Judge Alison Mackenzie, Case Number: 23STCV14691, Date: 2023-12-20 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV14691, Date: 2023-12-20 Tentative Ruling

Case Number: 23STCV14691 Hearing Date: December 20, 2023 Dept: 55

NATURE OF PROCEEDINGS: Defendant’s Demurrer to Complaint; Defendant’s Motion to Strike Allegations of Punitive Damages from Plaintiffs’ Complaint.

The demurrer is overruled.

The motion to strike is denied.

Twenty days to answer.

On 6/23/23, DAKORA ROBINSON and DARLENE BROWN (“Plaintiffs”) filed a Complaint against KEVIN HORNESBY (“Defendant”) consisting of 238 paragraphs of allegations. Plaintiffs allege that Defendant leased the subject property to Plaintiffs and that the property has uninhabitable conditions including spider and ant infestation, mold contamination, dysfunctional plumbing systems, dysfunctional electrical outlets, lack of heating, deficient fire protection systems, lack of hot water, offensive odors, and deterioration and dilapidation, and Defendant has been cited by the City for various violations. The causes of action are: 1. Violation of California Civil Code § 1942.4; 2. Tortious Breach of The Warranty of Habitability; 3. Private Nuisance; 4. Business And Professions Code § 17200, et seq.; 5. Negligence; 6. Breach of Covenant of Quiet Enjoyment; 7. Intentional Infliction of Emotional Distress; 8. Negligence Per Se; 9. Violation of Consumer Legal Remedies Act, California Civil Code § 1750, et seq.; 10. Toxic Environmental Mold Tort; 11. Violation of Los Angeles Municipal Tenant Anti-Harassment Ordinance; 12. Retaliatory Eviction, Civil Code § 1942.5; 13. Intentional Influence to Vacate; 14. Violation Of California Civil Code § 1954; 15. Trespassing; and 16. California Welfare And Institutions Code § 15600, et seq.

Defendant filed a demurrer to the Complaint and a motion to strike punitive damages allegations, and Plaintiffs oppose.

DEMURRER

1. First Cause of Action - Violation of California Civil Code § 1942.4

Defendant contends that the first claim is pled in conclusory fashion, and then in the reply Defendant adds an argument that the statutory violation is not sufficiently alleged as a separate cause of action but leaves only negligence per se that also is not a stand-alone cause of action.

Civil Code Section 1942.4 provides, in material part:

(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit … if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.

(b) (1) A landlord who violates this section is liable to the tenant or lessee for the actual damages sustained by the tenant or lessee and special damages of not less than one hundred dollars ($100) and not more than five thousand dollars ($5,000).

Statutory claims can survive as stand-alone causes of action beyond just negligence per se. As to statutory claims, parties must plead facts demonstrating a right to recover under the particular statute. G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 273.

The Complaint adequately alleges substandard and endangering conditions, government enforcement by citations to the landlord, continuing conditions not abated within 35 days after notice, and conditions not caused by the tenants. The Complaint contains details about the alleged conditions, the timeline of the citations and which conditions continued unabated after the notice. Therefore, the demurrer is overruled regarding this statutory claim.

2. Second Cause of Action - Tortious Breach of The Warranty of Habitability

According to Defendant, this claim must allege notice to the landlord, and because the warranty of habitability is based on a lease, the Complaint must attach a copy of the lease agreement or set out the verbatim terms of the written agreement.

Neither the common law nor statutory claims for breach of the warranty of habitability require the pleading of a contract. The elements of such a claim are:

Materially defective condition affecting habitability;
defective condition was unknown to the tenant at time of occupancy;
effect on habitability of the defective condition was not apparent on reasonable inspection;
notice given to landlord within a reasonable time after the tenant discovered, or should have discovered, breach; and
damages.

Quevedo v. Braga (1977) 72 Cal. App. 3d Supp. 1, 7-8, overruled on other grounds by Knight v. Hallsthammar (1981) 29 Cal. 3d 46, 53, 55. See also Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal. App. 4th 1281, 1298 (applying Civ. C. §1942.4, and holding “there is a statutory cause of action available to the residential tenant where the premises are untenantable and other circumstances exist.”). The Complaint does not allege a breach of contract claim and so the absence of a lease agreement attached to the pleading is wholly irrelevant to the actual habitability claim alleged. See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 749 (“Appellant pleaded a cause of action for fraud, not a cause of action for damages based on lack of informed consent. It is irrelevant that Ms. Hahn may not have been able to state a cause of action based on a theory of liability she did not allege.”).

