Ritchie, Rhonda vs. Karman, Timothy et al

Rptr. 3d 819] (Gomes), which states, "[a] ' "[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true "' [citation], and thus a pleading made on information and belief is insufficient if it 'merely assert[s] the facts so alleged without alleging such information that "lead[s] [the plaintiff] to believe that the allegations are true." ' " (Id. at pp. 1158-1159.)

The court declines to sustain the demurrer to the whole of the complaint on this ground. Ritchie alleges "[t]he Subject Property experienced habitability defects including but not limited to malfunctioning HVAC, lack of proper heating, severe cockroach infestation, severe pest infestation, plumbing defects, and other habitability defects" (Comp., P. 14), which the court finds a sufficient allegation of the "information that "lead [the plaintiff] to believe [to be true]" (Gomes, supra, 192 Cal.App.4th at p. 1159) that "Defendants did not make proper repairs despite knowledge of the substandard, untenantable, and continuing nuisance conditions" (Comp., P. 14).

Generally speaking: "[A] lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. [Citations.] At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. [Citations.]" (Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, 781 [258 Cal.Rptr. 669].) Ritchie alleges substantial conditions of dilapidation beginning upon her moving to the apartment in September of 2023 and it is reasonably inferable from the complaint that, based on these circumstances and the duration of time over which they allegedly persisted, she is asserting that her landlord at least had constructive notice of the alleged "substandard, untenantable, and continuing nuisance conditions" she specifically describes, and that the landlord failed to make "proper repairs."

B. Breach of the Warranty of Habitability - Failure to Allege Notice to Landlord The Karmans demurrer to the second cause of action for breach of the warranty of habitability on the ground that Ritchie fails to allege notice to the landlord of the habitability conditions within a reasonable time after discovery of the conditions and fails to allege that the landlord was given a reasonable time to correct the deficiency and resulting damages. (See Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297 [173 Cal.Rptr.3d 159] (Erlach) [identifying the foregoing as elements of an affirmative claim based on breach of the habitability warranty.].)

The court agrees with the Karmans on this point and finds Ritchie's allegation that "Defendants breached the warranty of habitability ... with regard to Plaintiff by knowing of and failing to repair the dangerous and Defective Conditions alleged herein" as an entirely conclusory and insufficient allegation of ultimate fact that Ritchie provided notice to the landlord of the habitability conditions within a reasonable time after discovery of the conditions and that the landlord was given a reasonable time to correct the deficiency and resulting damages. (See ibid.)

The court is not yet prepared to conclude there is no reasonable possibly of cure of this defect by further amendment (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317])--though, given Ritchie's only having submitted that, "if further facts are required, [she] would request leave to amend," the court is very close to reaching that determination. At this point, the court sustains the demurrer to the second cause of action with leave, and with the express direction that Ritchie must expressly plead ultimate, non-conclusory facts supporting "notice to the landlord of the condition within a reasonable time after the tenant's discovery of the condition, [and that] the landlord was given a reasonable time to correct the deficiency" in any further amended complaint asserting this cause of action again. (Erlach, supra, 226 Cal.App.4th at p. 1297.)

C. Nuisance - Whether Claim is Duplicative of Negligence and Habitability Claims The Karmans demurrer to the third cause of action for private nuisance on the grounds that it is duplicative of Ritchie's first negligence cause of action and her second habitability cause of action. The Karmans cite Melton v. Boustred (2010) 183 Cal.App.4th 521 [107 Cal.Rptr.3d 481] (Melton) which states: "Given 'the broad definition of nuisance,' the independent viability of a nuisance cause of action 'depends on the facts of each case.' [Citation.] 'Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.' [Citation.] The nuisance claim 'stands or falls with the determination of the negligence cause of action' in such cases. [Citation.]" (Id., at p. 542.)

Ritchie does not directly dispute the Karmans point on the nuisance claim. She asserts, rather: "The above does not mean a nuisance cause of action is subsumed by the negligence cause of action. Rather it means the nuisance cause of action cannot proceed if the negligence claim cannot proceed. That is not something to bring up on a demurrer." Ritchie is wrong. The court in Melton expressly held that a trial court properly sustained a demurrer to a nuisance cause of action on the ground that the nuisance claim merely restated another negligence claim " 'using a different label.' " (Id., at p. 543, citing El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 [65 Cal.Rptr.3d 524].)

In accordance with Melton, the court sustains the demurrer to the third cause of action without leave to amend. It is manifestly clear from the complaint that all Ritchie's claims derive from her allegations regarding the habitability issues and that plaintiff's nuisance claim "has no independent vitality" from her other claims. (Ibid.)

