Judge Teresa A. Beaudet, Case Number: 23STCV22254, Date: 2024-04-26 Tentative Ruling

Plaintiff Martin Dorsla (“Plaintiff”) filed this action on September 15, 2023 against a number of Defendants.

Plaintiff filed the operative First Amended Complaint (“FAC”) on October 31, 2023, alleging causes of action for (1) breach of warranty of habitability, (2) breach of the covenant of quiet enjoyment, (3) premises liability, (4) private nuisance, (5) negligence and negligence per se, (6) negligent infliction of emotional distress, (7) intentional infliction of emotional distress, and (8) violation of Business and Professions Code section 17200.

In the FAC, Plaintiff alleges that on or about August 1, 2009, he entered into a written rental agreement with B&E Properties, LP for the rental of a rent-controlled apartment located at 6208 Orange St., Los Angeles California 90048 (the “Premises”). (FAC, ¶ 1, p. 2.) On or about March 29, 2019, DSJ Thayer Exchanges LLC, SFJ Thayer LLC, and DAJO Thayer LLC acquired ownership of the premises. (FAC, ¶ 3, p. 2.) The Premises is managed by Capri Properties. (FAC, ¶ 4, p. 2.) From about late 2019 to the present date, the Premises has been under renovation by Enrique Camacho of Housed Inc. and Joe J Huezo of Huezo Construction. (FAC, ¶ 5, p. 2.) Plaintiff alleges, inter alia, that Defendants failed to repair certain “dangerous and defective conditions in the premises and common areas of the subject property within a reasonable amount of time after being given repeated notice of the conditions…” (FAC, ¶ 13, p. 6.)

Defendants Joe Huezo and Huezo Construction (jointly, “Defendants”) now demur to each of the causes of action of the FAC. Defendants also move to strike portions of the FAC. Plaintiff opposes both.

As an initial matter, Plaintiff asserts that Defendants’ demurrer and motion to strike are untimely. On November 17, 2023, Plaintiff filed proofs of service indicating that Defendants were served with the complaint by personal service on November 3, 2023.

As noted by Plaintiff, pursuant to Code of Civil Procedure section 430.40, subdivision (a), “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” In addition, pursuant to Code of Civil Procedure section 435, subdivision (b)(1), “[a]ny 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).” Here, Defendants’ demurrer and the memorandum of points and authorities in support of the motion to strike were filed and served on February 16, 2024.[1] Thus, as noted by Plaintiff, the instant demurrer and motion to strike were filed and served more than 30 days after Defendants were served with the complaint.[2]

In the reply in support of the demurrer, Defendants cite to McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280, where the Court of Appeal found that “we disagree with McAllister’s characterization of section 430.40 of the Code of Civil Procedure as mandatory. That statute reads in relevant part: ‘A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.’…The cited provision thus uses the permissive expression ‘may,’ not the mandatory term ‘must.’” (Internal citation omitted, emphasis in original.) The McAllister Court further found as follows:

As provided by statute: ‘The court may, in furtherance of justice, and on any terms as may be proper, … enlarge the time for answer or demurrer.’ (Code Civ. Proc., § 473, subd. (a)(1).) The trial court may exercise this discretion so long as its action does ‘not affect the substantial rights of the parties.’…

Here, we conclude, the trial court’s decision to entertain the second demurrer did not affect McAllister’s substantial rights. ‘Prior to the filing of respondent’s demurrer to the amended complaint, appellant had not taken any steps to have judgment by default entered under Code of Civil Procedure section 432, nor did he endeavor to show that he was in any way prejudiced by the delay.’ (Tuck v. Thuesen, supra, 10 Cal.App.3d at p. 196.) The same is true in this case. The trial court thus acted within its broad discretion in allowing respondents to file the second demurrer, notwithstanding McAllister’s protestations that it was untimely.” (McAllister v. County of Monterey, supra,147 Cal.App.4th 253, 281-282.)

The Court notes that here, Plaintiff filed a substantive opposition to the demurrer and motion to strike. Plaintiff does not appear to assert that he was prejudiced by the untimely filing of the demurrer and motion to strike. Accordingly, the Court exercises its discretion to consider Defendants’ demurrer and motion to strike.

In the first cause of action for breach of warranty of habitability, Plaintiff alleges, inter alia, that Defendants failed to repair certain “dangerous and defective conditions in the premises and common areas of the subject property within a reasonable time after being given repeated notice of the conditions…” (FAC, ¶ 13, p. 6.) Defendants assert that the first cause of action fails to state facts sufficient to constitute a cause of action against Defendants.

