Bregan v. The John Stuart Company ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 JAMES BREGAN, et al., Case No. 23-cv-01823-LB 12 Plaintiffs, AMENDED ORDER GRANTING IN 13 v. PART AND DENYING IN PART MOTIONS TO DISMISS 14 THE JOHN STEWART COMPANY, et al., Re: ECF Nos. 15, 17 15 Defendants. 16 17 INTRODUCTION AND STATEMENT 18 The plaintiffs rented a home in the Presidio of San Francisco, a federal enclave administered 19 by the Presidio Trust. In June 2021, the defendants allegedly performed a roof replacement 20 without proper precautions, resulting in lead contamination from the home’s lead paint, and then 21 failed to properly remediate the contamination. The Bregan plaintiffs’ young child tested positive 22 for high lead levels in her blood.1 23 The plaintiffs sued five defendants: Enterprise Roofing Service (the company that contracted 24 with the Presidio Trust to perform the roof work) and a group of “landlord defendants” consisting 25 of the Trust (the landlord in the plaintiffs’ lease), The John Stewart Company (the Trust’s agent in 26 27 1 Compl. – ECF No. 1-1 at 23–64. Citations refer to material in the Electronic Case File (ECF); 1 the lease), and Trust employees Mark Feickert and Van Cornwell. The plaintiffs assert eleven 2 state-law claims sounding in tort and contract. They sued in state court. Because the Trust is a 3 federal-government-owned corporation and Messieurs Feickert and Cornwell are federal 4 employees, the Trust and the United States removed the case to federal court and the United States 5 was substituted as a defendant for Messieurs Feickert and Cornwell.2 6 The federal defendants and Enterprise Roofing moved to dismiss the complaint. The federal 7 defendants moved under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter 8 jurisdiction. They contend mainly that under the doctrine of derivative jurisdiction, which holds that 9 federal courts sometimes lack jurisdiction in removed cases if the state court lacked jurisdiction, the 10 state court lacked jurisdiction because the federal government has not waived its sovereign 11 immunity for tort and contract claims in state courts. They contend in the alternative that (1) the 12 claims premised on violations of state and local statutes and ordinances (such as breach of the 13 implied warranty of habitability and the covenant of quiet enjoyment) fail because the federal 14 government has not waived its sovereign immunity for those claims, (2) the court lacks jurisdiction 15 over the tort claims to the extent they seek to hold the government liable for the conduct of the 16 independent-contractor defendants, and (3) the plaintiffs are not entitled to punitive damages or a 17 jury trial under the relevant federal statutes waiving sovereign immunity.3 18 Enterprise Roofing moved under Rule 12(b)(6) to dismiss (1) the negligent-infliction-of- 19 emotional-distress and nuisance claims as duplicative of the negligence claim and (2) the prayer for 20 attorney’s fees and treble and punitive damages (based on state and local laws) as precluded by the 21 federal-enclave doctrine. Enterprise Roofing also moved under Rule 12(e) for a more definite 22 statement about whether the plaintiffs’ minor daughter is a plaintiff.4 23 24 25 26 2 Id.; Notice of Removal – ECF No. 1; Contract for Roof Replacement, Ex. A to Zack Decl. – ECF No. 17-2; Residential Lease, Ex. B to Zack Decl. – ECF No. 17-3. 27 3 Fed. Defs.’ Mot. – ECF No. 17. 1 All parties consented to magistrate-judge jurisdiction under 28 U.S.C. § 636(c).5 The court 2 ordered supplemental briefing on certain issues raised by this complicated context.6 The court held a 3 hearing on November 30, 2023. 4 The court grants the federal defendants’ motion in part. The case may proceed as removed 5 notwithstanding the doctrine of derivative jurisdiction. The federal government has waived its 6 sovereign immunity for claims for breach of the implied warranty of habitability and the covenant 7 of quiet enjoyment and the court recognizes those claims as a matter of federal common law. The 8 plaintiffs are not entitled to a jury trial against the federal defendants or to punitive damages for 9 their tort claims against those defendants. Finally, the court denies the motion to dismiss the tort 10 claims predicated on the conduct of the independent-contractor defendants: (1) as to The John 11 Stewart Company, there are no allegations of the government’s vicarious as opposed to direct 12 liability and the government may have owed non-delegable duties under the peculiar-risk doctrine; 13 and (2) as to Enterprise Roofing, the federal defendants had direct control over it. 14 The court also grants Enterprise Roofing’s motion in part. The negligent-infliction-of- 15 emotional-distress and nuisance claims are duplicative of the negligence claim. The plaintiffs are 16 not entitled to attorney’s fees and under the federal-enclave doctrine, they cannot recover treble 17 and punitive damages for economic injury (but can for personal injury). Finally, the court denies 18 the motion for a more definite statement as moot because the plaintiffs’ daughter is not a plaintiff. 19 20 STANDARDS OF REVIEW 21 1. Subject-Matter Jurisdiction — Rule 12(b)(1) 22 A complaint must contain a short and plain statement of the grounds for the court’s 23 jurisdiction. Fed. R. Civ. P. 8(a)(1). The party asserting jurisdiction has the burden of establishing 24 jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Ass’n of Am. 25 Med. Colls. v. United States, 217 F.3d 770, 778–79 (9th Cir. 2000). 26 27 5 Consents – ECF Nos. 9, 13, 14, 35. 1 A defendant’s Rule 12(b)(1) jurisdictional attack can be facial or factual. White v. Lee, 227 2 F.3d 1214, 1242 (9th Cir. 2000). “A ‘facial’ attack asserts that a complaint’s allegations are 3 themselves insufficient to invoke jurisdiction, while a ‘factual’ attack asserts that the complaint’s 4 allegations, though adequate on their face to invoke jurisdiction, are untrue.” Courthouse News 5 Serv. v. Planet, 750 F.3d 776, 780 n.3 (9th Cir. 2014). If the defendant mounts a factual attack, he 6 may rely on “affidavits or any other evidence properly before the court,” in which case it 7 “becomes necessary for the party opposing the motion to present affidavits or any other evidence 8 necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter 9 jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). In such cases, “[t]he 10 district court obviously does not abuse its discretion by looking to this extra-pleading material in 11 deciding the issue, even if it becomes necessary to resolve factual disputes.” Id. 12 Dismissal of a complaint without leave to amend should be granted only when the jurisdictional 13 defect cannot be cured by amendment. Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 14 (9th Cir. 2003). 15 16 2. Failure to State a Claim — Rule 12(b)(6) 17 A complaint must contain a “short and plain statement of the claim showing that the pleader is 18 entitled to relief” to give the defendant “fair notice” of (1) what the claims are and (2) the grounds 19 upon which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 20 (2007). Thus, “[a] complaint may fail to show a right to relief either by lacking a cognizable legal 21 theory or by lacking sufficient facts alleged under a cognizable legal theory.” Woods v. U.S. Bank 22 N.A., 831 F.3d 1159, 1162 (9th Cir. 2016). 23 A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to provide 24 the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a 25 formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 26 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (cleaned 27 up). A complaint must contain factual allegations that, when accepted as true, are sufficient to 1 NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 F. App’x 231, 234 (9th 2 Cir. 2020). “[O]nly the claim needs to be plausible, and not the facts themselves. . . .” NorthBay, 3 838 F. App’x at 234 (citing Iqbal, 556 U.S. at 696); see Interpipe Contracting, Inc. v. Becerra, 4 898 F.3d 879, 886–87 (9th Cir. 2018) (the court must accept the factual allegations in the 5 complaint “as true and construe them in the light most favorable to the plaintiff”) (cleaned up). 6 Put another way, “[a] claim has facial plausibility when the plaintiff pleads factual content that 7 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 8 alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability 9 requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 10 Id. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops 11 short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. (cleaned up). 12 If a court dismisses a complaint because of insufficient factual allegations, it should give leave 13 to amend unless “the pleading could not possibly be cured by the allegation of other facts.” Cook, 14 Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). If a court 15 dismisses a complaint because its legal theory is not cognizable, the court should not give leave to 16 amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1184 (9th Cir. 2016); see 17 Steele-Klein v. Int’l Bhd. of Teamsters, Loc. 117, 696 F. App’x 200, 202 (9th Cir. 2017) (leave to 18 amend may be appropriate if the plaintiff “identifie[s] how she would articulate a cognizable legal 19 theory if given the opportunity”). 20 ANALYSIS 21 1. The Federal Defendants’ Motion 22 The federal defendants first contend that under the doctrine of derivative jurisdiction, the court 23 lacks jurisdiction because the state court lacked jurisdiction given that the United States has not 24 waived its sovereign immunity for the plaintiffs’ claims.7 25 26 27 1 The federal defendants removed the case under 28 U.S.C. §§ 1442 and 2679(d)(2).8 Section 2 1442 “permits removal of a civil action against ‘any officer (or any person acting under that 3 officer) of the United States or of any agency thereof . . . for or relating to any act under color of 4 such office.’” DeFiore v. SOC LLC, 85 F.4th 546, 553 (9th Cir. 2023) (cleaned up). Regarding 5 § 2679(d)(2), “[u]nder the Federal Tort Claims Act, any civil action commenced in a state court 6 shall be removed to the U.S. district court upon the Attorney General’s certification that [a federal] 7 defendant employee was acting within the scope of his office or employment.” Schmidt v. 8 Washington, No. C12-1116 MJP, 2012 WL 3234482, at *1 (W.D. Wash. Aug. 7, 2012). After 9 removal and the Attorney General’s certification, the United States is “substituted as the party 10 defendant.” Richardson v. United States, No. 19-cv-05144-JSW, 2020 WL 13517515, at *2 (N.D. 11 Cal. Jan. 24, 2020) (quoting 28 U.S.C. § 2679(d)(2)). Here, the certification was filed on the same 12 day as the notice of removal.9 13 Under the doctrine of derivative jurisdiction, a federal court is sometimes “without jurisdiction 14 over a suit removed to it from state court if the state court from which it was removed lacked 15 subject matter jurisdiction, even though the federal court would have had jurisdiction had the suit 16 been brought there originally.” Beeman v. Olson, 828 F.2d 620, 621 (9th Cir. 1987) (citing 17 Minnesota v. United States, 305 U.S. 382, 389 (1939)). “The derivative-jurisdiction principle has 18 been heavily criticized, largely because it produced the anomalous result that a case within the 19 exclusive jurisdiction of the federal courts could not be removed to a federal court.” 14C Wright & 20 Miller, Fed. Prac. & Proc. Juris. § 3721.1 (Rev. 4th ed. 2023). Thus, “in 1986, Congress abolished 21 this rule” for cases removed under the general removal statute, 28 U.S.C. § 1441. Id. 22 The doctrine still applies to a removal under § 1442. In re Elko Cnty. Grand Jury, 109 F.3d 554, 23 555 (9th Cir. 1997); FBI v. Super. Ct., 507 F. Supp. 2d 1082, 1090–92 (N.D. Cal. 2007). Whether it 24 applies to removals under § 2679(d)(2) “is more questionable.” E.R. ex rel. Young v. Sutter Davis 25 Hosp., No. CIV. 2:14-2053 WBS, 2014 WL 7239675, at *3 (E.D. Cal. Dec. 16, 2014). But although 26 27 8 Notice of Removal – ECF No. 1 at 3 (¶ 6). 1 courts have reached different results, the statute provides that if a government employee “was acting 2 within the scope of his office or employment at the time of the incident out of which the claim arose,” 3 then the case “shall be removed” to federal court. 28 U.S.C. § 2679(d)(2). Based on this language, 4 courts have held that the derivative-jurisdiction doctrine does not apply to § 2679(d)(2). Bryant v. 5 Island Express Helicopters, Inc., No. CV208953FMOPVCX, 2021 WL 1734780, at *2 (C.D. Cal. 6 May 3, 2021); Johnson v. United States, No. CV178125DMGMRWX, 2018 WL 5880138, at *2–3 7 (C.D. Cal. June 12, 2018). This is permissible even though federal courts have exclusive jurisdiction 8 over FTCA cases because, “[a]s the Supreme Court has noted,” it is after certification and removal 9 that an action is “governed by the [FTCA].” Bryant, 2021 WL 1734780, at *2 (quoting Osborn v. 10 Haley, 549 U.S. 225, 230 (2007)). Also, as shown by Congress’s eliminating the derivative- 11 jurisdiction doctrine for the general removal statute, Congress can provide for the doctrine’s 12 applicability, so Congress’s specifying in § 2679(d)(2) that cases can be removed is dispositive. 