Case Number: *******0978 Hearing Date: February 10, 2022 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
LBM PROPERTIES, LLC , ET AL.,
Case No.: *******0978
ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
INITIAL NOTE: This is not a tentative ruling. It is being posted with the tentative rulings to give Counsel notice not to appear. This is a final order and the case is being transferred.
AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:
Department 31 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.
AT THE DIRECTION OF DEPARTMENT 1:
This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH CENTRAL DISTRICT, JUDGE HOFER presiding in DEPT. D of the GLENDALE COURTHOUSE, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.
Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.
UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.
COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.
DATED: February 10, 2022
Hon. Audra Mori
Judge of the Superior Court
Case Number: *******0978 Hearing Date: March 18, 2022 Dept: D
Case No: 20 STCV40978 Trial Date: None Set
Case Name: Krlian v. LBM Properties, LLC, et al.
Moving Party: Defendants Anoika Property Management and LBM Properties, LLC
Responding Party: Plaintiff Nvart Krlian
Sustain demurrer to third, fourth and sixth causes of action of First Amended Complaint
CAUSES OF ACTION: from First Amended Complaint
1) Negligence v. All Defendants
2) Negligence Per Se v. All Defendants*
3) Breach of the Warranty of Habitability v. LBM and Anoakia
4) Breach of Covenant of Quiet Enjoyment v. LBM and Anoakia
5) NIED v. LBM and Anoakia*
6) Breach of Contract v. LBM and Anoakia
*Causes of action dismissed without prejudice on 12/27/21
SUMMARY OF FACTS:
Plaintiff Nvart Krlian alleges that in January of 2009, plaintiff entered into a Residential Lease with G.M. Kefalas aka G.M. Kefalas Investments, the predecessor, landlord, and/or property manager or agent/representative at the time of defendant LBM Properties, LLC, for the lease of a unit of real property in Glendale located in a two-story multi-unit apartment building. Plaintiff alleges that plaintiff was a tenant in good standing and in lawful possession of the subject unit from February 2009 through October 28, 2018, when a fire broke out in the subject unit, rendering it untenantable.
The FAC alleges that the party with which plaintiff entered the lease, G.M. Kefalas, sold or transferred the real property during plaintiff’s tenancy to LBM, or was an agent representative of LBM or its members, and that the same individuals, in one form or another, owned, controlled, managed, leased, rented and operated the real property during plaintiff’s tenancy, and that LBM was the owner and landlord of the subject property on October 28, 2018.
Plaintiff alleges that on October 28, 2018, while plaintiff was in her bedroom at approximately 2 a.m., she smelled something burning, left her bedroom to investigate, and saw a fire blazing from the area where the electric wall heater was located in her bathroom in the unit. Plaintiff hurriedly ran out of the apartment due to the fire, and in the process struck her body against the wall/doorway/interior of the unit in her efforts to safely exit. Once outside, plaintiff yelled for help and to call 911. The Glendale Fire Department responded and extinguished the fire, which had already caused significant fire, smoke, and soot damage to the subject unit and to plaintiff’s personal property inside the unit.
The FAC alleges that plaintiff was admitted to the hospital with shortness of breath, rapid heartbeat, chest pain/pressure, emotional stress, smoke inhalation and other physical symptoms resulting from her experience due to the fire and has since sought further medical care. The Glendale Fire Department found the origin of the fire at or near the bottom of the heater in the bathroom in the unit. The wall heater’s power switch was in the “off position.” Plaintiff alleges that the fire, as well as the damage to the interior of the unit, and significant damage to plaintiff’s personal property made the subject unit uninhabitable, deprived plaintiff of her right to quiet enjoyment of the unit, caused physical injuries and property damage, and forced plaintiff to move out of the subject unit, and move in with relatives, significantly inconveniencing plaintiff, until new housing was eventually found by plaintiff in May of 2019 for a higher rent.
Plaintiff further alleges that a few months prior to the subject fire, plaintiff’s daughter was visiting her mother, and used a blow dryer in the bathroom, and when removing the dryer’s plug, the receptacle/outlet sparked. The plug was hot, burning the daughter’s hand. The building manager Tom was notified, and the manager sent a handyman to check the problem and repair the receptacle/outlet. The handyman informed plaintiff that the building’s wires were old and dangerous. Plaintiff alleges that on at least one other occasion a similar incident had previously occurred in plaintiff’s bathroom and plaintiff notified management at that time as well.
The FAC alleges that defendant LBM employed defendant Anoakia Property Management to assist LBM in inspecting, maintaining, cleaning, controlling, managing, operating, upkeeping, repairing, and remodeling and constructing the subject real property, including the subject unit.
The file shows that a demurrer to the FAC was originally filed by the moving parties to be heard in Department 31. The matter was transferred to this department, and an Amended Demurrer was filed and served for the demurrer to be heard in this department.
