Judge: Michael P. Linfield, Case: 23STCV06436, Date: 2023-08-23 Tentative Ruling

Case Number: 23STCV06436    Hearing Date: February 16, 2024    Dept: 34

SUBJECT:        Demurrer

Moving Party: Defendant AF APTS LLC

Resp. Party:    Plaintiff Yuki Kobayashi, in propria persona

SUBJECT:        Motion to Strike

Moving Party: Defendant AF APTS LLC

Resp. Party:    Plaintiff Yuki Kobayashi, in propria persona

SUBJECT:        Demurrer

Moving Party: Defendant Amos Benjamin

Resp. Party:    Plaintiff Yuki Kobayashi, in propria persona

SUBJECT:        Motion to Strike

Moving Party: Defendant Amos Benjamin

Resp. Party:    Plaintiff Yuki Kobayashi, in propria persona

The Demurrers to the FAC are SUSTAINED in part. The Demurrers are SUSTAINED without leave to amend as to the fifth cause of action for illegal cutting of trees on public land. As to all other causes of action, the Demurrers are OVERRULED.

The Motions to Strike are DENIED.

BACKGROUND:

On March 23, 2023, Plaintiff Yuki Kobayashi filed his Complaint against Defendants AF APTS LLC and Amos Benjamin on causes of action arising from Plaintiff’s tenancy with Defendants.

On June 28, 2023, Defendants filed their Answer to the Complaint (“Joint Answer”).

On July 12, 2023, Defendant AF APTS LLC filed its own Answer to the Complaint (“AF APTS Answer”).

On December 12, 2023, Plaintiff filed his First Amended Complaint (FAC).

On January 8, 2024, Defendant AF APTS LLC filed: (1) Demurrer; and (2) Motion to Strike. These two items were filed separately.

On January 8, 2024, Defendant Amos Benjamin filed: (1) Demurrer; and (2) Motion to Strike. These two items were filed together.

On February 1, 2024, Plaintiff filed: (1) Opposition to Demurrers; and (2) Opposition to Motions to Strike.

On February 5, 2024, Defendants filed: (1) Reply in support of Demurrers; and (2) Reply in support of Motions to Strike.

ANALYSIS:

I.          Demurrers

A.      Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

“A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, citations and internal quotation marks omitted.)

B.      Discussion

Defendants demur to each of the eleven causes of action in the FAC. Defendants also make miscellaneous additional arguments.

1.          First Cause of Action — Violation of Civil Rights and Injunctive Relief

a.       Legal Standard

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” (U.S. Code, tit. 42, § 1983.)

b.       Discussion

Defendants demur to the first cause of action for violation of civil rights, arguing that nothing more than boilerplate conclusions have been made. (Demurrers, p. 13:19–21, 14:1–7.)

The Court disagrees with this argument.

Among other things, Plaintiff alleges that Defendants and an inspector with the Los Angeles Housing Department denied and violated Plaintiff’s rights by engaging in unreasonable search and seizure of his property without probable cause, entering Plaintiff’s property based on his race, entering Plaintiff’s property without proper notice or other due process, and invading Plaintiff’s privacy by entering his property. (FAC, ¶ 15.)

For the purposes of a demurrer, the Court must assume the truth of the allegations. These allegations, if true, might allow for a cause of action for violation of civil rights. Thus, the Demurrers must be overruled.

The Court OVERRULES the Demurrers to the first cause of action for violation of civil rights.

2.          Second Cause of Action — Invasion of Privacy

a.       Legal Standard

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. I, § 1.)