13 The court thus holds that the derivative-jurisdiction doctrine does not apply to removals under 14 § 2679(d)(2). This holding stands even though the Ninth Circuit, in the unpublished case Rodriguez 15 v. United States, affirmed a dismissal of an FTCA action on derivative-jurisdiction grounds. 788 16 F. App’x 535, 536 (9th Cir. 2019). There, the government based its removal on § 1442, not 17 § 2679(d). Id. 18 The question remains whether — given that the federal defendants relied on both §§ 1442 and 19 2679(d) and the derivative-jurisdiction doctrine applies to removals based on § 1442 — a partial 20 dismissal is appropriate on the ground that certain claims or defendants are tethered to § 1442 as 21 opposed to § 2679(d)(2) (which permits removal of tort claims). In Bryant and Johnson, the 22 government “removed the action based on both §§ 2679(d) and 1442,” and the result was that the 23 derivative-jurisdiction doctrine did not apply. Bryant, 2021 WL 1734780, at *2 n.7; Anselmo v. 24 Mull, No. CIV. 2:12-1422 WBS, 2012 WL 3233274, at *1–2 (E.D. Cal. Aug. 6, 2012) (same). 25 That makes sense because “[w]hen tort suits against federal employees under [§] 2679(d) are 26 removed, . . . the entire state-court case is removed.” 14C Wright & Miller, Fed. Prac. & Proc. 27 Juris. § 3726 (Rev. 4th ed. 2023). 1 The present case can thus proceed in this court. The federal defendants make some alternative 2 arguments, though. 3 They contend that the court lacks jurisdiction over the plaintiffs’ claims for violations of 4 California statutes and San Francisco ordinances because — unlike the claims where federal 5 courts have exclusive jurisdiction such that removal was proper — the federal government has not 6 waived its sovereign immunity for these claims at all.10 This argument raises a preliminary issue 7 that the court addresses first: because the Presidio Trust is a federal-government-owned 8 corporation, its sovereign immunity is not necessarily the same as that of the United States (the 9 other federal defendant here). Keifer & Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 389 10 (1939) (“Congress may, of course, endow a governmental corporation with the government’s 11 immunity. But always the question is: has it done so?”). 12 “Jurisdiction over any suit against the Government requires a clear statement from [it] waiving 13 sovereign immunity, together with a claim falling within the terms of the waiver.” United States v. 14 White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (cleaned up). As for the Presidio Trust, it 15 “may sue and be sued in its own name to the same extent as the Federal Government,” and “[t]he 16 District Court for the Northern District of California shall have exclusive jurisdiction over any suit 17 filed against the Trust.” Presidio Trust Act, Pub. L. No. 104-333 (1996) (section 104(h)) (codified 18 as amended at 16 U.S.C. § 460bb appendix (2001)). 19 The plaintiffs contend that because the Presidio Trust Act provides that the Trust “may sue and 20 be sued,” the federal government has broadly waived its sovereign immunity with respect to the 21 Trust.11 Ordinarily, “[s]uch a sue-and-be-sued clause serves to waive sovereign immunity otherwise 22 belonging to an agency of the Federal Government.” Thacker v. Tenn. Valley Auth., 139 S. Ct. 23 1435, 1440 (2019). For example, the Tennessee Valley Authority Act “provides simply that the 24 [Authority] ‘[m]ay sue and be sued.’” Id. (quoting 16 U.S.C. § 831c(b)). That is the case for almost 25 26 27 10 Fed. Defs.’ Mot. – ECF No. 17 at 14–15. 1 all federal-government-owned corporations.12 But the Presidio Trust Act is different: the Trust may 2 be sued “to the same extent as the Federal Government.” Presidio Trust Act (section 104(h)) 3 (codified as amended at 16 U.S.C. § 460bb appendix). Thus, the federal government has waived the 4 Trust’s sovereign immunity only to the extent it has generally waived its sovereign immunity. That 5 means the sovereign-immunity analysis is the same for both federal defendants here. 6 The issue thus is, again, whether the federal government has waived its sovereign immunity 7 for the plaintiffs’ claims for violations of California statutes and San Francisco ordinances. These 8 claims, which are based on the plaintiffs’ lease agreement with the Presidio Trust, are for breach 9 of the implied warranty of habitability (premised on violations of the state statutes and local 10 ordinances), breach of the covenant of quiet enjoyment (premised on a state statute), and tenant 11 harassment (premised on a local rent ordinance).13 The federal defendants argue generally that the 12 United States “has not waived sovereign immunity to permit claims against it under state statutes, 13 local codes, or local rent ordinances.”14 The court grants the motion as to the tenant-harassment 14 claim but denies it as to the covenant-of-quiet-enjoyment and implied-warranty-of-habitability 15 claims. 16 There are two “broad and important waivers [of sovereign immunity] that apply across” the 17 federal government and are relevant here: 18 The Federal Tort Claims Act, subject to various exceptions and procedural requirements, waives sovereign immunity for claims for money damages caused by 19 tortious acts of its employees acting within the scope of their employment. For non- 20 tortious claims, there is the Tucker Act, which both grants jurisdiction and waives sovereign immunity for actions seeking money damages founded either upon the 21 Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States[.] 22 23 33 Wright & Miller, Fed. Prac. & Proc. Judicial Review § 8353 (2d ed. 2023) (cleaned up). 24 25 26 12 Fed. Defs.’ Reply – ECF No. 37 at 7–8 (collecting examples). 27 13 Compl. – ECF No. 1-1 at 37–48 (¶¶ 78–147) (claims one through five); Residential Lease, Ex. B to Zack Decl. – ECF No. 17-3. 