30-13-670971
Due to the manner in which the demurring Defendant was added to the case, via a Doe amendment, and because the complaint alleges sparse facts (as opposed to vague conclusions) in relation to the Doe defendants, the Court finds it beneficial to allow Plaintiff to amend the pleading to allege direct allegations against VPM Management Inc. The 1st through 7th causes of action should be clarified to allege the role and actions of this defendant versus the other defendants.

The current causes of action are uncertain and appear insufficient against VPM. For example, Plaintiff has not identified VPM as a party to the lease agreement. The contracting parties are described as Albert Bruno and Park Pacific Apartments as the co-owners or agents for Tony Calderone. (Compl. para. 11, 2-4). Generally, a property management company that is not a party to the lease agreement, is not liable for breach of the lease, or under causes of action based on the contract. See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1071. To this end, a claim of breach of the implied covenant of good faith and fair dealing is contractual in nature. McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 806. Therefore, as the complaint stands, the 3rd cause of action for breach of the implied covenant does not appear to state a claim against the demurring defendant, as it is not identified as a lease party.

Similarly, the implied warranty of habitability (1st and 2nd causes of action) and the covenant of quiet enjoyment (4th cause of action) are terms that are read into the lease by operation of law. Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1203 (implied warranty of habitability is grounded in the lease); Fairchild v. Parks (2001) 90 Cal.App.4th 919, 925-27 (same); Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 (a covenant of quiet enjoyment is implied in leases).

The 7th cause of action is for intentional infliction of emotional distress. In some cases, it is possible to assert such a claim against a property management company when it is shown to have direct responsibility for repairing and correcting mold conditions, where it has intentionally and knowingly failed to repair the mold. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069 n.5. However, as with other causes of action, the complaint is not clear as to VPM Management’s role and actions to render the claims sufficient as to VPM.

The same is true of the the 6th cause of action for negligence. As noted, a property management company that is responsible for repairing mold conditions at a property could be liable in tort for failing to do so, if there are sufficient facts stated against it. See generally Burnett, supra, 123 Cal.App.4th at 1061, 1070. Notably, in Plaintiff’s cited case, Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, the court suggested the appropriate tort was negligence, rather than breach of implied warranty of habitability: “We conclude that … the agent defendants may not be held liable under the implied warranty theory, [but] causes of action may be stated against them in tort.” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929-31 (applying J’aire factors to conclude “an ordinary duty of care” was owed based on facts alleged in the complaint). See also Burnett, 123 Cal.App.4th at 1061 (tort claims of negligence and IIED).

However, it does not appear that the economic loss rule bars Plaintiff’s tort claims. Defendant ignores the allegations that Plaintiff suffered physical injuries of skin rashes, swollen tongue, burning skin, breathing difficulties, nausea, and pain from alleged prolonged exposure to pervasive mold in the unit. (Compl. paras. 25, 33-35, 39).

In sum, the Court sustains the special and/or general demurrers to the 1st through 7th causes of action, with leave to amend. The motion to strike is treated as moot at this time. The amended complaint shall be filed within 10 days. Defendant to give notice.