Haley Christina Thomas et al vs Jill Dore-Kent et al

Case Number

23CV02736

Case Type

Hearing Date / Time

Fri, 03/08/2024 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

For the reasons set forth herein:

1. The demurrer of defendants Jill Dore Kent and Martin Mielko, to plaintiffs’ second amended complaint, is sustained with leave to amend as to the first cause of action for breach of contract.

2. The demurrer is overruled as to the third cause of action for violation of municipal ordinances.

3. Defendants’ motion to strike is denied in its entirety.

4. Plaintiffs shall file and serve their third amended complaint no later than March 29, 2023.

Background: 

This action commenced on June 27, 2023, by the filing of the complaint by plaintiffs Haley Christina Thomas and Alexandre Hort (collectively “plaintiffs”) against defendants Jill Dore Kent and Martin Mielko (collectively “defendants”) setting forth 10 causes of action.

On August 8, 2023, plaintiffs filed their first amended complaint. On October 23, 2023, plaintiffs filed the operative second amended complaint (“SAC”) setting forth causes of action for” (1) Breach of contract; (2) Violation of State statutes; (3) Violation of municipal ordinances; (4) Constructive eviction; (5) Negligence; (6) Private nuisance; (7) Unfair business practices; and (8) Breach of the covenant of quiet enjoyment.

As alleged in the SAC:

Plaintiffs were residential tenants of defendants at property located at 312 E. Sola Street in Santa Barbara. (SAC, ¶ 1.) Defendant Dore-Kent was the sole owner of the property. (SAC, ¶ 5.) Defendant Mielko was the agent, property manager, and employee of Kent. (SAC, ¶ 6.)

Plaintiffs and defendants entered into a residential lease for the property on August 16, 2021. (SAC, ¶ 12 & Exh. A.) The lease provided for a month-to-month tenancy with no option for a year-long lease. (SAC, ¶ 13 & Exh. A.)

“Throughout the course of Plaintiffs’ tenancies, Defendants, and each of them, allowed the Premises, and Plaintiffs’ Unit, to deteriorate to the extent that living at the Premises was not only untenable practically, but presented, for example, enormous health risks, such as with sewage cascading down the interior of the Premises’ walls, severe water intrusion in multiple rooms of the Unit, and including a visually and trepidatiously sagging ceiling.” (SAC, ¶ 15.) Defendants failed to remediate the deteriorations or other habitability issues. (SAC, ¶¶ 16-24.)

In May 2022, plaintiffs informed defendants of a water intrusion, possible mold, and sewage in the kitchen of the property. (SAC, ¶ 26.) Plaintiffs received no response from defendants during ten days of attempting to report the issues. (Ibid.) On July 2, 2022, defendants responded to plaintiffs by serving a 3-Day Notice to Quit. (SAC, ¶ 28.)

Defendants filed and served an unlawful detainer action against plaintiffs which was later dismissed by way of demurrer. (SAC, ¶ 30.)

“Defendants, and each of them, had a design not only to actually evict Plaintiffs for their habitability complaints, but performed a constructive eviction of Plaintiffs in order to avoid remediation costs, to avoid tenant buyouts, to avoid move out costs, to avoid statutory or local ordinance entitlements, and so on, and chose instead to reap the profit, benefits and rewards of forcing tenants to move rather than engage in legally required rehabilitative efforts.” (SAC, ¶ 39.)

Defendants now specially demur to the first cause of action for breach of contract, and the third cause of action for violation of municipal ordinances, on the grounds that they fail to state facts sufficient to constitute causes of action.

Defendants further move to strike paragraphs 42, 47, 55, 59, 63, 65, 66, 69, 74, and paragraph D of the prayer for relief on the grounds that the complaint “contains false, irrelevant, or improper matters.”

Plaintiffs oppose the demurrer and the motion to strike.

Analysis:

Demurrer

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).) “Our consideration of the facts alleged includes ‘those evidentiary facts found in recitals of exhibits attached to [the] complaint.’ [Citation.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1250.)

“[A] court must treat a demurrer as admitting all material facts properly pleaded, it does not, however, assume the truth of contentions, deductions or conclusions of law.” (Travelers Indem. Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 358, citing Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

“To survive a demurrer, the 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.)

            Brach of contract

Defendants argue that the first cause of action for breach of contract fails because it is uncertain. Their argument consists of two short paragraphs which essentially claim that plaintiffs allegations are insufficient because they do not specifically set forth which terms of the lease were breached.

“ ‘[U]ncertain’ ” includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).)

“Demurrers for uncertainty . . . are disfavored. . . . A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Plaintiffs allegations of breach of contract include: “As alleged above, the rental agreement entered into between Plaintiffs and Defendants includes by law the implied warranty of habitability. Defendants, by their conduct as alleged above, breached said warranty of habitability.” (SAC, ¶ 46.) “The written rental agreement between Plaintiffs and Defendants contained implied covenants that Defendants would provide Plaintiffs with the quiet use and enjoyment of the subject premises. Defendants, by their conduct alleged above, breached the covenant of quiet enjoyment as embodied in California Civil Code § 1927 and explicit terms in the lease itself and are liable to Plaintiff for damages caused thereby, according to proof at trial.” (SAC, ¶ 47.)

