Bieber v. Tsoong

Filed 3/18/08 Bieber v. Tsoong CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed in part, reversed in part.

Milton Bieber, in pro. per., for Plaintiff and Appellant.

Beam Brobeck West Borges & Rosa, Frederick M. Borges, Glen A. Stebens for Defendants and Respondents.

* * *

Over the period 2002 through 2006, Milton Bieber had a number of complaints and grievances against his landlord, Casa Pacifica Senior Apartments, and its managers, particularly Ruben Carrillo (collectively, Casa Pacifica). In May 2006, Bieber filed this lawsuit, asserting a single cause of action for intentional infliction of emotional distress based upon those accumulated grievances. After giving Bieber a chance to amend, the trial court entered a judgment of dismissal after sustaining Casa Pacificas demurrer. On appeal, Bieber also suggests that the facts alleged in his complaint could support a cause of action for violation of section 1942.5, which prevents landlords from retaliating against tenants who complain about the landlords conduct to an appropriate agency.

First, we should note that even though Bieber is representing himself on appeal, we hold him to the same standards as we do an attorney. (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819, citing Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208-209 to the effect that pro. per. litigants are held to same standards as those represented by counsel]; accord, Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1281 (dis. opn. of Bedsworth, J.) [pro pers should not be treated the same only different].)

On the other hand, while Bieber is held to the same standards as an attorney, we do not penalize him for representing himself either. (E.g., Gamet, supra, 91 Cal.App.4th 1276 (maj. opn.).) The fact that much of his complaint may be rambling and disjointed does not allow us to disregard the facts that are mentioned in it. In this appeal, for example, his pleadings are entitled to the same beneficial standard of review after a judgment after a demurrer that is afforded pleadings prepared by an attorney: We must assume that all facts (as distinct from assertions of law or conclusions) alleged in his complaint are indeed true. He is also entitled to the benefit of any reasonable inferences drawn from those facts. (E.g., Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Allegations

We now examine what actual facts are alleged in Biebers complaint. As structured, Biebers form amended complaint is supported by 12 Judicial Council forms, each entitled, cause of action -- intentional tort, which function to delineate his various complaints and grievances. Some of the text on some of the 12 forms merely state conclusory allegations, or are otherwise cumulative of Biebers basic assertion of intentional infliction of emotional distress.[1] These we may disregard. However, there are specific allegations of fact that may be extracted from Biebers complaint:

-- There was a water leak on Biebers auto that Casa Pacifica refused to fix. Bieber called Casa Pacificas attorney, who said he would contact the defendants, but three months later it was still not fixed. Also, Casa Pacifica allowed the area around Biebers auto space to be used as an R.V. dump station, which we take, given that reasonable inferences are construed in favor of the pleader on demurrer, to be hyperbole to the effect that large recreational vehicles made it difficult to park in the area.

-- Bieber was given a three-day notice to remove his covered storage.

-- Casa Pacifica did not honor a request to change Biebers parking space so as to conceal auto from street walkers.

-- Casa Pacificas attorney sent Bieber a letter telling plaintiff he does not belong to live here and should move to another apartment house.

-- A friend of Biebers was told by Carrillo that Carrillo was going to give Bieber a 3 day notice to get rid of Biebers new dog (after his old dog died), though Bieber never received such a notice or heard anything more.

-- Casa Pacifica refused to respond to Biebers emergency repair to fix [sic] toilet leak under toilet tank requiring Bieber to use a can to catch water leak forcing Bieber to be unable to leave his home for than 1 1/2 hours. The leak took 3 months to finally fix.

-- The kitchen sink faucet was leaking at a constant stream, and it took one year to fix.

-- There was a 6 inch area in the molding of the kitchen counter top that was open, not concealed.[2]

-- On a date when Biebers section 8 apartment was to be inspected by unspecified housing inspectors, the housing inspectors asked Carrillo to tell Bieber that the inspection was cancelled, but Carrillo did not tell Bieber, who ended up waiting for five hours.

Intentional Infliction of

Emotional Distress

The essential element to the tort of intentional infliction of emotional distress is that the underlying conduct be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) That is, it must be outrageous. (Ibid.)

