I. BACKGROUND 

Plaintiff Roger Ligman (“Plaintiff”) initiated this action against defendants Kumar Khanna (“Khanna”), Kumar Khanna Trust (“Khanna Trust”), and Does 1 through 50 arising from Plaintiff’s tenancy at an alleged unpermitted accessory dwelling unit (“ADU” or “Unit”) at 1700 Apex Avenue, Los Angeles, California 90026 (the “Property”). The complaint sets forth eleven causes of action for (1) Negligence, (2) Breach of Warranty of Habitability, (3) Tortious Breach of Warranty of Habitability, (4) Breach of Implied Covenant of Quiet Enjoyment, (5) Nuisance, (6) Violation of the L.A. Tenant Anti-Harassment Ordinance (LAMC Chap. IV, Art. 5.3), (7) Violation of Civ. Code §1942.4, (8) Retaliation – Civ. Code §1942.5, (9) Intentional Infliction of Emotional Distress (“IIED”); (10) Fraud – Civ. Code §1709; and (11) Unlawful Business Practices – Bus. & Prof. Code §§ 17200, et seq. 

On September 16, 2024, Khanna and Khanna Trust (collectively “Defendants”) filed a demurrer to all eleven causes of action in Plaintiff’s complaint on the grounds that each fail to state facts sufficient to constitute a cause of action and are uncertain. Defendants also filed a motion to strike paragraphs 35-38, 47, 61, 68, 75, 87, 114, 124, and the prayer for punitive damages. 

On October 30, 2024, Plaintiff filed oppositions to the demurrer and motion to strike. 

On November 6, 2024, Defendants filed their replies. 

II. PROCEDURAL STANDARD 

Before filing a demurrer and/or motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41(a); 435.5(a).) 

Defendants’ counsel declares that the parties spoke on the phone about the demurrer and motion to strike on August 30, 2024 and on September 9, 2024, but could not reach an agreement.¿(Olson Decl. ¶¶ 2-3.) The Court finds that Defendants fulfilled the meet and confer requirement prior to filing the demurrer and motion to strike. 

III. DEMURRER 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿¿ 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).) 

The necessary elements for negligence are: (1) that the defendant owed the plaintiff a legal duty to use due care; (2) the defendant breached the duty; (3) causation; and (4) damages.¿ (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) 

Defendants argue that the cause of action is uncertain because it fails to specify facts identifying the untenable conditions. Defendants also contend that several conditions Plaintiff claims that Defendants failed to correct are time-barred under the two-year statute of limitations pursuant to Code of Civil Procedure § 335.1. 

The complaint alleges that since Plaintiff’s tenancy on January 1, 2020, the sliding screen doors to the front and bedroom have been worn out – Plaintiff had to make due with limited repair of taping the screens together (Compl. ¶ 15); the first two years of Plaintiff’s tenancy his Unit was infested with ants – Plaintiff purchased his own ant traps to try to eradicate the ants (Compl. ¶ 16); the Unit lacks consistent hot water in the shower to date because the Property does not have appropriate water heaters for three units (Compl. ¶ 17); on December 2, 2021, Plaintiff notified Khanna that there was black mold under the bathroom sink and a broken showerhead – plaintiff replaced the showerhead himself, and Defendant never treated the mold (Compl ¶ 18); and in November 2023, the toilet stopped working – Plaintiff repaired the toilet himself (Compl. ¶ 19). On May 2, 2024, the Los Angeles Housing Department (“LAHD”) issued an Order to Comply and Notice of Fee to Defendant for illegally completing construction on the Property without proper permits and approval and defendants have not obtained permits since the issuance of the Order. (Compl. ¶20.)  

Defendants’ first argument is that the complaint is uncertain because the specific facts are not identified on pages 8-9 of the complaint in the cause of action itself. However, the first cause of action incorporates the general allegations by reference. (Compl. ¶ 39.) As to certain conditions being time-barred, Defendants appear to implicitly acknowledge that some of the conditions complained of are not time-barred because they are continuing unresolved issues, such as the continuing lack of hot water in the Unit, black mold under the sink, and the failure to cure the illegally constructed ADUs by obtaining proper permits. Defendants request that any time-barred allegation be sustained, but a demurrer cannot be utilized to sustain only a portion of a cause of action where the remainder is sufficiently alleged. A demurrer can only be sustained when it disposes of an entire cause of action.¿(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

Because Defendants cannot demur to only part of a cause of action, the demurrer to the first cause of action is OVERRULED. (PH II, Inc. v. Superior Ct. (1995) 33 Cal. App. 4th 1680, 1682 [A demurrer does not lie to a portion of a cause of action.].) 