As noted by Defendants, the first cause of action of the FAC cites to certain legal authority. Plaintiff cites to, inter alia, Green v. Superior Court of San Francisco (1974) 10 Cal.3d 616, 637, where the California Supreme Court concluded that “a warranty of habitability is implied by law in residential leases in this state…” The Green Court concluded that “[u]nder the implied warranty which we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease…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.)

In the demurrer, Defendants assert that the FAC “identifies Defendants as providers of construction services at the Subject Property and does not allege that Defendants are landlords or owners of the Subject Property.” (Demurrer at p. 5:23-25.) Indeed, as discussed above, the FAC alleges that on or about March 29, 2019, DSJ Thayer Exchanges LLC, SFJ Thayer LLC, and DAJO Thayer LLC acquired ownership of the premises. (FAC, ¶ 3, p. 2.) Plaintiff alleges that from about late 2019 to the present date, the Premises has been under renovation by, inter alia, Joe J Huezo of Huezo Construction. (FAC, ¶ 5, p. 2.)

In the opposition, Plaintiff contends that “Defendant HUEZO assumed the role of the landlord or at the very least a partnership because when plaintiff called regarding the various causes the landlord directed Plaintiff to Defendant. It is therefore clear from the total reading of the complaint that Defendant is equally responsible for the various causes of actions.” (Opp’n at pp. 6:27-7:2.) But Plaintiff does not cite any allegations of the FAC stating that the landlord of the subject premises directed Plaintiff to Defendants when Plaintiff called. As Defendants note, “[b]ecause a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.” ((Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.)

In addition, Plaintiff does not cite any legal authority in support of Plaintiff’s assertion that Defendants “assumed the role of the landlord” under these purported circumstances. As noted by Defendants, “[e]ven if Plaintiff alleged a quasi-landlord relationship, Plaintiff cites no authority to support the proposition that a third-party may assume the legal role of a landlord by mere telephonic reference…” (Reply at p. 2:23-26.) As discussed, the Green Court concluded that “[u]nder the implied warranty which we recognize, a residential landlord covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.” ((Green v. Superior Court of San Francisco, supra, 10 Cal.3d at p. 637.)

Based on the foregoing, the Court sustains Defendants’ demurer to the first cause of action, with leave to amend.

Defendants note that in the second cause of action, Plaintiff cites to Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588, where the Court of Appeal found that “[i]n 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.” (Internal quotations, citations, and emphasis omitted.)

Defendants assert that “[a]gain, Defendants are not the landlord/owner of the Subject Property and the Complaint does not allege a landlord-tenant relationship.” (Demurrer at p. 6:15-16.) Plaintiff does not appear to dispute that the Complaint does not allege a landlord-tenant relationship with respect to Defendants. As discussed, Plaintiff does not cite any legal authority in support of his assertion that “Defendant HUEZO assumed the role of the landlord…” (Opp’n at p. 6:27.)

Based on the foregoing, the Court sustains Defendants’ demurrer to the second cause of action, with leave to amend.

Defendants note that in the third cause of action, Plaintiff cites to Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, where the Court of Appeal found that “[p]remises liability is a form of negligence based on the holding in Rowland v. Christian, supra, 69 Cal.2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.”

In the demurrer, Defendants assert that “Plaintiff has failed to states [sic] facts sufficient to establish the first element of a cause of action for Premises Liability, as the Complaint does not allege that Defendants owned the Subject Property…” (Demurrer at p. 7:1-2.) As discussed, the FAC alleges that on or about March 29, 2019, DSJ Thayer Exchanges LLC, SFJ Thayer LLC, and DAJO Thayer LLC acquired ownership of the premises. (FAC, ¶ 3, p. 2.)

Based on the foregoing, the Court sustains Defendants’ demurrer to the third cause of action, with leave to amend.

Defendants also demur to Plaintiff’s fourth cause of action for “private nuisance.”

Pursuant to Civil Code section 3479, “[a]nything 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.”

Pursuant to Civil Code section 3480, “[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.” Pursuant to Civil Code section 3481, “[e]very nuisance not included in the definition of the last section is private.”

