Case Number: 21STCV16686    Hearing Date: May 23, 2023    Dept: B

PROCEEDINGS

Kristy Redmond, et al. v. Lennox Apartment, et al.   

21STCV16686

1.      Beach Front Property Management, Inc.’s Demurrer to Second Amended Complaint

2.      Beach Front Property Management, Inc.’s Motion to Strike Portions of Second Amended Complaint  

TENTATIVE RULING

Beach Front Property Management, Inc.’s Demurrer to Second Amended Complaint is sustained with 20 days leave to amend.

Beach Front Property Management, Inc.’s Motion to Strike Portions of Second Amended Complaint is moot, in part, and granted with 20 days leave to amend, in part.  

Background

Plaintiffs’ Complaint was filed on May 3, 2021. Plaintiffs’ Second Amended Complaint was filed on June 10, 2022. Plaintiffs allege the following facts. Plaintiffs suffered bed bug bits in their apartment. The apartment was sprayed by Amen Pest Control, Inc. Defendant Mabry Management Co., Inc. was the management company that was managing the subject property.  Demurring Defendant Beach Front Property Management, Inc. was substituted in for DOE 1 on December 16, 2022.  Plaintiffs allege the following causes of action: 1. Battery 2. Negligence 3. Intentional Infliction of Emotional Distress 4. Private Nuisance 5. Public Nuisance.   

            Meet and Confer

            Defendant filed meet and confer declarations in sufficient compliance with both CCP § 430.41 and CCP § 435.5.  (Decls., Khushboo B. Vasandani.)

            Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)  In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The Court may not consider contentions, deductions, or conclusions of fact or law.  (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action.  (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.)  Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer.  (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.)  "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer."  (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)  Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.”  Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant demurs only to the third cause of action of the SAC for failure to state sufficient facts to constitute a cause of action and uncertainty.

            Third Cause of Action for Intentional Infliction of Emotional Distress

            The demurrer to the third cause of action is sustained with 20 days leave to amend. Plaintiffs fail to state facts sufficient to state a cause of action and the cause of action is uncertain.

            “A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.

            Plaintiffs have failed to allege any facts to support any of the elements of the cause of action simply because no competent facts have been asserted against this Defendant. Defendant was recently substituted in for DOE 1. The allegations asserted against DOE 1 are boilerplate agency allegations and/or sheer speculations made on information and belief.  (SAC, ¶¶ 7-8.)  “[P]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true and thus a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true.”  Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159 (internal citations and quotations are omitted; emphasis in original.)  Here, Plaintiffs have failed to allege the supporting facts by which they believe that the allegations made on information and belief are true. Thus, all the purported factual allegations that are thereafter set forth against “DOES 1 through 20” are all conclusory without any supporting facts.

            Therefore, the demurrer to the third cause of action is sustained with 20 days leave to amend.

            Motion to Strike 

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  CCP § 436(a).  The court may also strike 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.  CCP § 436(b).  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP § 436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP § 437.

The Court refers the parties to page 2 of the notice of motion which provides the lengthy list of 15 items to which this motion is addressed.

As to any items sought to be stricken that are contained within paragraphs 69 to 83, the motion is moot pursuant to the Court’s ruling sustaining the demurrer to the SAC.

Civ. Code, § 3294 states, in relevant part:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

As to all other items sought to be stricken, the motion is granted with 20 days leave to amend. Plaintiffs have failed to allege competent facts against this Defendant to support the allegations that are sought to be stricken for the reasons outlined above in the Court’s ruling to the demurrer.

Therefore, the motion to strike is moot, in part, and granted with 20 days leave to amend, in part.

Defendant is ordered to give notice of this ruling.