Implied in every residential lease is a warranty of habitability, and a dwelling shall be deemed untenantable if it substantially lacks certain characteristics, such as a water supply capable of producing hot and cold running water, areas be kept clean and sanitary of vermin, plumbing maintained in good working order, etc. (Civil Code § 1941.1(a).)  

The essential elements of a cause of action for breach of implied warranty of habitability are: (1) that there was a materially defective condition affecting habitability; (2) that the defective condition was unknown to the tenant at time of occupancy; (3) that the defective condition’s effect on habitability was not apparent on reasonable inspection; (4) that there was notice given to landlord within a reasonable time after the tenant discovered, or should have discovered, the breach; and (5) damages.¿(Quevedo v. Braga (1977) 72 Cal.App.3d Supp. 1, 7—8, overruled on other grounds by Knight v. Hallsthammar (1981) 29 Cal.3d 46, 55.) 

“[U]nder contemporary conditions, public policy compels landlords to bear the primary responsibility for maintaining safe, clean and habitable housing in our state.” (Green v. Superior Court (1974) 10 Cal.3d 616, 627.)¿“This implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements' must be maintained.¿ In most cases substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord's obligations under the common law implied warranty of habitability we now recognize.”¿ (Ibid. at 637.)¿“‘[M]inor housing code violations standing alone which do not affect habitability must be considered de minimis and will not entitle the tenant to reduction in rent…’ [Citation.]”¿(Ibid. at 637-38.) 

Defendants argue the second cause of action fails to allege that Plaintiff gave notice to Defendants of the defective conditions, and that Plaintiff has not alleged that Defendants were notified within a reasonable time of discovering the allegedly defective conditions or given a reasonable amount of time to respond and address them. 

The second and third cause of action incorporates by reference the general allegations (Compl. ¶¶ 48, 54). Here, the complaint does not allege when Plaintiff informed Defendants of the worn-out sliding doors, ant infestation, and lack of consistent hot water, only that Plaintiff complained gave notice of the issues. (Compl. ¶¶ 15-17.) However, Plaintiff complained of the black mold on December 2, 2021, and the non-functioning toilet in November 2023. (Compl. ¶¶ 18-19.) Even though there are some ambiguities, Defendants’ demurrer to these causes of action suffers from the same issue as with the first cause of action that a demurrer must dispose of an entire cause of action rather than in parts. Further, the argument of uncertainty is a disfavored basis for demurrer and only applies when the demurrer is sufficiently unintelligible that a responding party would have no idea how to direct their litigation efforts.¿(Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Ludgate Insurance Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Any ambiguities can be clarified through discovery. [See Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].) 

The demurrer to the second and third causes of action are OVERRULED. 

The essential elements of a cause of action for breach of the covenant of quiet enjoyment are (1) a lease agreement between plaintiff and defendant; (2) the absence of language contrary to the implied covenant that tenant shall have quiet enjoyment and possession; (3) an act or omission of the landlord, or anyone claiming under the landlord, which substantially interferes with a tenant’s right to use and enjoy the premises for purposes contemplated; and (4) an applicable remedy.¿(Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)¿  

Defendants argue the complaint does not allege how long certain conditions existed, and Plaintiff has not stated facts to show that Defendants substantially interfered with his use of the unit. 

Here, the complaint alleges that the parties entered in a written rental agreement for Plaintiff to reside at “No. II” at the Property. (Compl. ¶ 10.) Aside from the complained of physical conditions of the Unit, Plaintiff alleges that Khanna engaged in verbal and physical intimidation of Plaintiff throughout his tenancy. (Compl. ¶ 27.) Khanna entered Plaintiff’s unit without consent or 24-hour written notice, frequently peaks inside Plaintiff’s windows, and often yells and attempts to open Plaintiff’s door without consent. (Ibid.) In October 2023, while Plaintiff was sick, Khanna pounded on the screen door twice, and on the third time, tried to open the sliding glass door and pressed his head against the window to peer inside. (Compl. ¶ 28.) Plaintiff lodged complaints about the harassment with LAHD, and on May 15, 2024, LAHD issued a notice to Defendants and warned Defendants that this behavior could be in violation of the Tenant Anti-Harassment Ordinance #187109. (Compl. ¶ 30.) Khanna also exhibited harassing behavior toward Plaintiff’s guests, in which Khanna would stare at them and make the guests feel uncomfortable. (Compl. ¶ 31.) 