“In Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 [26 Cal. Rptr. 2d 834, 865 P.2d 633] (Hill), this court established a framework for analyzing constitutional invasion of privacy claims. An actionable claim requires three essential elements: (1) the claimant must possess a legally protected privacy interest (id. at p. 35); (2) the claimant's expectation of privacy must be objectively reasonable (id. at pp. 36–37); and (3) the invasion of privacy complained of must be serious in both its nature and scope (id. at p. 37). If the claimant establishes all three required elements, the strength of that privacy interest is balanced against countervailing interests. (Id. at pp. 37–38.) In general, the court should not proceed to balancing unless a satisfactory threshold showing is made. A defendant is entitled to prevail if it negates any of the three required elements. (Id. at p. 40; see Pioneer Electronics, supra, 40 Cal.4th at p. 373.) A defendant can also prevail at the balancing stage. An otherwise actionable invasion of privacy may be legally justified if it substantively furthers one or more legitimate competing interests. (Hill, at p. 40.) Conversely, the invasion may be unjustified if the claimant can point to ‘feasible and effective alternatives’ with ‘a lesser impact on privacy interests.’ (Ibid.)” (Cnty. of Los Angeles v. Los Angeles Cnty. Emp. Rel. Comm. (2013) 56 Cal.4th 905, 926.)

b.       Discussion

Defendants demur to the second cause of action, arguing: (1) that neither Defendants have been charged with a crime, even though this cause of action is ostensibly brought pursuant to Penal Code section 647, subdivision (j)(1); (2) that even if they were charged, Plaintiff would not have a legal right to claim a violation of this statute; and (3) that Plaintiff has not alleged sufficient facts for this cause of action. (Demurrers, pp. 14:13–19, 15:8–11.)

The Court disagrees with these arguments.

It is true that Plaintiff cited Penal Code section 647, subdivision (j)(1) in his FAC. (FAC, p. 9:16–17.) Yet Plaintiff also cited Civil Code section 1708.8. (Ibid.)

“A person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, mobile phone, electronic device, or unmanned aircraft system, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments.” (Pen. Code, § 647, subd. (j)(1).)

“A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person.” (Civ. Code, § 1708.8, subd. (a)(1).)

Whether Defendants have been charged with a crime pursuant to Penal Code section 647 or whether Plaintiff has the right to such a claim is irrelevant.

To the pro per litigant, “interrogatories, requests for admissions, law and motion proceedings, and the like” are “baffling devices.” (Bruno v. Super. Ct. (1990) 219 Cal.App.3d 1359, 1363, quoting Burley v. Stein (1974) 40 Cal.App.3d 752, 755, fn. 3.) “Providing access to justice for self-represented litigants is a priority for California courts.”¿ (Cal. Rules of Court, rule 10.960(b).)

“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475.)

        Here, Plaintiff alleges that Defendants knowingly entered onto his land without permission in order to record his picture and voice without his consent. (FAC, ¶ 18.) These allegations are sufficient for a cause of action for invasion of privacy — whether in common law or pursuant to Civil Code section 1708.8 — to withstand demur.

        The Court OVERRULES the Demurrer to the second cause of action for invasion of privacy.

3.          Third Cause of Action — Trespass

a.       Legal Standard

“‘Trespass is an unlawful interference with possession of property.’ (Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [235 Cal. Rptr. 165].) The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm.” (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261–62.)

b.       Discussion

Defendants demur to the third cause of action for trespass, arguing that Plaintiff does not state sufficient allegations. (Demurrers, p. 15:12–13, 15:23–25.)

The Court disagrees with this argument.

Among other things, Plaintiff alleges: (1) that Defendants willfully and maliciously entered on Plaintiff’s property; (2) that they did so without permission; and (3) that they harmed Plaintiff by influencing him to vacate the property and by taking pictures of his home and person. (FAC, ¶ 21.)

These allegations are sufficient for a cause of action for trespass to withstand demur.

The Court OVERRULES the Demurrer to the third cause of action for trespass.

4.          Fourth Cause of Action — Private Nuisance

a.       Legal Standard

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.)

“Every nuisance not included in the definition of the last section is private.” (Civ. Code, § 3481.)

“The remedies against a private nuisance are: 1. A civil action; or, 2. Abatement.” (Civ. Code, § 3501.)

The elements of an action for private nuisance are: (1) the plaintiff must prove an interference with their use and enjoyment of their property; (2) the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, i.e., 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, 262–63, quoting San Diego Gas & Elec. Co. v. Super. Ct. (1996) 13 Cal.4th 893, 938.) 

b.       Discussion

Defendants demur to the fourth cause of action for private nuisance, arguing Plaintiff has not alleged sufficient facts to support this claim because other tenants are allowed to smoke in their own residences. (Demurrers, pp. 16:1–3, 17:5–11.)