Further, the Complaint very well alleges notice to the landlord and types of uninhabitable conditions known to Defendant but not adequately repaired (e.g., Complaint, ¶¶ 88 - 97). The demurrer therefore is not well taken as to the Second Cause of Action.

3. Third Cause of Action - Private Nuisance

Defendant argues that: “A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land.” Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal.App.4th 601, 610.

A nuisance is defined as:

Interference with plaintiff’s use and enjoyment of plaintiff’s property;
Invasion of plaintiff’s use and enjoyment involves substantial actual damage; and
Interference is unreasonable as to the nature, duration or amount.

San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; CC 3479; CACI 2021. See also Birke v. Oakwood Worldwide (2009) 169 Cal. App. 4th 1540, 1552 (nuisance includes omissions to perform duties, in addition to actions). “If the uninhabitable condition amounts to a nuisance…, it may be enjoined either apart from or in conjunction with a damages action.” Cal. Practice Guide: Landlord and Tenant (The Rutter Group 2023) §§ 3:132 (citing Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 928; and Civ.C. § 3479 et seq. and 3501).

Here, the Complaint adequately alleges conditions, in detail, and at great length, which substantially interfere with Plaintiffs’ use and enjoyment of the property (e.g., Complaint, ¶ 101 (“conditions including but not limited to: spider and ant infestation, mold contamination, dysfunctional plumbing systems, dysfunctional electrical outlets, lack of heating, deficient fire protection systems, lack of hot water, offensive odors, and general state of deterioration and dilapidation.”)).

Therefore, the demurrer is overruled as to the nuisance claim.

4. Fourth Cause of Action - Business And Professions Code § 17200, et seq.

Defendant contends that the Unfair Business Practices claim cannot be alleged separate from negligence, and there is uncertainty as to the part of the statute referenced.

The elements to allege of a claim for Unfair Business Practices, are readily alleged, and are:

A business practice;
that is unfair, unlawful or fraudulent; and
authorized remedy.

Bus. & Prof. Code § 17200; People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal. App. 4th 1006, 1016 (“An ‘unlawful’ practice requires violation of another statute, and a business practice may be ‘unfair’ even if not otherwise proscribed by statute as long as the practice is not expressly authorized by law.”).

The Complaint sufficiently alleges, apart from negligence, unfair business practices based upon various actionable statutory and other law violations (e.g., Complaint, ¶ 117 (“refusing and failing to make repairs, and/or refusing and failing to expend necessary monies to fully and properly make repairs…with the result of Defendants' increasing profits due….”)). The Complaint in paragraphs 111 to 120 clearly establishes a violation of Business and Professions Code section 17200, by citing to violations including California Civil Code sections 1942.4, 1941.1, among many others. Thus, the demurrer is overruled as to the Fourth Cause of Action.

5. Fifth Cause of Action - Negligence

According to Defendant, the Complaint fails to allege specific facts suggesting that the Defendant breached a duty of care or that breach caused damage to Plaintiffs.

“Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty.” Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal. 3d 780, 795. Accord Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; Crouse v. Brobeck (1998) 67 Cal. App. 4th 1509, 1532 (to allege negligence claims, complainants need only state what occurred, and generally that the acts were negligently done, but “need not state the specific act or omission constituting negligent conduct.”).

Thus, the negligence claim need only be alleged generally. Moreover, the Complaint at least generally alleges, as required, breaches of duties of reasonable care owed tenants, owners, operators and managers of the subject property (e.g., Complaint, ¶¶ 121 - 129).

Hence, the demurrer is overruled as to negligence.

6. Sixth Cause of Action - Breach of Covenant of Quiet Enjoyment

A breach of the covenant of quiet enjoyment involves alleging an act or omission of the landlord, which substantially interferes with a tenant’s right to use and enjoy the premises for purposes contemplated. See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588 - 91.

The Court has already dispensed with Defendant’s claim that the Complaint fails to allege that any condition on the property prevented plaintiffs from enjoying the home, or that Defendant otherwise obstructed their free use of property, in the context of the nuisance claim.

