Judge Carolyn M. Caietti, Case Number: 37-2021-00050251-CU-MC-CTL, Date: 2024-04-19 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2021-00050251-CU-MC-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Misc Complaints - Other Motion Hearing (Civil) 37-2021-00050251-CU-MC-CTL NELSON VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant City of San Diego's Demurrer to Plaintiff Nelson's First Amended Complaint is OVERRULED IN PART (as to the 1st, 8th and 12th causes of action) and SUSTAINED IN PART WITHOUT LEAVE TO AMEND (as to the 2nd, 5th, 6th, 7th, 9th, 10th, 11th and 13th causes of action).

Defendant City of San Diego's Demurrer to Plaintiff Howard's First Amended Complaint is OVERRULED IN PART (as to the 1st and 8th causes of action) and SUSTAINED IN PART WITHOUT LEAVE TO AMEND (as to the 2nd, 5th, 6th, 7th and 9th causes of action).

Defendant Father Joe's Villages' Demurrer to Plaintiff Nelson's First Amended Complaint is OVERRULED IN PART (as to the 1st, 5th and 12th causes of action) and SUSTAINED IN PART WITHOUT LEAVE TO AMEND (as to the 2nd, 3rd, 4th, 6th, 7th, 9th, 10th, 11th and 13th causes of action).

Defendant Father Joe's Villages' Demurrer to Plaintiff Howard's First Amended Complaint is OVERRULED IN PART (as to the 1st and 5th causes of action) and SUSTAINED IN PART WITHOUT LEAVE TO AMEND (as to the 2nd, 3rd, 4th, 6th, 7th and 9th causes of action).

Defendant City of San Diego and Father Joe's Villages' Motion to Strike Plaintiff Nelson's First Amended Complaint is DENIED IN PART AND MOOT IN PART.

Defendant Father Joe's Villages' Motion to Strike Plaintiff Howard's First Amended Complaint is DENIED IN PART and GRANTED IN PART WITHOUT LEAVE TO AMEND.

Defendant Mara Elliott's Motion to Strike Portions of Plaintiff Nelson's First Amended Complaint is GRANTED WITHOUT LEAVE TO AMEND.

Defendant Mara Elliott's Demurrer to Plaintiff Howard's First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendant Mara Elliott's Motion to Strike Portions of Howard's First Amended Complaint is MOOT in light of the ruling on the demurrer.

Defendants Jim Neil and Kidder Mathews of California, Inc.'s Demurrer to Plaintiff Howard's First Amended Complaint (ROA 276-280) is SUSTAINED WITHOUT LEAVE TO AMEND.

Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL Defendants Jim Neil and Kidder Mathews of California, Inc.'s Demurrer to Plaintiff Nelson's First Amended Complaint (ROA 281-285) is SUSTAINED WITHOUT LEAVE TO AMEND.

Preliminary Matters Before the Court are eleven demurrers and motions to strike.

Generally, Plaintiffs Andrew Nelson and Alice Howard allege that during the COVID-19 pandemic, they rented an apartment at a Residence Inn hotel in San Diego. At some point the property owners began negotiations with the City of San Diego and other entities to sell the property (and another hotel-property). Plaintiffs were notified they would have to leave. In November 2020, several named defendants illegally evicted and forced all residents out with the exception of Plaintiffs and their family.

When Plaintiff informed Defendants they were legal residents, Defendants shut off Plaintiffs' garbage, cable, telephone and key cards to the amenities. In December 2020, an agent with the City and Father Joe's Villages told Plaintiffs to leave, refused to give them new keys, serve a notice to vacate or follow the law. Later that day, Plaintiffs were 'swatted' by the San Diego Police Department and the agent who had approached them earlier that day had called the police.