To the extent that defendants argue that implied warranty of habitability is not a matter for a breach of contract action, they are mistaken. “[A breach of the warranty of habitability] claim can be “ ‘a contract action with contract damages.’ ” [Citations.]” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1168.)

However, the court does agree that there is a certain amount of uncertainty with respect to the language regarding “explicit terms in the lease itself” that must be clarified. There are no explicit terms of the lease identified in the SAC alleged to have been breached. Although, as noted above, demurrers for uncertainty are disfavored, defendants are entitled to know which provisions plaintiffs are referring to. As such, the demurrer to the first cause of action will be sustained with leave to amend.

            Violation of Municipal Ordinances

Defendants argue that the third cause of action (incorrectly identified as the second cause of action in the heading), for violation of municipal ordinances, fails because it is contradicted by the lease itself. Defendants further argue that the lease must be for at least a year because otherwise it would be in violation of Santa Barbara Municipal Code section 26.40.010.

Santa Barbara Municipal Code section 26.40.010, subdivision (A), requires: “If a tenant or prospective tenant wishes to rent a rental unit from a landlord and if the landlord wishes to rent the rental unit to the tenant or prospective tenant, the landlord must offer to the tenant or prospective tenant a written lease which has a minimum term of one year. The offer must be made in writing. The landlord’s signing of a lease which has a minimum term of one year shall be considered an offer in writing.” “The landlord shall have the burden of proving that the lease offer was made to the tenant.” (Id. at subd. (C).)

“If both the landlord and the tenant wish to continue the rental relationship, upon the expiration of the initial written lease which has a minimum term of one year, a lease shall be offered again in accordance with the procedures of this section:

“1.     Leases with a term of one year shall be offered annually.

“2.     Leases with a term longer than one year shall be renewable at the expiration of each lease period for a minimum term of one year.

“3.     A landlord shall offer annually a written lease with a minimum term of one year to a tenant who rejected an initial offer of a written lease with a minimum term of one year but who has rented a unit from the landlord for a period of at least twelve months.” (Santa Barbara Mun. Code, § 26.40.010, subd. (E).)

The lease clearly states that it is a month-to-month tenancy. It does not, in any way, contradict the allegation that defendants failed to offer a one-year lease.

The demurrer to the third cause of action will be overruled. The court notes that the overruling of the demurrer to the third cause of action is not based on the opposition filed by plaintiffs. Rather, it is based on the fact that defendants did not meet their burden as the moving parties.

Motion to Strike

“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.)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322, subd. (a).)

As noted above, defendants move to strike paragraphs 42, 47, 55, 59, 63, 65, 66, 69, 74, and paragraph D of the prayer for relief of the SAC.

Paragraphs 42, 55, 63, 69, 74, and paragraph D of the prayer for relief pertain to plaintiffs seeking punitive damages. They paragraphs are included in the following sections” (1) General
Allegations of Malfeasance; (2) Violations of State Statutes; (3) Violations of Municipal Ordinances; (4) Constructive Eviction; and (5) Prayer for Relief. Notably, plaintiffs are not seeking punitive damages as a component of the breach of contract cause of action.

Defendants claim that these paragraphs are improper in that they seek punitive damages and should be stricken from the SAC because each of plaintiffs’ causes of action arise from the breach of contract claim.

“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.” (Civ. Code § 3294, subd. (a).)

“When a statute recognizes a cause of action for violation of a right, all forms of relief granted to civil litigants generally, including appropriate punitive damages, are available unless a contrary legislative intent appears.” (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215.)

“The question is whether defendants’ conduct may be characterized as “ ‘despicable.’ ‘Despicable conduct’ has been described as conduct which is “ ‘ “... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ ” [Citations.] “ ‘Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ ” [Citation.] As well stated in Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149 . . .: “ ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] . . . Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . .. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ ” [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)

The prayer for punitive damages is attached to causes of action sounding in tort. Just because there is also a breach of contract cause of action does not mean that plaintiffs are only limited to contract remedies. Plaintiffs have pled actions which, if they meet their burden of proof, would potentially entitle them to punitive damages. Reasonable triers of fact could conclude that defendants’ actions, as alleged, rise to the level supporting an award of punitive damages.

For pleading purposes, assuming plaintiffs’ allegations true as the court must do, the allegations are sufficient to overcome demurrer. The motion to strike paragraphs 42, 55, 63, 69, 74, and paragraph D of the prayer for relief will be denied.

Defendants next argue that paragraph 47, for breach of the implied warranty of habitability, should be stricken because an implied warranty does not constitute a breach of contract. As explained above, defendants argument is incorrect. The motion to strike paragraph 47 will be denied.

Defendants argue that paragraph 59, alleging that defendants failed to provide a year-long lease, should be stricken because it is false. As explained above, the allegation is not contradicted by the lease. The motion to strike paragraph 59 will be denied.

Finally, defendants argue that paragraphs 65 and 66, pertaining to alleged injuries suffered by plaintiffs, are not proper without supporting facts. Defendants argument is conclusory and is not supported by any authorities or cogent argument. The motion to strike paragraphs 65 and 66 will be denied.

As with the overruling of the demurrer to plaintiffs’ third cause of action, the motion to strike is being denied due to defendants’ failure to meet their burden as the moving parties rather than as the result of plaintiffs’ opposition.