Judge: Ronald F. Frank, Case: 23TRCV04083, Date: 2024-04-02 Tentative Ruling
Case Number: 23TRCV04083 Hearing Date: April 2, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: April 2, 2024¿
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CASE NUMBER: 23TRCV04083
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CASE NAME: Natasha
Campisi v. Searock PVE, LLC, et al.
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MOVING PARTY: (1) Defendant/Cross-Complainant,
Searock PVE, LLC and Defendants, Pinky Khan, Ahmad Khan
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RESPONDING PARTY: (1) Plaintiff/Cross-Defendant, Natasha Campisi
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TRIAL DATE: None
set.
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MOTION:¿ (1) Defendants’ Demurrer
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Tentative Rulings: (1) Defendants’ demurrer is SUSTAINED in part with 20 days leave
to amend, and OVERRULED in part
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I. BACKGROUND¿¿
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A. Factual¿¿
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On
December 6, 2023, Plaintiff, Natasha Campisi (“Plaintiff”) filed a Complaint
against Defendants, Searock PVE, LLC, Pinky Khan, Ahmad Khan, Tiffany Kawata,
Murat Mese, and DOES 1 through 100. The Complaint alleges causes of action for:
(1) Intentional Misrepresentation; (2) Negligent Misrepresentation; (3)
Fraudulent Concealment; (4) Private Nuisance; (5) Invasion of Privacy,
Intrusion into Seclusion; (6) Intentional Infliction of Emotional Distress; (7)
Breach of Implied Warranty of Habitability; and (8) Unlawful Self-Help by
Landlord in Violation of Civil Code § 789.3.
Now,
Defendants, Searock, Pinky Khan, and Ahmad Khan (collectively, “Demurring
Defendants”), file a demurrer as to the First, Second, Third, Sixth, Seventh,
and Eighth causes of action on the grounds that they argue Plaintiff has failed to allege sufficient facts to
allege these causes of action.
B. Procedural¿¿
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On February 5, 2024,
Demurring Defendants filed their demurrer to Plaintiff’s Complaint. On March 19,
2024, Plaintiff filed an opposition brief. On March 25, 2024, Demurring
Defendants filed a reply brief.
II. REQUEST FOR JUDICIAL
NOTICE
Along with their moving papers, Demurring Defendants have
filed a Request for Judicial Notice of the following Document:
1.
Attached as Exhibit C is a true and correct copy
of Searocks Cross-Complaintfiled in this matter on February 5, 2024. Defendants
request that the Court take judicial notice of this document, which is a public
record, a record of the Court of this State, and part of this Courts record in
the matter and incorporated by reference in the Demurrer to the Complaint.
The Court GRANTS this request and
takes judicial notice of the above documents.
III. ANALYSIS¿
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A. Legal Standard
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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. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only
allege facts sufficient to state a cause of action; each evidentiary fact that
might eventually form part of the plaintiff’s proof need not be alleged.” (C.A.
v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For
the purpose of testing the sufficiency of the cause of action, the demurrer
admits the truth of all material facts properly pleaded. (Aubry v. Tri-City
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit
contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab
Co. (1967) 67 Cal.2d 695, 713.)¿¿¿
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A pleading is uncertain if it is
ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer
for uncertainty may lie if the failure to label the parties and claims renders
the complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[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.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿
B. Discussion
Intentional
Misrepresentation
Here, Demurring
Defendants argue that Plaintiff’s cause of action for Intentional
misrepresentation fails to state a cause of action. “The elements of a cause of
action for intentional misrepresentation are (1) a misrepresentation, (2) with
knowledge of its falsity, (3) with the intent to induce another’s reliance on
the misrepresentation, (4) actual and justifiable reliance, and (5) resulting
damage.” (Daniels v. Select Portfolio
Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) The facts constituting
the alleged fraud must be alleged factually and specifically as to every
element of fraud, as the policy of “liberal construction” of the pleadings will
not ordinarily be invoked. (Lazar v.
Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud
against a corporation, the plaintiffs must plead the names of the persons
allegedly making the false representations, their authority to speak, to whom
they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.
Demurring
Defendants contend that Plaintiff’s allegation that she discovered “through
other neighbors” on the street that “Murat has been a known nuisance and a
danger to the community for years” lacks specificity and is insufficient to
withstand demurrer. (Complaint, ¶ 26.)
