Case Number: BC606220 Hearing Date: March 29, 2018 Dept: 53

errol flynn, et al. vs. plb management, llc , et al.;

BC606220, March 29, 2018

[Tentative] Order RE: DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT; DEFENDANTS’ MOTION TO STRIKE FIRST AMENDED COMPLAINT

Defendants PLB Management, LLC, Prime/Park LaBrea Holdings L.P., and Prime/Park LaBrea Titleholder, LLC’s Demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. Defendant’s Motion to Strike First Amended Complaint is GRANTED.

BACKGROUND

Plaintiffs Errol Flynn and Susan Anderson (jointly, “Plaintiffs”) filed this action on January 6, 2016, against Defendants PLB Management, LLC, Prime/Park LaBrea Holdings L.P., and Prime/Park LaBrea Titleholder, LLC (collectively, “Defendants”).

The operative First Amended Complaint (“FAC”), filed November 28, 2017, alleges that Plaintiffs lived at a property owned and/or managed by Defendants, subject to a written lease agreement. Plaintiffs allege that, beginning in January 2012, they noticed a bed bug problem and notified management, after which Defendants failed to remedy the problem. Plaintiffs allege that Defendants continually failed to remediate the bed bug problem, despite Plaintiffs complaining to the Los Angeles County Department of Public Health. Plaintiffs allege that they suffered injury, property damage, pain, discomfort, annoyance, sleeplessness, inconvenience, humiliation, anxiety, and emotional distress.

The FAC asserts twelve causes of action. At issue on this demurrer are the sixth and seventh causes of action for intentional and negligent infliction of emotional distress, the eighth cause of action for breach of contract, and the tenth and eleventh causes of action for fraud, deceit. Defendants demur to each of these causes of action on the grounds that they fail to state a cause of action pursuant to CCP § 430.10(e) and are uncertain, ambiguous and unintelligible pursuant to CCP § 430.10(f). Plaintiffs oppose the demurrer. Defendants also move to strike portions of Plaintiffs’ Complaint where they allege punitive damages and pray for the same. Plaintiffs also oppose Defendants’ motion to strike.

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.).

demurrer

A. Timeliness of Demurrer

Plaintiffs contend that the demurrer is untimely and thus should not be considered by the Court. The FAC was filed on or about November 28, 2017, and the demurrer was filed on February 26, 2018, clearly after the 30-day period set forth in Code of Civil Procedure section 430.40. Defendants contend that the untimeliness of the demurrer was due to the “understanding and belief” that the FAC had been improperly served by facsimile. Further, Defendants’ counsel was in the process of moving firms due to a dissolution. (Milnes Decl., ¶ 3.) The Court has the discretion to consider a late-filed demurrer pursuant to Code of Civil Procedure section 473, subdivision (a)(1) so long as such consideration does not affect the substantial rights of the parties. (Code Civ. Proc., § 473(a)(1); Jackson v. Doe (2011) 192 Cal.App.4th 742, 749-750.) The Court notes that it has no record of a proof of service for the FAC, so the Court cannot determine whether the FAC was, in fact, properly served. In any event, the Court exercises its discretion to consider the late-filed demurrer as Plaintiffs have not taken steps to obtain a default judgment or demonstrated any prejudice as a result of the delay. (See Jackson v. Doe, supra, 192 Cal.App.4th at p. 750.)

B. Special Demurrers on the Basis of Uncertainty

The Court overrules the special demurrers on the basis of uncertainty. The allegations of the FAC are not so confusing that Defendants cannot tell what they should be responding to, and Defendants have clearly responded by virtue of the general demurrers.

C. Sixth and Seventh Causes of Action – Intentional and Negligent Infliction of Emotional Distress

To prevail on an IIED claim, plaintiff must prove: “(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 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). “[L]iability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, but only to conduct so extreme and outrageous as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Eng’g, Inc. (1970) 2 Cal.3d 493, 499, fn. 5.)

California courts have repeatedly recognized that NIED is not an independent tort, but the tort of negligence such that the traditional elements of duty, breach of duty, causation, and damages apply. (See, e.g., Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 213; Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.) Thus to plead NIED, negligence must be established. There are two classifications for NIED claims: (1) bystander and (2) direct victim. (See Spates, supra, 114 Cal.App.4th at p. 213.) A plaintiff may make a bystander NIED claim if he or she is present at the scene of the injury-producing event at the time it occurs, witnesses the physical injury of someone closely related to him or her, and suffers emotional distress beyond that which would be anticipated in a disinterested witness. (See id.; Thing v. La Chusa (1989) 48 Cal.3d 644, 666.) To make a direct victim claim, the emotional distress suffered by the plaintiff must be a foreseeable consequence of the conduct directed at the plaintiff. (See Molien v. Kaiser Foundation Hospital (1980) 27 Cal.3d 916, 930.)

“[T]here is no duty to avoid causing emotional distress to another, and that damages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) A tenant may state a cause of action against a landlord for NIED for tortious interference with property rights, as long as the landlord’s act constitutes a tort grounded in negligence. (See Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299; Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922-23.)