Self-represented litigants are held to the same standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543, citing Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985; see also, Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31 ['as is the case with attorneys, [self-represented] litigants must follow correct rules of procedure']; accord Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [a self-represented party 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys'].) Plaintiffs represent themselves and are required to follow all laws, California Rules of Court and local rules. Here, Plaintiffs filed a 28-page omnibus opposition to all motions for April 19, identified defendants by their counsel and did not specifically identify what demurrer or motion they referred to making review of their opposition very challenging. (ROA 429.) Plaintiffs also served the opposition late. (C.C.P., § 1005(b).) Notwithstanding, in light of the important issues presented, the Court reviewed and considered the opposition. Although they filed an opposition, as discussed herein, Plaintiffs largely did not respond to arguments raised in the moving papers. (See, San Diego Superior Court Local Rule 2.1.19(B) [The court may deem a lack of opposition to be a concession that a motion is meritorious.].) Several of these demurrers/motions were continued so they could be heard at one hearing. (See, ROA 326 – Minute Order dated Jan. 2, 2024.) The Court understands the following demurrers/motions are at issue. Some of the demurrers/motions were not re-noticed for April 19. (Ex. ROA 167, 170, 171 – City's Demurrers/Motion to Howard's FAC; ROA 176-177 – FJV's Demurrer/Motion to Howard's FAC.) Plaintiffs do not raise any issues regarding notice.

Legal Standards Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL 1111-12 [in ruling on 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'].) Motion to Strike A motion to strike a complaint in whole or in part is governed by C.C.P. sections 435 through 437. C.C.P.

section 436, provides that '[t]he court may, upon a motion ... (a) [s]trike out any irrelevant, false or improper matter...(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' The grounds for a motion to strike must appear on the face of the challenged pleading or matter subject to judicial notice. (C.C.P., § 437(a).) In ruling on a motion to strike, courts must assume the truth of the complaint's allegations and liberally construe the allegations with a view to substantial justice. (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 91 & C.C.P., § 452.) 1. City of San Diego's Demurrer to Plaintiff Nelson's FAC (ROA 240-241) The causes of action against the City are the first, second and fifth through thirteenth.

As discussed above, a demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. Here, City does not request judicial notice. Rather, it bases several arguments regarding Plaintiff's alleged tenancy on a 'Notice of Lodgment' served by Plaintiff Howard showing receipts. The Court's review must be limited to the four corners of the FAC or matters subject to judicial notice. The Court has not considered the receipts in making this ruling.

The first cause of action states sufficient facts to constitute constructive eviction. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291-93; e.g., FAC, at ¶¶ 10-13.) Thus, the demurrer to the first cause of action is OVERRULED.

The second cause of action does not state sufficient facts to constitute fraud. Fraud must be pled specifically and general and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom and by what means the representations were tendered. (Ibid.) Plaintiff's FAC does not do that here. Plaintiff's opposition does not explain how this defect can be cured through an amendment.

(Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal.App.5th 1144, 1150 [the plaintiff has the burden of proving an amendment would cure the legal defect].) Thus, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

The fifth cause of action does not state sufficient facts to constitute intentional infliction of emotional distress. At most, the FAC alleges City 'knew, or should have known that other named Defendants could not have fulfilled the terms of the Contract without breaking the law. They could have accepted the properties and tenants in the Conditions that existed, and then served Tenants with Notices to Quit...' (FAC, at ¶ 56.) There are no allegations the City engaged in 'extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community).' (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.) Thus, the demurrer to the fifth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The sixth cause of action does not state sufficient facts to constitute negligent infliction of emotional distress. NIED is not an independent tort; the theory on which recovery is sought is negligence.

(Christensen v. Superior Court (1991) 54 Cal.3d 868, 884.) Here, there are no facts showing duty, breach and causation. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662 [elements of negligence].) Thus, the demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The seventh cause of action does not state sufficient facts to constitute unlawful imprisonment. The FAC lacks allegations of imprisonment. Rather, Plaintiff acknowledges he voluntarily left. (FAC, at ¶ 27.) Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL Thus, the demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The eighth cause of action states sufficient facts to constitute dangerous condition of public property.

Again, City solely relies on material outside the FAC and not subject to judicial notice. On this basis, the demurrer to the eighth cause of action is OVERRULED.

The ninth cause of action does not state sufficient facts as 'AB 3088' is not a statute, but an assembly bill. Thus, the demurrer to the ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The tenth cause of action does not state sufficient facts to constitute a violation of the Unruh Act.