Demurring Defendants also contend that on that basis alone, Plaintiff alleges
Defendants were “fully aware” and “willfully failed” to disclose Mr. Mese’s
conduct. (Complaint, ¶ 26.) Demurring Defendants argue that Plaintiff imputes
Plaintiff’s hearsay knowledge on Defendants without any basis from which to
form the belief. They further argue that Plaintiff has not pled any allegations
that they Defendants deceived Plaintiff about Defendant Mese such that they
lied about the safety of the Property, but merely pled her independent
discovery about Defendant Mese. But when
analyzing a demurrer, the Court may not weigh evidence of alleged hearsay.
Instead, this Court is to determine whether, based on the face of the
pleadings, Plaintiff has alleged sufficient facts to state a cause of action.
Parking
Misrepresentation
As to the parking
misrepresentation, Plaintiff asserts that she let it be known early in the
process, she and her family had three vehicles, and that the property would
need to accommodate three spaces. (Complaint, ¶ 20.) Plaintiff specifically
alleges that Defendant Pinky verbally told Plaintiff multiple times before
Plaintiff agreed to rent the property that there were three (3) parking spaces
available, and that “she would have nothing to worry about” regarding ensuring
parking spaces for all three vehicles. (Complaint, ¶ 20.) Plaintiff further specifies that she
was told, “two cars can be parked in the garage, and one can be parked in the
driveway in front of the h use.” (Complaint, ¶ 20.) However, Plaintiff contends
that what was not disclosed, was that her driveway was an easement, and that
she would not be able to permanently park the third vehicle on the driveway.
(Complaint, ¶ 20.) Further, Plaintiff contends that she was not told that the
closest street parking is over one-third of a mile away. (Complaint, ¶ 20.) As
such, the Complaint indicates the required specificities of an intentional misrepresentation
cause of action.
However, in
Demurring Defendant’s moving papers, they have requested this Court take
Judicial Notice of the Cross-Complaint which has attached to it, the lease. The
lease indicates in Paragraph 7A, that there is 2-Car garage, parking in the
front of the home and side garage is in an easement, and that the easement can
be utilized for temporary parking but needs to be readily accessible. (Demurring
Defendants’ RFJN, Exhibit C.) Plaintiff’s opposition asserts that the fact that
the lease says there is an easement does not explain why Pinky continued to “double
down” on her misrepresentation by continuing to state that Plaintiff would be
able to park the third vehicle in the driveway as the Complaint alleges. But Plaintiff’s complaint does not contain
allegations of continuing misrepresentation about the parking spot AFTER the
signing of the lease. Here, although Plaintiff’s allegations note that oral
representations were made prior to signing the lease, the lease clearly makes
contrary representations and Plaintiff still signed the lease. The Complaint does not allege any misrepresentations
contained in the lease with respect to the parking spot. With respect to the
assertion that the nearest street blocking was a considerable distance away,
there is not allegation in the Complaint that any defendant promsed the street
parking would be right in front of the home or that the street parking was available
within a block or similar claim.
As such,
the Court does not believe that Plaintiff can maintain a cause of action for
Intentional Misrepresentation with respect to the parking spot.
Electrical
Issues
As for the electrical issues, Plaintiff contends that
Defendants Searock and Pinky represented that all of the electrical and
appliances would be in good working order upon Plaintiff choosing to rent and
subsequently moving into the Subject Property. (Complaint, ¶ 29.) Plaintiff
also asserts that Searock knew about the faulty and incorrect wiring on the
property for years, and certainly knew of this before they rented the property
to Plaintiff and her family, exposing her to danger, as well as general and
special damages. (Complaint, ¶ 22.) Plaintiff contends Defendants made these
representations to Plaintiff in order to induce her into choosing to rent the
Subject Property. (Complaint, ¶ 29.) Plaintiff asserts that these
representations were made on July 1, 2023, when Plaintiff was touring the
subject property. (Complaint, ¶ 29.) Plaintiff asserts that she reasonably
relied on these false representations, as she chose to rent the subject
property. (Complaint, ¶ 34.)
Here, the Court finds that although Plaintiff has
technically satisfied each of the elements in this cause of action as it
relates to the electrical issues, Plaintiff’s allegations are far too
conclusory. Plaintiff suggests that on July 1, 2023, representations were made
to her regarding the electricity at the apartment and that such electricity and
appliances were in good working order. But Plaintiff will need to be plead more
specific facts in order to state a cause of action for intentional
misrepresentation, i.e., Did Plaintiff inquire as to the electrical and
appliance? What questions were asked regarding the electrical and appliances,
and what were the answers? These inquiries are necessary and required to be pleaded
in order for Plaintiff to maintain this cause of action as it relates to the
electrical and appliances.