1 The court dismisses the tenant-harassment claim because it is purely a local-ordinance claim and 2 the federal government’s waivers of sovereign immunity do not apply. Larson v. City & Cnty. of 3 San Francisco, 192 Cal. App. 4th 1263, 1273 (2011) (explaining San Francisco Rent Ordinance 4 § 37.10B, known as San Francisco’s Proposition M). As for the warranty-of-habitability and 5 covenant-of-quiet-enjoyment claims, they are for breach of implied warranties and covenants in a 6 contract between the plaintiffs and the Presidio Trust. This raises the question of whether the 7 Tucker Act applies because these claims are founded on a contract with the United States (or rather 8 the Trust, but again the Trust’s sovereign immunity is the same as the United States’). 9 The court ordered supplemental briefing on this question. See Nguyen v. Pelosi, No. 20-cv-08755- 10 LHK, 2021 WL 2476836, at *1 (N.D. Cal. June 17, 2021) (“[S]overeign immunity goes to a court’s 11 jurisdiction.”) (cleaned up). The federal defendants pointed out that “courts have found that a claim 12 regarding the implied warranty of habitability is subject to the Tucker Act’s waiver of sovereign 13 immunity,” at least “[i]n the specific context of leases entered into by the Department of Housing and 14 Urban Development in accordance with its authorizing statute.”15 They also pointed out that the 15 Tucker Act does not create any substantive rights and that federal law, not state law, “governs the 16 interpretation of contracts entered into pursuant to federal law and to which the government is a 17 party.”16 Smith v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1034 (9th Cir. 2005). 18 It is true that federal common law governs contract interpretation here and that the warranty-of- 19 habitability and covenant-of-quiet-enjoyment claims are based on state-specific common law. See 20 3-A Rutter Grp. Cal. Prac. Guide, Landlord-Tenant ¶ 3:1 (2023) (“In the landmark case of Green v. 21 Superior Court, the California Supreme Court held that a ‘warranty of habitability’ is implied in all 22 residential rental agreements.”) (citing 10 Cal. 3d 616, 631 (1974)); Erlach v. Sierra Asset 23 Servicing, LLC, 226 Cal. App. 4th 1281, 1300 (2014) (“[I]n the absence of language to the contrary, 24 every lease contains an implied covenant of quiet enjoyment.”) (cleaned up). The warranty of 25 habitability additionally depends on violations of other state laws, such as health and safety codes. 26 27 15 Fed. Defs.’ Suppl. Br. – ECF No. 58 at 2–3. 1 Green, 10 Cal. 3d at 637 (“In most cases substantial compliance with those applicable building and 2 housing code standards which materially affect health and safety will suffice to meet the landlord’s 3 obligations under the common law implied warranty of habitability[.]”). But (as will be explained) 4 federal common law can incorporate state law. And (again as will be explained) under the Tucker 5 Act, there is a sovereign-immunity waiver for some implied contractual provisions, and it applies to 6 these claims. This all raises a further issue: whether the court should, in fact, recognize these claims 7 as incorporated into federal common law. 8 The next paragraphs unpack these points, starting with the Tucker Act’s waiver of sovereign 9 immunity for implied contractual provisions. 10 “[T]he Tucker Act is encompassed in two statutes.” 14 Wright & Miller, Fed. Prac. & Proc. 11 Juris. § 3657 (4th ed. 2023). The Court of Federal Claims normally has exclusive jurisdiction over 12 claims covered by the “Big Tucker Act,” 28 U.S.C. § 1491, while district courts have concurrent 13 jurisdiction over claims not exceeding $10,000 in value under the “Little Tucker Act,” 28 U.S.C. 14 § 1346. Id. (As the federal defendants point out, the Presidio Trust Act mandates that claims 15 against the Trust be brought in this court, thus changing the venue mandate of the Big Tucker 16 Act.17 Cf. Taylor Energy Co. v. United States, 975 F.3d 1303, 1311 n.6 (Fed. Cir. 2020) (an 17 agency decision that must be appealed to a district court is not reviewable in the Court of Federal 18 Claims).) “If a claim falls within the terms of the Tucker Act, the United States has presumptively 19 consented to suit.” United States v. Mitchell, 463 U.S. 206, 216 (1983). 20 Under both “Tucker Act” statutes, plaintiffs may bring claims “against the United States 21 founded . . . upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1); 22 28 U.S.C. § 1346(a)(2). A lease is, of course, a contract. Prudential Ins. Co. of Am. v. United States, 23 801 F.2d 1295, 1298 (Fed. Cir. 1986). But the Tucker Act’s contract-based jurisdiction “extends 24 only to contracts either express or implied in fact, and not to claims on contracts implied in law.” 25 Hercules Inc. v. United States, 516 U.S. 417, 423 (1996). And “[e]ach material term or contractual 26 obligation, as well as the contract as a whole, is subject to this jurisdictional limitation.” Id. 27 1 A contract implied in fact is “founded upon a meeting of minds” that is inferred “from conduct of 2 the parties showing, in the light of the surrounding circumstances, their tacit understanding.” Id. at 3 424 (cleaned up). For a contract implied in fact to exist, “all of the elements of an express contract 4 must be shown by the facts or circumstances surrounding the transaction — mutuality of intent, offer 5 and acceptance, authority to contract — so that it is reasonable, or even necessary, for the court to 6 assume that the parties intended to be bound.” Prudential Ins. Co., 801 F.2d at 1297. “By contrast, an 7 agreement implied in law is a fiction of law where a promise is imputed to perform a legal duty, as to 8 repay money obtained by fraud or duress.” Hercules, 516 U.S. at 423 (cleaned up). 9 The implied warranty of habitability and the covenant of quiet enjoyment are (under state 10 common law) implied in all residential leases. Green, 10 Cal. 3d at 631; Erlach, 226 Cal. App. 4th 11 at 1300. This does not necessarily mean they are implied in law rather than in fact. See Prudential 12 Ins. Co., 801 F.2d at 1297–1300. An implied-in-fact agreement might simply arise from the nature 13 of the contract at issue and thus always be present. Id. Thus, courts have held implied covenants to 14 be present in a lease agreement with the federal government because they were necessarily implied 15 in the parties’ lease. See id. (inferring a covenant to vacate at the end of any fixed-term lease 16 because “[a]s a matter of contract interpretation,” holding otherwise would have “the anomalous 17 effect of voiding an express provision of the lease,” namely “the ending date on which the lease 18 expires”); Griffin & Griffin Expl., LLC v. United States, 116 Fed. Cl. 163, 175–76 (2014) (the 19 lease provided for an “exclusive right to drill for, mine, extract, remove and dispose of all the oil 20 and gas . . . in the lands described” and the court inferred that the landlord warranted that it had 21 “sufficient title to lease all of the property for the term” where another company in fact still had 22 mining rights). Of course, the lease’s various terms should be taken into account, given that an 23 implied-in-fact agreement requires all of the usual elements of a valid contract (such as a meeting 24 of the minds). Prudential Ins. Co., 801 F.2d at 1297. 