Soukeyna M Gresham-Moore vs Sure Oil & Chemical Corp et al
Soukeyna M Gresham-Moore vs Sure Oil & Chemical Corp et al
Case Number
23CV05405
Case Type
Hearing Date / Time
Wed, 03/20/2024 - 10:00
Nature of Proceedings
Demurrer; Motion: Strike
Tentative Ruling
For Plaintiff Soukeyna M. Gresham-Moore: John B. Richards
For Defendant Sure Oil & Chemical Corp. dba Sure Management: Barry J. Reagan, Michael B. Lebow, Jennifer Volcy, Slaughter, Reagan & Cole, LLP
RULING
(2) For all reasons discussed herein, the motion of Defendant Sure Oil & Chemical Corp. dba Sure Management to strike portions of Plaintiff’s complaint is denied.
(3) Defendant shall file and serve its answer to Plaintiff’s complaint on or before April 2, 2024.
Background
On December 6, 2023, Plaintiff Soukeyna M. Gresham-Moore filed a complaint against Defendants Sure Oil & Chemical Corp. (Sure Oil) and Sure Management (Sure Management) (collectively, Defendants), alleging four causes of action: (1) general negligence; (2) premises liability; (3) breach of contract; and (4) intentional tort. As alleged in the complaint:
Sure Oil owns property located at 333 E. Carrillo St., Unit 6, in Santa Barbara, California (the property). (Compl., ¶¶ GN-1, IT-1.) The property is managed by Sure Management. (Compl., ¶ GN-1.) Pursuant to a written lease, Plaintiff moved into and began residing at the property on June 1, 2020. (Compl., ¶ GN-1, Prem.L-1, BC-1(a), IT-1 & Exh. A.)
In March or April 2022, Plaintiff advised Defendants of the presence of visible mold at the property. (Compl., ¶¶ Prem.L-1, IT-1.) In April 2022, Plaintiff noticed visible staining, mold, and mildew. (Compl., ¶ GN-1.) Plaintiff began to suffer various adverse health symptoms in February 2023. (Compl., ¶¶ Prem.L-1, GN-1, IT-1.) In October 2023, Plaintiff began to suspect that her adverse health symptoms may be caused or contributed to by exposure to contaminants and toxins including mold at the property. (Compl., ¶¶ GN-1, Prem.L-1, IT-1.)
Plaintiff asked Defendants to repair and maintain the property and to remediate the mold, but Defendants repeatedly refused to remediate the mold. (Compl., ¶¶ GN-1, IT-1.) As a result of Defendants’ failure to timely or properly maintain, remediate, and repair the property or to respond to Plaintiff’s complaints of water intrusion, moisture, and mold, the property became damp and contaminated with toxic or allergenic mold spores, mycotoxins, bacteria, bacterial endotoxins, volatile organic compounds, dust mites, rodents, and cockroaches, which caused the property to become unsafe and uninhabitable. (Compl., ¶¶ GN-1, BC-2.)
Defendants have also refused to relocate Plaintiff despite her requests to do so and despite Defendants’ knowledge that Plaintiff is sick and that the property is unsafe and uninhabitable. (Compl., ¶ IT-1.) Plaintiff has also advised Defendants that she believes her illnesses have been caused by toxins or contaminants at the property. (Compl., ¶ IT-1.)
On February 16, 2024, Defendant Sure Oil, who asserts that it was erroneously sued as two separate entities, filed a demurrer to the fourth cause of action alleged in the complaint and a motion to strike Plaintiff’s prayer for punitive damages. Sure Oil contends that Plaintiff has failed to allege facts sufficient to support a cause of action for intentional infliction of emotional distress because a failure to remediate a defective condition is insufficient to allege an intentional tort or a claim for punitive damages.
Plaintiff opposes the demurrer and motion to strike.
