintiffs’ eighth cause of action for IIED on the ground that plaintiffs fail to allege sufficient facts.

The tort of intentional infliction of emotional distress is comprised of the following elements: (1) defendant’s extreme and outrageous conduct; (2) intention of causing emotional distress, or reckless disregard of the probability of causing emotional distress with knowledge of plaintiff’s presence when the conduct occurred; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the conduct was the actual and proximate causation of the emotional distress. (CACI No. 1600; see also Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Outrageous conduct is not a bright-line determination but depends upon an intuitive appraisal of “values, sensitivity threshold, and standards of civility.” (Kovr-Tv, Inc. v. Superior Court (1994) 31 Cal.App.4th 1023, 1028.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.'” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

General allegations of emotional distress are not sufficient; instead, a plaintiff must set forth facts indicating the nature and extent of the mental suffering. (See Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)

Plaintiffs allege that defendants rented plaintiffs the premises when defendants knew that it was contaminated with mold. (See FAC ¶¶ 16, 63.) Plaintiffs allege that when defendants attempted to ameliorate the contamination, the result was the loss of the use of the bedrooms. (See id., ¶¶ 17-18.) Plaintiffs allege that defendants’ conduct caused them to suffer numerous illnesses, disruptions, and disturbances. (Id., ¶ 64.) Plaintiffs allege that they have suffered severe emotional distress, including inability to sleep, loss of appetite, and fear of occupying their home. (Id., ¶ 66.) These allegations, if found true, could lead a reasonable jury to award damages for IIED.

Accordingly, defendants’ demurrer to the eighth cause of action is OVERRULED.

Defendants also move to strike plaintiffs’ request for punitive damages. The standard of proof for recovery of punitive damages is “clear and convincing” evidence of malice, fraud, or oppression. (Civil Code § 3294(a).) Under Civil Code 3294(c),

[¶] (1) ‘Malice’ means 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. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. [¶] (3) ‘Fraud’ means 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.

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.) The inquiry is generally fact specific to the nature of the claim raised and the context in which the damages are sought, but “the critical element is an ‘evil motive’ of the defendant.” (Ibid.) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.'” (American Airlines v. Sheppard (2002) 96 Cal.App.4th 1017, 1051.)

Plaintiffs allege that defendants knowingly rented and failed to repair a property that was contaminated with mold, resulting in plaintiffs’ physical and emotional injuries. (See FAC ¶¶ 16-18, 63-64, 66.) These facts are sufficient to establish that defendants engaged in despicable conduct with reckless disregard to plaintiffs’ rights and safety.

Accordingly, defendants’ motion to strike is DENIED.

SUBJECT:
(1) Motion to compel plaintiff Tamar Levin’s responses to form interrogatories;
(2) Motion to compel plaintiff Tamar Levin’s responses to special interrogatories;
(3) Motion to compel plaintiff Tamar Levin’s responses to requests for production;
(4) Motion to compel plaintiff Ehud Shamay’s responses to form interrogatories;
(5) Motion to compel plaintiff Ehud Shamay’s responses to special interrogatories;
(6) Motion to compel plaintiff Ehud Shamay’s responses to requests for production

Moving Party: Defendants Victor M. Rex and Golden Estate Management Inc. (“defendants”)

Resp. Party: Non-opposition filed by plaintiffs’ counsel

Defendants’ motions to compel plaintiffs’ responses, without objections, to defendants’ form interrogatories, special interrogatories, and requests for production are GRANTED. The Court imposes sanctions in the amount of $360 ($60 filing fee for each of the six motions to compel.)

BACKGROUND:

Plaintiffs commenced this action on 1/28/14 against defendants for: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) breach of the warranty of habitability; (4) breach of the warranty of habitability; (5) breach of the covenant of quiet enjoyment; (6) breach of the covenant of quiet enjoyment; (7) negligence; (8) IIED; (9) NIED; and (10) nuisance. On 5/29/14 plaintiffs filed a first amended complaint which deleted the tenth cause of action.