25 Here, the lease provided (in accordance with general principles of landlord-tenant law) that the 26 property was to be the tenants’ primary residence during the lease term.18 Preliminarily, this indicates 27 1 that the implied warranties at issue were implied in fact: this provision would not carry much 2 meaning if the premises were uninhabitable or the tenants were constructively evicted. See Erlach, 3 226 Cal. App. 4th at 1299 (the covenant of quiet enjoyment “is breached upon actual or constructive 4 eviction of the tenant,” and is based on “[a]ny interference by the landlord that deprives the tenant of 5 the beneficial enjoyment of the premises”); Stott v. Rutherford, 92 U.S. 107, 109 (1875) (“The words 6 ‘grant’ and ‘demise’ in a lease for years create . . . a covenant for quiet enjoyment.”). 7 The lease also provided, however, that the landlord “ma[de] no representation or warranty with 8 regard to the environmental condition of the Premises,” “state and local laws regarding leasehold 9 rights and obligations do not apply,” and the lease “constitute[d] the entire agreement” between the 10 parties.19 These provisions raise the question of whether the implied warranties at issue were waived 11 and thus there was no meeting of the minds. Another provision raises that issue even more directly: 12 the tenants agreed to hold the federal defendants harmless for any claim “arising out of . . . the 13 condition of the Premises during Tenant’s occupancy or any occurrence on the Premises from any 14 cause whatsoever except to the extent caused by the gross negligence or willful misconduct of 15 Landlord (in which case Landlord shall be liable only to the extent provided by and in accordance 16 with the [FTCA]).”20 But under state law at least, the claims at issue can’t be waived in the 17 residential context. Green, 10 Cal. 3d at 625 n.9; Cal. Civ. Code § 1942.1; Lee v. Placer Title Co., 18 28 Cal. App. 4th 503, 512 n.6 (1994). (The court will address the role of state law shortly.) 19 Based on all of these considerations, the court concludes that the warranty of habitability and 20 the covenant of quiet enjoyment were implied in fact in the parties’ lease. They are inherent in the 21 landlord-tenant relationship and nonwaivable. Thus, the federal defendants have waived their 22 sovereign immunity for these claims. 23 There is another question to be answered, though. Unlike in Prudential Insurance and Griffin 24 & Griffin, where an implied covenant was read into the lease as a matter of contract interpretation 25 to determine whether a breach of contract occurred, here the issue is whether the plaintiffs may 26 27 19 Id. at 7 (¶ 11), 13 (¶¶ 21.10–.11). 1 assert separate claims based on the implied covenants. Recognizing those claims would mean 2 recognizing enforceable rights on the plaintiffs’ part and corresponding obligations on the Trust’s 3 part — even though the Tucker Act does not create substantive rights and the parties’ (federal- 4 common-law-governed) contract purports to waive those rights and obligations. Whether the court 5 should do so is really an issue of giving content to the law. 6 Notably, the relevant statute governing the parties’ relationship is the Presidio Trust Act, which 7 grants authority to the Trust to lease property. But the Act does not speak to the Trust’s rights and 8 obligations with respect to its residential leases. Instead, it generally provides that Trust can 9 “establish procedures for lease agreements and other agreements for use and occupancy of Presidio 10 facilities.” Presidio Trust Act (section 104(a)–(b)) (codified as amended at 16 U.S.C. § 460bb 11 appendix); see id. section 104(n) (providing that the Trust must prioritize certain prospective 12 tenants). The court thus must decide how to fill the landlord-tenant “gap” left by this statute. United 13 States v. Little Lake Misere Land Co., 412 U.S. 580, 593 (1973) (“[t]he inevitable incompleteness 14 presented by all legislation means that interstitial federal [common] lawmaking” can be necessary). 15 Issues of federal common lawmaking arise when federal law applies but “[n]either the 16 Constitution nor any federal statute provides the answer to [the] controvers[y].” 19 Wright & 17 Miller, Fed. Prac. & Proc. Juris. § 4514 (3d ed. 2023) (discussing Hinderlider v. La Plata River & 18 Cherry Creek Ditch Co., 304 U.S. 92, 110 (1938)). The problem is often described as one of 19 legislative gap-filling. Little Lake Misere Land Co., 412 U.S. at 593. “The manifestations of this 20 common-law power of the federal courts are extremely diverse and the governing principles 21 amorphous.” Wright & Miller, Juris. § 4514. But “[w]hen a court contemplates the invocation of 22 federal common law, two discrete inquiries must be undertaken.” Id. The first is “whether there is 23 federal common lawmaking competence in the given context.” Id. If so, the court must “determine 24 the content of the federal principle” to be applied. Id. 25 Regarding the first inquiry, “[t]he competence to create federal common law has been recognized 26 in certain classes of . . . cases.” Id. One category is cases concerning “the proprietary interests of the 27 United States[] or [cases] finding substantive rights or liabilities from vague or incomplete statutory 1 Meltzer, Mishkin & Shapiro, 7th ed. 2015)); United States v. Honeywell Int’l Inc., 47 F.4th 805, 815 2 (D.C. Cir. 2022) (“[I]n cases involving the government’s proprietary interests it has been clear that 3 federal courts have the ‘competence’ to create a federal common law rule.”) (cleaned up). Put another 4 way, these are cases concerning “the rights and obligations of the United States.” Tex. Indus., Inc. v. 5 Radcliff Materials, Inc., 451 U.S. 630, 641 (1981). 