Plaintiff's disability is not alleged and its unclear if Plaintiff refers to himself or Plaintiff Howard. (See, e.g., ¶ 73 ['Plaintiff and her daughter...'].) Moreover, California's 'public accommodation laws, including in its most recent form, have been, and remain, directed at private, rather than state, conduct.' (Brennon B. v. Superior Court (2020) 57 Cal.App.5th 367, 388, aff'd sub nom. Brennon B. v. Superior Court (2022) 13 Cal.5th 662.) Thus, the demurrer to the tenth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The eleventh cause of action does not state sufficient facts to constitute a breach of fiduciary duty. There are no facts supporting imposition of a fiduciary duty by the City to Plaintiff. (See, c.f., Girard v. Delta Towers Joint Ventura (1993) 20 Cal.App.4th 1741, 1749 ['[A] garden variety landlord-tenant relationship in a commercial setting,' like the one here, does not create a fiduciary duty.'].) Thus, the demurrer to the eleventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The twelfth cause of action states sufficient facts to constitute a breach of quiet enjoyment. (Nativi, supra, 223 Cal.App.4th at p. 291-93.) Thus, the demurrer to the twelfth cause of action is OVERRULED.

The thirteenth cause of action does not state sufficient facts to constitute 'Rumford Act/ADA Act/VAWA Act/HUD Act Violations.' The only fact alleged under this cause of action is that 'Racism, Classism, and prejudice against the disabled were a factor in Defendants denying Plaintiff Access to basic living facilities and the calling of 911, which has been historically used as a weapon against minorities to force them to do things they would not normally have to or want to do.' (FAC, at ¶ 82.) The legal basis for this cause of action is unclear and this fact is conclusory. Thus, the demurrer to the thirteenth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

For these reasons, the City's demurrer is OVERRULED as to the first, eight and twelfth causes of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the second, fifth, sixth, seventh, ninth, tenth, eleventh and thirteenth causes of action.

2. City of San Diego's Demurrer to Plaintiff Howard's FAC (ROA 167-168) The causes of action against the City are the first, second and fifth through ninth.

As to the first cause of action for constructive eviction, the City does not provide any argument. At most, the City maintains the FAC as a whole is conclusory and vague and does not describe specific facts about the construction of her lease and how much she paid in rent. There is no supporting legal authority. Thus, the demurrer to the first cause of action is OVERRULED.

The second cause of action does not state sufficient facts to constitute fraud. Fraud must be pled specifically and general and conclusory allegations do not suffice. (Lazar, supra, 12 Cal.4th at p. 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom and by what means the representations were tendered. (Ibid.) Plaintiff's FAC does not do that here. Plaintiff's opposition does not explain how this defect can be cured through an amendment. (Ko, supra, 58 Cal.App.5th at p. 1150 [the plaintiff has the burden of proving an amendment would cure the legal defect].) Thus, the demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL AMEND.

The fifth cause of action does not state sufficient facts to constitute intentional infliction of emotional distress. At most, the FAC alleges the City 'failed in their Duty of Care to Plaintiff when inspecting the property, purchasing it, and not ensuring that the residents were vacated from the premises in a lawful matter' (FAC, at ¶ 39) and 'knew, or should have known that AB 3088 must be followed when moving out residents of the two properties purchased. (FAC, at ¶ 40.) There are no allegations the City engaged in 'extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community).' (Berry, supra, 90 Cal.App.5th at p. 1273.) Thus, the demurrer to the fifth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The sixth cause of action does not state sufficient facts to constitute negligent infliction of emotional distress. As discussed above, the elements of negligence are not alleged. Thus, the demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The seventh cause of action does not state sufficient facts to constitute unlawful imprisonment. The FAC lacks allegations of imprisonment. Rather, Plaintiff acknowledges she voluntarily left. (FAC, at ¶ 18.) Thus, the demurrer to the seventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The demurrer does not discuss the eighth cause of action for dangerous condition of public property.

Thus, the City has not met its burden and the demurrer to the eighth cause of action is OVERRULED.

The ninth cause of action does not state sufficient facts to constitute 'violations of the AB 3088 Bill and violations to the Unruh Act.' First, 'AB 3088' is not a statute, but an assembly bill. The City cannot be held liable for an Unruh Act violation. (See, Brennon B., supra, 57 Cal.App.5th at p. 388.) Thus, the demurrer to the ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

For these reasons, the City's demurrer is OVERRULED as to the first and eighth causes of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the second, fifth, sixth, seventh and ninth causes of action.

3. Father Joe Village's Demurrer to Plaintiff Nelson's FAC (ROA 244-245) Again, FJV's demurrer does not include any requests for judicial notice.

The first cause of action states sufficient facts to constitute constructive eviction. (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291-93; e.g., FAC, at ¶¶ 13-15, 30.) Thus, the demurrer to the first cause of action is OVERRULED.