The Court finds that Plaintiff has sufficiently alleged enough specific acts of harassment such that it substantially interfered with Plaintiff’s right to use enjoy the premises. The Court cannot say that any of the allegations are contradictory just because there is a general allegation that Khanna entered the Unit at an unknown time, and other more specific allegations that Khanna disturbed Plaintiff’s use and enjoyment of the Unit. The complaint need not list the “hundreds of similar instances of harassment and intimidation” when it has sufficiently specified enough conduct to qualify as interference. 

The demurrer to the fourth cause of action is OVERRULED. 

The elements of a private nuisance are: (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, i.e., that it cause[s] the plaintiff to suffer “substantial actual damage” ’ ”; and (3) “ ‘ “[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable” [citation], 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.” ’ [Citation.]” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63.) Tenants may sue their landlords for a nuisance. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.) 

Defendants argue that the nuisance claim is duplicative of the negligence claim because they rely on the same facts about the lack of due care. Defendants cite to El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337 (El Escorial). In El Escorial, the matter proceeded at trial in which the trial court rejected the nuisance cause of action because the “overriding” issue was the toxic mold contamination due to negligent construction that should not be litigated under “the guise of a nuisance action.” (Id. at 1348.) The plaintiff in that matter did not allege facts to describe the nuisance nor did he show how the cause of action differed. The appellate court affirmed the trial court’s finding that the nuisance action was merely a clone of the first cause of action using a different label. (Id. at 1349.) 

However, that is not to say that negligence and nuisance claims cannot coexist together. Courts have allowed plaintiffs to litigate nuisance cases involving housing conditions, but because of the broad definition of nuisance, whether a cause of action is viable depends on the facts of each case. (El Escorial, supra, 154 Cal. App. 4th at 1348.) “[U]nder certain circumstances, the worlds of nuisance and negligence overlap and the two become merely alternative legal theories for redressing what is really the invasion of a single primary right: the right to the undisturbed enjoyment of one's property and land. [Citation].” (Lussier v. San Lorenzo Valley Water Dist. (1988) 206 Cal. App. 3d 92, 104.) 

Here, the first cause of action for negligence pertains specifically only to the physical conditions, whereas the fifth cause of action pleads both the physical conditions and Khanna’s harassment/retaliatory acts against Plaintiff. (Compl. ¶ 71.) “[A] nuisance may arise from various forms of conduct, not just negligent acts.” (Lussier, supra, 206 Cal. App. 3d at 106.) Khanna’s conduct toward Plaintiff is separate and apart from the alleged negligent act of failing to remedy complained of conditions of the Unit, such that the Court cannot say the nuisance cause of action is so duplicative. Further, while a plaintiff may not ultimately obtain double recovery, he or she may allege recovery through alternative, and even contradictory, causes of action at the pleadings stage. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565 [“A plaintiff may plead cumulative or inconsistent causes of action”].) 

The demurrer to the fifth cause of action is OVERRULED. 

The Los Angeles Tenant Anti-Harassment Ordinance permits a tenant to bring civil proceedings against a landlord who engages in any “knowing and willful course of conduct directed at a specific tenant or tenants that causes detriment and harm, and that serves no lawful purpose.” (L.A. Municipal Code Ord. No. 187109.) 

Examples of harassment for purposes of the Los Angeles Tenant Anti-Harassment Ordinance includes “[f]ailing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws,” “[t]hreatening or taking action to terminate any tenancy including service of any notice to quit or other eviction notice or bringing action to recover possession of a rental unit based on facts which the landlord has no reasonable cause to believe to be true”; “Threatening to or engaging in any act or omission which interferes with the tenant’s right to use and enjoy the rental unit or whereby the premises are rendered unfit for human habitation and occupancy.” 