Harassing
Neighbor
With the misrepresentation
about the allegedly harassing neighbor, Plaintiff notes that before Plaintiff
even agreed to rent the property from Searock through Pinky and Kawata
brokering the transaction, she disclosed to both Pinky and to Kawata that
Plaintiff and her family have been victims of abuse from Plaintiff’s prior
spouse, and that her and her family were extremely sensitive to harassment,
threats, and abuse, which is what she got and continues to get from Murat the
neighbor since the day she moved in. (Complaint, ¶ 26.) Further, Plaintiff
asserts that she was told by Kawata that she made Ahmad, Pinky, and Searock
aware of Plaintiff’s history of abuse, and that Ahmad, Pinky, and Searock
wanted to assure Plaintiff that she had nothing to worry about. (Complaint, ¶
26.) Plaintiff further notes that when she asked about the neighbors and Murat specifically
before agreeing to rent the Subject Property, Plaintiff was told by Pinky that
“Murat is a really nice man,” “that me [Pinky] and my husband [Ahmad] have had
tea with him before, and he’s great.” (Complaint, ¶ 27.) However, Plaintiff
notes, that in her time living at the subject property, that other neighbors
living on the same street have informed her that Murat is a known nuisance and
a danger to the community for many years, has had numerous confrontations, some
of which have escalated to physical violence. (Complaint, ¶ 26.) Plaintiff
notes that Defendants were fully aware of these prior confrontations Murant had
with the neighbors, and were fully aware of his nuisance and dangerous
tendencies.
Pursuant to
this First Cause of Action for Intentional Misrepresentation as it relates to
the allegations against Demurring Defendant as to the harassing neighbor, this
Court contends that Plaintiff has specifically alleged all elements of this
cause of action. Thus, as it relates to the harassing neighbor
misrepresentation, this Court notes that the demurrer is OVERRULED. However, as
to the parking and electrical/appliances, the demurrer is SUSTAINED with twenty
(20) days leave to amend.
Negligent
Misrepresentation
Demurring
Defendant also argues that Plaintiff has not sufficiently pled the cause of
action for Negligent Misrepresentation. The elements of a cause of action for
negligent misrepresentation include “[m]isrepresentation of a past or existing
material fact, without reasonable ground for believing it to be true, and with
intent to induce another’s reliance on the fact misrepresented; ignorance of
the truth and justifiable reliance on the misrepresentation by the party to
whom it was directed; and resulting damage.” (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates,
Inc. (2004) 115 Cal.App.4th 1145, 1154, quotation marks omitted.) The facts
constituting the alleged fraud must be alleged factually and specifically as to
every element of fraud, as the policy of “liberal construction” of the
pleadings will not ordinarily be invoked. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud
against a corporation, the plaintiff must plead the names of the persons
allegedly making the false representations, their authority to speak, to whom
they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.) “California courts have recognized a cause of
action for negligent misrepresentation, i.e., a duty to communicate accurate
information, in two circumstances. The first situation arises where providing
false information poses a risk of and results in physical harm to person or
property. The second situation arises where information is conveyed in a
commercial setting for a business purpose.” (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 477.)
Here, this
Court’s ruling as to this cause of action, and the first cause of action is the
same, for the same reasons despite the slightly different elements. As such, as
it relates to the harassing neighbor misrepresentation, this Court notes that
the demurrer is OVERRULED. However, as to the parking and
electrical/appliances, the demurrer is SUSTAINED with twenty (20) days leave to
amend.
Fraudulent
Concealment
Next,
Demurring Defendants argue that Plaintiff has not stated sufficient facts to
maintain a cause of action for Fraudulent Concealment. “The elements of a cause
of action for fraudulent concealment are: (1) concealment of a material fact;
(2) by a defendant with a duty to disclose; (3) the defendant intended to
defraud by failing to disclose; (4) plaintiff was unaware of the fact and would
not have acted as it did had it known the fact; and (5) damages.” (Butler
America, LLC v. Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136,
144.) The facts constituting the alleged fraud must be alleged factually and
specifically as to every element of fraud, as the policy of “liberal
construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.)
