Kimberly M Jones vs Left Coast Inspection LLC et al

Case Number

23CV00522

Case Type

Hearing Date / Time

Mon, 10/30/2023 - 10:00

Nature of Proceedings

Motion: Strike

Tentative Ruling

Kimberly M. Jones v. Left Coast Inspections, LLC, et al. 

Case No. 23CV00522

           

Hearing Date: October 30, 2023                                             

HEARING:              Defendant Left Coast Inspections, LLC’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

ATTORNEYS:        For Plaintiff Kimberly M. Jones: Majed Dakak and Ryan Davis

                                    For Defendant and Cross-Defendant Left Coast Inspections, LLC: Catherine L. Deter and Briana J. Kutinsky

                                     For Defendant and Cross-Complainant Judith H. Wood: Thomas S. Gelini and Jennifer A. Kung Gelini

                                    For Defendant Wood Environmental Services, LLC: No appearance                    

TENTATIVE RULING:

The motion to strike portions of plaintiff’s second amended complaint is granted with leave to amend.

Plaintiff shall file and serve her third amended complaint no later than November 20, 2023.

Background:

This action commenced on February 7, 2023, by the filing of the complaint by plaintiff Kimberly Jones against defendants Left Coast Inspections, LLC (“LCI”), Wood Environmental Services, LLC (“WES”), and Judith H. Wood. The complaint alleged causes of action for: (1) Professional negligence; (2) Breach of contract; and (3) Negligent Infliction of Emotional Distress (“NIED”). LCI filed a demurrer to the NIED cause of action. Prior to the hearing on LCI’s demurrer, Jones filed her first amended complaint (“FAC”).

The FAC contains two causes of action for professional negligence and breach of contract. As alleged in the FAC: In late 2021, plaintiff engaged LCI, to conduct a general home inspection, and defendant Judith Wood (“Wood”) to conduct an indoor mold assessment of property located at 828 Ballard Canyon Road in Solvang. (FAC, ¶ 8.) Plaintiff was under contract to purchase the property, through an entity, dependent upon the results of LCI’s and Wood’s inspections. (Ibid.) “Plaintiff, directly or through her agents, told [LCI] and Wood that plaintiff’s child has special needs and is highly susceptible and reactive to mold.” (Id. at ¶ 9.)

On October 7, 2021, “Darrell Clegg conducted an inspection of the property on behalf of [LCI].” (Id. at ¶ 10.) “On or about October 15, 2021, plaintiff received [LCI’s] Property Inspection Report, detailing the findings of its investigation. The Property Inspection Report did not disclose any mold, any defects with the property’s pool, or anything else that would give plaintiff cause for concern regarding a potential mold infestation of the property.” (Id. at ¶ 11.)

On October 7, 2021, Wood conducted the indoor mold assessment and prepared a report the next day finding that one portion of the kitchen required remediation, but that there was no other relevant mold identified in the property. (Id. at ¶¶ 12, 13.) Based on LCI’s and Wood’s reports, plaintiff purchased the property. (Id. at ¶ 14.)

In Spring 2022, plaintiff and her family returned to California from being overseas and upon stepping into the subject property plaintiff’s son had a “severe medical reaction.” (Id. at ¶¶ 15, 16.) “Plaintiff was forced to stop her move-in plans.” (Ibid.)

Plaintiff hired a contractor to perform certain demolition work and remediate the mold issue in the kitchen. (Id. at ¶ 17.) “[T]he contractor discovered that mold was present throughout the property.” (Ibid.) Plaintiff conducted a second mold assessment which revealed substantial mold growth throughout the home and mold conducive conditions that LCI should have identified in its inspection report. (Id. at ¶ 18.)

“Based on the newly performed mold investigation, plaintiff’s contractor determined that the mold infestation was so extensive that the property needed to be razed-the only salvageable portion of the property was the roof. Moreover, the contractor determined that the slope of the pool was not to code, causing water to drain into the home. The foundation of the home was also too close to the ground. These conditions caused exterior surface ground water intrusion which allowed mold to flourish.” (Id. at ¶ 19.)

LCI moved to strike the prayer for emotional distress damages. On July 31, 2023, the motion to strike was granted with leave to amend.

On August 9, 2023, plaintiff filed the operative second amended complaint. The complaint is nearly identical to the FAC except for paragraphs 16 and 26. Paragraph 16 of the SAC now alleges: “In or about Spring 2022, Plaintiff and her family returned to California and Plaintiff brought her family to the Property. Upon stepping into the Property, Plaintiff’s son had a severe medical reaction. Plaintiff was forced to stop her move-in plans and suffered severe emotional distress as a result of this incident.” The only addition is the last sentence. Paragraph 26 now alleges: “The negligent acts and omissions of Left Coast and Wood were below the standard of care. Left Coast’s and Wood’s professional negligence was a substantial factor in Plaintiff’s harm because Plaintiff relied on Left Coast’s and Wood’s reports in her decision to purchase the Property. Had Left Coast and Wood properly completed their inspections, Plaintiff would not have purchased the Property and would not have incurred other expenses, including but not limited to the second mold assessment and the cost to remedy the mold infestation. Plaintiff also would not have suffered the significant emotional distress that she suffered when her son had a severe medical reaction at the Property.” The only addition is the last sentence.