In the demurrer, Defendants assert that “Plaintiff does not allege any specific harmful conduct, specific acts which are injurious to health, or specific harm suffered by Plaintiff. Plaintiff merely alleges certain acts performed by Defendants constituted nuisance (Complaint ¶69-73).” (Demurrer at p. 7:21-23.) But in addition to the acts allegedly constituting nuisance (FAC, ¶ 69), Plaintiff also alleges, inter alia, that “Defendants, by acting and by failing to act, created conditions that were harmful to health, indecent and offensive to the senses, and an obstruction to the free use of property, to interfere with [Plaintiff’s] comfortable enjoyment of life and property.” (FAC, ¶ 72.)

In the demurrer, Defendants also cite to Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548, where the Court of Appeal noted that “Civil Code section 3493 provides: ‘A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.’” But here, Plaintiff does not allege a cause of action for public nuisance. Thus, the Court does not see how Birke is applicable here.

Defendants also argue that “[e]ven assuming the Complaint states facts sufficient to sustain a cause of action for Private/Public Nuisance, the fourth cause of action should be dismissed under CCP §430.10 (f) on the grounds that the pleading is uncertain, ambiguous, and unintelligible due to Plaintiff’s reliance on public nuisance statutory authority in support of a (purportedly) private nuisance cause of action.” (Demurrer at pp. 7:27-8:2.) Pursuant to Code of Civil Procedure section 430.10, subdivision (f), “[t]he 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 the following grounds:…The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

The Court does not find that Defendants have shown that the fourth cause of action is uncertain. The fourth cause of action is labeled as one for “private nuisance.” In addition, Defendants note that Plaintiff cites to Civil Code section 3479, but Defendants do not appear to cite any legal authority demonstrating that Section 3479 is limited to public nuisance claims.[3] The Court notes that 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¿.) The Court does not find that Defendants have shown that the fourth cause of action is so confusing that Defendants cannot tell what they are supposed to respond to.[4]

Based on the foregoing, the Court overrules the demurrer to the fourth cause of action.

In the fifth cause of action for “negligence and negligence per se,” Plaintiff alleges, inter alia, that “Defendants owed a legal duty of care to [Plaintiff] by virtue of their landlord-tenant relationship and the fiduciary nature of that relationship…” (FAC, ¶ 83.) In the demurrer, Defendants assert that “[i]t is clear from the face of the pleadings that Plaintiff has failed to state facts sufficient to constitute a cause of action against Defendants because the only duty alleged by Plaintiff is that duty which arises between a landlord and tenant. The Complaint does not allege that Defendants were/are the landlord or owner of the Subject Property…” (Demurrer at p. 8:9-12.) This is not disputed by Plaintiff. As discussed, Plaintiff alleges that on or about March 29, 2019, DSJ Thayer Exchanges LLC, SFJ Thayer LLC, and DAJO Thayer LLC acquired ownership of the premises. (FAC, ¶ 3, p. 2.) Plaintiff alleges that the premises has been under renovation by, inter alia, Joe J Huezo of Huezo Construction. (FAC, ¶ 5, p. 2.) Accordingly, the Court sustains Defendants’ demurrer to the fifth cause of action, with leave to amend.

Defendants assert that “Plaintiff’s sixth cause of action, negligent infliction of emotional distress, is improperly plead as it is not a stand alone tort.” (Demurrer at p. 8:16-17.) Defendants cite to McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509, where the Court of Appeal noted that “[t]he negligent causing of emotional distress is not an independent tort but the tort of negligence…” Plaintiff does not address this legal authority in the opposition.

Based on the foregoing, the Court sustains Defendants’ demurrer to the sixth cause of action, without leave to amend.

Defendants assert that the FAC does not state facts sufficient to constitute a cause of action for intentional infliction of emotional distress.

“The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct…In order to meet the first requirement of the tort, the alleged conduct…must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!” (McMahon v. Craig, supra, 176 Cal.App.4th at pp. 1515-1516 [internal quotations and references to [Citation.] omitted].)

In the demurrer, Defendants argue that “[t]here is not a single allegation in the Complaint which would cause an average, or even hypersensitive, member of the community to exclaim ‘Outrageous!’” (Demurrer at p. 10:11-13.) But in the FAC, Plaintiff alleges, inter alia, that “Defendants failed to provide sufficient heat in the premises for over twelve (12) months causing [Plaintiff] to suffer severe emotional distress and physical distress…” (FAC, ¶ 119(i), p. 24.) Plaintiff further alleges that “Defendants failed to secure the open walls and windows from the renovation units after repeated notices of break-ins causing [Plaintiff] to constantly worry and fear for his safety and his family’s safety…” (FAC, ¶ 119(vi), p. 24.) In addition, Plaintiff alleges that “Defendants failed to fix windows and screens causing [Plaintiff] and family [sic] to fear for their safety from break-ins.” (FAC, ¶ 119(viii), p. 24.) The Court finds that Plaintiff has adequately alleged “outrageous conduct” for purposes of his cause of action for intentional infliction of emotional distress.

