Case Number: BC507428    Hearing Date: October 20, 2014    Dept: 32

CASE NAME: Manuel Oquendo, et al. v. Jessie McDaniel, et al.
CASE NO.: BC507428
HEARING DATE: 10/20/14
DEPARTMENT: 32
SUBJECT: (1) Demurrer to Complaint
(2) Motion to Strike
MOVING PARTY: (1), (2) Defendant Terrence Barrett
RESP. PARTY: (1)-(2) Plaintiffs Manuel Oquendo, and Lauren Alpert, individually and as guardian ad litem for Seraiah Alpert

TENTATIVE RULING

Demurrer to Complaint

Demurrer for Uncertainty OVERRULED as to all causes of action.

General Demurrer:

Second Cause of Action (Breach of Warranty of Habitability (Health & Safety Code § 17920.3)) SUSTAINED WITHOUT LEAVE TO AMEND.

Fifth Cause of Action (Nuisance) OVERRULED.

Sixth Cause of Action (Intentional Infliction of Emotional Distress) OVERRULED.

Seventh Cause of Action (Negligent Infliction of Emotional Distress) SUSTAINED WITHOUT LEAVE TO AMEND.

Eighth Cause of Action (Breach of Contract) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Ninth Cause of Action (breach of covenant of quiet enjoyment) SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Motion to Strike

Paragraph 75 GRANTED WITHOUT LEAVE TO AMEND.

Paragraph 147 GRANTED WITHOUT LEAVE TO AMEND.

All other paragraphs specified in Defendant’s notice of motion DENIED.

ANALYSIS

Demurrer

Defendant demurs to the second, fifth, sixth, seventh, eighth, and ninth causes of action for failure to state a claim. Defendant demurs to all causes of action in the complaint for uncertainty.

Demurrer for Uncertainty

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.)

Defendant Barrett contends that the entire complaint is uncertain as to his liability because the complaint suggests the bug infestation and other alleged deplorable conditions started before Defendant became the legal owner of the premises. Plaintiffs allege they entered the rental agreement with Defendant McDaniel in February 2012. (Compl. ¶ 19.) Defendant Barrett became the legal owner in August/September 2012. (Id. ¶ 21.) Although the complaint suggests the habitability problems started before Barrett became the owner, nothing in the complaint suggests that the problems were remedied. In fact, Plaintiffs allege that Defendants “failed to remedy the issues.” (Compl. ¶ 33.) Therefore, the complaint alleges facts to establish Defendant Barrett’s liability. Defendant fails to show that he cannot determine the claims made against him.

The demurrer for uncertainty is OVERRULED as to all causes of action.

General Demurrer

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action stated therein. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff’s ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal.App.4th 726, 732.) The court must treat as true all of the complaint’s material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

Second Cause of Action – Habitability

Defendant contends that the second cause of action, for violation of Health & Safety Code § 17920.3, is not a separate cause of action. In the first cause of action for breach of implied warranty of habitability, Plaintiffs allege that Defendants breached the implied warranty by renting, operating, and maintaining premises in an untenable condition as defined by Civ. Code § 1941.1 and Health & Safety Code § 17920.3. (Compl. ¶ 62.) In the second cause of action, Plaintiffs allege that Defendant violated § 17920.3 by failing to notify Plaintiffs of the defects and failing to maintain the premises. (Compl. ¶¶ 81-83.) Therefore, the two causes of action appear to make similar if not identical claims.

As Defendant seems to recognize, the second cause of action could be viewed as a claim for negligence per se based on § 17920.3. Under Evidence Code section 669, “the failure of a person to exercise due care is presumed if: (1) he violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (See Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555.) However, the second cause of action is not labeled “negligence per se,” and Plaintiffs have already included a separate cause of action for negligence and negligence per se as the fourth cause of action. The second cause of action therefore appears entirely duplicative of other claims. A demurrer may be sustained to a cause of action that is merely duplicative and adds nothing to the complaint. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) Plaintiffs did not specifically respond to these arguments in the opposition brief. It is unclear whether Plaintiffs could cure this defect by amendment.

The demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiffs may make an offer of proof at the hearing as to how they would address these defects by amendment.

Fifth Cause of Action – Nuisance

Defendant contends that the nuisance claim cannot be maintained because it is based on the same facts as the negligence claim.

To state a claim for private nuisance, Plaintiffs must allege (1) interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.) Civil Code section 3479 defines a nuisance as “[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property….”

“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Ass’n v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

Defendant does not dispute that Plaintiffs have alleged the elements of nuisance. (See Dem. 8; see Compl. ¶¶ 109-115.) Courts have permitted plaintiffs to plead both negligence and nuisance claims in actions by tenants against landlords for uninhabitable conditions. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919-925.) Stoiber, for instance, recognizes a potential distinction between negligence and nuisance claims: “A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable.” (Id. at 920.)

The primary case cited by Defendant, El Escorial, involved claims for negligent construction that allegedly caused toxic mold. The Court of Appeal noted that “courts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions” and that “whether a cause of action is viable depends on the facts of each case.” (Id. at 1348.) Given the factual distinctions with the instant case, El Escorial does not bar the nuisance claim.

The demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action – IIED

The elements for a claim for IIED are (1) outrageous conduct by defendant; (2) intentional or reckless causing emotional distress; (3) severe emotional distress; and (4) causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1259.)

“Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.)

In the IIED, Plaintiffs allege that “Defendants’ conduct in dealing with each Plaintiff, in their failure to put them on notice of bed bugs in the Premises, failure to take reasonable measures to eliminate all bug infestations, to remediate the bed bug infestation contamination, was so extreme and outrageous as to go beyond all bounds of decency.” (Compl. ¶ 121.) The IIED incorporates all earlier allegations in the complaint. In the general allegations, Plaintiffs allege that “Plaintiffs notified the Defendants and their agents about the habitability violations but Defendants failed to correct the habitability conditions.” (Compl. ¶ 48.) “Plaintiffs gave multiple notices to Defendants, wherein they mentioned the bed bug problems …. Any action taken by Defendants to clean or to repair these problem was untimely, inadequate and ineffective.” (Compl. ¶ 50.) “The bed bugs latch onto the Plaintiffs while they sleep, suck their blood until they are gorged, and resist eradication. Plaintiffs have suffered from numerous bites, which cause pain, discomfort, annoyance sleeplessness, inconvenience, humiliation, anxiety and emotional distress.” (Compl. ¶ 41.)

Plaintiffs cite to Burnett v. Chimney (2004) 123 Cal.App.4th 1057, 1062, where the Court held that IIED cause of action was stated based on allegations that the defendants refused to remediate the growth of mildew and mold on the plaintiff’s premises. In pertinent part, the Burnett plaintiffs alleged the following:

Appellants “immediately and repeatedly notified” respondents of this “dangerous condition” and requested that it “be repaired.” Respondents refused to repair it. Appellants, consequently, “inhale[d] the toxic airborne spores and fumes emitted from the mold,” sustaining “severe physical injury and discomfort, and severe emotional and mental distress.” Furthermore, their “business inventory and belongings” became “contaminated by toxic mold and airborne mold spores,” requiring “immediate and extensive cleaning and/or disposal….” Appellants were unable “to conduct their business” at the premises. (Id. at 1062.)

The allegations in the complaint cannot be meaningfully distinguished from those in Burnett at the pleading stage. Instead of mold infestation, Plaintiffs have alleged bug infestation. Plaintiffs have alleged that the bed bugs bite Plaintiffs and cause health problems. Plaintiffs made “persistent complaints” and Defendants failed to address the problem. (Compl. ¶ 42.) Although one might infer that Defendants attempted unsuccessfully to resolve the problem, that is a factual question not appropriate on demurrer. Since Plaintiffs also allege Defendants are “experienced managers,” one could also reasonably infer that their failure to address the problem effectively was intentional.

Defendant contends that Plaintiffs have not alleged that Defendant intended to cause emotional distress. Plaintiffs have alleged that Defendant “intended to cause … each Plaintiff … emotional distress.” (Compl. ¶ 123.) No further notice of the claim is required.

The demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action – NIED

To state a claim for NIED, Plaintiffs must either allege bystander liability or direct victim liability. For bystander liability, the plaintiff must be present at the scene of the injury-producing event at the time it occurs and must be aware that it was causing injury to the victim. (See Thing v. Lachusa (1989) 48 Cal.3d 644, 667-68.)

Plaintiffs do not allege a theory of bystander liability. (Compl. ¶¶ 126-132.) Insofar as Plaintiffs allege they suffered emotional distress as “direct victims,” the seventh cause of action is duplicative of the fourth cause of action for negligence. “Negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred.” (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) A demurrer may be sustained to a cause of action that is merely duplicative and adds nothing to the complaint. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) Plaintiffs did not respond to the demurrer as to this cause of action.

The demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiffs may make an offer of proof at the hearing as to how they would address these defects by amendment.

Eighth and Ninth Causes of Action – Breach of Contract and Breach of Implied Covenant of Quiet Enjoyment

Defendant contends that Plaintiff has not alleged that Defendant Barrett was a party to the rental agreement. As discussed above, Plaintiffs entered the rental agreement in February 2012. Defendant became the owner of the premises in August/September 2012. (Compl. ¶¶ 21, 31.) The complaint alleges that “Defendants and Plaintiffs entered into a valid Rental Agreement.” (Compl. ¶ 135.) However, this allegation must be clarified to explain whether Defendant Barrett assumed or was assigned the rental agreement, as it appears he did not enter the rental agreement with Plaintiffs in February 2012.

The demurrer to the eighth and ninth causes of action is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike

Defendant moves to strike Plaintiffs’ request for punitive damages and related allegations. Defendant also moves to strike Plaintiffs’ request for attorney fees pursuant to CCP § 1021.5.

Prayer for Punitive Damages and Related Allegations in the First, Fifth, and Sixth Causes of Action for Breach of Warranty of Habitability, Nuisance, and IIED

Punitive damages are available in noncontract cases where the defendant is guilty of “oppression, fraud, or malice.” (Civil Code § 3294(a).) A motion to strike may be granted when the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63 (citing text)).

In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, the Court of Appeal held, in a case involving similar allegations, that the plaintiff pleaded sufficient to support punitive damages. The Court of Appeal stated the following: “[Plaintiff] alleged that defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants ‘in maintaining said nuisance, … acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.’”

For the reasons stated above as to the IIED claim, Plaintiffs have alleged sufficient facts regarding Defendant’s conduct to support a prayer for punitive damages. As in Stoiber, the question of whether Defendant acted intentionally and with malice cannot be resolved on the face of the complaint.

The motion to strike is DENIED.

Punitive Damages for Ninth Cause of Action for Breach of Implied Covenant of Quiet Enjoyment

Plaintiffs request punitive damages in connection with the ninth cause of action. (Compl. ¶ 147.) As this claim is based on a contract, punitive damages cannot be awarded. (Civ. Code § 3294(a).) No opposition has been received from Plaintiffs on this issue. Accordingly, the motion to strike paragraph 147 is GRANTED WITHOUT LEAVE TO AMEND.

Attorney Fees

Plaintiffs request attorney fees pursuant to CCP § 1021.5. (Compl. ¶ 75.)

An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.” (CCP § 1021.5.) The three factors necessary to support an award of attorney fees pursuant to CCP § 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest,’ (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)

Here, it appears from the complaint that Plaintiffs are seeking to vindicate their own rights and not the rights of a large class of persons. Also, it appears that Plaintiffs’ financial interest in the case would transcend any motivation to protect the public. Accordingly, at this stage, attorney fees do not appear appropriate pursuant to CCP § 1021.5. Plaintiffs may request leave later in the proceedings to add a claim for fees under § 1021.5 if appropriate. The motion is GRANTED as to paragraph 75.

Plaintiffs point out in opposition that they may be entitled to attorney fees pursuant to the lease or Civ. Code §1942.4. However, Defendants did not move to strike the prayer for attorney fees or any requests for attorney fees made on a basis other than CCP § 1021.5.