Case Name:   Griselda Mejia, et al. v. Sunding Brothers LLC, et al.

Case No.:       1-14-CV-267444

 

Currently before the Court are defendants Sunding Brothers, LLC (“Sunding”) and Jay Huang (“Huang”) (collectively, “Defendants”) demurrer to and motion to strike portions of the complaint of plaintiffs Griselda Mejia (“Griselda”) and Brayin David Mejia (“David”) (collectively, “Plaintiffs”).

 

1. Demurrer to the Complaint

 

Defendants demur to the first, second, third, seventh, tenth, twelfth and thirteenth causes of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e), (f).)

 

1. Uncertainty

 

Defendants demur to the first, second, third, seventh, tenth, twelfth and thirteenth causes of action in the complaint on the ground of uncertainty. In particular, they contend that Plaintiffs’ allegations are conclusory and unclear.

 

“A demurrer for uncertainty is strictly construed, even where a [pleading] is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the pleading is so incomprehensible that the opposing party cannot reasonably respond. (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

 

Here, the pleading is not so incomprehensible that Defendants cannot reasonably respond, and any remaining ambiguities can be clarified in discovery. Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

 

1. Failure to State Facts Sufficient to Allege First and Second Causes of Action

 

The first and second causes of action are for the tortious breach of the implied warranty of habitability and the contractual breach of the implied warranty of habitability. (See Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297-1299 [permitting both contractual and tort action for breach of implied warranty of habitability].)

 

Defendants first contend that Plaintiffs fail to allege any facts suggesting a defective condition existed at the property. This argument is not persuasive. In their complaint, Plaintiffs allege that several materially defective conditions existed at the property including a cockroach infestation, inadequate weather protection, unclean common areas, and animal feces in the common areas. (Compl., ¶ 12.)

 

Second, Defendants argue that Plaintiffs do not differentiate between defective conditions that occurred prior to Defendants’ purchase of the property on August 1, 2012 and those that predate that time. However, Defendants submit no authority requiring Plaintiffs to specify in their complaint the time period in which the defective conditions existed. Thus, the first cause of action is not subject to demurrer on this basis.

 

Third, with regard to the second cause of action for contractual breach of the implied warranty of habitability, Defendants contend that Plaintiffs fail to plead the material terms of the contract according to its legal intendment and effect or verbatim. This argument is not persuasive. “In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language. (See Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Here, Plaintiffs allege that the material terms of the contract were that Plaintiffs would occupy the premises at 218 Selwyn Dr. #3, Milpitas, California, 95035 in return for a promise to pay $1,100 in rent every month. (Compl., ¶ 7.) As Plaintiffs plead the material terms of the contract, the second cause of action is not subject to demurrer on this basis.

 

Fourth, with regard to the second cause of action for contractual breach of the implied warranty of habitability, Defendants assert that Plaintiffs can only seek a refund for excessive rent as damages. As Plaintiffs additionally seek out-of-pocket expenses and interest, Defendants argue that this cause of action is subject to demurrer. This argument lacks merit.  “A demurrer cannot be rightfully sustained to a part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelop. Agency (2003) 108 Cal.App.4th 1028, 1046; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.) Here, Plaintiffs seeks damages for the overpayment of rent, out-of-pocket expenses, physical and mental discomfort and other damages. (Compl., ¶ 29.) While Defendants contend that Plaintiff some of these types of damages are improper, they do not contest that Plaintiffs have properly alleged entitlement to some form of damages, namely, for the overpayment of rent. Therefore, Plaintiffs allege sufficient facts in support of the element of damages. Accordingly, the second cause of action is not subject to demurrer on this basis.

 

Finally, Defendants assert that Plaintiffs fail to allege that notice was given to the landlord within a reasonable time after the tenant discovered, or should have discovered, the breach. In this regard, Plaintiffs allege that they “sent several repair requests in writing and made other requests verbally to Defendants to have the aforementioned defects and others existing throughout the tenancy remedied.” (Compl., ¶ 13.) They further allege that they “made requests for repairs and reported uninhabitable conditions in their unit to their landlords and their agents and/or employee.” (Compl., ¶ 22.) Notably absent from these allegations are any facts indicating that notice was given within a reasonable time after the discovery of the breach by Plaintiffs. In fact, the allegation that Plaintiffs made requests to have other defects “existing throughout the tenancy remedied” (Compl., ¶ 13) suggests that notice was not given in a timely fashion. Thus, Plaintiffs fail to state sufficient facts to allege a cause of action for the tortious breach of the implied warranty of habitability or the contractual breach of the implied warranty of habitability. Accordingly, the demurrer to the first and second causes of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

