Case Number: BC675126 Hearing Date: January 03, 2019 Dept: S27

INTRODUCTION:

Defendants Niko Enterprises, LLC (“Niko”) and Matt Antoniou demur to the 6th cause

of action in Plaintiffs’ (Collectively “Beckham”) Second Amended Complaint.

Complaint:

1. Breach of Warranty of Habitability

2. Breach of Covenant of Quiet Enjoyment

3. Constructive Eviction

4. Fraudulent Concealment

5. Nuisance

6. Intentional Infliction of Emotional Distress (“IIED”)

7. Premises Liability

8. Negligence

9. Breach of Contract

10. FEHA Violation

11. Discrimination – Unruh Act

Defendants concurrently move to strike the Punitive Damages claim and associated allegations of willful and malicious conduct.

ALLEGATIONS

Beckham (parents/lessors and minor children) leased property at 774 Cherry Avenue in Long Beach owned by Matt Antoniou. Niko is alleged to be the property management company.

The lease was allegedly executed on August 23, 2013 – the lease is not an exhibit to the complaint. Defendants allegedly concealed “prior problems with water intrusion and mold.”

From October, 2015 through February, 2017 there were “persistent water intrusions” which were “immediately reported.” Non-Party CRJ Home Improvement was hired to fix the problem on a “periodic basis.” “Defendants” reported that the roof leak had been fixed but water intrusion continued.

Plaintiff requested his soaked carpet be cleaned and his shower and toilet be repaired because they were “not working properly” and contributed to the “poor conditions of the premises.”

The first water intrusion had been in late 2015 or early 2016 and afterwards plaintiffs noticed a “musty smell” which increased over time. Plaintiffs began to experience respiratory difficulties. Daughter/Plaintiff Aaliyah required “emergency medical treatment” of an unspecified nature.

There are many allegations of plaintiffs reporting problems to defendants and eventually to code enforcement which found unspecified violations of the building code.

As to discrimination, plaintiffs allege they are African-American and were treated differently than other tenants who were not African-American. Plaintiffs allege Defendants refused to allow them to have visitors. Other tenants were allowed visitors.

DEMURRER

The 6th cause of action (IIED) has the following elements and limitations:

“A cause of action for intentional infliction of emotional distress exists when there is ‘“‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’”’ A defendant’s conduct is ‘outrageous” when it is so “‘“extreme as to exceed all bounds of that usually tolerated in a civilized community.”’” (Potter, at p. 1001.) And the defendant’s conduct must be “‘“intended to inflict injury or engaged in with the realization that injury will result.”’”

Liability for intentional infliction of emotional distress “‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’”

(Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051[Internal Citations Omitted].)

Defendants argue, as they did in the demurrer to the 1st Amended Complaint, that the entirety of the facts alleged disclose that Plaintiffs had lived on the premises for about 2 ½ years before any problems began. Water intrusion began in November, 2015. Although Plaintiff at some points allege that defendant did nothing about the problems, the complaint admits that contractors were engaged “from time to time.” Defendants contend that reading the complaint as a whole and disregarding conclusory characterizations, their conduct does not rise to the levels required to support this tort theory.

Defendants acknowledge that the 2nd Amended complaint has added two new allegations:

1. Defendants knew Plaintiffs had preschool age children who “were more susceptible” to dangerous conditions than adults – i.e. they lacked the ability to independently leave the premises to avoid the conditions.

2. Defendant’s refusal to repair the premises was due to the fact that Plaintiffs are Africa-American.

The court agrees that these do not cure the deficiencies of the 1st Amended Complaint.

The fact that Defendants were aware of minor children in the premises does not make any conduct more extreme or outrageous than previously alleged.

Plaintiffs already have a cause of action for discrimination. If they prevail, they will be entitled to emotional distress damages for the discrimination. If they do not prevail then there would be no basis to claim discrimination was IIED. The 6th cause of action is superfluous.

The demurrer is sustained without leave to amend.

MOTION TO STRIKE

The court denied the motion to strike the 1st Amended Complaint’s prayer for punitive

damages as against Defendant Antoniou. The court’s ruling was that the motion overlooked that he is charged with discrimination and focuses solely on the issues concerning defects in the premises. He had not met his burden in showing there are no facts under which a reasonable finder of fact could find malice.

These same facts still support punitive damages against Antoniou.

Defendant now argues that the cause of action for breach of the implied warranty of habitability cannot support punitive damages because it is a contract term. CC §3294 only applies to action which does not arise from contract. This disregards that the law recognizes a cause of action for tortious breach of the implied warranty as an affirmative cause of action, as opposed to an affirmative defense in an Unlawful Detainer action:

“Manifestly, under the reasoning of Green and Rowland and assuming appropriate pleadings of fact, a tenant may state a cause of action in tort against his landlord for damages resulting from a breach of the implied warranty of habitability.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 918-919.)

“In addition to asserting a breach of the habitability warranty as a defense to an unlawful detainer action, a tenant may bring suit against the landlord for damages resulting from such breach. (Landeros v. Pankey (1995) 39 Cal.App.4th 1167, 1169 [46 Cal. Rptr. 2d 165]; Miller & Starr, Cal. Real Estate (3d ed. 2004) § 19:121, p. 362; Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2013) ¶¶ 3:97 to 3:100, pp. 3-40.4 to 3-40.5 (rev. # 1, 2009, 2013).) The elements of such an affirmative claim are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

Although the cause of action does not contain the word “tortious” it is the facts alleged and not the title which controls. Plaintiffs allege intentional decisions to deny repairs despite repeated notice of the conditions. Read as a whole, the court deems the 1st cause of action to state a tortious breach of the implied warranty.

The motion is denied.

Defendants are ordered to answer within 20 days.