Judge: Gail Killefer, Case: 22STCV08754, Date: 2022-08-10 Tentative Ruling

Case Number: 22STCV08754    Hearing Date: August 10, 2022    Dept: 37

HEARING DATE:                 August 10, 2022

CASE NUMBER:                  22STCV08754

CASE NAME:                        Jennifer Miremadi, et al. v. Daniel Semel, et al.

MOVING PARTIES:             Defendants, Daniel Semel and Daniel LB Semel Trust

OPPOSING PARTIES:          Plaintiffs, Jennifer Miremadi and John McGuire  

TRIAL DATE:                        Not Set



PROCEEDING:                     Defendants’ Demurrer to Complaint; Defendants’ Motion to Strike Portions of Complaint   

OPPOSITION:                       Untimely—July 29, 2022

REPLY:                                  August 3, 2022


TENTATIVE:                         Defendants’ demurrer is sustained. Defendants’ motion to strike is also granted, except as to the fourth cause of action which is moot. Plaintiffs are granted 30 days leave to amend. Defendants to give notice.



This is a habitability action arising in connection with an apartment building located at 8437 Ridpath Dr., Los Angeles, CA 90046 (the “Premises”) owned and operated by Daniel Semel and Daniel LB Semel Trust (“Defendants”).  Jennifer Miremadi and John McGuire (“Plaintiffs”) allege violations of the implied warranty of habitability, implied covenants of good faith and fair dealing and of quiet enjoyment due to Defendants’ alleged failure to cure a mold problem in the Premises and Defendants’ alleged retaliatory tactics, which included vacating Plaintiffs from the Premises.

Plaintiffs’ Complaint alleges four causes of action: (1) breach of contract, (2) retaliation, (3) nuisance, and (4) deceit.

Defendants now demur to the first and fourth causes of action of the Complaint. Plaintiffs oppose the demurrer.

Defendants’ Objections

Defendants object to Plaintiffs’ late filed oppositions to the Demurrer and Motion to Strike by contending “Plaintiffs filed their opposition only after defendants filed a notice of plaintiffs’ non-opposition and four days after the statutory deadline to file their opposition.” [emphasis in original] (Objections, 1-2.) Defendants’ Notice of Non-Opposition was filed on August 1, 2022, and correctly contends “plaintiffs’ opposition was thus due by no later than July 28, 2022” and “[n]o opposition from plaintiffs has been received by defendants as of July 29, 2022.” (Notice, 1-2.)

However, a review of the record finds Plaintiffs’ oppositions were filed late by one day, on July 29, 2022. Given the one-day delay, the court overrules Defendants’ objections and considers the parties’ arguments.


I.                   Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.)  “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.”  (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)  “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119(Poizner).)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

II.                Analysis

  1. First Cause of Action: Breach of Contract

A cause of action for¿breach of contract consists of the following elements: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) the resulting damages to the plaintiff.¿ (Oasis West Realty, LLC v. Goldman¿(2011) 51 Cal.4th 811, 821.)¿“The essence of a contract is the meeting of minds on the essential features of the agreement.” (Krasley¿v. Superior Court¿(1980) 101 Cal.App.3d 425, 431.) A contract “is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski¿(2006) 139 Cal.App.4th 1618, 1623.)¿ 

A¿written¿contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect.¿¿(Bowden v. Robinson¿(1977) 67 Cal.App.3d 705, 718.)¿¿An allegation of an oral agreement must “set[] forth the substance of its relative terms.”¿ (Gautier v. General Tel. Co.¿(1965) 234 Cal.App.2d 302, 305.)¿¿¿ 


Here, Defendants contend that the first cause of action is insufficiently pled because: 1) the Complaint fails to sufficiently allege the terms of the contract or attach a copy; 2) the Complaint references the alleged breaches of habitability which are separate causes of action; and 3) fails to show what constitutes the breach of a contractual duty. (Demurrer, 5-6.)  


The Complaint alleges that “the agreement included the implied warranty of habitability, and the implied covenants of good faith and fair dealing and of quiet enjoyment.”  The Complaint further asserts that “on or about 1/2022, Defendant began to breach the contract by the following conduct: Failing to cure mold problem and giving Plaintiffs a 60-Day Notice to Vacate in breach of the implied warranty of habitability and implied covenants of good faith and fear dealing.” (Complaint, 3.) 


Plaintiffs state they “allege each element and ultimate fact sufficient to state a cause of action for breach of contract,” by explaining the dates and implied duties of the contract. (Opposition, 2.) The court disagrees. The court finds that the first cause of action is insufficiently pled. It is entirely unclear from this cause of action which contractual duty was breached by Defendants. Further, it is unclear what Defendants did which would constitute a breach of the contract, since the contract was not attached.