Defendants argue that Plaintiffs have failed to include any new facts to the FAC to constitute an IIED or NIED cause of action. The Court finds that the FAC still suffers from the same defects, as the FAC does not allege facts to support the conclusory allegations that Defendants caused Plaintiffs emotional distress solely by failing to take reasonable measures to remediate bed bugs. Plaintiffs have not alleged that Defendants refused to remediate the problem. Plaintiffs also fail to allege specific facts detailing the effects of their emotional distress. Instead, they simply argue in a conclusory fashion that “Plaintiff has endured many sleepless nights and much emotional and mental distress, coupled with other physical conditions associated with severe mental and emotional distress,” (FAC, ¶ 142.) and “Plaintiff suffered severe emotional distress and mental suffering, all to their damage.” (FAC, ¶ 143.) These conclusory allegations, without more facts alleged as to specific manifestations of their distress, are insufficient to maintain Plaintiff’s causes of action for IIED or NIED. Accordingly, the demurrer is sustained as to those causes of action.

D. Eighth Cause of Action – Breach of Contract

Defendants argue that Plaintiffs’ claim for breach of contract fails because they do not allege any specific provisions of the lease agreement allegedly breached by Defendants. Rather, Plaintiffs allege that the implied covenant of good faith and fair dealing was breached because “the purpose of the leases was for Plaintiff to obtain a habitable residence from Defendants in return for payment of a monthly sum.” (Opp’n, p. 8: 18-19; FAC, ¶ 148.) However, once again, Plaintiffs have failed to specify any terms of this alleged agreement to provide a habitable unit, nor whether that agreement was oral or in writing. To the extent Plaintiffs instead intend to allege a cause of action for a breach of the implied covenant of good faith and fair dealing, the obligations imposed by the implied covenant are imposed by law to govern the manner in which the express contractual obligations must be discharged – i.e., fairly and in good faith. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 573-574.) “In essence, the covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Id. at pp. 1031-1032.) Here, Plaintiffs allege that “Defendants’ failure to remedy the bed bug infestation interfered with Plaintiffs’ quiet enjoyment of the Property and interfered with Plaintiff’s benefit, including tenancy under the rental agreement.” (FAC, ¶ 152.) This allegation is nevertheless insufficient to state a cause of action for breach of the implied covenant of good faith and fair dealing. “Where an implied covenant of good faith and fair dealing claims alleges a breach of obligations beyond the agreement’s actual terms, it is invalid.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 327 [internal quotations omitted].) Accordingly, the demurrer to Plaintiffs’ eighth cause of action is sustained.

E. Tenth and Eleventh Causes of Action – Fraud and Deceit

To plead a cause of action for fraud, Plaintiff must plead facts showing the following elements: (1) misrepresentation, (2) knowledge of falsity, (3) intent to defraud, (4) justifiable reliance, and (5) resulting damage. (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Fraud must be pleaded specifically. To survive demurrer, plaintiff must plead facts that “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.)

Moreover, fraudulent concealment requires specific allegations of: “(1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Hambrick v. Healthcare Partners Med. Grp., Inc. (2015) 238 Cal.App.4th 124, 162, 189, see also Cansino v. Bank of Am. (2014) 224 Cal.App.4th 1462, 1472 (“[T]he requirement that fraud must be pleaded with specificity applies equally to . . . fraud and deceit based on concealment.” (internal quotations and brackets omitted).)

Here, Plaintiffs only allege in conclusory statements that Defendants entered into agreements with Plaintiffs “at various times” knowing that the property was infested with bed bugs. (FAC, ¶ 166.) As with the original Complaint, no facts have been alleged showing when, how, and who made these alleged representations. Accordingly, Plaintiff’s tenth and eleventh causes of action for fraud deceit fail and the demurrer as to those causes of action is sustained.

motion to strike

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP §436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP §437.) “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.)

Defendants argue that Plaintiffs’ claims for punitive damages should be stricken because Plaintiffs fail to plead the requisite despicable conduct to support such a claim. “The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . . . 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.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287).) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Scott v. Phoenix Sch., Inc. (2009) 175 Cal.App.4th 702, 716.)

The Court finds that the FAC does not include any new allegations to sufficiently plead entitlement to punitive damages. There are no facts pled that rise to the level of an “extreme indifference to plaintiff’s rights” such that they were intolerable. Defendants also argue that Plaintiffs fail to allege sufficient facts to plead liability against the corporate defendants in this case. Pursuant to Civil Code §3294(b), a claim for punitive damages is subject to being stricken where “plaintiff has not pleaded that acts of employees of defendant corporation were done with the knowledge or under the express direction or ratification of an officer, director or managing agent of the corporation.” (Scannell v Cty. of Riverside (1984) 152 Cal. App. 3d 596, 614.) “[T]he punitive damage statute requires proof of malice among corporate leaders . . . . This is the group whose intentions guide corporate conduct.” (Cruz v HomeBase (2000) 83 Ca. App. 4th 160, 167.) Here, although Plaintiffs generally allege that the management department was acting as management and supervisorial employees, exercising broad and discretionary authority in their conduct, Plaintiffs have failed to allege how specific individual Defendants who engaged in specific conduct were exercising such authority so as to implicate the corporate Defendants in those specific acts. Accordingly, Plaintiffs have again failed to allege corporate liability for punitive damages.

CONCLUSION

Based on the foregoing, Defendant’s demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to Plaintiffs’ sixth, seventh, eighth, tenth, and eleventh causes of action. Defendant’s motion to strike is GRANTED.

Defendants are ordered to provide notice of this ruling.

DATED: March 29, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court