JUSTIN MCCLAIN VS SHAFI BABU-KHAN

Tentative Rulings

Case Number: 19STLC08655    Hearing Date: April 8, 2021    Dept: 26

McClain v. Babu-Khan, et al.

DEMURRER TO AND MOTION TO STRIKE SECOND AMENDED COMPLAINT

(CCP §§ 430.10, 436)

TENTATIVE RULING:

Defendant 1217 N. McCadden Place, LLC’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendant 1217 N. McCadden Place, LLC’s Motion to Strike Portions of the Second Amended Complaint is GRANTED AS TO THE REQUEST FOR PUNITIVE DAMAGES WITHOUT LEAVE TO AMEND AND DENIED AS TO THE REQUEST FOR LOST INCOME AND LOST PROFITS.

ANALYSIS:

On September 19, 2019, Plaintiff Justin McClain (“Plaintiff”) filed this action for (1) negligent maintenance; (2) nuisance; and (3) breach of habitability against Defendant Shafi Babu-Khan (“Babu-Khan”). On October 3, 2019, Plaintiff filed the First Amended Complaint alleging the same causes of action and adding Defendants N. McCadded Pl, LLC (“N. McCadded Pl”) and Babu-Khan Enterprises, Inc. (“Babu-Khan Enterprises”). On October 23, 2019, Plaintiff added 1217 N. McCadden Place, LLC (“1217 N. McCadden”) as a doe defendant.

On September 2, 2020, the Court sustained Defendants 1217 N. McCadden and Babu-Khan Enterprises’ Demurrer to the First Amended Complaint as to the second and third causes of action, and overruled the Demurrer to the First Amended Complaint as to the first cause of action. Plaintiff filed the Second Amended Complaint on September 9, 2020. Defendants 1217 N. McCadden and Babu-Khan Enterprises filed the instant Demurrer to the Second Amended Complaint and Motion to Strike Portions of the Second Amended Complaint on October 13, 2020.

Plaintiff dismissed Defendant Babu-Khan Enterprises from the action on January 19, 2021. Plaintiff filed oppositions to the instant Demurrer and Motion to Strike on March 26, 2021 and Defendant 1217 N. McCadden replied on March 30, 2021.

The Court finds the Demurer and Motion to Strike are accompanied by a proper meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. (Abramson Decl., ¶4 and Exh. A.)

Demurrer to Second Amended Complaint

The Second Amended Complaint sets forth causes of action for (1) negligent maintenance; (2) nuisance; and (3) breach of habitability. Defendant 1217 N. McCadden demurs to the second and third causes of action for failure to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Plaintiff alleges that he lives at 1215 North McCadden Place (a.k.a. 1217 North McCadden), Los Angeles, California (“the subject property”) and that he entered into a lease agreement for apartment 206 on or about April 10, 2014. (SAC, ¶¶1, 14.) Defendants allegedly failed to comply with their obligations under the lease agreement in the following ways: failing to repair the kitchen sink, which would not drain, for over a month (id. at ¶¶17-18); failing to repair the kitchen and bathroom faucets, which shoot out brown water (id. at ¶23), conducting retrofit construction on the subject property for seven months that required tenants to park on the street and included banging, pounding, other loud noises, and dust (id. at ¶19a-c); allowing homeless and other unauthorized persons to hang out in the laundry room and other common areas of the subject property (id. at ¶22).

As a result of these conditions, Plaintiff was unable to clean his dishes and kitchen while the sink was broken (id. at ¶18a), fears he is being exposed to metals and/or elements from the water (id. at ¶23a), was unable to rest several times during the retrofit construction (id. at ¶19d), was harassed about his parked vehicles by Defendants’ agent (id. at ¶19e), was subjected to vulgarity by the unauthorized persons when Plaintiff asked them to leave (id. at ¶22b), interrupted sex acts taking place in the carport (id. at ¶22c) and discovered used condoms and intravenous needles in the common areas (id. at ¶¶22d). Despite these conditions, of which Plaintiff provided adequate notice, Defendants demanded full rent. (Id. at ¶¶18a, 19g.)