For these reasons, the Defendants’ demurrer to the first cause of action is sustained.  


  1. Fourth Cause of Action: Deceit

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey¿(1990)¿220 Cal.App.3d 59,¿74;¿Nagy v. Nagy¿(1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73;¿Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions¿(1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance¿(1990) 219 Cal.App.3d 1252, 1262.)¿ 


Defendants contend the fourth cause of action is insufficiently pled as it “is completely void of any specificity and completely fails to comply with the stringent requirements to properly plead fraud or deceit.” (Demurrer, 6-7.)


In opposition, Plaintiffs contend they have sufficiently pled the “special relationship” between landlord and tenant and how Defendants failed their duty to “inform Plaintiffs of all material defective conditions in the premises of which Defendant knew.” (Opposition, 3.) However, Plaintiffs fail to identify the material defective conditions, how Defendants failed to disclose them, who from the Defendants failed to disclose, and when these failures to disclose were made. (Complaint, 4.)


The court finds that the fourth cause of action is insufficiently pled as to defendants. As discussed above, the Complaint does not allege affirmative actions taken by any defendant with any specificity, other than the allegation regarding material defective conditions that were not disclosed, without defining what material defective conditions existed. Instead, the Complaint asserts Defendants “did not disclose those conditions and circumstances to Plaintiff, with the intent to defraud Plaintiff into accepting the contract to rent the premises and pay top dollar, abandoning better alternative rentals, and expend relocation costs and time. At that time, Plaintiff was unaware of those conditions and circumstances, and had no reason to suspect that Defendant would be so dishonest as to conceal that information, and would not have agreed to rent it.” (Complaint, 4.)  


For these reasons, Defendants’ demurrer to the fourth cause of action is sustained.  



Defendants’ demurrer is sustained. Plaintiffs are granted 30 days leave to amend. Defendants to give notice.


Defendants also move to strike all of the following from the Complaint: 

1. From the second cause of action for retaliation, the allegations: (1)"..., and with a malicious intent to punish Plaintiff for exercising those rights and with oppressive intent to discourage further exercise of those rights." and (2) "... based upon the malicious and oppressive intent described above."

2. In the second cause of action for retaliation, the claim for punitive damages.

3. The entirety of the fourth cause of action for deceit.

4. Plaintiffs’ prayer for punitive damages. 

As the court has sustained the Defendants’ demurrer to the fourth cause of action, Defendants’ third request is moot. The court continues with the remaining requests.

  1. Legal Authority 

CCP § 436 provides: “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike 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 from any matter of which the court is required to take judicial notice.”  (CCP § 437.)   

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)  Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.  (CCP § 435(b)(1).)  The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.”  (CCP § 452.)  The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.”  (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) 

  1. Analysis   

Defendants contend that the Complaint’s allegations in the second cause of action and prayer for damages for punitive damages fail to state any basis and only provide conclusory reasoning regarding any malicious intent. (Motion, 3-4.) Defendants therefore contend the “conclusory allegations are patently insufficient” to support any claim for punitive damages. (Id.) 

In opposition, Plaintiffs point to Defendants’ alleged retaliatory tactics to support their claims of malicious intent or conduct. (Opposition, 1-2.) Plaintiffs further contend “Defendants had intent” and assert they habe sufficiently shown a basis for punitive damages. (Opposition, 2-3.)

However, Plaintiff fails to point to any supporting authority for this conclusory contention that Defendants had “intent” or acted maliciously, or that the conduct described supports a prayer for punitive damages.

For these reasons, Defendants’ motion is granted, except as to the fourth cause of action which is moot.  


Defendants’ motion is granted, except as to the fourth cause of action which is moot. Plaintiffs are granted 30 days leave to amend. Defendants are to give notice.  


[1] Defendants submit the declaration of their counsel, Steven R. Yee (“Yee”), to demonstrate compliance with statutory meet and confer requirements. Yee attests that on May 2, 2022, counsel sent a meet and confer letter to Plaintiff’s counsel. (Yee Decl. ¶¶ 8-9.) Thereafter, Yee attests plaintiffs’ counsel has neither responded to the meet and confer letter nor filed an amended complaint. (Yee Decl. ¶10.) As the Yee Declaration only states a meet and confer letter was sent, this declaration is not sufficient for purposes of CCP § 430.41. However, as the failure to meet and confer is not sufficient grounds to overrule Defendants’ demurrer, the court continues to analyze the parties’ arguments.