Analysis
(1) The Demurrer
In ruling on a demurrer, the Court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The complaint is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) A demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The Court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) On demurrer, the Court does not weigh facts or consider matters extrinsic to the complaint. (See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499-500.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)
Sure Oil contends that Plaintiff has failed to allege facts demonstrating a conscious, deliberate intent by Sure Oil to injure Plaintiff, or demonstrating any conduct that was reckless or in disregard of Plaintiff’s rights apart from a refusal by Defendants to repair a defective condition, which Sure Oil argues is insufficient to support a claim for intentional infliction of emotional distress.
Sure Oil also contends that Plaintiff has failed to allege facts, apart from Plaintiff’s belief that mold was present at the property, demonstrating, that a qualified mold professional confirmed the existence of mold. Sure Oil also asserts that Plaintiff has failed to allege facts demonstrating that Plaintiff communicated to Sure Oil that she believed, or when Plaintiff communicated to Sure Oil that Plaintiff believed, that the property was making her sick prior to filing the present action.
The parties do not dispute that in the fourth cause of action, Plaintiff alleges a claim for intentional infliction of emotional distress. (See Opp. at p. 2, ¶ A [addressing the fourth cause of action as one for intentional infliction of emotional distress; see also, Compl., ¶ 10(f) [identifying a cause of action for intentional infliction of emotional distress].)
“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the Defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the Plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the Defendant's outrageous conduct.’ [Citations.] A Defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the Defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)
Sure Oil offers no reasoned legal argument to support its contention that Plaintiff must allege facts demonstrating that a qualified professional confirmed the presence of mold at the property in order to state a claim for intentional infliction of emotional distress. Furthermore, Plaintiff has alleged the existence of “visible” mold at the property as of March 2022, and that she notified Sure Oil of the presence of visible mold in March or April 2022. (See Compl., ¶¶ IT-1.) As a general demurrer admits the truth of the material factual allegations of the complaint, these facts are sufficient to allege the presence of mold at the property, and that Plaintiff notified Sure Oil of this fact. (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 30-31.)
Relying on McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296 (McDonell), Sure Oil effectively contends that at most, Plaintiff has alleged a failure to remediate a defective condition at the property which, Sure Oil argues, is insufficient to state an intentional tort claim,
Plaintiffs in McDonell were lessors of a store in a building owned by Defendant. (McDonell, supra, 130 Cal.App.2d at p. 297.) Plaintiffs alleged that the roof and roof drains were defective causing water to enter the store. (Id. at p. 298.) As a result of water gathering on the floor of the store, as alleged in the complaint filed by Plaintiffs in that matter, one of the Plaintiffs slipped and suffered damages. (Ibid.)
Finding that the facts as alleged by Plaintiffs in McDonell were insufficient to state a cause of action for intentional tort, the Court noted that the “gist of the first part of the count (that which deals with actual damages) is that Defendant, aware of the defective condition of the roof and drains and knowing they could cause damage, refused to repair them.” (McDonell, supra, 130 Cal.App.2d at p. 299.) The Court further stated that conduct in reckless disregard of the safety of another exists if the actor “intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him.” (Id. at pp. 299-300, internal quotation marks and citation omitted.) However, under the facts at issue in McDonell, allegations which showed only that Defendant was aware of the defective condition and that the defective condition could cause damage were deemed insufficient. (Id. at p. 300.)
In the opposition to the demurrer, Plaintiff contends that a failure to remediate mold constitutes extreme and outrageous conduct. To support this contention, Plaintiff cites Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057 (Burnett). Plaintiff in Burnett, a commercial lessee of space in a hotel, filed a complaint against Plaintiffs’ landlord and property manager alleging, among others, a cause of action for intentional infliction of emotional distress in connection with the presence of mold in the space rented by Plaintiffs. (Burnett, supra, 123 Cal.App.4th at pp. 1061-1062.) Plaintiffs alleged that they notified Defendants of the presence of mold and extreme moisture and requested that the condition be repaired but Defendants refused to make repairs. (Id. at p. 1062.) Relying on provisions of a lease between the parties requiring Plaintiffs to maintain insurance coverage on personal property and purporting to exempt Defendant landlord from liability, the trial Court granted Defendants’ motions for judgment on the pleadings. (Ibid.)