The second cause of action does not state sufficient facts to constitute fraud. Fraud must be pled specifically and general and conclusory allegations do not suffice. (Lazar, supra, 12 Cal.4th at p. 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom and by what means the representations were tendered. (Ibid.) Plaintiff's FAC does not do that here. At most, it alleges FJV cut off essential services, which does not constitute fraud. (FAC, at ¶ 42.) Plaintiff's opposition does not explain how this defect can be cured through an amendment. (Ko, supra, 58 Cal.App.5th at p. 1150.) Thus, the demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The third cause of action does not state sufficient facts to constitute negligent misrepresentation.

(Borman v. Brown (2021) 59 Cal.App.5th 1048, 1060-61 [elements of negligent misrepresentation].) The FAC does not allege what misrepresentations of a past or existing material fact were made. Rather, the FAC alleges FJV 'are being sued....for failing to provide their tenant...with a 30-day written notice. For failure to disclose to Plaintiff who they were, that they were Plaintiff's new landlord, and for other representations, and misrepresentations.' (FAC, at ¶ 47.) Those 'other representations' are not Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL articulated. Again, Plaintiff does not indicate how he would cure. Thus, the demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The fourth cause of action does not state sufficient facts to constitute intentional misrepresentation. The elements of intentional misrepresentation 'are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.' (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245 [elements].) Here, the FAC states FJV is sued 'for intentionally misrepresenting Plaintiff's residence and tenancy to Police during their 911 call.' (FAC, at ¶ 53.) There are no allegations of misrepresentation made to Plaintiff. Thus, the demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The fifth cause of action states sufficient facts to constitute intentional infliction of emotional distress. The FAC alleges cancelled essential services to Plaintiff and, after Plaintiff refused to leave, placed a 911 call to police with false accusations, i.e., swatted Plaintiff. (FAC, at ¶ 54.) This, if proven, would be extreme and outrageous conduct. (Berry, supra, 90 Cal.App.5th at p. 1273.) Thus, the demurrer to the fifth cause of action is OVERRULED.

The sixth cause of action does not state sufficient facts to constitute negligent infliction of emotional distress. There are no facts showing duty, breach and causation. Thus, the demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The ninth cause of action does not state sufficient facts as 'AB 3088' is not a statute, but an assembly bill. Thus, the demurrer to the ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The tenth cause of action does not state sufficient facts to constitute a violation of the Unruh Act. The FAC alleges Defendants 'deliberately discriminated against Plaintiff and their family because they are visibly disabled...' (FAC, at ¶ 73.) A plaintiff can recover under the Unruh Act on two alternate theories: (1) a violation of the ADA; or (2) denial of access to a business establishment based on intentional discrimination. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1059 (SDCCU).) There are no allegations of either. Critically, Plaintiff alleges all residents were directed to vacate the property; not just Plaintiff. (FAC, at ¶ 10.) Further, as discussed above, Plaintiff's disability is not alleged and its unclear if Plaintiff refers to himself or Plaintiff Howard. (See, e.g., ¶ 73 ['Plaintiff and her daughter...'].) Thus, the demurrer to the tenth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The eleventh cause of action does not state sufficient facts to constitute a breach of fiduciary duty. There are no facts supporting imposition of a fiduciary duty by FJV to Plaintiff. Thus, the demurrer to the eleventh cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

As discussed above, the thirteenth cause of action does not state sufficient facts to constitute 'Rumford Act/ADA Act/VAWA Act/HUD Act Violations.' Thus, the demurrer to the thirteenth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

For these reasons, the FJV's demurrer is OVERRULED as to the first, fifth and twelfth causes of action and SUSTAINED WITHOUT LEAVE TO AMEND as to the second, third, fourth, sixth, seventh, ninth, tenth, eleventh, and thirteenth causes of action.

Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL 4. Father Joe Village's Demurrer to Plaintiff Howard's FAC (ROA 177-178) Howard alleges all causes of action except for the eighth cause of action against FJV.

Again, as to the first cause of action for constructive eviction, FJV does not provide any argument. At most, FJV maintains the FAC is conclusory and vague and does not describe specific facts about the construction of her lease and how much she paid in rent. There is no supporting legal authority. Thus, the demurrer to the first cause of action is OVERRULED.