The Court disagrees with this argument.

Among other things, Plaintiff alleges: (1) that various residents of other units on the property have been smoking on the premises; and (2) that Defendants have allowed it to happen without abatement. (FAC, ¶ 10.)

While it might be that the specific facts of what has occurred do not allow this cause of action to survive summary judgment, these allegations do allow this cause of action to withstand demur.

The Court OVERRULES the Demurrers to the fourth cause of action for private nuisance.

5.          Fifth Cause of Action — Illegal Cutting of Trees on Public Land

a.       Legal Standard

“A person shall not willfully or negligently cut, destroy, mutilate, or remove plant material that is growing upon public land or upon land that is not his or hers without a written permit from the owner of the land, signed by the owner of the land or the owner’s authorized agent, as provided in subdivision (c).” (Pen. Code, § 384a, subd. (a)(2).)

“The written permit required by paragraph (2) of subdivision (a) shall be signed by the landowner, or the landowner’s authorized agent, and acknowledged before a notary public, or other person authorized by law to take acknowledgments. The permit shall contain the number and species of trees and amount of plant material, and shall contain the legal description of the real property as usually found in deeds and conveyances of the land on which cutting or removal shall take place. One copy of the permit shall be filed in the office of the sheriff of the county in which the land described in the permit is located. The permit shall be filed prior to the commencement of cutting or removal of plant material authorized by the permit.” (Pen. Code, § 384a, subd. (c)(1).)

“A violation of this section shall be a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000), by imprisonment in a county jail for not more than six months, or by both that fine and imprisonment.” (Pen. Code, § 384a, subd. (f).)

b.       Discussion

Defendants demur to the fifth cause of action for illegal cutting of trees on public land, arguing that Plaintiff does not have standing to seek civil damages for a violation of Penal Code section 384a. (Demurrers, p. 17:26–27.)

        The Court agrees.

        This is a criminal statute, not a civil statute. There is no indication in the text of the statute or in common law that Plaintiff has the right to seek a civil remedy for the allegedly illegal cutting of trees. While there might be a civil remedy elsewhere in the law for such an action, Penal Code section 384a is not it, and Plaintiff has not made the Court aware of the legal authority he wishes to invoke.

        The Court SUSTAINS without leave to amend the Demurrers to the fifth cause of action for illegal cutting of trees on public land.

6.          Sixth Cause of Action — Breach of Covenant of Quiet Enjoyment

a.       Legal Standard

“In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. The covenant of quiet enjoyment insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy.” (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588, internal citations, italics, and quotation marks omitted.)

        “The implied covenant of quiet enjoyment implies a term in a contract, and a breach of the covenant gives rise to an action in contract.” (Ginsberg v. Gamson (205 Cal.App.873, 896.)

“While a claim for breach of the covenant of quiet enjoyment is similar to a constructive eviction claim, the critical difference is that the latter claim may not be brought until the tenant has vacated the property. Thus, breach of the implied covenant of quiet enjoyment can be understood as a title encompassing claims for wrongful eviction, and also claims in which the tenant's use of the premises is disturbed, but the tenant remains in possession.” (Ginsberg, supra, 205 Cal.App.4th at p. 898, citation and internal quotation marks omitted.)

“In summary, California case law has recognized a tort cause of action for wrongful eviction, including breaches of the covenant of quiet enjoyment that compel a tenant to vacate, whereas breach of covenant of quiet enjoyment that does not result in a wrongful constructive or actual eviction is a breach of contract.” (Bevis v. Terrace View Partners, LP (2019) 33 Cal.App.5th 230, 250, citation omitted.)

b.       Discussion

Defendants demur to the sixth cause of action for breach of covenant of quiet enjoyment, arguing that Plaintiff has not alleged sufficient facts, attached the rental agreement, or pleaded the terms of said agreement. (Demurrers, p. 18:12–22.)

The Court disagrees with these arguments.

“In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Constr. Protection Servs., Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199.)

        Here, Plaintiff alleges: (1) the legal effect of the contract; and (2) that Defendants breach its implied covenant of quiet enjoyment by influencing Plaintiff to vacate the dwelling, maliciously cutting trees on public land, and creating, permitting, or maintaining secondhand smoke. (FAC, ¶ 30.)