Based on
the two above analysis on the First and Second causes of action, this Court’s
analysis of the parking spot issue is the same. However, as far as the
electrical issue is concerned, this Court notes a different analysis. Under
this analysis, Defendants’ alleged knowledge of the electrical and appliance
issues allegedly plaguing the subject property and failure to disclose these
facts to Plaintiff are sufficient for the start of the fraudulent concealment
issue. As noted above, Plaintiff meets the specificity requirements when it
comes to baseline fraudulent causes of action as she has included facts
speaking to the individuals, what they said, when they said, etc. However, what
is missing from the Complaint is an allegation with respect to Demurring
Defendants’ duty to disclose the material fact that was allegedly concealed. In
fact, Plaintiff’s Complaint is devoid of any duty discussions. As such, this
cause of action is SUSTAINED. Also, because of the failure to allege duty in
Plaintiff’s Complaint in general, this cause of action for Fraudulent
Concealment also fails as to the harassing neighbor issue. Plaintiff is granted
twenty (20) days leave to file an amended Complaint.
Intentional
Infliction of Emotional Distress
Demurring
Defendant argues that Plaintiff has not stated facts sufficient to maintain a
cause of action for 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.) Specifically, Demurring Defendants
contend that Plaintiff’s Complaint lacks any allegations that Defendants knew
of the neighbor’s conduct, or failed to disclose the easement, the oven, or the
electricity, Plaintiff is unable to demonstrate that Demurring Defendants’
conduct was “extreme and outrageous.” Demurring Defendants also argue that
Plaintiff cannot demonstrate any injuries or any injuries actually and
proximately caused by Defendants because Plaintiff’s damages are speculative
and based on conjecture. Instead, Demurring Defendants contend Plaintiff has
admitted that Plaintiff’s damages stemmed from her neighbor, and with whom
Defendants had no personal knowledge of his alleged tendencies.
Here, Plaintiff
has certainly pled, at minimum, that Demurring Defendants had a reckless
disregard of the probability of causing emotional distress. The Complaint
alleges that Defendants, Searock, Pinky, Ahmad, and Kawata knew that Plaintiff
was particularly vulnerable to emotional distress because during the time that
Plaintiff was being shown the property, she let Pinky know that Plaintiff was a
victim of prior physical abuse and because of this, she is more susceptible to
emotional distress, especially stemming from the type of conduct committed by
Murat against Plaintiff. (Complaint, ¶ 80.) Plaintiff further alleges that
Defendants intended to cause harm, despite the probability that it would result
in Plaintiff suffering severe emotional distress. (Complaint, ¶ 81.) Plaintiff
contends that Defendants’ actions were a substantial factor in causing harm to
Plaintiff, in the form of severe emotional distress. (Complaint, ¶ 82.)
Plaintiff noted that Defendants knew about the neighbor’s violent tendencies,
and despite, this, indicated that she would be safe. Here, the Court finds that
such allegations would be not sufficient to allege a cause of action for
Intentional Infliction of Emotional Distress.
These alleged facts may be sufficient to cause upset or anxiety to a reasonable
person, but the allegations do not rise to the level of extreme nor outrageous
misconduct as required by the standards for pleading an IIED cause of
action. The Demurrer is SUSTAINED with leave
to amend.
Breach of
Implied Warranty of Habitability
Demurring Defendant argues that Plaintiff’s
Seventh Cause of Action fails to state sufficient facts for Breah of Warranty
of Habitability. To establish a breach of the implied warranty of habitability,
Plaintiffs must establish (1) “the existence of a material defective condition
affecting the premises’ habitability,” (2) “notice to the landlord of the
condition within a reasonable time after the tenant’s discovery of the
condition,” (3) “the landlord was given a reasonable time to correct the
deficiency, and” (4) “resulting damages.” (Erlach
v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)
Specifically, Demurring Defendants argues that Plaintiff failed to plead facts
that an alleged 3-day electricity outage amounts to a breach. Demurring
Defendant argues further that Plaintiff failed to plead how the alleged
electrical outage or alleged exposed wiring were not in substantial compliance,
or have materially affected her health and safety, or are the proximate cause
of her damages. (Complaint, ¶¶ 21-22.)