The second cause of action does not state sufficient facts to constitute fraud. (Lazar, supra, 12 Cal.4th at p. 645.) Plaintiff's opposition does not explain how this defect can be cured through an amendment. (Ko, supra, 58 Cal.App.5th at p. 1150. Thus, the demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The third cause of action does not state sufficient facts to constitute negligent misrepresentation.

(Borman, supra, 59 Cal.App.5th at p. 1060-61.) The FAC does not allege what misrepresentations of a past or existing material fact were made. Rather, the FAC alleges things FJV purportedly failed to do.

(FAC, at ¶ 31.) Again, Plaintiff does not indicate how she would cure. Thus, the demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Similarly, the fourth cause of action does not state sufficient facts to constitute intentional misrepresentation. (Aton Center, Inc., supra, 93 Cal.App.5th at p. 1245.) Here, the FAC states FJV is sued 'for intentionally misrepresenting Plaintiff's residency to Police during their 911 call.' (FAC, at ¶ 35.) There are no allegations of misrepresentation made to Plaintiff. Thus, the demurrer to the fourth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The fifth cause of action states sufficient facts to constitute intentional infliction of emotional distress. The FAC alleges cancelled essential services to Plaintiff and, after Plaintiff refused to leave, placed a 911 call to police with false accusations, i.e., swatted Plaintiff. (FAC, at ¶ 42-43.) This, if proven, would be extreme and outrageous conduct. (Berry, supra, 90 Cal.App.5th at p. 1273.) Thus, the demurrer to the fifth cause of action is OVERRULED.

The ninth cause of action does not state sufficient facts to constitute 'violations of the AB 3088 Bill and violations to the Unruh Act.' First, 'AB 3088' is not a statute, but an assembly bill. There are no allegations FJV violated the ADA or intentional discriminated against Plaintiffs. (SDCCU, supra, 50 Cal.App.5th at p. 1059.) Plaintiff alleges all residents were directed to vacate the property; not just Plaintiff. (FAC, at ¶ 9.) Further, as discussed above, Plaintiff's disability is not alleged. Thus, the demurrer to the ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

For these reasons, the FJV's demurrer is OVERRULED IN PART as to the first and fifth causes of action and SUSTAINED IN PART WITHOUT LEAVE TO AMEND as to the second, third, fourth, sixth, seventh and ninth causes of action.

5. City and Father Joe's Villages' Motion to Strike Nelson's FAC (ROA 242-243) There are no requests for judicial notice.

Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL City and FJV seeks to: (i) strike several allegations on the basis they are false and improper; (ii) the fraud, 'ADA Act, etc.' causes of action and (iii) punitive damages and attorney fees.

As to the allegations stated at Nos. 1-19 of the notice of motion, City and FJV again rely on certain receipts to dispute whether Nelson was a tenant, which is outside the four corners of the FAC and not subject to any requests for judicial notice. The Court declines to find these allegations false and improper at this time. The motion is denied as to the items listed at Nos. 1-19 in the notice of motion.

(ROA 242.) The motion to strike the fraud cause of action, attorney fees and Nelson's request for $50 per hour in fees and punitive damages is denied. A notice of motion to strike must 'quote in full the portions sought to be stricken...Specifications in a notice must be numbered consecutively.' (Cal. Rules of Court, rule 3.1322(a).) Here, the notice does not include the sections of the FAC regarding fraud (FAC, at ¶¶ 35-44), attorney fees and punitive damages that the City/FJV seek to strike. Notwithstanding, as to fraud, a motion to strike is not the proper vehicle to challenge the sufficiency of a cause of action for fraud. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [failure to state facts sufficient to state a cause of action is a ground for demurrer; not a motion strike].) There are also sufficient facts to support malice under the intentional infliction of emotional distress cause of action. (Civ. Code, § 3294(c)(1).) The motion is moot in light of the request to strike the fourteenth cause of action for 'Rumford Act/ADA Act/VAWA Act/HUD Action violations' in light of the ruling on the demurrer.

Thus, the motion is DENIED IN PART and MOOT IN PART.

6. Father Joe's Villages' Motion to Strike Howard's FAC (ROA 176, 179) There are no requests for judicial notice.

City and FJV seeks to: (i) strike several allegations on the basis they are false and improper; and (ii) punitive damages; and (iii) the 'Disputed issues to be decided at trial.' As to the allegations stated at Nos. 1-12 of the notice of motion, there is no basis at this time to determine these allegations are false and improper and the Court must assume they are true. The motion is denied as to the items listed at Nos. 1-12 in the notice of motion. (ROA 176.) The motion to strike any prayer for punitive damages is denied for failure to comply with California Rules of Court, rule 3.1322(a).

