Case Number: BC516893 Hearing Date: May 01, 2014 Dept: O

Vera, et al. v. Group X Rosemead Properties, et al. (BC516893)

1. Defendant Pama Management Company’s DEMURRER TO PLAINTIFFS’ COMPLAINT

Respondent: Plaintiffs R., S., A., M. and J. Vera, Miranda, and Miranda, Jr.

2. Defendant Pama Management Company’s MOTION TO STRIKE

Respondent: Plaintiffs R., S., A., M. and J. Vera, Miranda, and Miranda, Jr.

TENTATIVE RULING

1-2. Demurrer and Motion to Strike

Defendant Pama Management Company’s demurrer to plaintiffs’ complaint is OVERRULED. Motion to strike is DENIED. Defendant is ordered to file and serve its Answer within 10 days.

4th CAUSE OF ACTION: IIED:
The elements are: 1) outrageous conduct by defendant; 2) intentional or reckless causing emotional distress; 3) severe emotional distress; and 4) causation. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; Trerice v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 – “court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery”; Cross v. Bonded Adjustment Bureau (1996) 48 Cal. App. 4th 266, 283 and Alcorn v. Anbro Eng., Inc. (1970) 2 Cal.3d 493, 499 – outrageous conduct is a fact – question where reasonable minds may differ.)

Par. 123 alleges Defendant’s outrageous conduct. A tenant may state a cause of action for intentional infliction of emotional distress by alleging that she has suffered extreme emotional distress as a result of a landlord’s and property manager’s knowing, intentional, and willful failure to correct defective conditions of a premises. (Burnett v. Chimney (2004) 123 Cal.App.4th 1057, 1062.) Pars. 124-125 allege Defendant’s intent. Par. 126 alleges severe emotional distress and causation. Demurrer is OVERRULED.

5th CAUSE OF ACTION: NIED:
The elements are: 1) Legal duty to use due care; 2) breach of such legal duty; 3) damage or injury; and 4) cause of the resulting damage or injury. (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 618 – “‘[s]erious emotional distress is an essential element of the cause of action for negligent infliction of emotional distress,’” quoting Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 286; see also Smith v. Pust (1993) 19 Cal.App.4th 263, 273 – plaintiff must be direct victim or a bystander who witnessed to the injury; but see Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 796 n.4 – there is no tort of negligent infliction of emotional distress, but instead it is negligence.)

Although NIED is a subspecies of Negligence, a complaint may state multiple legal theories upon which recovery might be predicated for one claim for relief. (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal. App. 4th 334, 351.) Demurrer is OVERRULED.

8th – 10th CAUSES OF ACTION: FRAUD:
The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Par. 152 alleges that on or about Summer 2011, Defendants entered into a written lease, convincing Plaintiffs that the unit was safe and habitable. At this time, Defendants knew the premises were infested with bed bugs. Par. 153 alleges Defendants’ intentional concealment of this fact. Pars. 156-159 alleges scienter and intent to defraud. Par. 160-162 allege Plaintiff’s reliance. Pars. 163-164 allege resulting damages. As to Negligent Misrepresentation, Par. 182 additionally alleges that Defendants made implicit and implied representations that the premises were not infested with bedbugs without reasonable grounds to believe that the statements were true. The court finds the allegations are sufficiently specific. Demurrer is OVERRULED.

11th CAUSE OF ACTION: UNFAIR BUSINESS PRACTICES:
The Unfair Business Practices Act shall include “any unlawful, unfair or fraudulent business act or practice.” (B&P Code 17200.) A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) Even a single incident – a one-time act that is unfair, unlawful or fraudulent – is sufficient to state a claim under 17200. (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969 fn. 3.)

Plaintiffs’ Unfair Business Practices claim is based on the adequately alleged fraud claims. Demurrer is OVERRULED.

Motion to strike is DENIED. The Fraud, IIED, and Nuisance causes of action allow recovery of punitive damages, and the court finds the allegations sufficiently allege malicious conduct.