6 The First Circuit’s decision in Conille v. Sec’y of Hous. & Urb. Dev. illustrates these principles 7 in the (rare) context of federal-government residential leases. 840 F.2d 105 (1st Cir. 1988). There, 8 the plaintiff was a tenant in low-income housing that ended up being owned by the Department of 9 Housing and Urban Development. Id. at 107–08. The plaintiff asserted claims for breach of the 10 warranty of habitability and the covenant of quiet enjoyment. Id. at 108. The court noted that the 11 National Housing Act, which governs HUD’s housing program, left open “[r]udimentary matters 12 underlying landlord-tenant relations such as obligations to pay rent, subleasing, and evictions.” Id. 13 at 111. Thus the case, “involving a dispute over the obligations of the United States as a party to a 14 lease and no comprehensive legislative scheme or enforcement mechanism addressing the 15 particular matters at issue, present[ed] one of those instances in which a federal court is compelled 16 to fashion the applicable federal rule of decision.” Id. at 111–12. 17 Here, because the Presidio Trust Act likewise does not establish the Trust’s rights and 18 obligations with respect to its residential leases, the court has the “competence” to create a federal 19 common law rule. 20 The court therefore must “determine the content of the federal principle” to be applied. Wright 21 & Miller, Juris. § 4514. This decision “may be thought of as primarily a question of whether to 22 displace . . . forum state law.” Id. (citing O’Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994)). 23 “[F]or a number of years the Supreme Court has expressed a strong preference for the forum state’s 24 law as the appropriate rule.” Id.; Agnew v. Fed. Deposit Ins. Corp., 548 F. Supp. 1234, 1237 (N.D. 25 Cal. 1982) (“[I]n cases governed by federal common law, state law frequently provides the 26 appropriate federal rule of decision.”). But “[s]tate law should not be incorporated where doing so 27 would frustrate specific objectives of the [relevant] federal programs.” Wheeler v. City of Santa 1 formulate a federal law that supersedes state law only when it relates to federal programs and 2 actions where ‘[t]he desirability of a uniform rule is plain.’” Dupnik v. United States, 848 F.2d 3 1476, 1481 (9th Cir. 1988) (quoting Clearfield Tr. Co. v. United States, 318 U.S. 363, 367 (1943)). 4 There is no reason to supersede state law in this case. For one thing, the Presidio is local to San 5 Francisco and jurisdiction is limited to this court, so it’s not the case that national policy is at 6 stake. United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979) (“[F]ederal programs that by 7 their nature are and must be uniform in character throughout the [n]ation necessitate formulation 8 of controlling federal rules.”) (cleaned up). Also, “a federal common law of landlord and tenant 9 does not exist” and “[i]t is not to be expected that the federal courts would do a very good job of 10 devising a model code of landlord-tenant law.” Powers v. U.S. Postal Serv., 671 F.2d 1041, 1045– 11 46 (7th Cir. 1982). 12 It is true that in the context of HUD-owned housing under the National Housing Act, which is 13 governed by detailed regulations that touch on landlord-tenant relations, some courts have 14 fashioned a federal warranty of habitability or have incorporated state law in only a limited way. 15 Chase v. Theodore Mayer Bros., 592 F. Supp. 90, 96–100 (S.D. Ohio 1983) (noting that “contracts 16 of the Federal Government are normally governed, not by the particular law of the states where 17 they are made or performed, but by a uniform federal law,” but also that the relevant statutes set 18 out “detailed regulations” for HUD and that “the direct subjection of HUD to the myriad (and still 19 developing) state landlord-tenant regulatory schemes creates a potential, yet real ‘undue burden’ 20 on the Department’s performance of its functions”); Conille, 840 F.2d at 111–17 (selectively 21 incorporating Massachusetts law on the implied warranty of habitability because fully 22 incorporating state law would have frustrated federal objectives present in the National Housing 23 Act). Other courts, also in the HUD context, have rejected a separate claim for the warranty of 24 habitability on the ground that the decision should be left to Congress because the claim overlaps 25 with National Housing Act objectives. Alexander v. U.S. Dep’t of Hous. & Urb. Dev., 555 F.2d 26 166, 171 (7th Cir. 1977); Kingston Square Tenants Ass’n v. Tuskegee Gardens, Ltd., 792 F. Supp. 27 1566, 1574 (S.D. Fla. 1992) (following Alexander). Here, though, the local nature of the dispute, 1 This conclusion holds even though the federal government’s contracts are governed by federal 2 law and that the contract at issue here purported to waive state-law claims other than those that are 3 cognizable under the FTCA. A contract “entered pursuant to federal law[] . . . implicates an area 4 of uniquely federal interest.” United States v. California Dep’t of Transp., 693 F. Supp. 2d 1082, 5 1088–89 (N.D. Cal. 2009) (in a case concerning a federal right-of-way grant on the Presidio, the 6 court held that “federal law provides the rule of decision”); Boyle v. United Techs. Corp., 487 U.S. 7 500, 504–07 & n.3 (1988). But that only leads back to the question of whether to incorporate state 8 law. Boyle, 487 U.S. at 504–07 & n.3. And having incorporated state law, the claims at issue can’t 9 be waived (as already explained). The court thus denies the federal defendants’ motion to dismiss 10 the warranty-of-habitability and covenant-of-quiet-enjoyment claims. 11 The federal defendants also challenge these claims based on the federal-enclave doctrine.21 12 The court resolves this issue the same way it does for Enterprise Roofing’s motion, below: 28 13 U.S.C. § 5001 makes state law applicable, except with respect to economic damages. 14 The next issue raised by the federal defendants is whether the court lacks subject-matter 15 jurisdiction over the tort claims to the extent they seek to hold the government liable for the 16 conduct of independent contractors (i.e., the non-government defendants). The contractors at issue 17 are The John Stewart Company and Enterprise Roofing.22 The John Stewart Company is identified 18 in the plaintiffs’ lease as the agent of the landlord, the Presidio Trust.23 Enterprise Roofing 19 contracted with the Trust to perform the roof work.24 20 The FTCA covers injuries “caused by the negligent or wrongful act or omission of any 21 employee of the Government while acting within the scope of his office or employment.” 