This case was last updated from Los Angeles County Superior Courts on 10/11/2020 at 07:30:03 (UTC).

JUSTIN MCCLAIN VS SHAFI BABU-KHAN

Case Summary

On 09/19/2019 JUSTIN MCCLAIN filed a Contract - Other Contract lawsuit against SHAFI BABU-KHAN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8655

  • Filing Date:

    09/19/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

SERENA R. MURILLO

 

Party Details

Plaintiff

MCCLAIN JUSTIN

Defendants

BABU-KHAN SHAFI

BABU-KHAN ENTERPRISE INC.

N. MCCADDED PL LLC

1217 N. MCCADDEN PLACE LLC

Attorney/Law Firm Details

Plaintiff Attorney

KESTNER DAVID

Defendant Attorney

ABRAMSON MICHAEL A.

 

Court Documents

Certificate of Mailing for - Certificate of Mailing for (Court Order re: Notice of Related Case) of 08/28/2020

8/28/2020: Certificate of Mailing for - Certificate of Mailing for (Court Order re: Notice of Related Case) of 08/28/2020

Notice of Ruling - Notice of Ruling

9/2/2020: Notice of Ruling - Notice of Ruling

Reply (name extension) - Reply IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

8/26/2020: Reply (name extension) - Reply IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/16/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Declaration (name extension) - Declaration DAVID KESTNER PER CCP 2016.040

4/17/2020: Declaration (name extension) - Declaration DAVID KESTNER PER CCP 2016.040

Notice of Motion - Notice of Motion

4/17/2020: Notice of Motion - Notice of Motion

Notice (name extension) - Notice NOTICE OF: CONTINUANCE OF HEARING ON DEMURRER

4/21/2020: Notice (name extension) - Notice NOTICE OF: CONTINUANCE OF HEARING ON DEMURRER

Reply (name extension) - Reply IN SUPPORT OF DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

1/27/2020: Reply (name extension) - Reply IN SUPPORT OF DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

Opposition (name extension) - Opposition defendants demurrer

1/17/2020: Opposition (name extension) - Opposition defendants demurrer

Request for Judicial Notice - Request for Judicial Notice

12/2/2019: Request for Judicial Notice - Request for Judicial Notice

Proof of Service by Mail - Proof of Service by Mail

10/23/2019: Proof of Service by Mail - Proof of Service by Mail

Amendment to Complaint (Fictitious/Incorrect Name) - Amendment to Complaint (Fictitious/Incorrect Name)

10/23/2019: Amendment to Complaint (Fictitious/Incorrect Name) - Amendment to Complaint (Fictitious/Incorrect Name)

Exhibit List - Exhibit List

10/24/2019: Exhibit List - Exhibit List

Notice (name extension) - Notice errata

10/25/2019: Notice (name extension) - Notice errata

Proof of Service by Substituted Service - Proof of Service by Substituted Service

10/16/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Amended Complaint - Amended Complaint

10/3/2019: Amended Complaint - Amended Complaint

Complaint - Complaint

9/19/2019: Complaint - Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

9/19/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

27 More Documents Available

 

Docket Entries

  • 09/22/2022
  • Hearing09/22/2022 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 03/18/2021
  • Hearing03/18/2021 at 08:30 AM in Department 26 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 09/09/2020
  • DocketAmended Complaint; Filed by: JUSTIN MCCLAIN (Plaintiff); As to: 1217 n. McCadden Place , LLC (Defendant)

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  • 09/09/2020
  • DocketUpdated -- david kestner (Attorney): First Name changed from David to david; Last Name changed from Kestner to kestner

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  • 09/02/2020
  • DocketNotice of Ruling; Filed by: Babu-Khan Enterprise, Inc. (Defendant); 1217 n. McCadden Place , LLC (Defendant)

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  • 09/02/2020
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

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  • 09/02/2020
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 09/02/2020 at 10:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 09/02/2020; Result Type to Held

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  • 08/28/2020
  • DocketUpdated -- Notice of Related Case: Filed By: 1217 n. McCadden Place , LLC (Defendant),SHAFI BABU-KHAN (Defendant),Babu-Khan Enterprise, Inc. (Defendant),N. Mccadded Pl, LLC (Defendant); Result: Granted; Result Date: 08/28/2020

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  • 08/28/2020
  • DocketCase numbers 19STLC08655, 20STLC01844 are related; case number 19STLC08655 is the lead case.

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  • 08/28/2020
  • DocketCertificate of Mailing for (Court Order re: Notice of Related Case) of 08/28/2020; Filed by: Clerk

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38 More Docket Entries
  • 10/03/2019
  • DocketAmended Complaint; Filed by: JUSTIN MCCLAIN (Plaintiff); As to: JUSTIN MCCLAIN (Plaintiff)

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  • 10/03/2019
  • DocketAmended Complaint; Filed by: JUSTIN MCCLAIN (Plaintiff); As to: SHAFI BABU-KHAN (Defendant); N. Mccadded Pl, LLC (Defendant); Babu-Khan Enterprise, Inc. (Defendant)

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  • 09/19/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 09/19/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 09/19/2019
  • DocketSummons on Complaint; Issued and Filed by: JUSTIN MCCLAIN (Plaintiff); As to: SHAFI BABU-KHAN (Defendant)

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  • 09/19/2019
  • DocketCivil Case Cover Sheet; Filed by: JUSTIN MCCLAIN (Plaintiff); As to: SHAFI BABU-KHAN (Defendant)

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  • 09/19/2019
  • DocketComplaint; Filed by: JUSTIN MCCLAIN (Plaintiff); As to: SHAFI BABU-KHAN (Defendant)

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  • 09/19/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 09/22/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/19/2019
  • DocketNon-Jury Trial scheduled for 03/18/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/19/2019
  • DocketCase assigned to Hon. Serena R. Murillo in Department 94 Stanley Mosk Courthouse

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Tentative Rulings

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.

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 replies on January 27, 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 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.

Moving party to give notice.