The complaint alleges “On or around May 2, 2024, the Los Angeles Housing Department (“LAHD”) issued an Order to Comply and Notice of Fee to Defendant for illegally completing construction on the Property without proper permits and approval. This Order was related to Plaintiff’s Unit. Not since the issuance of this Order has Defendant taken appropriate action to obtain permits and approval for the illegally constructed Plaintiff’s Unit. More than 35 days have elapsed since the issuance of this Order.” (Compl. ¶ 20.) On December 6, 2023, Khanna served Plaintiff with a Notice to Vacate the Premises, which Plaintiff alleges was illegal because it was served on Plaintiff to retaliate against him for his complaints about the tenantability of the Property. (Compl. ¶ 33.) Additionally, as provided above, the complaint also alleges certain conditions of the property, including harassment and retaliation by Khanna. This is enough to plead harassment as defined by the Los Angeles Tenant Anti-Harassment Ordinance. 

The demurrer to the sixth cause of action is OVERRULED. 

Civil Code §1942.4 states: 

“A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice: 

(1)¿The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling. 

(2)¿A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions. 

(3)¿The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail. 

(4)¿The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.” 

Defendants argue that the cause of action is directed against “Sea Son,” and that the demurrer should be sustained on this basis alone. Further, Defendants contend that the allegations are boilerplate, and Plaintiff has not identified the specific characteristics listed in Civil Code Section 1941.1 or the specific violations of Health and Safety Code Section 17920.10 or 17920.3. In opposition, Plaintiff argues he has alleged that on May 2, 2024, a public officer responsible for enforcement of any housing law had notified Defendant in writing of the obligation to repair the unpermitted construction to Plaintiff’s Unit, and that this is enough to support a violation of Civil Code §1942.4. 

In general, Plaintiff’s complaint could have been more artfully pled by incorporating relevant specific allegations into the causes of action itself, and more carefully pled by reviewing the complaint for errors (e.g. referring to the allegations as part of a “First Amended Complaint” (Compl. ¶ 127) and seventh cause of action directed against “Sea Son” (Compl. p. 16 at line 17). However, copying specific allegations into each cause of action is not necessarily the pleading requirement if there are sufficient specific allegations incorporated. As already provided above, the complaint has listed conditions of the property which fall within some of the conditions listed in Civil Code §1941.1, and Plaintiff has alleged that LAHD issued an Order regarding the illegally constructed units on the Property which have not been abated. Plaintiff does not address Defendants’ point that the cause of action is directed at “Sea Son”, an unnamed party. However, the cause of action directed at an unknown “Sea Son” is not enough for the Court to sustain the demurrer as it pertains to Defendants. Plaintiff should consider carefully reviewing and amending any technical errors. 

The demurrer to the seventh cause of action is OVERRULED. 

Civil Code § 1942.5 provides, in relevant part, that “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:…(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.” (Civil Code § 1942.5(a)(2).) “In each instance, the 180-day period shall run from the latest applicable date…” 

Here, Civil Code § 1942.5 has a timing requirement in which the lessor may not increase rent or decrease services within 180 days of the lessee having filed a written complaint with the appropriate agency of which the lessor has notice for the purpose of obtaining correction of a condition relating to tenantability. (Civil Code § 1942.5(a)(2).) The complaint references a single instance in which Plaintiff allegedly lodged a complaint to LAHD, which is the complaint about Defendant’s harassment. (Compl. ¶ 30) However, Plaintiff does not state when he lodged this harassment complaint with LAHD. The complaint also alleges that LAHD issued an Order to Defendant on May 2, 2024 for the illegal construction on the Property; however, it is unclear as to whether Plaintiff had in fact reported the illegal ADUs to LAHD for Civil Code § 1942.5 to be potentially applicable to this incident, and when, since none of these were pled. 

The demurrer to the eighth cause of action is therefore SUSTAINED. 

A cause of action for intentional infliction of emotional distress (“IIED”) “requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the possibility 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. [Citation.]” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.) Conduct is considered “outrageous” if it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) “Generally, conduct will be found to be actionable where the ‘recitation of facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim “Outrageous!” ’ [Citations.]” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) In addition, the bar for severe emotional distress is a high one, requiring that the “emotional distress [is] of such substantial quality or enduring quality that no reasonable person in a civilized society should be expected to endure…” [Citation.]” (Id. at p. 1051.) 