On December 22, 2021, plaintiff filed a Request for Dismissal without prejudice of the second and fifth causes of action, which dismissal was entered as requested on December 27, 2021.
Under CCP 430.40, the time permitted to demur to a complaint is “within 30 days after service of the complaint…”
CRC Rule 3.110(d) provides:
“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”
Here, the FAC was served by electronic service on October 15, 2021. Thirty days from this date, allowing an additional two days for service by electronic service, was November 16, 2021. The original demurrer was not served and filed, however, until January 6, 2022, so was nearly seven weeks late. This is not the initial complaint in this matter, so the parties were not permitted to stipulate to an extension of time to respond, and the period was far beyond the 15 days permitted even for an initial complaint.
The declaration filed in support of the demurrer shows that plaintiff permitted defendant an extension to file a demurrer; first until January 4, 2022, and then until January 10, 2022. [See Browses Decl., paras. 2, 3; Exs. 1, 2]. The demurrer was filed and served within this extended time period. The court reluctantly has considered the very untimely demurrer, but the parties are cautioned that the court in the future may refuse to consider papers not filed in conformity with the statutes, rules, and procedures governing this action.
Third Cause of Action—Breach of Warranty of Habitability
Defendants LBM Properties, LLC (“LBM”) and Anoika Property Management (“Anoika,” evidently misspelled by plaintiff in the FAC) argue that the FAC fails to state a viable claim for breach of warranty of habitability.
Both sides agree that the elements of a cause of action for breach of the implied warranty of habitability are:
“the existence of a material defective condition affecting the premises habitability,
notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition,
the landlord was given a reasonably time to correct the deficiency, and
Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297, citations omitted.
Defendants acknowledge that pursuant to Green v. Superior Court (1974) 10 Cal.3d 616, “a warranty of habitability is implied by law in residential leases.” Green, at 637. As the California Supreme Court held in Green, “Under the implied warranty we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.” Id.
Defendants argue that the landlord’s actual or constructive notice of the alleged uninhabitable condition is essential to a breach of warranty claim, and that the FAC fails to sufficiently allege facts regarding what caused the fire, or that defendants had actual or constructive notice of a material defect existing before the fire that rendered the premises uninhabitable. Defendants argue that the claims in this case all arise from a spontaneous fire, not a defect of which defendants had been notified. Defendants also argue that plaintiff was responsible under the lease for the interior or her apartment including all electrical fixtures and appliances, and any defect or condition must have been caused by plaintiff, the only person presumably in plaintiff’s apartment at the time of the fire.
As pointed out in the opposition, this argument appears to disregard several of the allegations of the FAC, as plaintiff alleges that at all relevant times, Civil Code section 1941 was in effect, which provides:
“The lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty-nine.”
[FAC, para. 56; Civil Code section 1941].
The FAC focuses in great detail on the condition, which was unsafe, the “electrical wiring/system,” and alleges that due to the condition of that system, the unit “substantially lacked the affirmative standard characteristics of at least two sub-sections of CCP section 1941.1 (Sections 4 and 5) and issues with the wiring which created a substandard building…” [FAC, paras. 57, 60, 61].
CCP section 1941.1 provides, in pertinent part:
(a) A dwelling shall be deemed untenantable for purposes of Section 1941 if it substantially lacks any of the following affirmative standard characteristics…:
5. Heating facilities which conformed with applicable law at the time of installation, maintained in good working order.
6. Electrical lighting, with wiring and electrical equipment which conformed with applicable law at the time of installation, maintained in good working order.”
The California Supreme Court in Green noted in footnote 12 that the statutory habitability standards relied upon by plaintiff here, “may provide some helpful guidance in determining whether a landlord has satisfied the common law warranty of habitability.” Green, at 638, n. 12.
The pleading alleges that plaintiff had issues with the electrical system in her unit on two previous occasions prior to the subject fire and notified defendants, and that regardless of this notice, defendants failed to put the unit into a condition fit to occupy and details the failures in connection with the electrical wiring after given notice of issues, shorts, and sparks in the subject bathroom. [FAC, para. 61]. The general allegations detail the previous event, just a few months prior to the fire, in which plaintiff’s daughter saw sparks and was burnt when removing the plug of a blow dryer in the bathroom, indicate that there was also another previous event, that management was notified on both occasions, and that a general handyman was sent to address the issue, who “informed Plaintiff that the building’s wires were old and dangerous.” [FAC, para. 28]. The general allegations also include the allegation that, “The Glendale Fire Department found the origin of the fire ‘at or near the bottom of the heater’ in the bathroom in Unit 6. The wall heater’s power switch was in the ‘off position.’” [FAC, para. 26].