In ruling upon demurrers, courts treat as being true “not only the complaint’s material factual allegations, but also facts that may be implied or inferred from those expressly alleged.” Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12. A demurrer should not be sustained on the ground of uncertainty regarding which defendant committed the alleged conduct, where the pleading alleged that all defendants were responsible. Dillard v. County of Kern (1943) 23 Cal. 2d 271, 279. Here, the Complaint alleging “owners” sufficiently infers Defendant as the landlord (see dem., 16:23-24; Complaint, ¶ 3).

The demurrer is overruled as to this Cause of Action.

7. Seventh Cause of Action - Intentional Infliction of Emotional Distress

Defendant contends that the Complaint fails to allege intent to cause emotional distress or outrageous conduct and severe distress. Outrageous conduct can be intentional or reckless. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal. App. 4th 1228, 1259. A court concluded that a tenant sufficiently stated a cause of action for intentional infliction of emotional distress, by alleging extreme emotional distress as a result of a landlord's and property manager's intentional failures to correct uninhabitable conditions of the premises. See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069 (quoting Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 921). See also generally Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2023) §3:103.

Here, the Complaint very well alleges intentional or reckless, outrageous conduct, that would cause severe distress, including, for one example, Defendant’s “refusing to abate numerous disgusting and dangerous conditions and hazards; blatantly ignoring,… Plaintiffs' repair requests and complaints….” (Complaint, ¶ 141.) The demurrer is overruled as to Intentional Infliction of Emotional Distress.

8. Eighth Cause of Action - Negligence Per Se

The defense asserts that negligence per se is not a cognizable, stand-alone claim, and has not been sufficiently alleged. According to plaintiffs, a myriad of statutory and ordinance violations have been supported in factual detail, in support of negligence per se.

There is a split of authority regarding a cognizable claim for negligence per se. See Urhausen v. Longs Drug Stores Cal., Inc. (2007) 155 Cal.App.4th 254, 267 (quoting Ev. C. §669); Gilmer v. Ellington (2d Dist. 2008) 159 Cal.App.4th 190, 202-03; Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 349 (“In order for a claim of negligence per se to succeed, all four elements must be met.”). But see Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555 (“‘negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’”); Peart v. Ferro (2004) 119 Cal.App.4th 60, 80 (“This statute … does not establish tort liability. Rather, it merely ‘codifie[s]’ the rule that ‘a presumption of negligence arises from the violation of a statute….’”); Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1285 (“negligence per se is not to state an independent cause of action….”).

Where there is a split of authority, trial courts have discretion to choose between the decisions. Auto Equity Sales, Inc. v. Sup. Ct. (1962) 57 Cal.2d 450, 456. The Court exercises its discretion to follow the line of cases concluding that negligence per se is a separate cause of action. Additionally, Plaintiffs have alleged many statutory and ordinance violations in support of the claim. The demurrer is overruled as to negligence per se.

9. Ninth Cause of Action - Violation of Consumer Legal Remedies Act, California Civil Code § 1750, et seq. (CLRA).

Defendant argues that the Complaint cannot assert a cause of action for violation of a statute that is separate and apart from the fifth cause of action for negligence, and it is vague as to the portion of the statute. Plaintiffs respond that Complaint paragraphs 159 through 172 provide detail and misrepresenting the quality of the unit is alleged in paragraph 167.

A stand-alone claim under the CLRA does not include specifying a statutory subsection:

Consumer;
who suffers any damage;
as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Civil Code Section 1770.

CC §1780(a); Buckland v. Threshold Ent., Ltd. (2007) 155 Cal. App. 4th 798, 809, 811 (“actual reliance is an element of a CLRA claim sounding in fraud.”), disapproved on other grounds by Kwikset Corp. v. Sup.Ct. (2011) 51 Cal.4th 310, 337; Morgan v. AT & T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1259 (under CLRA one may obtain actual and punitive damages, or injunctive relief); Wilens v. TD Waterhouse Group, Inc. (2003) 120 Cal. App. 4th 746, 754.

Misrepresenting the quality of goods or services with regard to a lease can be actionable under the CLRA. Civ. C. § 1770(a)(7). Those elements are sufficiently factually alleged here (see Demurrer, 19:15-19; Complaint, ¶ 167).