Biebers complaint recognizes the legal necessity of outrageousness by the repeated invocation of the word outrageous in his complaint, but, of course, that is not sufficient by itself. Mere conclusionary allegations are insufficient to withstand a demurrer. It is, rather, for the court, initially, to determine whether a defendants conduct can reasonably be found to be outrageous, as a matter of law. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [Whether a defendants conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.]; see also Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 [While the outrageousness of a defendants conduct normally presents an issue of fact to be determined by the trier of fact . . . , the court may determine in the first instance, whether the defendants conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.].)

In determining outrageousness, however, courts must not approach the matter as if it were tabla rasa, and judges were super-jurors. (Cf. Alex Kozinski, What I Ate for Breakfast and Other Mysteries of Judicial Decision Making (1993) 26 Loy. L.A. L. Rev. 993 (1993) [the title is facetious; the article asserts that judges self-respect and peer pressure requires them to follow the law as best they can].) The law does not turn on what judges have for breakfast or their own subjective reaction to given facts. Rather, by careful comparison between the conduct alleged, and conduct which the applicable legal literature shows to be either outrageous or not outrageous, courts can arrive at a reasonably objective determination.

The point at which a landlords deliberate refusal, over a prolonged period of time and in the face of requests by a tenant, to repair rental property becomes sufficiently outrageous to possibly come within the tort of intentional infliction of emotion distress has been addressed in a number of California cases.

Looking to section 46 of the Restatement Second of Torts, the court in Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297-298, disapproved on another point in Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 740, fn. 9 [dicta in Newby regarding landlord rational self-interest and discrimination disapproved], stated generally that the abuse of power held by a landlord over a tenant may constitute intentional infliction of emotional distress, if the landlord knows of the tenants susceptibility to mental distress and still acts intentionally, knowing that the actions will result in mental distress. In Newby, there was a direct threat to throw the tenant out personally if she did not leave, combined with a clear intimation of violence. (The threat of violence was: We are going to handle this the way we do down South and the comment that the tenant was bet[ting her] life if she remained in the apartment.)

After Newby, appellate decisions have held that landlords acted outrageously in the following circumstances:

The refusal to repair toxic mold after repeated notification, resulting in severe physical injury and discomfort and the inability to occupy premises for business use was sufficient in Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1061-1062, 1069.

In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920, the plaintiff alleged the landlord knew about leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions and therefore the question of the outrageousness of landlords conduct could go to the jury.[3]

In Aweeka v. Bonds (1971) 20 Cal.App.3d 278, there was a leak from the floor above into a bedroom, loose plaster surrounding the leak was falling, the back door was defective and in need of repair, but the landlord continually and repeatedly refused and neglected to repair any of these conditions and then, after the tenants requested repairs, the landlord practically doubled the rent, which was already at fair market value. (Id. at p. 280.)

In Smith v. David (1981) 120 Cal.App.3d 101, 105-107, there were numerous housing code violations, including: lack of taping and texturing of walls, deficient electrical wiring, lack of floor coverings over bare wood, inoperable light fixtures, unfinished interior door frame to the front bedroom, deteriorated window sills, no locking device on the front window, leaking faucet, improperly secured toilet bowl and tank, leaking toilet tank, deteriorated metal shower stall, deteriorated cabinet under the kitchen sink, leaking water connection under the kitchen sink, inadequate water heater, inadequate room heater, exposed unsecured electrical outlets in the laundry room, and unfinished exterior walls and window frames lacking weather protection. None of this had been repaired, even though the landlord had promised to repair the place in about three weeks when the plaintiffs had moved in. There was also expert testimony that the housing code violations presented a risk to the health and safety of the occupants, in particular the electrical wiring, the leaking plumbing, and the absence of locking devices.

On the other hand, a mere dripping faucet was insufficient in Cazares v. Ortiz (1980) 109 Cal.App.3d Supp. 23, 32 [Unless directed by an appellate court, this court will not approve a measure of damages with such potential dire results in order to permit a jury of insomniacs to give a sleepless tenant massive damages by reason of a dripping bathroom faucet.].