The motion is granted as to item listed at No. 13 in the notice of motion. Here, Howard lists 'Disputed issues to be decided at trial....' This is an improper allegation for a complaint.

Thus, the motion is DENIED IN PART and GRANTED IN PART WITHOUT LEAVE TO AMEND.

The Court strikes the 'Disputed issues to be decided at trial:' and the list thereafter at p. 16:6-17:1.

7. Mara Elliott's Motion to Strike Plaintiff Nelson's FAC (ROA 234-235) Elliott's unopposed request for judicial notice of City of San Diego Municipal Code section 22.1801(b) is granted and notice will be taken to the extent permitted.

Elliott seeks to strike all references to her name in Nelson's FAC, arguing the inclusion of her name is improper and immaterial because '[r]ather than naming the heads of the City Attorney's Office, Plaintiffs Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL should must bring their lawsuit against the parent entity, the City of San Diego.' (Memo., at p. 6:9-10.) In opposition, Nelson does not respond; thus, he impliedly concedes on the merits. Nelson's opposition includes a request for leave to amend but does not explain how he would amend and cure these defects.

Thus, the motion to strike is GRANTED WITHOUT LEAVE TO AMEND.

The Court strikes 'San Diego City Attorney Mara Elliott' from Nelson's FAC at: (i) p. 1 – caption; (ii) 3:11-12; (iii) 10:18-23 23; (iv) 15:12-13; (v) 16:9; (vi) 16:20; (vii) 18:6; (viii) 20:7; (ix) 20:26; (x) 20:27-21:6; (xi) 22:26; (xii) 28:25.

8. Mara Elliott's Demurrer to Plaintiff Howard's FAC (ROA 171, 173-174) Elliott's unopposed request for judicial notice of section 22.1801(b) of the City of San Diego Municipal Code is granted and notice will be taken to the extent permitted.

The demurrer to the FAC is sustained on the grounds the FAC is uncertain. (C.C.P., § 430.10(f).) The FAC groups Elliott and the City together without specifying the allegations against Elliott. (Ex., FAC, at ¶¶ 19, 40.) Plaintiff's opposition acknowledges that 'the Complaint could be more specific from Defendants...' (Opp., at p. 10:8.) Plaintiff also acknowledge Elliott's argument on this issue but does not substantively respond. (Opp., at p. 11:8-20.) Plaintiff requests leave to amend, but does not identify the facts she could allege to cure the defects presented. Thus, the demurrer to the entire FAC is SUSTAINED WITHOUT LEAVE TO AMEND. This ruling is dispositive as to Mara Elliott.

9. Mara Elliott's Motion to Strike Portions of Plaintiff Howard's FAC (ROA 170, 172) Elliott's motion is MOOT in light of the ruling on her demurrer.

10. Neil and Kidder Mathews of California Inc.'s (erroneously sued as Kidd Mathews CA) Demurrer to Howard's FAC (ROA 276-280, 432-424) Neil and Kidder Mathews of California, Inc. (Kidder)'s unopposed request for judicial notice of the FAC is granted and notice will be taken to the extent permitted.

The record reflects Howard amended the FAC to name Neil and Kidder as Doe Defendants 1 and 3, respectively. (ROA 156, 157.) The FAC fails to state sufficient facts to constitute any cause of action against Neil and Kidder. (C.C.P., § 430.10(e).) Four causes of action pled in the FAC, constructive eviction, intentional and negligent misrepresentation, and intentional infliction of emotional distress, include passing references to 'Doe' Defendants. In some instances, the FAC indicates the Doe Defendants 'will be' sued or are sued 'for reasons to be determined' in discovery. (FAC, at p. 11:7, 9:24-25, 10:13-14.) There are no factual allegations of any acts or omissions by Doe defendants sufficient to establish any elements of these claims. Further, 'Does' are not alleged to be Plaintiff's landlord, owner of the property or defendants who made representations to Plaintiff.

The First Amended Complaint is also uncertain. (C.C.P., § 430.10(f).) While demurrers for uncertainty are disfavored, the allegations make it so these defendants cannot reasonably respond, adequately assert affirmative defenses or know what to ask in discovery. (Lickiss v. Financial Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) The opposition does not address Neil and Kidder's arguments, nor identify what facts she would allege Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL to cure these defects.