Therefore, the demurrer is overruled as to the CLRA.

10. Tenth Cause of Action - Toxic Environmental Mold Tort

According to Defendant, the case cited by Plaintiffs, Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, does not stand for the proposition that there is an independent claim for “toxic environmental mold tort.” Plaintiffs counter that a toxic environmental tort claim is pled sufficiently, premised on injury as a result of toxins created by mold.

The elements of a claim for any type of toxic exposure are set forth in Bockrath v. Aldrich Chemical Co. (1999) 21 Cal. 4th 71, 80.

Further, there are various claims that have been applied specifically to landlord liability for toxic environmental conditions including mold. See generally Cal. Practice Guide: Landlord and Tenant (The Rutter Group 2023) §§ 6:46 et seq.

Analogously, a decision concluded that factual issues were supported by allegations of a landlord’s liability due to active negligence in not taking remedial action against mold conditions. See Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1068 (“the mold might have migrated to the premises from an area under Chimney Sweep's control. These are factual issues that cannot be resolved on a motion for judgment on the pleadings. In these circumstances, it cannot be said as a matter of law that the exculpatory clause shields….”).

Moreover, the unique label on Plaintiffs’ Complaint for this claim is not determinative, because a demurrer tests the body of the allegations, not the cause-of-action label. “[T]he allegations in the body of the complaint, not the caption, constitute the cause of action against the defendant.” Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 418.

Because the Complaint alleges harmful mold exposures that would support a claim for toxic exposure or some other cause of action, the demurrer is overruled as to the Tenth Cause of Action.

11. Eleventh Cause of Action - Violation of Los Angeles Municipal Tenant Anti-Harassment Ordinance

As part of a repeated theme of attack, Defendant again argues that this is not sufficiently alleged as a stand-alone claim, and the portion of the statute is not specified (e.g., dem., pp. 20-21).

When considering demurrers, courts read the allegations liberally, reasonably and in context. MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 802. And “[c]ourts interpret ordinances in the same way as they construe statutes.” Stolman v. City of Los Angeles (2003) 114 Cal. App. 4th 916, 928. The Court partly has addressed such issues above, with regard to the First Cause of Action. Additionally, the opposition’s arguments about the sufficiency of allegations of violations of ordinances are well-taken. The Complaint alleges even more in the way of harassment than just paragraphs 189 and 190 referenced in the demurrer, page 21, lines 6 through 9, and the Complaint further incorporates by reference previously pled allegations not addressed in the demurrer.

Hence, the demurrer is overruled as to the Eleventh Cause of Action.

12. Twelfth Cause of Action - Retaliatory Eviction, Civil Code § 1942.5

Again, as a part of a repeated theme of attack, Defendant argues that this cannot survive as a stand-alone claim, and the portion of the statute is not specified. In rebuttal, plaintiffs counter that grounds for retaliatory eviction are well alleged as follows:

“195. On information and belief, Plaintiffs reported uninhabitable housing conditions at the Property to Defendants and to government inspectors and requested that Defendants make repairs. In response, Defendants failed to make many of the repairs, and in fact demanded the Plaintiffs pay a 33.33% rent increase, from $750 per month to $1,000 per month. Plaintiffs allege that from January of 2023 through to this day, they have received repeated 60-day, 30 day, and 3 day notices of termination of tenancy and/or notices to quit. Plaintiffs allege that in March of 2023, the Defendants stopped accepting the Plaintiffs rent. The Plaintiffs allege they continued to attempt to pay their $750 of rent, but that the Defendants told them “We are not accepting your rent because you are moving out of the house.”

(Opp., 12:1-6.)

The Court partly has addressed such issues above, with regard to the First Cause of Action. Additionally, the above-quoted Complaint paragraph well supports the claim. More specifically, because the Complaint alleges retaliation continuing in 2023, it infers that more than 180 days have elapsed since any of the many complaints alleged.

The demurrer is overruled as to the Twelfth Cause of Action.

13. Thirteenth Cause of Action - Intentional Influence to Vacate

Defendant argues that this cannot survive as a stand-alone claim, and the portion of the statute is not specified. The Court agrees with Plaintiffs that the Complaint at paragraphs 197 and 209 sufficiently allege that Defendant wanted to evict plaintiffs after they reported uninhabitable conditions to the government, by Defendant’s illegally harassing threats and violence designed to get the tenants out of a rent-controlled unit. The demurrer is overruled as to the Thirteenth Cause of Action.