2nd Cause of Action for Nuisance

The elements of a cause of action for private nuisance are (1) interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.)

Unlike the allegations in the First Amended Complaint, which did not sufficiently quantify the actual damage Plaintiff incurred, the Second Amended Complaint has added allegations that detail the extent of the invasion and interference. Specifically, the Second Amended Complaint alleges that Plaintiff was unable to use his kitchen sink for over a month because it did not drain properly and as a result, could not clean his dishes or kitchen for that period of time. This sufficiently alleges Plaintiff’s use and enjoyment of the apartment was substantially damaged based on the unreasonably long duration of the sink defect.

Regarding the other alleged conditions, the Second Amended Complaint does not set forth facts showing the damage to Plaintiff’s tenancy was substantial and that the interference was unreasonable. Plaintiff does not allege how often he harassed about parking, subjected to vulgarity by unauthorized persons, found condoms or intravenous needles, interrupted sex acts, or had brown water in the bathroom and kitchen faucets. Without more details regarding the frequency or severity of these circumstances, Plaintiff has not alleged he suffered substantial injury and unreasonable inference. Nor are the allegations that Plaintiff’s rest was interrupted “several times” due to construction enough to rise to the level of substantial injury and unreasonable inference.

However, the allegations involving the kitchen sink are sufficient to allege nuisance and all that is required at the pleading stage. The demurrer to the second cause of action is overruled.

Third Cause of Action for Breach of Habitability

A warranty of habitability is implied in all residential rental agreements. (Green v. Superior Court (1974) 10 Cal.3d 616, 629.) A cause of action for breach of habitability must allege (1) a materially defective condition affecting habitability; (2) defective condition was unknown to the tenant at time of occupancy; (3) effect on habitability of the defective condition was not apparent on reasonable inspection; (4) notice given to landlord within a reasonable time after the tenant discovered, or should have discovered, breach; and (5) damages. (Id. at 637-638.)

Here, Plaintiff alleges that Defendants allowed “the subject property to become untenantable by (a) failing to keep the building, grounds and appurtenances clean, sanitary and free from debris, filth, rubbish and garbage; (b) failing to provide adequate and appropriate garbage and rubbish receptacles; and (c) failing to maintain floors, stairways and railings in good repair; (d) failing to keep the plumbing in the kitchen in good working condition.” (SAC, p. 10 at ¶3.) Plaintiff then broadly alleges that these conditions endangered life, limb, health, property, safety, and/or welfare. (Id. at p. 10 at ¶4.)

Only the kitchen sink allegations suggest an impact on the habitability of the apartment. For the other conditions, Plaintiff does not allege specifically the extent of the debris, filth, rubbish and garbage in the common areas, or how the extent of the debris, filth, rubbish and garbage affects the habitability of the subject property. If these allegations are read to refer to the used condoms and intravenous needles, Plaintiff does not explain how often those items were encountered such that they rendered the subject premises uninhabitable.

In any event, even with regard to the sink issue, Plaintiff sufficiently alleges that these conditions satisfy a cause of action for breach of habitability. (SAC, pp. 6-7 at ¶ 14.)

Motion to Strike

Moving Defendant also seeks to strike (1) the punitive damages allegations for failure to allege any facts constituting malice, fraud, or oppression; and (2) the request for lost income and lost profits. Plaintiff does not oppose the request to strike the punitive damages. Regarding the claim for lost income or profits, Plaintiff argues that those are aspects of general damages and should be allowed under the negligence cause of action.

The Court agrees that it would be premature to strike the requests for lost income and lost profits. Nothing in the Second Amended Complaint indicates such damages cannot be recovered.