Finding that the trial Court erroneously granted the motions of Defendants and relying on Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921-920 (Stoiber), the Court in Burnett found that under the allegations of the complaint there existed a factual question as to whether the failure to act by Defendants was extreme and outrageous. (Burnett, supra, 123 Cal.App.4th at p. 1069.)
The Court further held that a tenant’s remedies for a landlord’s failure to maintain premises are not limited to an action for breach of the warranty of habitability, but also include a right to sue in tort for damages. (Stoiber, supra, 101 Cal.App.3d at pp. 931-932.) Therefore, the Court held that “a tenant, by pleading proper facts, may state a cause of action in tort against his landlord for failure to keep the premises in a lawful state of habitability.” (Id. at p. 911.) The Court did not determine whether the allegations of the complaint at issue in that case pleaded facts sufficient to state a cause of action. (Id. at p. 922)
In the present complaint, Plaintiff alleges expressly and by inference that Sure Oil’s failure to maintain, remediate, and repair the property and to respond to complaints of water intrusion, moisture, or mold caused the property to become unsafe and uninhabitable, which Plaintiff also contends also constitutes a violation of Civil Code section 1941, et seq. (Compl., ¶¶ BC-2, IT-1; see also Stoiber, supra, 101 Cal.App.3d at pp. 914-915, fn. 3.)
The allegations of the present complaint are effectively analogous to those asserted in Stoiber. For these reasons, Sure Oil’s conclusory and general assertion that a failure to remediate a defective condition is insufficient to state a cause of action for intentional infliction of emotional distress is without merit. Moreover, Plaintiff has alleged facts sufficient to demonstrate that Plaintiff notified Sure Oil of the presence of mold and other toxins at the property and that Sure Oil failed to remediate these conditions. Under Burnett and Stoiber, Plaintiff may state a cause of action for intentional infliction of emotional distress based on allegations that Sure Oil failed to remediate a defective condition.
Apart from the assertions further discussed above, Sure Oil presents no reasoned legal or factual argument demonstrating why the express or implied factual allegations of the complaint are themselves insufficient to state one or more elements of a claim for intentional infliction of emotional distress. (See Corns v. Miller (1986) 181 Cal.App.3d 195,200; Evid. Code, § 500.) [moving party bears the burden to prove every fact essential to the relief requested].)
For all reasons further discussed above, Sure Oil has failed to meet its burden to demonstrate, with reasoned supporting argument, the manner in which the complaint fails to state a claim for intentional infliction of emotional distress. Therefore, the Court will overrule the demurrer.
(2) The Motion To Strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a Court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, Court rules, or an order of the Court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the Court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)
Sure Oil requests an order striking Plaintiff’s request for punitive damages. To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the Court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)
Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the Defendant acted with malice, oppression, or fraud. “Malice” means “conduct which is intended by the Defendant to cause injury to the Plaintiff or despicable conduct which is carried on by the Defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the Defendant with the intention on the part of the Defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)
As grounds for the motion, Sure Oil asserts substantially similar if not identical arguments as those further discussed above. The same analysis applies. Apart from asserting that an alleged failure to remediate a defective condition is insufficient to state a claim for an intentional tort, Sure Oil offers no reasoned argument demonstrating that the allegations of the complaint otherwise fail to state facts sufficient to demonstrate an entitlement to punitive damages. (See, e.g., McDonell, supra, 130 Cal.App.2d at p. 299 [noting that allegations sufficient to state a cause of action for intentional tort based on a conscious, deliberate intent to injure are sufficient show malice under Civil Code section 3294].) For this and all reasons further discussed above, the Court will deny the motion to strike of Sure Oil.