The complaint alleges Khanna’s conduct was outrageous because by “coercively attempting to have Plaintiff leave the Property; harassing Plaintiff; retaliating against Plaintiff; failing to disclose unsafe and uninhabitable conditions in the Property; and creating and maintaining dangerous and unhealthy nuisance conditions at the Property.” (Compl. ¶ 108.) The specific allegations provide that Defendants refused to repair the sliding screen, treat an ant infestation, provide consistent hot water, treat mold under the sink, repair the toilet, and obtain proper permits for the Unit. Additionally, the complaint alleges defendant Khanna engaged in verbal and physical intimidation by peeking in his windows, yelling at Plaintiff, attempting to open Plaintiff’s door without consent, pounding on the screen door, and staring at Plaintiff’s guests. As a result of Khanna’s conduct, Plaintiff suffered and continues to suffer “severe emotional distress, including extreme anguish, fearfulness, horror, anxiety, worry, sleeplessness, humiliation and shame.” (Compl. ¶ 113.)  

Taking the facts alleged as true, the Court finds that this is sufficient to maintain a claim for IIED. The demurrer to the ninth cause of action is OVERRULED. 

Civil Code § 1709 states, “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.” California law generally recognizes four forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment, and failure to perform a promise. (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal. App. 5th 1248, 1252.) 

A claim for fraud must plead all of the following elements: (1) misrepresentation; (2)¿knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage.¿ (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 128; Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332.)¿ Fraud actions are subject to strict requirements of particularity in pleading.¿ (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)¿ Particularity requires facts that show how, when, where, to whom, and by what means the representations were tendered.¿ (Lazar v. Superior Court (1996) 12¿Cal.4th 631, 645.)¿ 

The complaint alleges that Defendant represented to Plaintiff that the Property as a residential unit fit for human habitation, that the representation was false, that Khanna intended that Plaintiff rely on these representations in agreeing to sign the Lease, and that Plaintiff moving into the property caused him harm due to the unsafe home, defects, and mistreatment by Khanna. (Compl. ¶¶ 116-121, 124.) Defendants argue that the complaint fails to plead with particularity facts showing that Khanna knew the unit was unfit for habitation, knew of permitting issues, or should have known of the issues nor how Plaintiff specifically relied on the representation about permits. In opposition, Plaintiff reiterates the general allegations of the cause of action, arguing that it is enough to show Defendant knowingly made misrepresentations. 

The Court finds that Plaintiff has not pled with sufficient particularity a fraud claim against Defendants. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216 [Fraud actions are subject to strict requirements of particularity in pleading.]; see also Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [Fraud must be pleaded with specificity rather than with general and conclusory allegations.].) Further, facts must be alleged that would indicate actual reliance on the misrepresentations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The allegations contain conclusory statements that do not present sufficient specific information regarding the circumstances of the alleged fraud and Defendants’ intention to induce Plaintiffs’ reliance on these misrepresentations. 

The demurrer to the tenth cause of action is SUSTAINED. 

The UCL defines “unfair competition” as “any unlawful, unfair or fraudulent business act or practice.” (Cal. Bus. and Prof. Code § 17200.) “By prohibiting unlawful business practices, ‘ “section 17200 ‘borrows’ violations of other laws and treats them as unlawful practices” that the unfair competition law makes independently actionable.’ ” [Citation.] (Lee v. Luxottica Retail N. Am., Inc. (2021) 65 Cal. App. 5th 793, 799.)¿The scope of conduct covered by the UCL is broad. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1144.)¿ 

Defendants argue the complaint fails to specify what part of the statute he is relying on, and only generally states that Defendant violated statutes and common law. 

However, here the complaint alleges that Defendants failed to maintain and repair the premises as required by Civil Code section 1941.1, and that they violated Civil Code section 1942.5 by retaliating against Plaintiff. (Compl. ¶ 128.) Plaintiff suffered monetary and property lost, such as “decreased value of their leasehold, diminished use of their leasehold, damage to personal property, costs associated with defending themselves against a retaliatory eviction premised on a fraudulent and unlawful notice.” (Compl. ¶ 130.) 

The complaint has specified the statutes relied upon. Defendants provide no authority supporting the notion that Plaintiff must plead specific subdivisions of the statute in order to maintain a UCL claim, especially when any ambiguities can be clarified through discovery. 