14. Fourteenth Cause of Action - Violation Of California Civil Code § 1954

Defendant argues that this is not sufficiently alleged as a stand-alone claim, and the portion of the statute is not specified. As discussed above in regard to the first cause of action, this argument has no merit. Additionally, the opposition references some of the Complaint that sufficiently support the separate statutory claim. Civil Code Section 1954 essentially prohibits landlords from entering dwelling units except for listed purposes such as repairs after giving advance notice to tenants or emergencies. The statute applies to “landlord or agent….” Civ. C. Section 1954(d)(2). Such statutory violations are sufficiently alleged (e.g., Complaint, ¶¶ 71, 222-227).

Further, the allegations are to be assumed true for limited demurrer purposes. “‘[D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint.’” Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144.

The demurrer is overruled as to the Fourteenth Cause of Action.

15. Fifteenth Cause of Action - Trespassing

The elements for a common-law claim for trespass (not to be confused with a similar statutory claim applicable to lessors) are:

Plaintiff's ownership, or control, of the property;
defendant's intentional, reckless, or negligent, entry onto property;
lack of permission for entry, or actions in excess of permission;
harm; and
the actions were a substantial factor in causing harm.

Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5th 245, 262 (citing CACI 2000).

Contrary to Defendant’s argument, the Complaint adequately alleges Defendant’s unannounced trespassing without permission into apartments repeatedly, including an incident of walking in on a tenant taking a shower (e.g., Complaint, ¶¶ 71, 222-227). The law does not require more specificity, or consideration of statutory elements applicable to lessors.

The demurrer is overruled as to the Fifteenth Cause of Action.

16. Sixteenth Cause of Action - California Welfare And Institutions Code § 15600, et seq.

The elements of a claim for elder abuse are:

Defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care;
Defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs;
Defendant denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either:

with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice); or
with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and

The neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.

Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407 (“the facts constituting the neglect and establishing the causal link between the neglect and the injury ‘must be pleaded with particularity,’ in accordance with the pleading rules governing statutory claims.”).

Again, as a part of a repeated theme of attack, Defendant argues that this claim is not adequately alleged as a stand-alone claim, which here is due to not alleging a care-taking or custodial relationship (demurrer, 24:16), and the portion of the statute is not specified. The Court already partly addressed such issues above, regarding the First Cause of Action.

Additionally, Defendant did not cite any governing case on point as to whether a lessor or landlord could be in a care or custodial relationship directly or indirectly as to a claim for elder abuse (demurrer, p. 24), and the Court’s independent research reveals there is none. Further, the Complaint contains some allegations regarding rent, personal property, leased real property, and finances, which the demurrer did not address. “Contentions are waived when a party fails to support them with reasoned argument and citations to authority.” Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal. App. 4th 1210, 1215.

Therefore, the demurrer is overruled as to the Sixteenth Cause of Action.

MOTION TO STRIKE

Punitive Damages

Defendant contends that Complaint does not provide sufficient factual allegations of evil injurious motive to sustain a finding of malice. Plaintiffs counter that the Complaint well alleges bases for punitive damages, when all allegations are considered as a whole.

Depending on the circumstances, tenants may recover punitive damages related to breach of the warranty of habitability. Cal. Prac. Guide: Cal. Landlord and Tenants (The Rutter Group 2023) §3:102 (citing, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 916–917, 922; Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1046-47 (allowing punitive damages, and stating: “The building and health code violations found on the property included hazardous electrical wiring, seepage of raw sewage under the buildings due to broken plumbing, infestation of rats, termites and other vermin, broken and deteriorated doors and windows, lack of hot and cold running water, lack of heat, leaking roofs and leaking plumbing fixtures.”).

Here, the Complaint extremely well alleges tenant complaints and the owner’s intentionally not repairing a large number of uninhabitable conditions and exploiting low-income tenants (e.g., Complaint, ¶¶ 45 – 78).

Therefore, there is no basis to grant the motion to strike.

CONCLUSION

The demurrer is overruled, and the motion to strike is denied.