Case Number: BC510036    Hearing Date: July 29, 2014    Dept: SEC

RODRIGUEZ v. BUSTAMANTE
CASE NO.: BC510036
HEARING: 07/29/14

#1
TENTATIVE ORDER

I. Defendants TONY BUSTAMONTE and MARY BUSTAMONTE’s
demurrer to the First Amended Complaint is SUSTAINED WITH
20 DAYS LEAVE TO AMEND. C.C.P. § 430.10(e), (f).

II. Defendants TONY BUSTAMONTE and MARY BUSTAMONTE’s
motion to strike is GRANTED WITH 20 DAYS LEAVE TO AMEND
as to the punitive damages claim; GRANTED WITHOUT LEAVE as
to the claim for attorney’s fees. C.C.P. §§ 435, 436.

III. Defendant WILLIE SOTO’s demurrer to the First Amended
Complaint is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the
3rd (nuisance) cause of action and SUSTAINED WITHOUT LEAVE
TO AMEND as to the eviction (6th and 7th) causes of action. C.C.P. § 430.10(e), (f).

IV. Defendant WILLIE SOTO’s motion to strike is GRANTED WITH 20 DAYS LEAVE TO AMEND as to the punitive damages claim; GRANTED WITHOUT LEAVE as to the claim for attorney’s fees. C.C.P. §§ 435, 436.

Plaintiffs BOBBI RODRIGUEZ, STEVEN BOUTCHEE and ISAIAH SANCHEZ (a minor) rented residential real property from the Bustamonte defendants beginning in July 2011. Defendant Soto, dba WManagement, acted as the property manager.

As alleged, the property suffered from a number of defects and unsafe conditions, including broken windows and a rusted tub, inoperable heaters, non-functioning electrical outlets, rodent and insect infestation, etc. FAC, ¶14. Plaintiffs allege that they notified defendants of those conditions when they moved in and that they later notified defendants of a broken water pipe and gas line. ¶¶14, 15. Despite reports having been filed by Whittier Code Enforcement, defendants failed to correct the conditions. ¶15.

Defendants argue that plaintiff fails to identity the conduct of each defendant, rendering the pleading uncertain so that they cannot reasonably respond. See Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612.

3rd—nuisance
Defendants demur on the ground that the factual allegations do not set forth how each interfered with plaintiffs’ right to enjoyment of the property, and that there are no facts supporting that such actions were intentional.

The allegations in the FAC are asserted against “defendants” collectively, including the contention that plaintiffs notified defendants. Plaintiffs did not address that argument in opposition to the demurrer. At least with respect to notice, plaintiffs presumably have the ability to assert more specific allegations in the pleading. Making the distinction among defendants is important in light of plaintiffs’ allegations that their conduct was intentional. Leave to amend is granted.

4th—“infliction of emotional distress” (against Bustamonte defendants)
As a preliminary matter, the Court notes that plaintiffs failed to identify whether the cause of action is based on intentional or negligent conduct (although it appears they are pleading both theories).

In support of the demurrer, defendants argue that the factual allegations do not rise to the level of outrageous conduct sufficient to support an emotional distress cause of action. Cf. Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288; see Godfrey v. Steinpress (1982) 128 Cal.App.3d 154.

As noted above, plaintiffs do not specifically allege that the Bustamonte defendants were aware of the defects or when they were placed on notice. Without that, the pleading is lacking sufficient allegations supportive of “extreme and outrageous” conduct. The demurrer is sustained with leave to amend.

6th—retaliatory eviction
Plaintiffs’ cause of action for retaliatory eviction is brought pursuant to Civil Code section 1942.5(a). The Bustamonte defendants argue that plaintiffs failed to allege that the lessor retaliated because of their attempt to exercise their rights under the statutory scheme. Plaintiffs did not specify the particular rights they attempted to exercise, and for which conduct they were evicted. Statutory claims must be pled with specificity.

Plaintiffs further allege that they withheld rent due on May 21, 2013. FAC, ¶51. It is unclear whether they paid rent after that date. It is also unclear whether they were evicted. At paragraph 1 of the pleading, plaintiffs allege that they presently reside at the premises. At paragraph 59, they allege they are no longer in possession. Possession (or lack thereof) is pertinent to the eviction causes of action. It appears from the arguments in opposition that plaintiffs continue to reside at the premises. Leave to amend is granted.

Defendant Soto also argues that section 1942.5 applies to “landlords” and not the property management company, which had no authority to evict plaintiffs. Plaintiffs did not address that argument in opposition. It appears that defendant Soto cannot be held liable for either retaliatory or constructive eviction, so his demurrer is sustained without leave to amend as to the 6th and 7th causes of action.

7th—constructive eviction
Plaintiffs allege that they are no longer in possession of the premises. FAC, ¶59.
As noted above, that is unclear. The demurrer is sustained with leave to amend (as to the Bustamonte defendants) on that ground.

Punitive damages
Because plaintiffs do not distinguish among the defendants, the FAC does not state a viable claim for punitive damages. In order to allege facts sufficient to support a finding of oppression, fraud or malice, plaintiffs will have to plead at least defendants’ knowledge of the defects, when they complained and the failure to remedy the defects. As it stands, the pleading is insufficient. Leave to amend is granted.

Attorney’s fees
Defendants argue that plaintiff failed to cite a statutory or contractual basis for their attorney’s fee claim. See C.C.P. § 1021; Jutkiwitz v. Bourns, Inc. (1981) 118 Cal.App.3d 102. Plaintiffs’ opposition did not address that portion of the motion to strike. It is granted without leave, as there appears to be no basis for the claim.