        These allegations are sufficient for the cause of action to withstand demur.

        The Court OVERRULES the Demurrers to the sixth cause of action for breach of covenant of quiet enjoyment.

7.      Seventh Cause of Action — Retaliation

a.       Legal Standard

“A landlord may enter the dwelling unit only in the following cases:

“(1) In case of emergency.

“(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.

“(3) When the tenant has abandoned or surrendered the premises.

“(4) Pursuant to court order.

“(5) For the purposes set forth in Chapter 2.5 (commencing with Section 1954.201).

“(6) To comply with the provisions of Article 2.2 (commencing with Section 17973) of Chapter 5 of Part 1.5 of Division 13 of the Health and Safety Code.”

(Civ. Code, § 1954, subd. (a).)

“The landlord may not abuse the right of access or use it to harass the tenant.” (Civ. Code, § 1954, subd. (c).)

“It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling:

“(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code.

“(2) Engage in conduct that violates Section 518 of the Penal Code.

“(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.

“(4) Commit a significant and intentional violation of Section 1954.

“(5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief.”

(Civ. Code, § 1940.2, subd. (a).)

“A tenant who prevails in a civil action, including an action in small claims court, to enforce his or her rights under this section is entitled to a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each violation.” (Civ. Code, § 1940.2, subd. (b).)

“Notwithstanding subdivision (a), it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee has lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory.” (Civ. Code, § 1942.5, subd. (d).)

b.       Discussion

Defendants demur to the seventh cause of action for retaliation, arguing that the claim is uncertain. (Demurrers, p. 18:24–26.)

The Court disagrees with this argument.

Among other things, Plaintiff alleges: (1) that he repeatedly complained of the secondhand smoke and annoying noises of hitting walls and floors; (2) that Plaintiff refused to allow Defendants entry into Plaintiff’s home; (3) that Defendants entered into Plaintiff’s home in retaliation Plaintiff’s acts; and (4) that after entering Plaintiff’s home, Defendants influenced Plaintiff to vacate the home. (FAC, ¶¶ 21, 33–35.) Plaintiff cites Civil Code sections 1940.2 and 1942.5 in support of his arguments.

These allegations — which involve causing a lessee to quit involuntarily due to protected acts, such as complaining about allegedly unlawful conditions on the premises — are sufficient for the cause of action for retaliation to withstand demur.

The Court OVERRULES the Demurrers to the seventh cause of action for retaliation.

8.      Eighth Cause of Action — Elder Abuse

a.       Legal Standard

“‘Elder’ means any person residing in this state, 65 years of age or older.” (Welf. & Inst. Code, § 15610.27.)

“‘Abuse of an elder or a dependent adult’ means any of the following:

“(1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering.

“(2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.

“(3) Financial abuse, as defined in Section 15610.30.”

(Welf. & Inst. Code, § 15610.07, subd. (a).)

“Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, neglect as defined in Section 15610.57, or abandonment as defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney’s fees and costs. The term ‘costs’ includes, but is not limited to, reasonable fees for the services of a conservator, if any, devoted to the litigation of a claim brought under this article.” (Welf. & Inst. Code, § 15657, subd. (a).)

b.       Discussion

Defendants demur to the eighth cause of action for elder abuse, arguing that the cause of action has not been pleaded with the requisite particularity. (Demurrers, p. 19:3–18.)

The Court disagrees with this argument.

Plaintiff has made his argument with sufficient particularity: that, among other things, Defendants have allowed him to be physically harmed by secondhand smoke (as well as by the malicious cutting of trees on public land). (FAC, ¶ 38.) While the Court is unaware of how the allegations about the trees could constitute elder abuse, a trier of fact could find that under certain circumstances allowing Plaintiff to be exposed to secondhand smoke constitutes elder abuse.

The Court OVERRULES the Demurrers to the eighth cause of action for elder abuse.

9.      Ninth Cause of Action — Unfair Business Practices

a.       Legal Standard

“As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, § 17200.)

b.       Discussion

Defendants demur to the ninth cause of action for unfair business practices, arguing that Plaintiff has not pleaded the cause of action with the required particularity, including on standing or unlawful business acts or practices. (Demurrers, pp. 19:20–24, 20:8, 20:17.)

