Case Number: 19STCV30829 Hearing Date: February 14, 2020 Dept: 31

DEMURRER SUSTAINED WITH LEAVE TO AMEND.

Background

On August 28, 2019, Plaintiff Jonathan Stokes filed the instant action against Defendants Howard Management Group; Andrew H. Bowers; Marilyn Fonseca; and Does 1 through 20. On October 29, 2019, Defendant Andrew H. Bowers was dismissed without prejudice. On December 13, 2019, Plaintiff filed the Second Amended Complaint (“SAC”) pursuant to the parties’ stipulation. The SAC asserts causes of action for:

Breach of Implied Warranty of Habitability;

Negligence;

Retaliation; and

Harassment.

On January 10, 2020, Defendant Fonseca filed the instant demurrer with motion to strike. On January 13, 2020, Defendant Howard Management Group filed a Notice of Joinder and Joinder to Defendant Fonseca’s demurrer with motion to strike.

Defendants demur to the first, third, and fourth causes of action in the SAC.

Legal Standard on Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

Legal Standard for Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Discussion

First Cause of Action for Breach of Implied Warranty of Habitability

“[S]uit for breach of the implied warranty is essentially a contractual one.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929.) A contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) “In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Defendants demur to the first cause of action for breach of implied warranty of habitability arguing that Plaintiff’s SAC fails to sufficiently allege the existence of a contract. Defendants assert that the SAC neither attached a contract nor alleges the terms of any contract. Defendants contend that because a claim for breach of the implied warranty of habitability is a contract claim, Plaintiff’s failure to allege the contract in accordance with the basic rules of pleading, or attach any contract whatsoever, renders the claim subject to demurrer.

In opposition, Plaintiff argues that he has sufficiently pled the contract by its legal effect.

The Court finds that Plaintiff has failed to allege facts sufficient to state a cause of action for breach of implied warranty of habitability, as Plaintiff has failed to properly plead the existence of a contract. It is undisputed that Plaintiff has failed to plead the terms of the contract at issue verbatim. If Plaintiff wishes to plead the legal effect of the agreement at issue, Plaintiff must allege the substance of the relevant terms of the agreement. Conclusory statements are insufficient.

Based on the foregoing, Defendants’ demurrer to the first cause of action for breach of the implied warranty of habitability is SUSTAINED with leave to amend.

Third Cause of Action for Retaliation

“[The] defense [of retaliatory eviction codified at Civil Code section 1942.5] bars a landlord from recovering possession of the dwelling in an unlawful detainer action where recovery is “for the purpose of retaliating” against the tenant because of his or her lawful and peaceable exercise of any rights under the law [citation] or “because of” his or her complaints regarding tenantability [citation].” (Drouet v. Superior Court (2003) 31 Cal.4th 583, 587.) Pursuant to Section 1942.5,

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of his or her rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of his or her rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(Civ. Code, § 1942.5(a)(1)-(3).)

“[T]he general rule [is] that statutory causes of action must be pleaded with particularity.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) “[E]very fact material to the existence of its statutory liability must be pleaded with particularity. [Citation.]” (Id.)

Defendants demur to the third cause of action for retaliation arguing that Plaintiff has failed to allege facts with the required specificity. Defendants assert that the SAC fails to allege the date when Plaintiff exercised his right to file complaints against Defendant and the date when the eviction began in relationship to Plaintiff engaging a protected act.

In opposition, Plaintiff asserts that he has sufficiently alleged his cause of action.

The Court finds that Plaintiff has failed to allege facts sufficient to state a cause of action for retaliation under Civil Code section 1942.5, as Plaintiff has failed to allege the dates on which he engaged in a protected activity and the date on which Defendants began their allegedly retaliatory acts of eviction.

Based on the foregoing, Defendants’ demurrer to the third cause of action for retaliation is SUSTAINED with leave to amend.

Fourth Cause of Action for Harassment

A cause of action for harassment may be brought under Civil Code section 1942.5. (See Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1215.)

Defendants demur to the fourth cause of action for harassment under Civil Code section 1942.5 arguing that it fails for the same reason Plaintiff’s third cause of action for retaliation under Civil Code section 1942.5 fails.

Given the Court’s ruling finding that Plaintiff has failed to allege facts sufficient to state a cause of action for retaliation under Civil Code section 1942.5, the Court finds that Plaintiff has also failed to allege facts sufficient to state a cause of action for harassment under Civil Code section 1942.5. Plaintiff has again failed to allege the dates on which he engaged in a protected activity and the date on which Defendants began their allegedly retaliatory acts of eviction.

Based on the foregoing, Defendants’ demurrer to the fourth cause of action for retaliation is SUSTAINED with leave to amend.

Motion to Strike

Defendants move to strike allegations in the SAC relating to attorneys’ fees and punitive damages.

Attorneys’ Fees

Pursuant to Code of Civil Procedure section 1021, “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”

Defendants move to strike allegations in the SAC relating to attorneys’ fees arguing that attorneys’ fees are only recoverable as provided by statute or contract. Defendants assert that, as previously argued, Plaintiff fails to adequately allege the existence of a contract allowing for recovery of attorneys’ fees. Thus, the allegation relating to attorneys’ fees must be stricken.

In opposition, Plaintiff argues that Civil Code sections 1942.4 and 1942.5 authorize an award of attorneys’ fees for breach of the implied warranty of habitability, retaliation, and harassment.

Given the Court’s ruling, finding that Plaintiff has not sufficiently alleged the existence of a contract and sustaining Defendants’ demurrer to the first, third, and fourth causes of action under Civil Code sections 1942.4 and 1942.5, the Court finds that Plaintiff has failed to allege facts sufficient to state a claim for attorneys’ fees.

Based on the foregoing, Defendants’ motion to strike allegations relating to attorneys’ fees is GRANTED with leave to amend.

Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) “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. (Civ. Code, § 3294, subd. (c).) “‘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.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

Defendants move to strike allegations in the SAC relating to punitive damages. Defendants argue that Plaintiff cannot recover punitive damages for negligence as a matter of law. As to the other causes of action, Defendants assert that, as previously argued, Plaintiff has failed to allege facts sufficient to state causes of action against them.

The Court finds that Plaintiff has failed to allege facts sufficient to state a prima facie claim for punitive damages. As noted above, mere negligence, even gross negligence, is not sufficient to justify an award for punitive damages. As to the claim for punitive damages alleged in the first, third, and fourth causes of action, the motion to strike is moot.

Based on the foregoing, Defendants’ motion to strike allegations related to punitive damages in connection with Plaintiff’s negligence cause of action is GRANTED without leave to amend. Defendants’ motion to strike allegations related to punitive damages related to the first, third, and fourth causes of action is DENIED as moot.

Conclusion

Defendants’ demurrer to the first, third, and fourth causes of action is SUSTAINED with 30 days’ leave to amend. Defendants’ motion to strike allegations relating to attorneys’ fees is GRANTED with leave to amend. Defendants’ motion to strike allegations relating to punitive damages in connection with the negligence cause of action is GRANTED without leave to amend. Defendants’ motion to strike allegations relation to punitive damages related to the first, third, and fourth causes of action is DENIED as moot.

Moving party to give notice.