The demurrer to the eleventh cause of action is OVERRULED. 

Defendants’ demurrer to the first, second, third, fourth, fifth, sixth, seventh, ninth, and eleventh causes of action are OVERRULED. 

Defendants’ demurrer to the eighth and tenth causes of action are SUSTAINED with fifteen (15) days leave to amend. 

IV. 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. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)¿¿ 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).)¿ “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’¿[Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)¿¿¿ 

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.)¿ Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) 

Defendants move to strike paragraphs 35-38, 47, 61, 68, 75, 87, 114, 124, and the prayer in paragraph 4 for punitive damages. These paragraphs contain language alleging malicious, fraudulent, and oppressive conduct for punitive damages. Defendants argue: the negligence claim does not support punitive damages; Civil Code §3294 prohibits punitive damages for breach of an obligation arising from contract regarding the lease agreement and not repairing the unit/breach of warranty of habitability and covenant of quiet enjoyment; the negligence and nuisance claims are duplicative; and causes of action six, seven, and eight are insufficiently pled. 

The first cause of action alleges untenantable conditions which had each been reported to Defendant, such as an ant infestation, lack of consistent hot water, black mold under sink, and a non-functioning toilet. Of these conditions, the hot water issue and black mold have not been alleged as having been resolved. (See Penner v. Falk (1984) 153 Cal. App. 3d 858, 867 ["The pleadings sufficiently allege facts setting forth long existing physical conditions of the premises which portend danger for the tenants. The pleadings also set out that respondents knew of those conditions for up to two years, had power to make changes, but failed to take corrective and curative measures. If proven, these allegations would support an award of punitive damages."].) The complaint alleges Plaintiff notified Khanna of the black mold on December 2, 2021, and Defendant never treated the mold under the sink. (Compl. ¶ 18). Black mold is potentially dangerous and, taking the allegation as true, Defendants were aware of the issue since 2021 and failed to remedy the condition. As to the other tort-based causes of action, Plaintiff has alleged enough specific allegations of harassment. Defendants’ motion to strike paragraphs 35-38, 47, 75, 87, 114, and prayer for punitive damages “for which such damages are available” are denied. 

However, as Defendants contend, Civil Code §3294 allows for punitive damages for breach of an obligation not arising from contract. Punitive damages are therefore not available for the breach of warranty causes of action nor for the implied covenant of quiet enjoyment. Plaintiff’s reliance on Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1055 to argue that punitive damages for breach of implied covenant of quiet enjoyment is not persuasive. Spinks specifically provides, “Since a party “may not recover in tort for ... breach of the implied covenant of good faith and fair dealing,” an “award of punitive damages” is not permitted on such a claim. [Citation]” (Id. at 1054) and “breach of the implied covenant of good faith and fair dealing will not give rise to punitive damages” (Id. at 1054-55.). Plaintiff did not set forth a cause of action for breach of the implied covenant of good faith and fair dealing. Nonetheless, the implied covenant of quiet enjoyment is a claim sounding in contract just like the breach of the implied covenant of good faith and fair dealing. Plaintiff provides no other authority as to why the same rationale precluding punitive damages for contract-based claims should not apply. Even if Plaintiff calls it a “tortious” breach of warranty of habitability, the underlying breach as pled still arises from the contract. (See Compl. At ¶¶ 56-57 [“Defendant owed Plaintiff the duty to comply with codes requiring permits for residential units” and “Defendant breached this duty and the implied warranty of habitability by creating and failing to correct the substandard conditions complained of herein”.].) The motion to strike paragraphs 61 and 68 is therefore granted. 

Lastly, in terms of the fraud cause of action, the Court has sustained the demurrer to those causes of action with leave to amend. If Plaintiff is unable to successfully cure those defects on the amended complaint, then naturally the claim for punitive damages tied to those causes of action will also fail. However, because the demurrer was sustained as to the fraud cause of action, the motion to strike paragraph 124 will be granted. 

The motion to strike paragraphs 35-38, 47, 75, 87, 114 and the prayer at paragraph 4 is DENIED. 

The motion to strike punitive damages in paragraphs 61 and 68 is GRANTED without leave to amend. 

The motion to strike paragraph 124 is granted with fifteen (15) days leave to amend. 

Moving Party is ordered to give notice. 

DATED: November 13, 2024 

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