        The Court disagrees with these arguments.

        Among other things, Plaintiff alleges that Defendants engaged in various acts (from cutting down trees to allowing smoking on the premises to influencing Plaintiff to vacate his dwelling), all with the purpose of unfairly increasing their business profits. (FAC, ¶ 44.)

        These allegations are pleaded with sufficient particularity for the cause of action to withstand demur.

        The Court OVERRULES the Demurrer to the ninth cause of action for unfair business practices.

10.       Tenth Cause of Action — Negligence

a.       Legal Standard

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) 

b.       Discussion

Defendants demur to the tenth cause of action for negligence, arguing: (1) that Plaintiff has not pleaded sufficient facts, including on duty; and (2) that Plaintiff is attempting to obtain economic damages. (Demurrers, p. 21:26–27, 22:7–15.)

The Court disagrees with these arguments.

Landlords have duties to their tenants — which Plaintiff discusses in the Complaint. (FAC, ¶ 10.e.) In any case, Plaintiff has sufficiently alleged duty (that of a landlord to a tenant), breach of that duty (allowing secondhand smoke on the premises), and proximate cause resulting in an injury (Plaintiff suffering from that secondhand smoke).

The Court OVERRULES the Demurrers to the tenth cause of action for negligence.

11.       Eleventh Cause of Action — Intentional Infliction of Emotional Distress

a.       Legal Standard

“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.)

b.       Discussion

Defendants demur to the eleventh cause of action for intentional infliction of emotional distress, arguing that it is redundant, uncertain, and speculative. (Demurrers, p. 22:16–17, 23:3–4.)

The Court disagrees with this argument.

A trier of fact could find that the various allegations described above, such as unlawfully entering Plaintiff’s home influencing him to vacate his home, are outrageous enough that they would not be tolerated in a civilized community. The allegations made in the pleading are sufficiently certain to withstand demur.

The Court OVERRULES the Demurrers to the eleventh cause of action for intentional infliction of emotional distress.

12.       Remaining Arguments

Defendants also make other arguments: (1) that Plaintiff does not have a right to plead duplicative recoveries based on the same alleged putative conduct; (2) that each cause of action does not state facts sufficient to constitute a claim for alter ego liability; and (3) that the alter ego theory is uncertain, ambiguous, and unintelligible. (Demurrers, pp. 11:18–20, 13:1–3, 23:5–6.)

This first argument is meritless. “The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475.) Here, alleging multiple different theories of recovery does not affect Defendants’ substantial rights and must thus be disregarded.

The latter two arguments were already dealt with regarding the original Complaint. (Minute Order dated August 23, 2023.) As previously stated, Plaintiff has alleged (in specific detail) that Defendants are alter egos of each other, and this must be assumed as true for the purposes of a demurrer.

C.      Conclusion

The Demurrers to the FAC are SUSTAINED in part. The Demurrers are SUSTAINED without leave to amend as to the fifth cause of action for illegal cutting of trees on public land. In all other regards, the Demurrers are OVERRULED.

II.       Motion to Strike

A.      Legal Standard

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(1).)

“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.”

(Code Civ. Proc., § 436.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).)

B.      Discussion

Defendants move the Court to strike sections of the FAC that allege: (1) Defendants are alter egos of each other; (2) Defendants acted with malice, fraud, and/or oppression; (3) Defendants acted in a way that makes punitive and/or exemplary damages available; and (4) punitive and/or exemplary damages are appropriate. (Motions to Strike, pp. 2–4.)

The Court disagrees with these arguments.

As the Court previously stated when Defendants filed their Motion regarding the original Complaint, these allegations are not irrelevant, false, or improper. (Minute Order dated August 23, 2023, p. 5.)

Plaintiff is entitled to allege that Defendants are alter egos, that they acted with malice, fraud, and/or oppression, and that they should therefore be liable for punitive damages. It will ultimately be Plaintiff’s burden to provide that he is entitled to the relief he seeks.

C.      Conclusion

           The Motions to Strike are DENIED.