Defendants seem to argue that the heater could not have caused the fire, as the power at the time was in the off position. That fact, however, actually bolsters plaintiff’s position that the fire was caused by the faulty wiring in the walls near the heater, as electricity should not have been flowing with the wall heater turned off.
To the extent defendants argue that plaintiff must have had some responsibility for causing the fire, there are no facts suggesting this in the FAC, which in fact alleges:
“The uninhabitable and dangerous conditions described herein were not caused by the wrongful acts or abnormal use of the premises/Unit 6 by Plaintiff or anyone acting under Plaintiff’s authority.”
[FAC, para. 64].
The cause of action sufficiently states a claim for breach of the warranty of habitability, and the demurrer is overruled.
Fourth Cause of Action—Breach of Covenant of Quiet Enjoyment
Defendants argue that plaintiff fails to allege sufficient facts to support a cause of action for breach of the covenant of quiet enjoyment.
Under Civil Code 1927, “An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same.”
The Second District has recognized that this is a partial codification of the covenant of quiet enjoyment implied in every lease.
“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal. App. 3d 841, 846 [122 Cal. Rptr. 114]; Guntert v. City of Stockton (1976) 55 Cal. App. 3d 131, 138 [126 Cal. Rptr. 690].)”
Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 (italics in the original).
Again, the parties agree that the elements of a cause of action for breach of covenant of quiet enjoyment are “an act or omission on the part of the landlord” which “interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy.” Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846.
Defendants argue that plaintiff fails to allege any substantial interference making the unit unfit for habitation prior to the fire on October 28, 2018.
Defendants cite to Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, in which the court of appeal actually found there was sufficient evidence for the trial court to have found in that matter that a lessee’s failure to repair or replace a modular sign substantially affected a commercial tenant’s beneficial enjoyment of the premises sufficient to constitute a breach of the implied covenant of quiet enjoyment. The court of appeal noted that the breadth of the implied covenant has expanded:
“It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. (McDowell v. Hyman, 117 Cal. 67, 70, 48 P. 984;Pierce v. Nash, 126 Cal.App.2d 606, 612, 272 P.2d 938.) Initially, the covenant related solely to the right of possession and only protected the lessee against any act of molestation committed by the landlord or anyone claiming under him, or by someone with paramount title, which directly affected the tenant's use and possession of the leased premises; the covenant was construed to protect the lessee against physical interference only. (See e.g., 49 Am.Jur.2d, Landlord and Tenant, s 334, p. 349.) In recent years, the covenant of quiet enjoyment has been expanded, and in this state, for example, it insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. (Green v. Superior Court, 10 Cal.3d 616, 625, fn. 10, 111 Cal.Rptr. 704, 517 P.2d 1168; 49 Am.Jur.2d, Landlord and Tenant, s 336, p. 351.) Under this view, the landlord's failure to fulfill an obligation to repair or to replace an essential structure or to provide a necessary service can result in a breach of the covenant if the failure substantially affects the tenant's beneficial enjoyment of the premises. (Groh v. Kover's Bull Pen, Inc., 221 Cal.App.2d 611, 614, 34 Cal.Rptr. 637; Sierad v. Lilly, 204 Cal.App.2d 770, 773, 22 Cal.Rptr. 580; Pierce v. Nash, Supra, 126 Cal.App.2d 606, 612, 272 P.2d 938.)”
Petroleum Collections, at 846.
Plaintiff in opposition argues that the act or omission by defendants is the failure to investigate or repair the pre-existing defective wiring in the walls at plaintiff’s apartment/bathroom that eventually caused the fire, and that the existence of this condition caused a conflagration, which substantially interfered with plaintiff’s right to the use and enjoyment of the property.
The cause of action in the FAC alleges:
“Defendants and each of them breached this duty, and the implied covenant, by each, and all, of the following: a) failing to conduct proper and adequate inspections of the Plaintiff’s unit’s electrical system and electrical wall heater, b) failing to conduct proper and adequate maintenance, upkeep, repairs of the electrical system and the electric wall heater; c) allowing Unit 6 to suffer from safety defects and deferred maintenance and improper repairs; d) failing to ensure that the electrical wiring and electric wall heater complied with state and local statutes, codes, regulations, ordinances including but not limited to the Building, Construction, Safety/Health, Fire and related codes; e) failing to conduct an inspection of Unit 6 as required by California law; and, f) permitting the electric system/wires and/or electric wall heater to catch on fire.”
[FAC, para. 72].
Under the liberal standard set forth above, these allegations are sufficient to withstand demurrer on the grounds urged by defendants.
Defendant also again argues that plaintiff fails to allege facts concerning the cause of the fire. As discussed above, the FAC alleges the specific findings made by the Fire Department, as well as the alleged cause as set forth in the cause of action itself, as quoted above. The demurrer accordingly is overruled.
Sixth Cause of Action—Breach of Contract
Defendants argue that the cause of action for breach of contract fails to sufficiently allege each element to support such a claim.
