DEPARTMENT S27 LAW AND MOTION RULINGS

Case Number: BC634904 Hearing Date: August 22, 2017 Dept: S27

INTRODUCTION

Defendants demur to the First, Second, Fourth, Fifth, Sixth, Eighth and Eleventh Causes of Action of Plaintiffs’ First Amended Complaint (“FAC”):

Breach of Implied Warranty of Habitability;

Breach of Implied Covenant of Quiet Enjoyment;

Private Nuisance;

Fraudulent Concealment;

Retaliatory Eviction;

Wrongful Eviction;

Constructive Eviction;

Intentional Infliction of Emotional Distress (IIED);

Premises Liability;

Negligence;

Negligence Per Se; and

Breach of Contract.

Defendants also move to strike (1) the Fourth, Fifth, Sixth, and Eleventh Causes of Action; and (2) Plaintiffs’ request for punitive damages.

FACTUAL ALLEGATIONS

This is a landlord-tenant dispute. Plaintiff alleges the following in the FAC:

Plaintiffs entered into a lease agreement with Defendant A Better Property Management Company to reside in residential property owned by Defendants Douglas Buckler (Trustee), Mary Jo Buckler (Trustee), and the Buckler Family Trust;

Defendants knew about and concealed water intrusion, mold infestation, and lead-based paints on the property that jeopardized the health of Plaintiffs;

Plaintiffs, including minor children, suffered from flu-like symptoms requiring medical care;

Plaintiffs reported the problems to Defendants, who cosmetically corrected the plumbing and paint chipping issues;

Defendants failed, and refused, to remediate the property to remove the lead paint and mold; and

Plaintiffs wrote a written complaint to Defendants who then issued Plaintiffs a 3-day Notice to Pay Rent or Quit. Plaintiffs voluntarily vacated the property.

DEMURRER

First Cause of Action – Implied Warranty of Habitability

A viable implied warranty of habitability claim must plead facts supporting the following elements: (1) the existence of a materially defective condition affecting the premises’ habitability; (2) notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition; (3) the landlord was given a reasonable time to correct the deficiency; and (4) resulting damage. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1297)

Defendants rely on a case disapproved by the California Supreme Court. (Quevedo v. Braga (1977) 72 Cal. App. 3d Supp. 1, 7-8), disapproved in Knight v. Hallasthammar (1981) 29 Cal. 3d 46, 55, fn. 7)

Plaintiffs have alleged facts satisfying the elements of an implied warranty of habitability claim: (1) water intrusion, mold infestation, and lead-based paints were materially defective conditions affecting the property’s habitability; (2) Plaintiffs immediately reported these conditions to Defendant A Better Property Management; (3) Defendants were given a reasonable time to correct the conditions (they refused to do so); and (4) Plaintiffs incurred damages through medical and investigation costs.

The demurrer is overruled.

Second Cause of Action – Breach of Implied Covenant of Quiet Enjoyment

“The implied covenant of quiet enjoyment…may be breached…by eviction…If the landlord’s acts or omissions affect the tenant’s use of the property and compel the tenant to vacate, there is a constructive eviction.” (Ginsberg v. Gamson (2012) 205 Cal. App. 4th 873, 897) Minor inconveniences are not actionable.

Plaintiffs viably allege that (1) excessive moisture on the property caused lead paint chipping and mold that caused Plaintiffs to fall sick; (2) Defendants were informed about these property conditions yet failed to correct them (FAC, Paragraphs 16-19); and Plaintiffs vacated the property to these conditions.

The demurrer is overruled.

Eighth Cause of Action – Intentional Infliction of Emotional Distress

“The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress.” (Molko v. Holy Spirit Assn. (1986) 46 Cal. 3d 1092, 1120)

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Cervantez v. J.C. Penney Co. (1979) 24 Cal. 3d 579, 593)

Plaintiffs fail to plead facts showing that Defendants engaged in extreme or outrageous conduct. Allegedly failing to fix the mold and lead pain issues on the property does not satisfy the first element of an IIED claim.

On June 1, 2017 the Court previously sustained Defendants’ demurrer to this Cause of Action with leave to amend. The Cause of Action remains deficient.

The demurrer is sustained without leave to amend.

Fourth, Fifth, Sixth, and Eleventh Causes of Action

Defendants demur to these Causes of Action on the grounds that Plaintiffs were not granted leave to add these Causes of Action (which were not pled in the initial complaint). This argument is improper on demurrer.

The demurrer is overruled.

MOTION TO STRIKE

Defendants move to strike (1) the Fourth, Fifth, Sixth, and Eleventh Causes of Action, and (2) Plaintiffs’ request for punitive damages.

The Fourth, Fifth, Sixth, and Eleventh Causes of Action were not pled in the initial complaint. The Court’s June 1, 2017 order sustaining Defendants’ demurrer to the Intentional Infliction of Emotional Distress claim did not grant Plaintiff leave to amend or add Causes of Action. Plaintiffs make no opposing arguments. The Court grants the motion to strike these Causes of Action without leave to amend pursuant to CCP sections 473(a) and 436(b).

Punitive damages are disfavored and should only be allowed in the clearest of cases. (Rosener v. Sears, Roebuck Co. (1980) 110 Cal. App. 3d 740, 750) This relatively basic landlord-tenant dispute is not such a case. Fraud, malice, or oppression as defined by Civil Code section 3294 are not present here.

On June 1, 2017 the Court previously granted Defendants’ motion to strike punitive damages with leave to amend. Plaintiffs’ request for punitive damages remains deficient. The Court grants the motion to strike punitive damages without leave to amend.