Plaintiff’s Complaint alleges that Defendants
Searock, Pinky, and Ahmad knowingly rented the Subject Property to Plaintiff without
keeping the Subject Property in a habitable condition because the Subject
Property fails to have electrical lighting and wiring and electrical equipment
that complies with applicable law and building codes at the time of its
installation, as well as the electrical system not being maintained in good working
order. (Complaint, ¶ 88.) However, Plaintiff contends that the electrical
system failure has been substantial and has existed the entirety of the time
Plaintiff occupied the Subject Property. (Complaint, ¶ 88.) In fact, Plaintiff
contends that the electricity went out in the subject property entirely from
October 15, 2023 to October 19, 2023. (Complaint, ¶ 88.) Further, Plaintiff
contends that she has done nothing in any way to contribute to the
inhabitability of the Subject Property. (Complaint, ¶ 89.) Plaintiff had
earlier in the Complaint, alleged that when she put Defendants on notice of the
faulty wiring of the entire house, Plaintiff asserts that Pinky blamed her for
the issues, knowing full and well that the electrical system was not wired
correctly on the property. (Complaint, ¶ 22.) Plaintiff has alleged that the
property has faulty electrical wiring that is not up to applicable building
codes, and that the dangerous and exposed wires can be seen outside of the
home, and the exposed wiring is in conspicuous locations throughout the outside
of the house where children can be exposed to it and get electrocuted. (Complaint,
¶ 21.) Plaintiff has alleged that notice was provided to Searock, and that they
waited a full three days to fix the issue, and that as of today, this issue is
still not fixed as lights all over the property continue to flicker and
periodically go out. (Complaint, ¶ 22.)
Here, the Court does not find that
Plaintiff’s Complaint has pleaded sufficient facts to state a cause of action
for Breach of the Implied Warranty of Habitability, but not for the reasons
argued by Demurring Defendants. Here, the Complaint fails to allege how the
electrical issue in this case is a breach of the implied warranty of
habitability. For example, Plaintiff does not describe the consequence or
effect of the habitability concerns. Has
Plaintiff been unable to keep food refrigerated? Has Plaintiff been unable to
use cooking amenities? Has Plaintiff’s air conditioning or heating gone out? Without
more, this Court notes that Plaintiff cannot maintain a cause of action for
Breach of the Implied Warranty of Habitability. As such, the Demurrer as to
this Cause of Action is SUSTAINED with twenty (20) days leave to amend.
Unlawful Self-Help
by Landlord in Violation of Civil Code § 789.3.
Lastly, Demurring Defendants demur to Plaintiff’s Complaint on
the grounds that they argue Plaintiff cannot maintain a cause of action for
Violation of Civil Code § 789.3. Pursuant to Civil Code section 789.3, which
provides at subdivision (a):
“A landlord shall not, with intent to terminate the occupancy
under any lease or other tenancy or estate at will, however created, of
property used by a tenant as his residence willfully cause, directly or
indirectly, the interruption or termination of any utility service furnished
the tenant, including, but not limited to, water, heat, light, electricity,
gas, telephone, elevator, or refrigeration, whether or not the utility service
is under the control of the landlord.”
In civil actions, the
appellate courts have determined that a “landlord violates the statute only
when he willfully interrupts a tenant's utility service with the intent to
terminate occupancy.” (Kinney v. Vaccari (1980) 27 Cal.3d 348, 352 (Kinney).)
A landlord found to have done so will be liable to her tenant for actual
damages. (Civ. Code § 789 subd. (c).)
Here, Demurring Defendants argue that no facts have
been plead that give rise to Plaintiff’s belief that her internet was
intentionally shut off at Defendants’ discretion. Demurring Defendants further
argue that there are no allegations pled that Defendants misrepresented the use
of the internet at the time that Plaintiff’s internet was allegedly
disconnected. Defendant also argues that the Code section does not define
“utilities” as including an internet connection.
First, this Court notes that Civil Code
section 789.3 is not
limited by the utilities listed in Public Utilities Code Section 216 and
declines to sustain the Demurrer on this basis absent other legal authority.
Next, this Court also notes that Plaintiff has alleged that Defendants cut off
the internet at the Subject Property with the specific intent to force Plaintiff
and her family to prematurely vacate the Subject Property. (Complaint, ¶ 95.)
Such an allegation, paired with the fact that the internet is not excluded from
the listed “utilities” under Civil Code section 789.3, this Court finds that
Plaintiff has pled sufficient facts to allege a cause of action for Violation
of Violation of Civil Code § 789.3. As such, the Court OVERRULES the Demurrer as
to this Cause of Action.