Judge: Michael P. Linfield, Case: 23STCV19660, Date: 2024-02-05 Tentative Ruling
Case Number: 23STCV19660 Hearing Date: February 5, 2024 Dept: 34
SUBJECT: Motion to Strike Portions of First
Amended Complaint
Moving Party: Defendant
R&E Management, Inc.
Resp. Party: Plaintiff Jessica Vacha
SUBJECT: Demurrer to First Amended Complaint
Moving Party: Defendant
R&E Management, Inc.
Resp. Party: Plaintiff Jessica Vacha
The Demurrer is OVERRULED.
The Motion to Strike is DENIED.
On August 17, 2023, Plaintiffs Barbara Colombo, Julia Taylor,
and Jessica Vacha filed their Complaint against Defendants R&E Management,
Inc. (erroneously sued as R&E Management Group) and 610 S. Coronado, LLC on
causes of action arising from Plaintiffs’ tenancy with Defendants.
On September 26, 2023, by request of Plaintiffs, the
Clerk’s Office dismissed without prejudice Plaintiffs Barbara Colombo and Julia
Taylor from the Complaint.
On October 16, 2023, Plaintiff Jessica Vacha
(“Plaintiff”) filed her First Amended Complaint (FAC).
On January 5, 2024, Defendant R&E Management, Inc.
(“Defendant”) filed: (1) Demurrer to FAC; and (2) Motion to Strike Portions of
FAC. Defendant concurrently filed proposed orders for these filings.
On January 23, 2024, Plaintiff filed her Oppositions to
these filings.
On January 26, 2024, Defendant filed its Replies in
support of these filings.
ANALYSIS:
I.
Demurrer
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
Defendant solely demurs to the fifth cause of action for retaliation
pursuant to Civil Code section 1942.5. (Demurrer, p. 6:21–22.)
1.
Legal
Standard
“If the lessor
retaliates against the lessee because of the exercise by the lessee of the
lessee’s rights under this chapter or because of the lessee’s complaint to an
appropriate agency as to tenantability of a dwelling, and if the lessee of a
dwelling is not in default as to the payment of rent, the lessor may not
recover possession of a dwelling in any action or proceeding, cause the lessee
to quit involuntarily, increase the rent, or decrease any services within 180
days of any of the following:
“(1) After the date upon which the lessee, in
good faith, has given notice pursuant to Section 1942, has provided notice of a
suspected bed bug infestation, or has made an oral complaint to the lessor
regarding tenantability.
“(2) After the date upon which the lessee, in
good faith, has filed a written complaint, or an oral complaint which is
registered or otherwise recorded in writing, with an appropriate agency, of
which the lessor has notice, for the purpose of obtaining correction of a
condition relating to tenantability.
“(3) After the date of an inspection or
issuance of a citation, resulting from a complaint described in paragraph (2)
of which the lessor did not have notice.
“(4) After the filing of appropriate
documents commencing a judicial or arbitration proceeding involving the issue
of tenantability.
“(5) After entry of judgment or the signing
of an arbitration award, if any, when in the judicial proceeding or arbitration
the issue of tenantability is determined adversely to the lessor.
“In each instance, the
180-day period shall run from the latest applicable date referred to in
paragraphs (1) to (5), inclusive.”
(Civ. Code, § 1942.5,
subd. (a).)
2.
Discussion
Defendant demurs to the fifth cause of action for violation of Civil
Code section 1942.5, arguing that Plaintiff does not state a cause of action
under either subdivision (a) or subdivision (d) of section 1942.5. (Demurrer,
p. 6:21–28, 7:1–28.)
The Court disagrees.
Among other things, Plaintiff alleges:
(1) that she made complaints to Defendants for more than a year, including as
recently as April 2023; (2) that on August 22, 2023, Defendants subsequently
served an unlawful 3-day notice to pay rent or quiet, intending to terminate
the tenancy; and (3) that Plaintiff had continued to pay rent. (Complaint, ¶¶
21, 34, 64, 69.) Notably, the time between the last alleged notice and the
attempt to unlawfully evict Plaintiff was less than 180 days.
These allegations are sufficient to
constitute the elements of a cause of action for violation of Civil Code
section 1942.5, subdivision (a). As Plaintiff does not allege in her Opposition
that there has been a violation of Civil Code section 1942.5, subdivision (d),
the Court does not consider that issue here.
C.
Conclusion
The Court OVERRULES the Demurrer to the
fifth cause of action for violation of Civil Code section 1942.5.
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
Defendant moves the Court to strike sections of the Complaint that
allege Defendant acted with malice, fraud, and/or oppression and that Plaintiff
should obtain punitive damages. (Motion to Strike, p. 5:18–20.)
The Court again disagrees.
Plaintiff is entitled to allege that Defendant acted with malice,
fraud, and/or oppression and that it should therefore be liable for punitive
damages. It will ultimately be Plaintiff’s burden to provide that she is
entitled to the relief she seeks.
C.
Conclusion
The Motion to Strike is DENIED.