To plead a cause of action for breach of contract, plaintiff must allege the following elements: Contract formed, and terms alleged verbatim or according to legal effect; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807; Richman v. Hartley (2014, 2nd Dist.) 224 Cal.App.4th 1182, 1186.
Defendants first argue that plaintiffs cannot allege that there was a contract between plaintiff and defendants, as the Lease is attached as Exhibit A to the FAC and shows on its face that the moving parties are not identified as landlord in the Lease.
Defendants go on to acknowledge that plaintiff has in fact alleged in the FAC that the landlord identified on the Lease, G.M. Kefalas, is defendants’ predecessor in interest, but argue that plaintiff has failed to allege facts to support that allegation. No authority is cited under which plaintiff is required to plead such an allegation with heightened specificity. The FAC alleges in the general allegations:
“Plaintiff is informed and believes, and on the basis of that information and belief, alleges that the party with which Plaintiff entered the Lease – G.M.KEFALAS aka G.M.KEFALAS INVESTMENTS- sold and/or transferred the Real Property during Plaintiff’s tenancy to Defendant LBM, and or was an agent/representative of LBM or its members at the time of execution of the Lease and that the same individuals – in one form or another – owned, controlled, managed, leased, rented, and operated the Real Property during Plaintiff’s tenancy; and that LBM was the owner and landlord of the Real Property on or about October 28, 2018.”
[FAC, para. 19].
It is also alleged that “Plaintiff had a tenant and landlord relationship with The LBM DEFENDANTS and ANKOAKIA DEFENDANTS, and each of them. Plaintiff made and Defendants collected monthly rent payments from Plaintiff.” [FAC, para. 58].
As pointed out by plaintiff in the opposition, the FAC also alleges that defendant LBM was the party which “returned Plaintiff’s Security Deposit,” after the fire. [FAC, para. 29].
The cause of action for breach of contract alleges:
“By virtue of the written Lease (attached as Exhibit A) entered into by Plaintiff with Defendant LBM and Defendant ANAOKIA’s predecessors and/or agents/representatives, as well Plaintiff’s continued tenancy during LBM’s and ANAOKIA’s ownership, control, management and operation of the Real Property including Unit 6, Plaintiff was entitled to possession of Unit 6, and performed all conditions and obligations required of her under the Lease and/or her month-to-month tenancy.”
[FAC, para. 88].
These allegations are sufficient to allege that defendants were parties to the Lease at the time of the alleged breaches, and the demurrer on this ground is overruled.
Defendants also argue that plaintiff has failed to allege any term or provision of the Lease purportedly breached by defendants.
The FAC alleges:
“Defendants, and each of them, breached the contract and failed to fulfill the terms of the contract including but not limited to providing a habitable dwelling for Plaintiff, breaching the implied covenant for quiet enjoyment and constructively evicting Plaintiff.”
[FAC, para. 89].
As discussed above, defendants have acknowledged law under which every residential lease includes an implied warranty of habitability and a covenant of quiet enjoyment, as alleged. See Green v. Superior Court (1974) 10 Cal.3d 616, 637 (“a warranty of habitability is implied by law in residential leases”); Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846 (“It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment.”)
Defendants seem to concede this point but argue that to the extent plaintiff relies on these covenants implied by law into the Lease, then the breach of contract cause of action is duplicative of the prior causes of action.
Under the liberal rules of pleading, however, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action. See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180.
It has been noted that the duplicative standard referred to by defendants is not currently listed as a ground to sustain a demurrer under CCP 430.10. See Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890 (“This is not a ground on which a demurrer may be sustained.”)
In addition, plaintiff argues in opposition that the cause of action is not strictly duplicative, as it provides a remedy of contractual attorney’s fees which is not available in the prior causes of action. The demurrer on this ground is overruled.
Defendant also argues that plaintiff has failed to state viable claims for breach of those warranties and covenants. However, as discussed above, plaintiff has sufficiently alleged those causes of action. The demurrer to the breach of contract cause of action accordingly is overruled.
As noted in the opposition, defendants in their notice of motion demur to each cause of action as uncertain, but defendants have set forth no argument in their points and authorities in support of this position. The argument accordingly has been waived, and the demurrer is overruled in its entirety.
Defendants Anoika Property Management and LBM Properties, LLC’s Amended Demurrer to Plaintiff Nvart Krlian’s First Amended Complaint:
The Court notes that the demurrer is untimely, filed and served nearly seven weeks late, when the parties were not permitted to stipulate to an extension of time to respond to the FAC, and failed to obtain leave of court. Both parties are cautioned that in the future the Court may refuse to consider pleadings not filed in conformity with the statutes, rules and procedures governing this litigation.
Demurrer is OVERRULED.
Ten days to answer.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
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