Based on the foregoing, the Court overrules Defendants’ demurrer to the seventh cause of action.

Defendants assert that the eighth cause of action fails to state facts sufficient to support a cause of action. Defendants cite to Khoury v. Maly's of California, Inc., supra, 14 Cal.App.4th at pages 618-619, where the Court of Appeal noted that “Appellant’s fourth cause of action alleges: ‘California Business and Professions Code Sections 17000, et seq., and 17200, et seq., states [sic] that unfair competition shall mean and include unlawful, unfair or fraudulent business practices. [P] . . . Defendants breached this statute by refusing to sell [the JPM products] to plaintiff, for the purpose of ruining and interfering with his beauty and supply business, with the effect of misleading plaintiff's customers.’ A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.”

Defendants note that in the eighth cause of action, Plaintiff alleges, inter alia, that “[t]hrough the conduct described above, Defendants have engaged in a pattern and practice of unlawful and unfair business practices prohibited by the Business and Professions Code Section 17200.” (FAC, ¶ 135, p. 26.) Defendants assert that “[t]here is no other allegation, fact, or description of conduct in support of this cause of action.” (Demurrer at p. 10:23-24.) Defendants also argue that “Plaintiff has not specifically stated any act of Defendants that was unlawful, unfair, or fraudulent.” (Demurrer at pp. 10:28-11:1.) The Court notes that Plaintiff does not appear to address these points in the opposition.

Defendants also cite to Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 133, where the Court of Appeal noted that “to state a claim under the [UCL] one need not plead and prove the elements of a tort. Instead, one need only show that members of the public are likely to be deceived.” (Internal quotations omitted.) Defendants assert that here “Plaintiff has not alleged injury to consumers…or the public…” (Demurrer at p. 11:1-2.) Plaintiff does not appear to address the Linear Technology case in the opposition.

Based on the foregoing, the Court sustains Defendants’ demurrer to the eighth cause of action, with leave to amend.

A court may strike any “¿irrelevant, false, or improper matter¿inserted in any pleading¿” or any part of a 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¿.)¿¿

Defendants move to strike a number of allegations from the FAC. As an initial matter, Defendants’ motion to strike page 7, lines 24-25; page 10, lines 18-19; page 13, lines 14-15; page 19, lines 12-13; page 21, lines 15-16; page 22, lines 2-3; and page 27, line 3 is moot. As set forth above, the Court sustains Defendants’ demurrer to the first, second, third, fifth, sixth, and eighth causes of action.

Plaintiff seeks punitive damages in connection with the seventh cause of action for intentional infliction of emotional distress. (FAC, ¶ 129, p. 25.) Defendants assert that the FAC “contains insufficient facts to support an award of exemplary and punitive damages.” (Mot. at p. 4:4-5.) A motion to strike may lie where the facts alleged do not rise to¿the level of “malice,¿oppression¿or fraud” required to support a punitive damages award. (¿¿See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64¿¿.)¿

“¿‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.¿” (¿¿Civ. Code, § 3294, subd. (c)(1)¿¿.) “¿‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.¿” (¿Civ. Code, § 3294, subd. (c)(2)¿.) “¿‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.¿” (¿Civ. Code, § 3294, subd. (c)(3)¿.)¿ “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.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331 (internal quotations omitted).)

In the motion, Defendants argue that “Plaintiff only alleges one intentional tort, Intentional Infliction of Emotional Distress. In support of that cause of action Plaintiff generally alleges ‘more than five independent forms of conduct causing [Plaintiff] to suffer severe emotional distress’ including: failing to provide sufficient heat in the premises, failing to repair broken radiators, failing to repair low water pressure, failing to repair an electrical outlet, failing to secure a porta-jon in the front of the subject property, failing to secure walls and windows from renovation in other units, failing to repair cracks in the bathroom and bedroom, all of which allegedly caused Plaintiff to constantly fear for his safety and his family’s safety. (Complaint ¶119). Not only are the acts alleged unintentional in nature, the conduct described is clearly not ‘so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’” (Mot. at p. 5:9-19.) The Court notes that Plaintiff does not address this argument in his opposition. Rather, Plaintiff generally argues that he is entitled to punitive damages in connection with the seventh cause of action, without providing further analysis on this point.

