Case Name: Herrera et al. v. Salamida et al.
Case No.: 1-14-CV-274105

This is action arises from a landlord-tenant dispute. Plaintiffs Jeanette Herrera, Francisco Alva, Monica Alva, Francisco Alva, Jr., Jennifer Macias, and Alejandro Macias (collectively, “Plaintiffs”) allege that they leased an untenable rental property (“the Property”) owned by defendants Joseph J. Salamida, Jr., Diane A. Salamida, and Paulette R. Salamida (collectively, “the Salamidas”), as trustees of two trusts, and managed by the Salamidas personally as well as defendant Atlantis Real Estate, Inc. (“Atlantis”) (collectively “Defendants”). Plaintiffs assert causes of action for (1) negligence (against Defendants), (2) premises liability (against Defendants), (3) breach of implied warranty of habitability (against the Salamidas), (4) negligent failure to provide habitable premises (against the Salamidas), (5) breach of covenant of quiet enjoyment (against the Salamidas), (6) nuisance (against Defendants), (7) intentional infliction of emotional distress (“IIED”) (against Defendants), (8) violation of unfair competition law (“the UCL”) (against Defendants), (9) retaliatory eviction (against Defendants), (10) unlawful retention of security deposit (against the Salamidas), (11) failure to provide reasonable accommodation in violation of the Civil Code (against Defendants), (12) failure to provide a reasonable accommodation in violation of the Fair Employment and Housing Act (“FEHA”) (against Defendants), and (13) violation of the San Jose Municipal Code (against the Salamidas). Atlantis demurs to the first, second, sixth, seventh, eighth, ninth, eleventh, and twelfth causes of action for failure to state a claim and uncertainty. (See Code Civ. Proc. [“CCP”], §§ 430.10, subds. (e)-(f).) The Salamidas demur for defective joinder to all claims, failure to state a claim to the sixth, eighth, eleventh, and twelfth causes of action, and uncertainty to the eleventh and twelfth causes of action; and move to strike the prayers for punitive damages and attorney’s fees. (See id., subds. (d)-(f) & CCP, § 436, subd. (b).)

Atlantis’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (c); see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [relevance].)

Atlantis contends that Plaintiffs’ claims are barred by res judicata/collateral estoppel based on a prior unlawful detainer action (Salamida v. Herrera, Santa Clara County Super. Ct. Case No. 1-14-CV-267665 [“UD Case”]). However, the preclusive effect of an unlawful detainer action is limited to the right of possession of the property and claims that are specifically raised and litigated (Vella v. Hudgins (1977) 20 Cal. 3d 251, 255-227; Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1371), and Atlantis concedes that the UD Case only litigated the issue of possession. Furthermore, Plaintiffs allege sufficient facts to support claims against Atlantis for negligence, premises liability, nuisance, IIED, violation of the UCL, retaliatory eviction, and failure to provide a reasonable accommodation under the Civil Code and FEHA. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 918-922 [“Stroiber”] [stating requirements for a tenant to state claims for negligence, nuisance, and IIED against a landlord]; see also Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [premises liability]; see also Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 [“Korea Supply Co.”] [the UCL “borrows” from other laws]; see also Civ. Code, §§ 54.1, subd. (b)(3) [reasonable accommodation requirement applies to “any person renting, leasing, or [] providing real property for compensation”] & 1942.5, subd. (c) [it is unlawful for a lessor to bring an action to recover possession “for the purpose of retaliating against the lessee” for lawfully exercising “any rights under the law”]; see also Gov. Code, § 12972, subd. (e) [“owner” is the “assignee, managing agent, real estate broker or salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing”].) Accordingly, Atlantis’s demurrer for failure to state a claim is OVERRULED.

Both demurrers for uncertainty are OVERRULED. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“demurrer for uncertainty is strictly construed”].)

The Salamidas’ demurrer for failure to state a claim is OVERRULED. Most of their supporting arguments are similar to the unpersuasive arguments asserted by Atlantis, and their other contentions are not well-taken. (See Stroiber, supra, at pp. 918-922 [negligence and nuisance]; see also Korea Supply Co., supra, at p. 1143; see also Civ. Code, § 54, subd. (b)(1) and Gov. Code, § 12926, subd. (m)(1)(A) [disability includes a condition that limits respiratory function].)

Turning to the demurrer for misjoinder, the Salamidas argue that they have been improperly named because the trusts own the Property. “A trustee is personally liable for obligations arising from ownership or control of trust property only if the trustee is personally at fault.” (Prob. Code, § 18001.) Plaintiffs allege that the Salamidas managed the Property and personally acted wrongfully. The Salamidas’ demurrer for misjoinder is therefore OVERRULED.

With respect to the motion to strike, attorney’s fees may be recovered for a violation of the UCL or FEHA. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1179 [attorney’s fees for a violation of the UCL are recoverable under CCP section 1021.5]; Gov. Code, § 12989.2). As for the other claims, it is error for a court to strike a prayer for attorney’s fees pursuant to CCP section 1021.5. (Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.) Furthermore, for punitive damages, ultimate facts showing oppression, fraud, or malice must be specifically alleged; allegations “must be read not in isolation, but in the context of the facts alleged in the rest of” the pleading. (Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7.) Plaintiffs allege that the Salamidas: (1) caused their health problems and emotional distress by knowingly maintaining the Property in untenable/substandard conditions (e.g., vermin infestations, mold, unsafe wiring, and leaking sewage); (2) knowingly ignored their complaints and intentionally failed to make proper repairs (e.g., improperly painted over mold); (3) retaliated against them for their written notice of the untenable conditions by filing the UD Case; and (4) took advantage of their vulnerability (i.e. low income, lack of proficiency in English, disabilities, and/or minor status). (Compl., ¶¶ 25, 28-37, 49, 57-58, 80, 100-106, & 108-114.) Such allegations are sufficient to show oppression and/or malice. (See Stroiber, supra, at p. 920; see also Civ. Code, § 3294.) Thus, the Salamidas’ motion to strike is DENIED.