These cases establish a high threshold for outrageousness. Newby involved a direct threat of violence from the landlord. Burnett (toxic mold) and Stoiber (leaky sewage) involved deliberate indifference on the part of a landlord to a tenants health, not just to the tenants convenience. Aweeka involved a leak and falling plaster in the tenants bedroom -- not just a leak in a carport or a dripping faucet (cf. Cazares) -- plus a direct retaliation in the form of doubling rents for the tenants complaint. Smith implicated the tenants basic safety and health, by the fire hazard of the deficient wiring, the exposed electrical outlets, the unlockable front window and the inadequate room and water heating.

Nothing so extreme is to be found in Biebers complaint here. The refusal to change the parking space, the allowance of recreational vehicles near it and the demand to remove things in storage clearly do not rise to the level of outrageousness. Those allegations involve no threats, as in Newby, or implicate safety or health, as in Burnett, Stoiber and Smith, or indicate retaliation, as in Aweeka.

The same may be said for 6-inch area of exposed countertop. The leaky faucet is precluded by Ortiz. The allegation about Biebers dog also fail because, as alleged, it did not come from the landlord, but from Biebers friend (hence was hearsay), and, more importantly, there are no allegations that Bieber is entitled to have a new dog or that Casa Pacifica might be outside its legal rights to preclude tenants from keeping pets. (Cf. Nahrstedt v. LakesideVillage Condominium Assn. (1994) 8 Cal.4th 361 [condominium association could legitimately preclude even house cats].)

Similarly, the letter from Casa Pacificas attorney was totally innocuous.[4] The letter does not threaten Bieber or tell him he must move. The allegation that the letter told Bieber he does not belong to live there, in light of the actual text of the letter and the mangled syntax of the complaint, can only reasonably stand for the idea that the apartment management was gently inviting Bieber to find another place to live where he would be happier -- hardly an instance of retaliation.

The most extreme allegations before us are deliberately not repairing a leaky toilet for three months and a failure to tell Bieber that an inspector was not coming. But even those allegations at most implicate convenience, rather than any threat, or danger to health or safety, or any retaliation. (It is clear from the nature of Biebers allegation concerning the leaky toilet that the toilet was usable, even if it required a can to catch moisture.)

In sum, the demurrer to the first amended complaint was properly sustained.

Leave to Amend

However, we also conclude that the trial court abused its discretion in not giving Bieber leave to amend. (See Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) 7:129, p. 7-49 [Ordinarily, failure to raise an issue in the trial court waives the point on appeal. However, an order sustaining a demurrer without leave to amend is reviewable for abuse of discretion even though no request to amend (the) pleading was made.].) If there is a reasonable possibility that plaintiff can state a good cause of action, it is an abuse of discretion to deny leave to amend. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, quoting Temescal Water Co. v. Department of Public Works (1955) 44 Cal.2d 90, 107.) This case, after all, only involves a first amended complaint, and courts routinely allow more than once chance to frame a complaint. (E.g., Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269, 284.) There is at least a reasonable possibility here that Bieber might be able to state facts amounting to a cause of action if given another chance.

Conclusion

The judgment is reversed to allow appellant to amend his complaint if he so chooses. In the interests of justice, both sides are to bear their own costs on appeal.

SILLS, P. J.

WE CONCUR:

MOORE, J.

ARONSON, J.

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[1] Specifically, allegations that managers had done nothing about unspecified complaints to the Fair Housing Council of Orange County, that Bieber had to seek out professional help to emotionally deal with the Carrillo infliction of emotion distress and that due to the defendants malice and oppression 60% of plaintiffs life has been put on hold for the last 4 1/2 years.

[2] The particular allegation is from a motion to augment the record filed June 25, 2007, essentially because one of the form pages from the complaint was missing from the clerks transcript. That motion is now granted.

[3] The court in Stoiber, to be sure, may have been a bit lax in assuming that conclusionary allegations of failure to repair on the landlords part were sufficient to show outrageous conduct. For our purposes it is the specific allegations of knowingly allowing continuing leaking sewage -- conduct which directly implicates sanitation and health -- that justifies the Stoiber holding.

[4] That letter is part of a motion to augment the record. We grant the motion insofar as it incorporates that letter, which would be admissible as a party admission. We deny the motion as to the other documents, which were generated by Bieber (or by an attorney from the senior citizens legal advocacy program or from his doctor) because there is no reason that any additional facts to be found in those documents could not have been included in the complaint.