ANALYSIS:

Defendants seek to compel plaintiffs’ responses to form interrogatories (set one), special interrogatories (set one), and requests for production (set one).

Responses to written discovery must be served within 30 days and if responses are not timely served, the responding party waives any objections thereto. (See Code Civ. Proc., §§ 2031.260, 2030.300, 2033.250, 2033.280.) For a motion to compel, all a propounding party must show is that it properly served its discovery requests, that the time to respond has expired, and that the party to whom the requests were directed failed to provide a timely response. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905 906.) Indeed, “[o]nce [a party] ‘fail[ed] to serve a timely response,’ the trial court had authority to grant [opposing party’s] motion to compel responses.” (Sinaiko Healthcare Counseling, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 405.)

Defendants served the subject discovery by mail on 3/21/14. (See Kerr Decls., ¶ 3, Exh. A.) Defense counsel granted plaintiffs a three-week extension to serve responses to 5/16/14. (Id., ¶ 4.) No responses were received by 5/16/14 and defense counsel sent correspondence demanding responses by 5/23/14. (Id., ¶ 5, Exh. B.) No responses were received by 5/23/14, but plaintiffs’ counsel promised to provide responses by 5/28/14. (Id., ¶ 6, Exh. C.) No responses were received by 5/28/14, and plaintiffs’ counsel represented that they would be served by 6/6/14. (Id., ¶ 7.) As of the date of the filing of these motions, defendants have yet to receive responses from plaintiffs. (Id., ¶ 8.) In the non-opposition, plaintiffs’ counsel acknowledges that he failed to serve responses. (See Tepper Decl., ¶¶ 2-5.)

Accordingly, defendants’ motions are GRANTED. Plaintiffs must provide verified responses and responsive documents, without objection, to defendants’ first sets of form interrogatories, special interrogatories, and requests for production.

Defendants seek monetary sanctions against plaintiffs and their counsel of record in the amount of $910.00 for each motion. Pursuant to California Code of Civil Procedure sections 2030.290(c) and 2031.300(c), a court “shall” impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on any party “who unsuccessfully makes or opposes a motion to compel a response , unless [the Court] finds that one subject to the sanction acted with substantial justification or that other circumstances make the imposition of sanctions unjust.” (Code Civ. Proc., §§ 2030.290(c), 2031.300(c).) A request for sanctions “shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” (Code Civ. Proc., § 2023.040.) The notice of motion “shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc., § 2023.040.)

Defendants make the sanctions requests in the notices and support them in the memoranda and declarations. The amount of sanctions is based on 2 hours spent preparing the instant motion, plus an anticipated 3 hours to attend the hearing on this motion, all at an hourly rate of $170.00. (Kerr Decl., ¶ 3 [p. 7].) The amount requested is excessive and unreasonable. The motions were nearly identical, included very brief memoranda and declarations, and did not present any difficult legal or factual issues. At most it should have taken 2 hours to prepare all of the motions and attend the hearing.

“‘If . . . the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked in the first place. To discourage such greed, a severer reaction is needful . . . .’ (Serrano v. Unruh (1982) 32 Cal.3d 621, 635, quoting Brown v. Stackler (7th Cir. 1980) 612 F.2d 1057, 1059.) “A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 990; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1137; Serrano v. Unruh (1982) 32 Cal.3d 621, 635.)

In the declaration in support of the non-opposition, plaintiffs’ counsel appears to take full responsibility for the failure to timely serve responses to the discovery. Plaintiffs’ counsel, Nicholas Tepper, declares that the responses were timely prepared by his staff and reviewed by plaintiffs, but that his policy is to review all responses before serving them, and he was not able to do so because of his illness. (Tepper Decl., ¶¶ 4-5.) Tepper declares that he was ill with Type II diabetes which left him “totally incapacitated” and made it “impossible to do even the simplest tasks, like answering basic discovery.” (Id., ¶¶ 2, 6.) The Court finds this to be a sufficient justification and/or a circumstance that would make the imposition of sanctions unjust.

The court will award defendants their costs of $60 for each of the six motions, for a total of $360. Responses and sanctions due within 30 days.