LCI again moves to strike the emotional distress damages arguing that it is an improper prayer for relief.

Plaintiff opposes the motion.

Analysis:

“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.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

LCI, as it did in the prior motion to strike, argues that emotional distress damages are not available to plaintiff because plaintiff’s alleged damages arise solely out of property damage and consist only of economic injury to plaintiff. LCI argues that the additional two sentences in the SAC are “vague, legal conclusions, that do not provide any information on how plaintiff suffered emotional distress.” (Motion, p. 3, ll. 22-28.)

The same analysis applies to the current motion to strike that applied to the prior motion.

“ ‘The fact that emotional distress damages may be awarded in some circumstances (see Rest.2d Torts, § 905, pp. 456–457) does not mean they are available in every case in which there is an independent cause of action founded upon negligence.’ ” [Citation.] “ ‘No California case has allowed recovery for emotional distress arising solely out of property damage’ ” [Citation]; moreover, a preexisting contractual relationship, without more, will not support a recovery for mental suffering where the defendant’s tortious conduct has resulted only in economic injury to the plaintiff.” (Erlich v. Menezes (1999) 21 Cal.4th 543, 554-555 (Erlich).)

“No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort.” (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012 (Cooper).)

Plaintiff again argues that Erlich and Cooper do not bar her claims for emotional distress because she alleges that she suffered more than property damage. As stated above, plaintiff does allege more than property damage. She alleges tort negligence resulting in emotional distress. The court understands LCI’s position that all of plaintiff’s claims arise from property damage. However, this argument is not applicable to the SAC. Plaintiff is alleging negligence in the inspection that resulted in more than property damage. Plaintiff alleges a tort that resulted in emotional distress.

Plaintiff is a proper party to recover for emotional distress related to injury to her son. “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

Business and Professions Code section 7196 establishes an independent ground to bring a negligence tort claim. “That a home inspector has an independent duty arising from tort law is now made express in the 1996 legislation. Business and Professions Code section 7196 specifies a home inspector has an independent duty to competently perform a home inspection. To recall, this section provides: ‘It is the duty of a home inspector who is not licensed as a general contractor, structural pest control operator, or architect, or registered as a professional engineer to conduct a home inspection with the degree of care that a reasonably prudent home inspector would exercise.’ A review of the legislative history of this provision makes clear beyond dispute the Legislature expressly envisioned home inspectors would be liable in tort in the event they failed to discharge their statutory duty of care.” (Moreno v. Sanchez (2003) 106 Cal.App.4th 1415, 1435.)

At the pleading stage, the court cannot weigh the disputed facts of whether the acts or omissions of LCI caused or contributed to more than property damage. As alleged, plaintiff’s emotional distress was not caused by the damage done to the property, but, rather, to the physical injury (severe reaction) suffered by her son.

LCI points out that the complaint identifies defendant WES as the mold inspector and that “[p]laintiff confusingly alleges that defendant LCI did not disclose mold conducive conditions in its general home inspection report.” (Motion, p. 4., ll. 7-11.)

Inspection for actual mold and disclosing mold conducive conditions are two separate things. The SAC alleges that “[LCI] was professionally negligent in its inspection of the property, including, but not limited to, because [LCI] failed to discover and disclose that the slope of the pool was not code-compliant, that the foundation of the home was too close to the ground, and that these conditions caused exterior surface water intrusion.” Plaintiff does not allege that LCI was responsible for testing for mold. Rather, plaintiff is alleging that LCI should have discovered and reported conditions that result in the creation of mold.

By way of its reply, LCI adds the argument that plaintiff’s son is not a party to the action and that LCI would be prejudiced in preparing its defenses unless it was granted full access to the son’s medical history and conditions. Points made for the first time in a reply brief will not be considered. (Nordstrom Com. Cases (2010) 186 Cal.App.4th 576, 583.) Even if the court were to consider LCI’s argument in reply, prejudice in preparing a defense is not a valid ground for demurrer.

However, as was true for the FAC, the SAC fails to set forth all necessary allegations. As the court pointed out previously: “[T]here are no allegations that any professional negligence, by any defendant, caused plaintiff’s son to have a severe medical reaction or what that ‘reaction’ consisted of.” (July 31, 2023, Minute Order.) The same is true with the SAC. Plaintiff’s claims are conclusory and lack sufficient facts to apprise defendants of the specific claims plaintiff is asserting. Further, the SAC fails to set forth any facts indicating what caused plaintiff’s son to have a “severe medical reaction,” or what plaintiff’s “emotional distress” consists of. The SAC only alleges that plaintiff’s son had the reaction at the property. There is no allegation that the reaction was caused by mold or that any of LCI’s acts or omissions resulted in the presence of mold. Allegations addressing these issues must be included in plaintiff’s complaint.

Reading the allegations in the SAC as a whole, all parts in their context, and assuming their truth, the SAC fails to support a prayer for emotional distress damages. The motion to strike will be granted.

As there is a reasonable probability that the complaint is capable of amendment to support a proper prayer for emotional distress damages, the motion to strike will be granted with leave to amend.