Conclusion

Defendant 1217 N. McCadden Place, LLC’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendant 1217 N. McCadden Place, LLC’s Motion to Strike Portions of the Second Amended Complaint is GRANTED AS TO THE REQUEST FOR PUNITIVE DAMAGES WITHOUT LEAVE TO AMEND AND DENIED AS TO THE REQUEST FOR LOST INCOME AND LOST PROFITS.

Moving party to give notice.

Case Number: 19STLC08655    Hearing Date: September 02, 2020    Dept: 26

DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

(CCP §§ 430.10, 436)

TENTATIVE RULING:

Defendants 1217 N. McCadden Place, LLC and Babu-Khan Enterprises, Inc.’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE SECOND AND THRID CAUSES OF ACTION.

Defendants 1217 N. McCadden Place, LLC and Babu-Khan Enterprises, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

On September 19, 2019, Plaintiff Justin McClain (“Plaintiff”) filed this action for (1) negligent maintenance; (2) nuisance; and (3) breach of habitability against Defendant Shafi Babu-Khan (“Babu-Khan”). On October 3, 2019, Plaintiff filed the First Amended Complaint alleging the same causes of action and adding Defendants N. McCadded Pl, LLC (“N. McCadded Pl”) and Babu-Khan Enterprises, Inc. (“Babu-Khan Enterprises”). On October 23, 2019, Plaintiff added 1217 N. McCadden Place, LLC (“1217 N. McCadden”) as a doe defendant.

Defendants 1217 N. Mccadden Place and Babu-Khan Enterprises filed the instant Demurrer to, and Motion to Strike Portions of, the First Amended Complaint on December 2, 2019. Plaintiff filed oppositions on January 17, 2020. Moving Defendants filed a reply to the demurrer on January 27, 2020 and a reply to the Motion to Strike on August 26, 2020.

The Court finds the Demurer and Motion to Strike are accompanied by a proper meet and confer declaration as required by Code of Civil Procedure sections 430.41 and 435.5. (Abramson Decl., ¶¶8-9 and Exhs. B-D.) Moving Defendants request that the Court take judicial notice of the Grant Deed dated October 31, 2018, for property known as 1217 North McCadden Place, Los Angeles, California 90038. (RJN, Exh. 1.) The request is granted pursuant to Cal. Evidence Code section 452, subdivision (c).

Demurrer to First Amended Complaint

The First Amended Complaint sets forth causes of action for (1) negligent maintenance; (2) nuisance; and (3) breach of habitability. Plaintiff alleges that he lives at 1215 North McCadden Place (a.k.a. 1217 North McCadden), Los Angeles, California (“the subject property”) and that he entered into a lease agreement for apartment 206 on or about April 10, 2014. (FAC, ¶¶1, 13.) Defendants allegedly failed to comply with their obligations under the lease agreement, engaged in disruptive construction and allowed homeless people onto the premises. (Id. at ¶¶13-21.) Plaintiff alleges that Babu-Kahn Enterprises is the manager of the subject property. (Id. at ¶¶4-5.) Since 1217 North McCadden was named as a doe defendant, there are no allegations as to its specific relationship with Plaintiff. (See id. at ¶7.)

Moving Defendants demur to each cause of action for failure to allege sufficient facts per Code of Civil Procedure section 430.10, subdivision (e).

Entire First Amended Complaint

Moving Defendants first demur to the entire First Amended Complaint on the grounds that the “non-landlord defendants” (Babu-Khan, N. McCadded Pl, and Babu-Khan Enterprises) cannot be liable to Plaintiff because they are not the owners of the subject property. In support of this, Moving Defendants point to the grant deed for the subject property, which demonstrates that 1217 North McCadden is the only owner of the subject property. (RJN, Exh. A.) Moving Defendants contend that “Plaintiff’s claims are exclusively founded upon landlord-tenant theories of recovery” for which none of the non-landlord defendants can be liable. (Demurrer, p. 3:6-7.) This statement is plainly incorrect based on a reading of the First Amended Complaint. Claims for negligence and nuisance are not based on contract. Additionally, the Demurrer makes numerous arguments on behalf of non-moving Defendants Babu-Khan and N. McCadded Pl. The Court declines to consider these arguments as Moving Defendants have no standing to demur on behalf of Defendants Babu-Khan and N. McCadded Pl.