28 22 U.S.C. § 1346(b)(1). It defines government employees to include officers and employees of “any 23 federal agency” but expressly excludes “any contractor with the United States.” Id. § 2671; Edison 24 v. United States, 822 F.3d 510, 517 (9th Cir. 2016). 25 26 21 Fed. Defs.’ Reply – ECF No. 37 at 13–14. 22 Fed. Defs.’ Mot. – ECF No. 17 at 15–18. 27 23 Residential Lease, Ex. B to Zack Decl. – ECF No. 17-3 at 2, 15. 1 “A critical element in distinguishing an agency from a contractor is the power of the Federal 2 Government to control the detailed physical performance of the contractor.” United States v. 3 Orleans, 425 U.S. 807, 814 (1976) (cleaned up). “Under the FTCA, the United States is subject to 4 liability for the negligence of an independent contractor only if it can be shown that the 5 government had authority to control the detailed physical performance of the contractor and 6 exercised substantial supervision over its day-to-day activities.” Laurence v. Dep’t of Navy, 59 7 F.3d 112, 113 (9th Cir. 1995) (citing Orleans, 425 U.S. at 814–15). This day-to-day control must 8 amount to substantial supervision. Autery v. United States, 424 F.3d 944, 957 (9th Cir. 2005). 9 Here, it is not clear that the plaintiffs seek to hold the government liable for The John Stewart 10 Company’s conduct. For one, the Presidio Trust itself is identified as the landlord in the lease. 11 Also, the plaintiffs allege that they corresponded directly with Trust employees regarding 12 abatement of the lead contamination.25 And for one of the negligence claims, the plaintiffs allege 13 that each defendant owed a non-delegable duty.26 It may also be that the independent-contractor 14 exception to the FTCA does not apply here because of the peculiar-risk doctrine. Edison, 822 F.3d 15 at 518 n.4 (under the FTCA, the peculiar-risk doctrine creates “direct liability for the 16 government’s nondelegable duty to ensure that the contractor employs proper safety procedures”) 17 (cleaned up); see Crimson Pipeline Mgmt., Inc. v. Herzog Contracting Corp., No. CV 12-3653- 18 GHK (RZX), 2012 WL 13013025, at *2–3 (C.D. Cal. Oct. 10, 2012) (explaining the doctrine, 19 noting that “the applicability of the peculiar risk doctrine is a question of fact,” and holding that “it 20 is at least plausible . . . that [the defendant] should have recognized the need for special 21 precautions during heavy construction near an oil pipeline”). 22 The court also denies the government’s motion to dismiss the negligence claim based on 23 Enterprise Roofing’s conduct. The issue is whether the contract between the Trust and Enterprise 24 Roofing went so far as to “authorize the United States to physically supervise the [contractor]’s 25 employees,” or if it merely authorized, for example, inspection by the United States “to determine 26 27 25 See, e.g., Compl. – ECF No. 1-1 at 29 (¶ 36). 1 [the contractor’s] compliance with the contract.” Orleans, 425 U.S. at 815. Under the contract, 2 “[t]he Trust reserve[d] the right to set priority of activities and/or change schedule as necessary to 3 accommodate the Trust’s construction activities,” and “all work” was to be “conducted under the 4 general direction of the Contracting Officer and Trust Project Manager.”27 Enterprise Roofing was 5 required to “replace or correct work found by the Trust not to conform to contract requirements.”28 6 The project schedule could be “updated and revised as required and approved by the Trust Project 7 Manager.”29 And “[t]he Trust Project Manager [was to] provide technical direction on contract 8 performance,” defined as “[d]irection which assists the Contractor in accomplishing the Scope of 9 Work.”30 Taking these provisions together, and especially due to that last provision, the Trust 10 could “control the detailed physical performance of the contractor.” Id. at 814; Rabieh v. United 11 States, No. 5:19-CV-00944-EJD, 2019 WL 5788673, at *7–8 (N.D. Cal. Nov. 6, 2019) (the 12 government’s merely performing oversight to ensure compliance with contractual terms is not 13 enough, but “control over the physical performance of the contractor” is enough). 14 The final issue raised by the federal defendants is whether the plaintiffs are entitled to punitive 15 damages and a jury trial.31 The court dismisses the claims for punitive damages for the alleged 16 torts by the federal defendants. 28 U.S.C. § 2674 (under the FTCA, the government is not liable 17 for punitive damages). As for a jury trial, the plaintiffs are not entitled to one (against the federal 18 defendants at least) for either the FTCA or Tucker Act-based claims. 28 U.S.C. § 2402. 19 20 2. Enterprise Roofing’s Motion 21 Enterprise Roofing first contends that the negligent infliction of emotional distress and 22 nuisance claims are duplicative of the negligence claim.32 The court dismisses the negligent- 23 24 27 Contract for Roof Replacement, Ex. A to Zack Decl. – ECF No. 17-2 at 8–9. 25 28 Id. at 9. 26 29 Id. at 8. 30 Id. at 15. 27 31 Fed. Defs.’ Mot. – ECF No. 17 at 18. 1 infliction-of-emotional-distress claim as duplicative. See, e.g., White v. Soc. Sec. Admin., 111 F. 2 Supp. 3d 1041, 1054 (N.D. Cal. 2015). 3 As for the nuisance claim, courts sometimes “allow[] plaintiffs to litigate nuisance causes of 4 action in cases involving housing conditions” where there is also a negligence claim. El Escorial 5 Owners’ Assn. v. DLC Plastering, Inc., 154 Cal. App. 4th 1337, 1348 (2007). “But because of the 6 broad definition of nuisance, whether a cause of action is viable depends on the facts of each 7 case.” Id. Where the “overriding issue” is a “traditional tort” like negligence, that traditional tort 8 “should not be litigated under the guise of a nuisance action.” Id. (cleaned up). In El Escorial, for 9 example, the “overriding issue” was “toxic mold contamination due to negligent construction.” Id. 10 The “negligence and nuisance causes of action rel[ied] on the same facts about lack of due care,” 11 so “the nuisance claim [was] a negligence claim.” Id. at 1349. 12 Here, the nuisance claim likewise is not distinct from the negligence claims. In support of the 13 nuisance claim, the plaintiffs allege “toxic conditions” resulting from the defendants’ alleged 14 failures “to ensure certified workers performed work,” “to ensure any protective measures were 15 employed,” and “to remediate lead-based paint and lead dust exposure.”33 This is a negligence 16 claim, so the court dismisses it without prejudice. 