Hamad vs. Lee Finance LLC et al.

Demurrer to First Cause of Action for Negligence

The elements of negligence are (1) the existence of a legal duty of care, (2) breach of that duty, and (3) legal cause resulting in injury. (McIntyre v. The Colonies- Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

The demurrer to the Complaint (and each cause of action) should be sustained because the Complaint never clearly alleges the role or capacity of the two named defendants. The Complaint alleges on information and belief that “Defendants, and DOES 1 through 100, inclusive owned, possessed, modified, repaired, operated, maintained, worked upon, controlled, managed and/or supervised, the Subject Property, where Plaintiff was injured.” (Complaint ¶ 5.) The court assumes that one defendant is the owner of the apartment complex and the other is the property manager, but no such facts are actually alleged. The Complaint references a rental agreement, but does not specify whether there is any written agreement, and does not 3

allege the relevant terms thereof. “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10, subd. (g).) While subdivision (g) is not identified anywhere in Lee Financial’s papers as a basis for the demurrer, the failure to clearly allege a contractual agreement does render the Complaint uncertain. Plaintiff must allege facts showing existence of a duty and breach thereof, and the generalized non-specific allegations lumping multiple defendants together is inadequate, vague and uncertain. This issue exists with respect to each cause of action.

Demurrer to Second Cause of Action for Breach of Warranty of Habitability

“The elements of [a claim for breach of the habitability warranty] 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.)

Lee Financial asserts that “Breach of warranty of habitability requires a contract between Plaintiff and Defendants,” but cites to no authority for that proposition. As plaintiff points out, a warranty of habitability is implied by law in residential leases. (Green v. Superior Court (1974) 10 Cal.3d 616, 619.)

Lee Financial contends that there are no facts identifying the material defect that affected habitability or even the time periods when the alleged defects existed.

The Complaint alleges that “Defendants breached the warranty of habitability including Civil Code §1941, et seq., and Health and Safety code § 17920.3, et seq. with regard to Plaintiff by knowing of and failing to repair the dangerous and Defective Conditions alleged herein.” (Complaint ¶ 30.) The alleged Defective Conditions are set forth in paragraph 12: “The Subject Property experienced habitability issues including but not limited to malfunctioning HVAC, water intrusion, electrical problems, malfunctioning kitchen appliances, a fire on May 16, 2025, rendering the Subject Property uninhabitable, and other habitability defects (hereinafter, ‘DEFECTIVE CONDITIONS’). Plaintiff is informed and believes, and based on such information and belief alleges, that Defendants did not make proper repairs despite knowledge of the substandard, untenantable, and continuing nuisance conditions.”

“[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Here plaintiff alleges numerous conditions affecting the property, and that those conditions rendered the property uninhabitable. Whether the evidentiary facts bear out that conclusion is not a question for this stage of proceedings.

However there are no allegations going to the second and third elements set forth in Erlach above – “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 ...” (Erlach, supra, 226 Cal.App.4th at p. 1297.) The 4

demurrer should be sustained for this reason, in addition to failing to clearly allege failures by each individual defendant.

Demurrer to Third Cause of Action for Private Nuisance

To establish a private nuisance, the plaintiff must prove (1) an interference with his use and enjoyment of his property; (2) the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., that it causes the plaintiff to suffer substantial actual damage; and (3) the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature duration or amount as to constitute unreasonable interference with the use and enjoyment of the land. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.)

Here, plaintiff lists a number of “Defective Conditions” that rendered the apartment uninhabitable. That would be enough to satisfy the first two elements. But plaintiff does not allege the duration of any of the conditions so as to satisfy the third element. Accordingly, and for the same reason as the first cause of action, the demurrer should be sustained.

Demurrer to Fourth and Fifth Causes of Action for Breach of the Covenant of Quiet Enjoyment

The demurrer is premised on the contention that the covenant of quiet possession in a lease is not breached until there has been an actual or constructive eviction, citing Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1300. The court stated that the covenant of quiet possession and enjoyment “is breached upon actual or constructive eviction of the tenant. (McAlester v. Landers (1886) 70 Cal. 79, 82, 11 P. 505.) Any 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. (Kulawitz v.

Pacific Woodenware Paper Co. (1944) 25 Cal.2d 664, 670, 155 P.2d 24; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612–613, 272 P.2d 938.)” (Erlach, supra, 226 Cal.App.4th at pp. 1299-1300.)

However, Erlach and other authorities also recognize that “a tenant may sue for breach of the covenant while remaining in possession. [Citations.]” (Erlach, supra, 226 Cal.App.4th at pp. 1300-1301, citing Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 292, citing Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 141; see also Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 590–591 [relying on Guntert], and Marchese v. Standard Realty & Dev. Co. (1977) 74 Cal.App.3d 142, 148 [same].) Accordingly, plaintiff’s continued occupation of the property does not provide a basis for sustaining the demurrer to these causes of action. It should be sustained though for the reason discussed above – failure to clearly allege the roles and conduct of the two separate defendants.

Motion to Strike Punitive Damages

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, Inc. v. Superior Court (2003) 110 CalApp.4th 1145; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696.)

Civil Code section 3294, subdivision (a) provides:

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

Civil Code section 3294 was amended in 1987 to require a showing of despicable conduct as a predicate to the recovery of punitive damages. "Despicable conduct" is defined as conduct that is so vile, base or contemptible that it would be looked down on and despised by reasonable people.”

Used in its ordinary sense, the adjective "despicable" is a powerful term that refers to circumstances that are "base," "vile," or "contemptible." (4 Oxford English Diet. (2d ed. 1989) p. 529.) As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, "malice" requires more than a "willful and conscious" disregard of the plaintiffs' interests. The additional component of "despicable conduct" must be found. (Accord, BAJJ No. 14.72.1 (1992 Re-Rev.)); Mock v. Michigan Miliers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) (College Hospital, Inc., v. Superior Court (1994) 8 Cal.4th 704, 725.)

The addition of the criterial adjective “despicable” was a significant substantive limitation on the recovery of punitive damages (along with the elevation of the burden of proof), as it is a “powerful term.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) On the continuum of conduct, it is toward the extreme, eliciting adjectives such as vile or base and rousing the contempt or outrage of reasonable people. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)

Here, the Complaint contains only conclusory allegations supporting the prayer for punitive damages. (See Complaint ¶¶ 33, 54.) The opposition does not seriously attempt to show otherwise. Conclusory allegations do not meet the pleading requirements for punitive damages. (Austin v. Regents of University of California (1979) 89 Cal.App.3d 354, 359.) Accordingly, the punitive damages allegations and associated prayer for relief should be stricken.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 8-11-26. (Judge’s initials) (Date)

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