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

Case Number

23CV00522

Case Type

Hearing Date / Time

Mon, 03/04/2024 - 10:00

Nature of Proceedings

Defendant Left Coast Inspections, LLC’s Motion to Strike Portions of Plaintiffs’ Third Amended Complaint

Tentative Ruling

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

Case No. 23CV00522       

Hearing Date: March 4, 2024                                                 

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

ATTORNEYS:        For Plaintiffs Kimberly M. Jones and 4615 Via Roblada, LLC: Majed Dakak and Ryan Davis

                                    For Defendant and Cross-Defendant Left Coast Inspections, LLC: Catherine L. Deter and Erinn K. De La Riva 

                                     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 of Left Coast Inspections, LLC, to strike portions of plaintiff’s third amended complaint is denied.

Left Coast Inspections shall file and serve its answer to plaintiff’s third amended complaint no later than March 25, 2024.

Background:

This action commenced on February 7, 2023, by the filing of the complaint by plaintiff Kimberly Jones (“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 contained two causes of action for professional negligence and breach of contract. LCI moved to strike the prayer for emotional distress damages cause of action from the FAC. On July 31, 2023, the motion to strike was granted with leave to amend.

On August 9, 2023, Jones filed a second amended complaint. LCI again moved to strike the emotional distress damages arguing that it is an improper prayer for relief. The motion was granted with leave to amend.

On November 15, 2023, plaintiffs filed the operative third amended complaint. (“TAC”) The TAC adds 4615 Via Roblada, LLC (“Roblada”) as a plaintiff.

As alleged in the TAC:

“In late 2021, Young Giants Trust entered into a contract to purchase the real

property located at 828 Ballard Canyon Road in Solvang, California . . .. Young

Giants Trust later assigned its right to purchase the Property to Plaintiff Roblada.” (TAC ¶ 9.)

Jones engaged LCI, to conduct a general home inspection, and defendant Judith Wood (“Wood”) to conduct an indoor mold assessment of the property. (Id. at ¶ 10.) Roblada’s purchase of the property was dependent upon the results of the 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 ¶ 11.)

On October 7, 2021, “Darrell Clegg conducted an inspection of the property on behalf of [LCI].” (Id. at ¶ 12.) “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 ¶ 13.)

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 ¶¶ 14, 15.) Based on LCI’s and Wood’s reports, Roblada purchased the property. (Id. at ¶ 16.)

In Spring 2022, Jones and her family returned to California from being overseas and upon stepping into the subject property plaintiff’s son had a “severe medical reaction due to the presence of mold, consisting of near anaphylactic shock that was averted only through the injection of multiple antihistamine shots into Plaintiff Jones’ son.” (Id. at ¶¶ 17, 18.) “Plaintiffs were unaware of the mold because Left Coast negligently failed to identify mold conducive conditions in its inspection report and Wood failed to identify mold in her mold inspection report. Had Left Coast and Wood acted with the skill, diligence, and prudence that other members of their respective professions commonly possess and exercise, then they would have identified the mold conducive conditions and mold. Additionally, had Plaintiff Jones known of the presence of mold, or the possibility of mold due to mold conducive conditions, she would not have brought her son to the Property and risked his wellbeing.” (Ibid.) “After her son’s severe medical reaction, Plaintiff Jones was forced to stop her move-in plans and suffered severe emotional distress as a result of this incident, including anguish and worry over the health and wellbeing of her son.” (Ibid.)

Plaintiff hired a contractor to perform certain demolition work and remediate the mold issue in the kitchen. (Id. at ¶ 19.) “Plaintiffs are informed and believe that this mold is what triggered the severe medical reaction in Plaintiff Jones’ son.” (Ibid.)

“Plaintiffs then hired another mold inspector to conduct a second mold assessment. The inspection revealed that there was substantial mold growth throughout the home that should have been identified in Wood’s report. Additionally, the inspection revealed mold conducive conditions that Left Coast should have identified in its report.” (Id. at ¶ 20.)