17 Enterprise Roofing also contests the relief requested by the plaintiffs for their negligence 18 claims, mainly on the ground that the federal-enclave doctrine precludes the plaintiffs’ reliance on 19 state and local laws for relief such as treble and punitive damages.34 In opposition, the plaintiffs 20 discuss only the issue of sovereign immunity.35 21 “Under the Constitution, the United States has the power to acquire land from the states for 22 certain specified uses and to exercise exclusive jurisdiction over such lands, which are known as 23 federal enclaves.” Swords to Plowshares v. Kemp, 423 F. Supp. 2d 1031, 1034 (N.D. Cal. 2005). 24 Specifically, Article I “grants Congress the power to ‘exercise exclusive legislation in all cases 25 26 33 Compl. – ECF No. 1-1 at 51 (¶¶ 161, 163). 27 34 Enter. Roofing’s Mot. – ECF No. 15 at 8–10. 1 whatsoever’ over all places purchased with the consent of a state ‘for the erection of forts, 2 magazines, arsenals, dock-yards, and other needful buildings.’” Id. The Presidio meets these 3 criteria: it was purchased from California in 1897 at a time that it was used as a military 4 reservation, and “exclusive jurisdiction over [the Presidio] was conferred upon the United States.” 5 Id.; Kasperzyk v. Shetler Sec. Servs., Inc., No. C-13-3383 EMC, 2014 WL 31434, at *4–13 (N.D. 6 Cal. Jan. 3, 2014); Standard Oil Co. v. California, 291 U.S. 242, 243–44 (1934). 7 If the federal government has exclusive jurisdiction within a federal enclave, then the law that 8 governs is usually only “(1) federal law and (2) state law as it existed before the enclave was 9 established.” Kasperzyk, 2014 WL 31434, at *4. But subsequently enacted state laws apply when 10 Congress so provides. Id. 11 Here, as Enterprise Roofing points out, the state and local statutes and ordinances relied on by 12 the plaintiffs were enacted after 1897, when the Presidio was ceded to the federal government. The 13 plaintiffs address only sovereign immunity in their opposition. (They appear to confuse the federal- 14 enclave and sovereign-immunity doctrines.) Under the FTCA, there is a “government-contractor 15 defense” when, if “certain conditions are met[,] a government contractor enjoys derivative 16 sovereign immunity against tort actions arising out of the contractor’s provision of services to the 17 government.” Bixby v. KBR, Inc., 748 F. Supp. 2d 1224, 1240 (D. Or. 2010). But that isn’t the 18 defense Enterprise Roofing is asserting. 19 The court ordered supplemental briefing, though, on the applicability of 28 U.S.C. § 5001. “In a 20 civil action brought to recover on account of an injury sustained in a place [subject to the exclusive 21 jurisdiction of the United States within a State], the rights of the parties shall be governed by the 22 law of the State in which the place is located.” Id. § 5001(b); Kasperzyk, 2014 WL 31434, at *11– 23 13 (analyzing 16 U.S.C. § 457, the predecessor to § 5001). This statute alters the usual application 24 of the federal-enclave doctrine. Kasperzyk, 2014 WL 31434, at *4. But to avoid abolishing the 25 federal-enclave doctrine, district courts have interpreted § 5001 to be limited to certain injuries. Id. 26 at *11–13 (limited to personal injury, i.e., physical or emotional injury but not economic injury); 27 Shurow v. Gino Morena Enters., No. 3:16-CV-02844-L-KSC, 2017 WL 1550162, at *2–3 (S.D. 1 Kasperzyk as persuasive and thus denies Enterprise Roofing’s motion on the asserted federal- 2 enclave-doctrine ground, except to the extent that the claims at issue are for economic injury. 3 Vasina v. Grumman Corp., 644 F.2d 112, 117–18 (2d Cir. 1981) (“The plain language of the 4 provision as drafted, and its later judicial construction, lead us to conclude that § 457 envisions the 5 application of the current substantive law of the surrounding state in actions for death or personal 6 injury occurring within a federal enclave.”). 7 Enterprise Roofing raises some other challenges to the plaintiffs’ requested relief. 8 It contends that because there is no contract between it and the plaintiffs, the plaintiffs are not 9 entitled to attorney’s fees under Cal. Civ. Code § 1717.36 That statute provides that “where [a] 10 contract specifically provides [for] attorney’s fees and costs,” the prevailing party is entitled to 11 those fees and costs. Id. § 1717(a). The plaintiffs are not entitled to these fees and costs. 12 Enterprise Roofing also contends that the plaintiffs also are not entitled to attorney’s fees 13 under Cal. Civ. Code § 1942.4.37 That statute has to do with landlords, and Enterprise Roofing was 14 not a landlord. Thus, the plaintiffs are not entitled to these fees against Enterprise Roofing. 15 Finally, Enterprise Roofing moves for a more definite statement about whether the plaintiffs’ 16 minor daughter is a plaintiff: her name is in capital letters in the complaint, but no guardian ad 17 litem has been appointed.38 A party may move for a more definite statement of a pleading that is 18 “so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 19 12(e). The plaintiffs clarify that their daughter is not a plaintiff.39 The motion is thus moot. 20 21 CONCLUSION 22 The court denies the federal defendants’ motion to dismiss based on the doctrine of derivative 23 jurisdiction, their motion to dismiss the tort claims predicated on the conduct of The John Stewart 24 Company and Enterprise Roofing, and their motion to dismiss the implied-warranty-of-habitability 25 26 36 Enter. Roofing’s Mot. – ECF No. 15 at 10. 37 Id. 27 38 Id. at 11. ] and covenant-of-quiet-enjoyment claims. The court grants their motion as to punitive damages and 2 || ajury trial. The court also grants Enterprise Roofing’s motion to dismiss the emotional-distress and 3 || nuisance claims, the prayer for attorney’s fees, and the prayer for treble and punitive damages 4 || (unless they are for economic injury). The motion for a more definite statement is moot. Any 5 amended complaint must be filed within three weeks and must attach as an exhibit a blackline of th 6 || amended complaint against the current complaint. 7 This resolves ECF Nos. 15 and 17. 8 IT IS SO ORDERED. LAS 9 Dated: February 19, 2024 LAUREL BEELER 10 United States Magistrate Judge 1] 13 «4 o 16 («17 O Z 18 19 20 21 22 23 24 25 26 27 28