1. Failure to State Facts Sufficient to Allege Third Cause of Action

 

The third cause of action is for breach of contract – implied covenant of good faith and fair dealing. Defendants contend that Plaintiffs do not allege facts indicating that they unfairly interfered with their rights to receive benefits under the contract. (See Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55 [“[E]very contract imposes upon each party a duty of good faith and fair dealing in the performance of the contract such that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.”].) This argument is not persuasive. Plaintiffs allege that Defendants interfered with their right to receive benefits under the contract by failing to make requested repairs or to provide a habitable premises, an implied term of the contract. (Compl., ¶ 33.) Accordingly, Plaintiffs allege sufficient facts to state a cause of action for breach of the implied covenant of good faith and fair dealing and the demurrer to the third cause of action is OVERRULED.

 

1. Failure to State Facts Sufficient to Allege Seventh Cause of Action

 

The seventh cause of action is for retaliation in violation of Civil Code section 1942.5, subdivision (c). “[A] retaliatory eviction occurs when the landlord attempts to evict the tenant because of the tenant’s exercise of certain rights as set forth in Civil Code section 1042.5, subd. (c).” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1493.) In turn, section 1942.5, subdivision (c) states, in pertinent part: “It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessee’s association or an organization advocating lessee’s rights or has lawfully and peaceably exercised any rights under the law.” As a remedial statute aimed at protecting tenants from certain types of abuses, it has been liberally construed as a broad prohibition against retaliation by a landlord when a tenant has exercised valid legal rights under the law. (See Barela v. Superior Court (1981) 30 Cal.3d 244, 251.)

 

Defendants argue that this cause of action must fail because Plaintiffs do not allege that they organized and/or participated in any tenant association or organization. (Mem. Ps & As, p. 7:24-26.) Defendants’ reading of the statute is not persuasive. The statute is written in the disjunctive and thus protects retaliation both for participation in a tenant association as well as the lawful and peaceable exercise of any rights under the law. (See Barela, supra, 30 Cal.3d at p. 251 [finding retaliation for report of criminal violations actionable under Code Civ. Proc., § 1942.5].) Thus, Plaintiffs’ failure to allege facts concerning participation in a tenant association does not render this cause of action subject to demurrer. Accordingly, the demurrer to the seventh cause of action is OVERRULED.

 

1. Failure to State Facts Sufficient to Allege Tenth Cause of Action

 

The tenth cause of action is for the violation of Business and Professions Code sections 17200 and 17500. Defendants first contend that Plaintiffs fail to specifically plead any facts supporting this cause of action and thus, the cause of action is subject to demurrer. Defendants’ argument lacks merit. First, a cause of action for violation of Business and Professions Code § 17200 may be generally pleaded. (See Quelimane Co. v. Stewart Title Guarantee Co. (1998) 19 Cal.4th 26, 46 [finding no specific pleading requirement for unfair competition cause of action].) In any case, Plaintiffs do specifically allege that Defendants violate applicable law relating to tenancies in their buildings by “failing to provide quiet enjoyment, failing to abate nuisances, allowing the defects identified herein to continue to exist in the face of government notices to abate, and renting units without certificates of occupancy.” (Compl., ¶ 77.) Accordingly, the tenth cause of action is not subject to demurrer on this basis.

 

Next, Defendants claim that Plaintiffs have not alleged sufficient facts to establish a violation of Business and Professions Code § 17500 because there are no allegations regarding false advertising. This argument is persuasive. To state a claim under section 17500, a plaintiff must allege that the defendant intended to dispose of real or personal property or perform services, the defendant publicly disseminated advertising containing an untrue or misleading statement, and the defendant knew, or should have known, it was untrue or misleading. (See Bus. & Prof. Code, § 17500.) Here, Plaintiffs do not allege that Defendants disseminated any advertising material. Thus, the allegations are insufficient to establish a violation of section 17500.

