Judge: Melvin D. Sandvig, Case: 23CHCV02741, Date: 2024-04-11 Tentative Ruling

Case Number: 23CHCV02741    Hearing Date: April 11, 2024    Dept: F47

Dept. F47

Date: 4/11/24

Case #23CHCV02741

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

Demurrer & Motion to Strike filed on 2/2/24.

MOVING PARTY: Defendant PMI Cielo LLC

RESPONDING PARTY: Plaintiff Jana Burkholder

NOTICE: ok

Demurrer is to the 1^st-6^th and 8^th-15^th causes of action:

            1.  Tortious Breach of Implied Warranty of Habitability – Violations of Civil Code 1941

            2.  Breach of Contract – Civil Code 3300, et seq.

            3.  Breach of Quiet Enjoyment – Civil Code 1927

            4.  Private Nuisance – Civil Code 3501, et seq.

            5.  Premises Liability – Civil Code 1714

            6.  Retaliation

            7.  Negligence

            8.  Retaliatory Eviction

            9.  Constructive Eviction

            10. Violation of Civil Code 1940.2

            11. Intentional Infliction of Emotional Distress

            12. Negligent Infliction of Emotional Distress

            13. Violation of Business and Professions Code 17200, et seq.

            14. Fraud

            15. Violation of Civil Code 1950.5

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking portions of the complaint regarding punitive damages; physical and mental discomfort in the 2^nd cause of action; and request for monetary damages in the 13^th cause of action.

RULING: The hearing will be continued.

This action arises out of Plaintiff Jana Burkholder’s (Plaintiff) tenancy from on or about 3/28/20 to on or about 5/15/23 in an apartment allegedly owned, controlled and/or managed by Defendant PMI Cielo LLC (Defendant).  Plaintiff alleges that during her tenancy the apartment suffered from numerous habitability issues that negatively impacted her health.

On 9/12/23, Plaintiff filed this action against Defendant for: (1) Tortious Breach of Implied Warranty of Habitability – Violations of Civil Code 1941; (2) Breach of Contract – Civil Code 3300, et seq.; (3) Breach of Quiet Enjoyment – Civil Code 1927; (4) Private Nuisance – Civil Code 3501, et seq.; (5) Premises Liability – Civil Code 1714; (6) Retaliation; (7) Negligence;

(8) Retaliatory Eviction; (9) Constructive Eviction; (10) Violation of Civil Code 1940.2;

(11) Intentional Infliction of Emotional Distress; (12) Negligent Infliction of Emotional Distress; (13) Violation of Business and Professions Code 17200, et seq.; (14) Fraud; and (15) Violation of Civil Code 1950.5.  The parties were unable to resolve the issues Defendant has with the complaint; therefore, on 2/2/24, Defendant filed and electronically served the instant demurrer to the 1^st – 6^th and 8^th – 15^th causes of action in the complaint and the motion to strike portions of the complaint regarding punitive damages; physical and mental discomfort in the 2^nd cause of action; and request for monetary damages in the 13^th cause of action.

On 4/3/24, 3 court days late, Plaintiff filed and electronically served an opposition to the demurrer and a non-opposition to the motion to strike.  See CCP 1005(b).  Plaintiff “objects” to the demurrer and motion to strike based on service claiming that although Plaintiff agreed to accept email service with defense counsel Elmira Daniely, since the demurrer and email came from someone else in defense counsel’s office, it “went unnoticed.”  (See Harris Decl.).  Plaintiff’s attorney also claims that the proofs of service for the demurrer and motion to strike state that the documents were served by first class mail and were never received in the mail.  However, the proofs of service attached to the documents state that service was made “by electronic service,” not U.S. Mail.

As of the morning of 4/9/24, no replies have been filed.  The hearing on the demurrer and motion to strike will be continued to give Defendant the opportunity to reply to the opposition and non-opposition.  Any replies are due to be filed and served at least 5 court days before the continued hearing date.