Accordingly, the demurrer to the entire First Amended Complaint is overruled.

1st Cause of Action for Negligent Maintenance

There is no cause of action for negligent maintenance, which is simply a cause of action for negligence. The elements of negligence are duty, breach, causation and damages. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) Plaintiff alleges that Defendants owed him a duty of care as the owners and/or managers of the subject property to avoid foreseeable injury to others. (FAC, ¶24.) Under this duty, Defendants allegedly were required “to comply with all building, health, fire and safety codes, ordinances, regulations and other laws applying to maintenance and operation of residential rental housing.” (Id. at ¶25.) Defendants allegedly breached this duty by failing to correct substandard conditions as follows: (1) Plaintiff’s broken kitchen sink, which would fill up with black water; (2) no secure parking; (3) no secure fencing for the property, which allowed homeless people to access the laundry room; and (4) performing disruptive construction work. (Id. at ¶¶26, 17-21.)

Other breaches include “(a) failing to keep the building, grounds and appurtenances clean, sanitary and free from debris, filth, rubbish and garbage; (b) failing to provide adequate and appropriate garbage and rubbish receptacles; and (c) failing to maintain floors, stairways and railings in good repair; (d) failing to keep the plumbing in the kitchen in good working condition.” (Id. at p. 10, ¶3.)

Moving Defendants argue that Plaintiff fails to allege the breaches with specificity and the allegations above are “merely conclusory generalizations.” (Demurrer, p. 6:21-22.) The Court disagrees. The above allegations contain more than sufficient detail to give Defendants an understanding of their alleged breaches. Each area of concern—Plaintiff’s kitchen sink, lack of secure parking, lack of secure gates, construction disturbances, and lack of cleanliness in common areas—is set forth. As to Moving Defendants other concerns, such as whether they were responsible for these conditions, are issues to be investigated through discovery. Plaintiff is not obligated to allege anything more than the ultimate facts that support this cause of action. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

The demurrer to the first cause of action for negligence is overruled.

2nd Cause of Action for Nuisance

The elements of a cause of action for private nuisance are (1) interference with plaintiff’s use and enjoyment of plaintiff’s property; (2) invasion of plaintiff’s use and enjoyment involves substantial actual damage; and (3) interference is unreasonable as to the nature, duration or amount. (San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938.) The First Amended Complaint does not allege sufficient facts to demonstrate that these factors are met. Plaintiff cites to the same conditions that give rise to his negligence cause of action. (FAC, ¶¶32-33.) He does not explain what substantial actual damage he incurred, other than to allege that the value of his leasehold was “diminished” and the interference with his comfortable and quiet enjoyment of the premises was “substantial.” (Id. at ¶33.)

The demurrer to the second cause of action for nuisance is sustained with 20 days’ leave to amend.

Third Cause of Action for Breach of Habitability

A warranty of habitability is implied in all residential rental agreements. (Green v. Superior Court (1974) 10 Cal.3d 616, 629.) A cause of action for breach of habitability must allege (1) a materially defective condition affecting habitability; (2) defective condition was unknown to the tenant at time of occupancy; (3) effect on habitability of the defective condition was not apparent on reasonable inspection; (4) notice given to landlord within a reasonable time after the tenant discovered, or should have discovered, breach; and (5) damages. (Id. at 637-638.)

Here, Plaintiff alleges that Defendants allowed “the subject property to become untenantable by (a) failing to keep the building, grounds and appurtenances clean, sanitary and free from debris, filth, rubbish and garbage; (b) failing to provide adequate and appropriate garbage and rubbish receptacles; and (c) failing to maintain floors, stairways and railings in good repair; (d) failing to keep the plumbing in the kitchen in good working condition.” (FAC, p. 10 at ¶3.) Plaintiff then broadly alleges that these conditions endangered life, limb, health, property, safety, and/or welfare. (Id. at p. 10 at ¶4.)