 

Although Plaintiffs fail to allege a violation of Business and Professions Code section 17500, “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong, supra, 108 Cal.App.4th at p. 1047; see also PH II, Inc., supra, 33 Cal.App.4th at pp. 1682-1683 [motion to strike, rather than demurrer, used to challenge portion of cause of action].) Here, Plaintiffs state sufficient facts to allege a cause of action for unfair competition based upon the violation of Business and Professions Code section 17200. Accordingly, the demurrer to the tenth cause of action is OVERRULED.

 

1. Failure to State Facts Sufficient to Allege Twelfth and Thirteenth Causes of

Action

 

The twelfth and thirteenth causes of action are for the violation of the Unruh Civil Rights Act and Government Code section 12955, respectively.

 

Defendants assert that both these causes of action are inadequately pleaded because Plaintiffs fail to allege facts indicating how, when and why they were discriminated against. This argument lacks merit. Plaintiffs allege that David suffers from Huntington’s disease and, as a consequence of the disease, he uses a mobility device. (Compl., ¶ 18.) On June 30, 2014, he made a reasonable request to occupy a downstairs unit, which would be easier for him to access. (Compl., ¶ 18.)  Plaintiffs allege that Defendants intentionally denied David full and equal accommodations when they denied this request. (Compl., ¶¶ 18, 89.) Therefore, Plaintiffs allege sufficient facts to state causes of action for violation of the Unruh Civil Rights Act and violation of Government Code section 12955.[1] Accordingly, the demurrer to the twelfth and thirteenth causes of action is OVERRULED.

 

1. Motion to Strike Portions of the Complaint

Defendants move to strike portions of the complaint on the grounds that it is not filed in conformity with the laws of this state and/or is improper. (See Code Civ. Proc.,   § 436, subd. (a), (b).) In particular, they move to strike (1) the seventh cause of action,  (2) a portion of the tenth cause of action, (3) a portion of the twelfth cause of action, (3) the request for punitive damages, (4) the request for statutory damages and penalties, and (5) the request for attorney’s fees.

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1. Motion to Strike Seventh Cause of Action

            Defendants move to strike the seventh cause of action for retaliation in violation of Civil Code section 1942.5, subdivision (c) because Plaintiffs fail to allege any facts indicating that Plaintiffs organized and/or participated in any tenant association or organization. As discussed more fully above, no such allegations are necessary to state a cause of action for retaliation under section 1942.5, subdivision (c). Accordingly, the motion to strike the seventh cause of action is DENIED.

1. Motion to Strike Portion of Tenth Cause of Action

            Defendants move to strike the allegation in the tenth cause of action for violation of Business and Professions Code section 17200 and 17500 that Plaintiffs bring “this cause of action on Plaintiff’s own behalf, on behalf of all persons similarly situated, and on behalf of the People of the State of California.” (Compl., ¶ 75.) They contend that this “allegation is an obvious ruse to trigger the attorney’s fee provision of the so-called ‘private attorney general’ doctrine.” (Defendants’ Mem. Ps & As. in support of Mot. to Strike, p. 4:6-7.) Defendants, however, provide no legal authority indicating that the allegation is improper. As such, the motion to strike a portion of the tenth cause of action is DENIED.

1. Motion to Strike Portion of the Twelfth Cause of Action

Defendants move to strike the allegation that “Defendants are a business establishment as that term is defined by Civil Code sections 51-53.” (Compl., ¶ 88.) They argue that there is no definition of business establishment in these code sections. Defendants are correct. While an apartment complex is considered a “business establishment” for the purposes of the Unruh Civil Rights Act (see O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 795 [citing Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721]), Civil Code sections 51-53 do not provide a definition for the term. Thus, the motion to strike this allegation is GRANTED IN PART and DENIED IN PART. The motion to strike the phrase “as that term is defined by Civil Code sections 51-53” is GRANTED WITH 10 DAYS’ LEAVE TO AMEND. The motion to strike the allegation “Defendants are a business establishment” is DENIED.

1. Motion to Strike Request for Punitive Damages

Defendants move to strike Plaintiffs’ request for punitive damages. They first argue that the request should be stricken because the allegations in support of the request are conclusory. This argument is not persuasive. Plaintiffs allege that Defendants intended to cause injury to them because they willfully failed to repair longstanding defects existing in the apartment unit despite notice of the defects and then retaliated against them for making these complaints. (See Compl., ¶¶ 100-101.) Taken in context, these allegations are sufficient to show that Defendants are guilty of malice. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 7 [allegation of retaliation for lawful act sufficient to plead malice]; see also Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 [punitive damages recoverable based on allegations of retaliatory eviction].) Accordingly, the request for punitive damages will not be struck on this basis.