“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 ¶ 21.)

LCI now moves, again, to strike plaintiffs’ prayer for emotional distress damages.

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 continues to argue that emotional distress damages are not available to plaintiffs because plaintiffs’ alleged damages arise solely out of property damage and consist only of economic injury to plaintiffs. The court has already rejected this argument because the alleged emotional distress arises out of personal injury to plaintiff’s son rather than damage to the property.

As previously explained:

“ ‘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); Italics added.)

“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); Italics added.)

LCI’s continued reliance on Erlich is misplaced. In that case, the negligent construction of the house did not cause any physical injury and resulted only in economic injury to the plaintiff.

LCI’s continued argument ignores the fact that the allegations of emotional distress are as to the physical injuries that Jones’ son allegedly sustained rather than damage to the property itself. None of the cases that LCI has cited in support of their argument prevents a plaintiff from recovering for emotional distress when there has been physical injury as opposed to only injury to property. LCI’s argument in this regard is once again rejected.

LCI next argues that Jones’ claims of emotional distress are “vague, legal conclusions, that did not provide any information on how Plaintiffs suffered emotional distress”, and that plaintiffs “did not establish that Plaintiffs’ emotional distress arises out of something other than her property damage claim.” (Motion, p. 1, ll. 25-28.) LCI argues: “On August 9, 2023, Plaintiffs filed Plaintiffs’ Second Amended Complaint (“ ‘SAC’ ”), which was only amended with the addition of the following: “ ‘ . . . and suffered severe emotional distress as a result of this incident’ ” and “ ‘Plaintiffs also would have not suffered the significant emotional distress that she suffered when her son had a severe medical reaction at the Property.’ ” (See, SAC at p.3:1-2; p.4:13-14.)” (Motion, p. 1, ll. 21-25.)

LCI’s assertion that the above language is all that was added to the SAC is false. As quoted above, plaintiffs added: In Spring 2022, Jones and her family returned to California from being overseas and upon stepping into the subject property plaintiff’s son had a “severe medical reaction due to the presence of mold, consisting of near anaphylactic shock that was averted only through the injection of multiple antihistamine shots into Plaintiff Jones’ son.” (TAC ¶¶ 17, 18.) “Plaintiffs were unaware of the mold because Left Coast negligently failed to identify mold conducive conditions in its inspection report and Wood failed to identify mold in her mold inspection report. Had Left Coast and Wood acted with the skill, diligence, and prudence that other members of their respective professions commonly possess and exercise, then they would have identified the mold conducive conditions and mold. Additionally, had Plaintiff Jones known of the presence of mold, or the possibility of mold due to mold conducive conditions, she would not have brought her son to the Property and risked his wellbeing.” (TAC ¶ 18.) “After her son’s severe medical reaction, Plaintiff Jones was forced to stop her move-in plans and suffered severe emotional distress as a result of this incident, including anguish and worry over the health and wellbeing of her son.” (Ibid.)

“Plaintiffs are informed and believe that this mold is what triggered the severe medical reaction in Plaintiff Jones’ son.” (TAC ¶ 19.) “Additionally, the inspection revealed mold conducive conditions that Left Coast should have identified in its report.” (TAC ¶ 20.)

The motion to strike the emotional distress prayer for relief in the SAC was granted because: “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.” (October 30, 2023, Minute Order.)

The TAC remedies the deficiencies of the SAC and provides everything that the court noted was lacking from the SAC.

LCI’s other arguments, such as LCI was only hired to perform a general home inspection, that specifically excluded inspecting for mold, have been previously addressed and rejected as not being a proper basis upon which to grant a motion to strike. For the same reasons, those arguments are again rejected.

Reading the allegations in the TAC as a whole, all parts in their context, and assuming their truth, the TAC states facts to support a prayer for emotional distress damages against LCI sufficient to overcome a motion to strike. The motion to strike will be denied.