D. Breach of the Covenant of Quiet Enjoyment Claims - Boilerplate Allegations The Karmans demurrer to the fourth and fifth cause of actions together (breach of the quiet enjoyment covenant "in a contract" and "as a tort") on the ground that "the Complaint only contains boiler plate language that the purported breach of covenant of quiet enjoyment is substantial with no explanation as to why." The Karmans cite Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841 [122 Cal.Rptr. 114], which explains the covenant of quiet enjoyment as follows: "In recent years, the covenant of quiet enjoyment has been expanded, and in this state, for example, it insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]

Under this view, the landlord's failure to fulfill an obligation to repair or to replace an essential structure or to provide a necessary service can result in a breach of the covenant if the failure substantially affects the tenant's beneficial enjoyment of the premises. [Citations.]" (Id., at p. 846, italics added.)

The court is disinclined to sustain a demurrer to the fourth and fifth causes of action on the ground that they are supported solely by "boilerplate" allegations. To be sure, Ritchie's complaint is not a model framing of her purported claims. Amongst other regrettable defects, it is replete with vague and conclusory allegations regarding the central factual matters at issue. That said, the court finds the specifically identified conditions, HVAC failures, pest infestations, plumbing defects, etc., suffice to establish a "sufficient" breach of the covenant of quiet enjoyment at the pleading stage.

E. Breach of the Covenant of Quiet Enjoyment as a Tort - Failure to Allege Tenant Displacement The Karmans demurrer to the fifth cause of action based on breach of the covenant of quiet enjoyment "as a tort" on the ground that "[a] tort claim arises only out of the breach of the covenant of quiet enjoyment when ... the tenant no longer remains in possession of the premises." The Karmans cite Ginsberg v. Gamson (2012) 205 Cal.App.4th 873 [141 Cal.Rptr.3d 62] (Ginsberg), where, after surveying cases involving claims for breach of the covenant of quiet enjoyment, the court concluded the cases "do not support the proposition that a tort claim arises out of the breach of the covenant of quiet enjoyment, when there has been no eviction and the tenant remains in possession of the premises." (Id., at p. 901.)

Ritchie responds that she need not establish she is no longer a tenant in possession of the premises in her claim for breach of the covenant of quiet enjoyment "as a tort" based on Erlach. In Erlach, the plaintiff separately alleged causes of action for constructive eviction, breach of the covenant of quiet enjoyment and retaliatory eviction. (Id., at p. 1289.) Regarding these claims, the court observed "that every lease includes a covenant of quiet possession and enjoyment"; that "[t]his covenant is breached upon actual or constructive eviction of the tenant"; and that "[a]ny interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time." (Id., at pp. 1299-1300, italics added.)

While the court observed that " '[i]t is not necessary to show that the landlord acted with the subjective intent to compel the tenant to leave the property or deprive the tenant of quiet enjoyment,' " it still yet recognized that a disturbance of the tenant's possession that "has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction," only if " the tenant vacates the premises within a reasonable time." (Id., at p. 1300, italics added.)

Pertinent here, an important distinction is observed in Ginsburg. There, the plaintiff cited Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004 [90 Cal. Rptr. 3d 453] as purportedly supporting that a tort claim arises out of the breach of the covenant of quiet enjoyment when there has been no eviction and the tenant remains in possession of the premises. Ginsburg found that reliance misplaced, noting that, "[i]n Spinks, the court explicitly distinguished between a claim for breach of the implied covenant of quiet enjoyment, which it identified as a contract claim, and a claim for wrongful eviction, which it identified as a tort. (Id. at pp. 1030-1031, 1036.)" (Id., at p. 901.)

Ginsburg essentially concluded that, "when the landlord has breached the implied covenant of quiet enjoyment, but the tenant remains in possession of the premises, the tenant's remedy is to 'sue for breach of contract damages.' [Citation.]" (Id., at p. 902.) But a tort claim based on the same alleged conduct, however, in effect constituting a wrongful eviction or constructive eviction, requires that the tenant no longer remain in possession of the premises. (Ibid.)

From this, the court concludes that the demurrer must properly be sustained as to the fifth cause of action for breach of the covenant of quiet enjoyment "as a tort" because that cause of action, insofar as it is distinguishable at all from the fourth cause of action, requires plaintiff to establish, as she clearly cannot, that she was effectively displaced from the premises as a result of the breach. So long as Ritchie remains in possession of the premises, the court finds that her sole remedy with respect to the covenant of quiet enjoyment is to " 'sue for breach of contract damages' [citation]" (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 902 [141 Cal.Rptr.3d 62]) or, as particularly asserted here, breach of the covenant of quiet enjoyment in a contract. The court, accordingly, sustains the demurrer to the fifth cause of action without leave to amend.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Visalia Division Honorable Bret D. Hillman Presiding- Department 2 Examiner notes for probate matters calendared July 15, 2026, that allow for posting: Status: Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.