Next, Defendants contend that Sunding is not liable for punitive damages because Plaintiffs do not allege that an officer, director or managing agent of the corporation ratified the allegedly malicious conduct of its employees as required by Civil Code section 3294, subdivision (b). This argument lacks merit. Plaintiffs allege that Sunding’s managing agent, Huang, willfully failed to repair longstanding defects existing in the apartment unit despite notice of the defects and then retaliated against them for making these complaints. (Compl., ¶¶ 100-101.) As they allege that Sunding’s managing agent participated in the purportedly malicious conduct, Plaintiffs have alleged sufficient facts to satisfy Civil Code section 3294, subdivision (b).

In light of the foregoing, the motion to strike Plaintiffs’ request for punitive damages is DENIED.

1. Motion to Strike Request for Statutory Damages and Penalties

Defendants move to strike Plaintiffs’ request for statutory damages and penalties for the violation of Civil Code section 1942.4 because they contend that Plaintiffs fail to allege the elements of the statute. Defendants’ argument is persuasive. Plaintiffs do not allege facts demonstrating a violation of Civil Code section 1942.4, and, therefore, fail to allege sufficient facts to support a request for damages pursuant to that section. (See Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1298.) Accordingly, the motion to strike Plaintiffs’ request for statutory damages and penalties for the violation of Civil Code section 1942.4 is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

1. Motion to Strike Request for Attorney’s Fees

Defendants move to strike Plaintiffs’ request for “attorney’s fees according to contract and statute, pursuant to Civil Code § 1942.4, § 1942.5(g), and CCP § 1021.5.” (Compl., Prayer for Relief, ¶ H.)

They first contend that Plaintiffs are not entitled to attorney’s fees based on a contract between the parties because their allegations regarding the contract are uncertain. This argument lacks merit. As discussed more fully above, the pleading is not so incomprehensible that Defendants cannot reasonably respond, and any remaining ambiguities can be clarified in discovery. (See Lickiss, supra, 208 Cal.App.4th at            p. 1135.) Thus, the motion to strike is DENIED as to the request for contractual attorney’s fees.

Second, Defendants assert that Plaintiffs may not recover attorney’s fees under Civil Code section 1942.5 because they have not alleged sufficient facts to establish a violation of that section. As discussed more fully above, Plaintiffs do state sufficient facts to allege a violation of Civil Code section 1942.5. Therefore, the motion to strike the request for attorney’s fees under this section is DENIED.

Third, Defendants move to strike Plaintiffs request for attorney’s fees pursuant to Code of Civil Procedure section 1021.5. “Code of Civil Procedure section 1021.5 authorizes a court to award attorney fees to a successful party in any action ‘which has resulted in the enforcement of an important right affecting the public interest,’ provided certain other criteria are satisfied.”  (Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 583.) Defendants contend that an action to recover damages for living in an uninhabitable dwelling cannot result in the enforcement of an important right affecting the public interest. Defendants’ motion is not well taken. “‘There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a … judgment…’ [Citation.]” (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.) As there is no requirement to plead an intent to seek attorney’s fees under section 1021.5, it is error for a trial court to strike a prayer for attorney’s fees pursuant to this section. (Id.) Accordingly, the motion to strike the request for attorney’s fees under section 1021.5 is DENIED.

Finally, Defendants assert that Plaintiffs cannot recover attorney’s fees under Civil Code section 1942.4 because they fail to allege the elements of the statute. This argument is persuasive. As discussed above, Plaintiffs do not allege facts demonstrating a violation of Civil Code section 1942.4. Thus, they fail to allege facts supporting a request for an award of attorneys’ fees pursuant to that section. Accordingly, the motion to strike the request for attorney’s fees under section 1942.4 is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

 

[1] In their reply brief, Defendants contend, for the first time, that Plaintiffs’ Unruh Civil Rights Act claim must fail because the statute is limited to modifications of the rented premises. (See Reply, p. 7:26-28, 8:1-2.) “[P]oints raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Here, Plaintiffs do not explain why they did not present this argument in their moving papers. Accordingly, the Court will not consider this argument.