As with the cause of action for nuisance, there are insufficient facts alleged to demonstrate that the elements have been met. Plaintiff does not allege specifically the extent of the debris, filth, rubbish and garbage in the common areas, or how the extent of the debris, filth, rubbish and garbage affects the habitability of the subject property. Nor does he allege that these conditions were unknown when he signed the lease agreement or unapparent upon reasonable inspection. Finally, he does not provide any facts regarding the notice given to the landlord such that it can be determined to be reasonable.

Therefore, the demurrer to the third cause of action for breach of the warranty of habitability is sustained with 20 days’ leave to amend.

Motion to Strike

Moving Defendants also seek to strike (1) the punitive damages allegations for failure to allege any facts constituting malice, fraud, or oppression; and (2) the request for lost income and lost profits.

Punitive damages are authorized by Civil Code section 3294 in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” (Civil Code, § 3294, subd. (a).) A cause of action for conversion can support a request for punitive damages. (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678.) However, the pleading must still include sufficient factual allegations to support the request.

As discussed on the ruling on the Demurrer, the only cause of action adequately alleged by Plaintiff at this time is for negligence. Typically, negligence cannot support a request for punitive damages and there is nothing alleged in the First Amended Complaint to indicate otherwise. There are no allegations of fraud. Under Civil Code section 3294, subdivision (c) “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. That section also defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c).)

The First Amended Complaint alleges in conclusory fashion that Defendant’s conduct was reckless and in conscious disregard of Plaintiff’s rights. (FAC, ¶31, 38.) There are no facts alleged to demonstrate that Defendants’ conduct was intended to cause Plaintiff injury. Nor are there facts to show that Defendants’ conduct was despicable. Despicable conduct is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 330.) Such conduct has been described as having the character of outrage frequently associated with crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) The allegations here do not rise to this level. Nor do they rise to the level of showing Plaintiff was subject to cruel and unjust hardship. At most, Plaintiff has alleged he “suffered substantial economic and non-economic damages.” (FAC, ¶30.)

Finally, the Court notes that Plaintiff opposition does not address the propriety of his request for lost income and profits.

The Motion to Strike Portions of the First Amended Complaint is granted with 20 days’ leave to amend.

Conclusion

Defendants 1217 N. McCadden Place, LLC and Babu-Khan Enterprises, Inc.’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE SECOND AND THIRD CAUSES OF ACTION.

Defendants 1217 N. McCadden Place, LLC and Babu-Khan Enterprises, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.

Case Number: 19STLC08655    Hearing Date: March 16, 2020    Dept: 26

McClain v. N. McCadden Pl., LLC, et al.

DEMURRER TO AND MOTION TO STRIKE FIRST AMENDED COMPLAINT

(CCP §§ 430.10, 436)

TENTATIVE RULING:

EFFECTIVE TODAY, BY ORDER OF THE PRESIDNG JUDGE, ALL NON-EMERGENCY MOTIONS ON CALENDAR WILL BE CONTINUED FOR IN-PERSON ARGUMENT FOR AT LEAST 30 DAYS UNLESS PARTIES WISH TO SUBMIT ON THE TENTATIVE RULING VIA PHONE ((213)310-7026) or EMAIL (SSCDept26@lacourt.org) by 10:00 A.M. OR; (B) APPEAR VIA COURT-CALL.

Defendants 1217 N. McCadden Place, LLC and Babu-Khan Enterprises, Inc.’s Demurrer to the First Amended Complaint is OVERRULED AS TO THE FIRST CAUSE OF ACTION AND SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND AS TO THE SECOND AND THRID CAUSES OF ACTION.

Defendants 1217 N. McCadden Place, LLC and Babu-Khan Enterprises, Inc.’s Motion to Strike Portions of the First Amended Complaint is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.