Thus, the demurrer to Howard's FAC is SUSTAINED WITHOUT LEAVE TO AMEND. This ruling is dispositive of Howard's FAC against Neil and Kidder.

11. Neil and Kidder's Demurrer to Nelson's FAC (ROA 281-285, 425-426) Neil and Kidder's request for judicial notice of the FAC is granted. They also request notice of certain records in the matter of San Diego Housing Commission et al v. Jim Neil et al, Case No. 2021-33006; however, only the First Amended Complaint is attached to their request. That record will be noticed to the extent permitted.

Nelson's causes of action against Neil and Kidder arise out of an alleged contract between the City and Neil/Kidder. Under the fraud cause of action, Nelson alleges Neil and Kidder defrauded both Nelson and the City 'by conspiring to defraud [City] out of monies by inflating the value of the properties.' (FAC, at ¶ 36.) Several allegations regarding Neil track the same allegations made by the City against Neil. (RFJN 2; cf. FAC, at ¶¶ 37-39.) Further, Nelson alleges Neil and Kidder conspired with other named defendants to force the tenants out of the hotel properties with little to no notice during the COVID-19 pandemic.

(FAC, at ¶ 41.) Under the IIED cause of action, Nelson alleges Neil and Kidder set 'the stage for the false 911 call.' (FAC, at ¶ 55.) Under the NIED cause of action, Nelson alleges they ignored the law and did not care what happened to the tenants of the properties. (Id., at ¶ 67.) The FAC fails to state sufficient facts to constitute any cause of action against Neil and Kidder. (C.C.P., § 430.10(e).) The FAC shows on its face that Nelson's claims against Neil and Kidder arise out of an alleged contract between the City and Neil/Kidder, whereby the latter agreed to represent the City in connection with the purchase of the subject Property. There are no facts alleged that Nelson was a party or third party beneficiary to this agreement. There are also no facts showing Defendants have a fiduciary relationship with Nelson, and Nelson has no standing to sue Defendants for alleged breaches of contractual or fiduciary duties owed to the City by Defendants. (See, e.g., Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 1566 [someone who is not a party to a contact has no standing to enforce the contract].) Defendants further note, and the Court agrees, FAC does not nor could it allege a 'taxpayer' claim pursuant to Code of Civil Procedure Section 526a ('Section 526a').

In opposition, Plaintiff does not challenge he lacks standing, nor taxpayer standing.

While Nelson requests leave to amend, he does not identify how he could cure standing.

For these reasons, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. This ruling is dispositive as to Defendants Neil and Kidder.

Concluding Orders From Howard's FAC, the Court strikes the 'Disputed issues to be decided at trial:' and the list thereafter at p. 16:6-17:1.

From Nelson's FAC, the Court strikes 'San Diego City Attorney Mara Elliott' from Nelson's FAC at: (i) p. 1 – caption; (ii) 3:11-12; (iii) 10:18-23 23; (iv) 15:12-13; (v) 16:9; (vi) 16:20; (vii) 18:6; (viii) 20:7; (ix) 20:26; (x) 20:27-21:6; (xi) 22:26; (xii) 28:25.

Defendants City of San Diego and Father Joe's Villages are ordered to file and serve an answer to Nelson's First Amended Complaint by May 3, 2024.

Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59 CASE NUMBER: CASE TITLE: NELSON VS CITY OF SAN DIEGO [IMAGED] 37-2021-00050251-CU-MC-CTL Defendants City of San Diego and Father Joe's Villages are ordered to file and serve an answer to Howard's First Amended Complaint by May 3, 2024.

Defendant Mara Elliott is ordered to file and serve an answer to Nelson's First Amended Complaint by May 3, 2024.

Defendant Mara Elliott is ordered to prepare and submit a proposed order of dismissal in accordance with any applicable laws and rules of court in regard to the Court's ruling on the Demurrer to Plaintiff Howard's FAC.

Defendants Neil and Kidder Mathews of California, Inc. are ordered to prepare and submit an order of dismissal in accordance with any applicable laws and rules of court.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant City of San Diego is ordered to serve written notice of the Court's final ruling on all appearing parties by April 23, 2024.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

Calendar No.: Event ID: TENTATIVE RULINGS

3015133 59