Based on the foregoing, the Court grants Defendants’ motion to strike the allegation “thereby, supporting an award of punitive damages to be determined by a jury at trial” at page 25, lines 19-20 of the FAC, with leave to amend. The Court also grants Defendants’ motion to strike the allegation “punitive damages for willful and malicious conduct” at page 28, line 1 of the FAC, with leave to amend.

Defendants also move to strike the allegations “[d]amages for discomfort and annoyance” at page 27, line 22 of the FAC, and “[d]amages for mental and emotional distress” at page 27, line 23 of the FAC. Defendants assert that “emotional damages are not recoverable in the present action.” (Mot. at p. 5:24.)

Defendants cite to McMahon v. Craig, supra, 176 Cal.App.4th at page 229, where the Court of Appeal noted that “[t]he law in California imposes a duty to avoid causing emotional distress in two general instances. The first involves ‘bystander” situations ‘in which a plaintiff seeks to recover damages as a percipient witness to the injury of another.’” The McMahon Court further noted that “[t]he second source of duty is found where the plaintiff is a ‘direct victim,’ in that the emotional distress damages result from a duty owed the plaintiff ‘that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’” (Id. at p. 230.)

Defendants assert that here, “Plaintiff’s Complaint does not allege that he witnessed injury to another.” (Mot. at p. 6:2.) Defendants also assert that “Plaintiff does not allege a contractual or legal duty imposed upon Defendants which would give rise to emotional damages.” (Mot. at p. 6:5-6.) Plaintiff does not address these points in the opposition.

Based on the foregoing, the Court grants Defendants’ motion to strike the allegations “[d]amages for discomfort and annoyance” at page 27, line 22 of the FAC, and “[d]amages for mental . . . distress” at page 27, line 23 of the FAC, with leave to amend. Plaintiff has alleged emotional distress in his cause of action for intentional infliction of emotional distress.

Defendants also assert that attorneys’ fees are not recoverable in the present action.

Defendants assert that “Plaintiff’s Complaint does not allege the existence of a contract between Plaintiff and Defendants and sets forth no statutory basis for the award of attorneys’ fees. As such, Plaintiff’s prayer for attorneys’ fees should be stricken from the Complaint.” (Mot. at p. 6:13-15.) Plaintiff does not dispute this point in the opposition.

Based on the foregoing, the Court grants Defendants’ motion to strike the allegations “(f) legal fees; (g) court costs” at page 16, lines 16-17 of the FAC; “(f) legal fees; (g) court costs” at page 25, lines 1-2 of the FAC; and “Plaintiff’s reasonable attorney’s fees and legal costs as permitted by law” at page 28, line 3 of the FAC, with leave to amend.

Based on the foregoing, Defendants’ demurrer to the first, second, third, fifth, and eighth causes of action of the FAC is sustained, with leave to amend. Defendants’ demurrer to the sixth cause of action of the FAC is sustained, without leave to amend.[5] Defendants’ demurrer to the fourth and seventh causes of action of the FAC is overruled.

Defendants’ motion to strike is granted in part, with leave to amend, and denied in part as moot, as set forth above.

Plaintiff is ordered to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders Defendants to file and serve their answer to the FAC within 30 days of the date of this order.

[1]Defendants’ Notice of Motion to Strike Portions of Plaintiff’s First Amended Complaint was filed on February 21, 2024, but the proof of service attached to the Notice indicates that it was served on February 16, 2024.

[2]The Court notes that the proofs of service filed by Plaintiff on November 17, 2023 reference service of the “complaint,” but do not appear to reference the FAC. (See Proofs of Service, Items 2(b).)

[3]As discussed, Civil Code section 3479 provides that “[a]nything 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.”

[4]The Court also notes that Defendants’ reply in support of the demurrer argues for the first time that “[t]he Complaint’s superfluous definition of ‘Defendants’ is not sufficient to support any cause of action, The Complaint clearly alleges that the Huezo Defendants assumed the role of a Contractor for the building owners, nothing more and nothing less. Plaintiff’s ubiquitous use of ‘Defendants’ renders the Complaint unintelligible and subject to demurrer.” (Reply at p. 5:22-26.) The Court notes that “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.) Thus, the Court declines to consider the arguments raised for the first time in Defendants’ reply.

[5]As set forth above, “[t]he negligent causing of emotional distress is not an independent tort but the tort of negligence…” (McMahon v. Craig, supra, 176 Cal.App.4th at p. 1509.)

Superior Court of California

County of Los Angeles

Department 50