TENTATIVE RULING

Defendant Radhika Vattikonda’s Demurrer to Plaintiff’s Complaint is SUSTAINED with thirty (30) days leave to amend as to the seventh and ninth causes of action.

Defendant Radhika Vattikonda’s Motion to Strike Portions of Plaintiff’s Complaint is GRANTED with thirty (30) days leave to amend.

Plaintiff Scott Santos may amend his complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Radhika Vattikonda to give notice. 

REASONING

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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. (Code Civ. Proc., § 436, subd. (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. (Code Civ. Proc., § 436, subd. (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. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Seventh Cause of Action: Nuisance

To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.)

Defendant Radhika Vattikonda (“Defendant”), identified in Plaintiff Scott Santos (“Plaintiff”)’s complaint as the owner of the unit at 1522 South Centinela Avenue, Apartment 208, where Plaintiff resided, demurs to the seventh cause of action on the ground the claim is duplicative of Plaintiff’s claim for negligence.

In the seventh cause of action, Plaintiff takes issue with Defendant’s conduct in failing to repair habitability defects, failing to abate nuisances, and giving Plaintiff no choice but to vacate the unit. (Compl. ¶ 126.) In Plaintiff’s first cause of action for negligence, Plaintiff alleges that Defendant owed Plaintiff a duty of care as the owner of the property, and Defendant breached the duty by failing to comply with cited statutes. (Compl. ¶¶ 73-74.) The Court finds that the claim is duplicative here because while Plaintiff seeks punitive damages for the nuisance claim, this is not a different theory of recovery; rather, it merely adds on a request for punitive damages to the substantially similar negligence claim. The facts do not differ in the two causes of action, and Plaintiff does not allege a continuing nuisance for which he seeks abatement. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners’ Association v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Given this is the first demurrer, the Court will allow Plaintiff opportunity to allege a nuisance claim which differs from his negligence claim. Accordingly, Defendant’s demurrer to the seventh cause of action is SUSTAINED, with thirty (30) days leave to amend.

Ninth Cause of Action: Intentional Infliction of Emotional Distress

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

In the ninth cause of action, Plaintiff alleges that Defendant’s failure to repair the habitability defects and harassment of Plaintiff was outrageous, and it caused Plaintiff distress. (Compl. ¶¶ 142-152.) The purported harassment by Defendant appears to be Defendant’s appearance at Plaintiff’s unit to see a copy of a notice of violation and take photographs of damage. (Compl. ¶ 50.) Plaintiff’s claim does not reach the level of extreme and outrageous conduct. While conduct by a landlord relating to habitability could reach the level of extreme and outrageous, here, Plaintiff’s claim appears to be no more than repeated negligence. Thus, Defendant’s demurrer to the ninth cause of action is SUSTAINED, with thirty (30) days leave to amend.

Motion to Strike

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff’s claims consist of conclusory statements that the defendants’’ conduct generally was malicious, fraudulent, or oppressive. Plaintiff must sufficiently allege conduct showing malice, fraud, or oppression by this specific Defendant. The complaint lacks sufficient facts for the Court to determine whether Plaintiffs intends to hold Defendant liable for her own conduct or the conduct of another party as an employer. Further, insofar as Plaintiff seeks both statutory penalties and punitive damages, “a plaintiff cannot recover both punitive damages and statutory penalties, as this would constitute a prohibited double penalty for the same act,” and “a plaintiff must make an election between the two theories of recovery.” (De Anza Santa Cruz Mobile Estates Homeowners Association v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 912.) For these reasons, Defendant’s motion to strike is GRANTED with thirty (30) days leave to amend.

The Court notes that Plaintiff’s complaint totals 30 pages and 10 causes of action for relatively simple claims, while grouping the defendants’ conduct into general allegations, making it difficult to track Plaintiff’s theory of liability against each individual defendant. Plaintiff is advised to condense his pleading in a manner that allows the parties and the Court to be on sufficient notice of the nature of Plaintiff’s claims as to each defendant within the body of each cause of action.