Judge Yolanda Orozco, Case 22STCV13511 2023-01-11 Tentative Ruling

Judge: Yolanda Orozco, Case: 22STCV13511, Date: 2023-01-11 Tentative Ruling

Case Number: 22STCV13511 Hearing Date: January 11, 2023 Dept: 31

DEMURRER WITH A MOTION TO STIKE

TENTATIVE RULING

Defendant’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITH 30 DAYS LEAVE TO AMEND.

Defendant’s Motion to Strike is GRANTED with LEAVE to Amend.

Background

On April 22, 2022, Plaintiff in pro per Oliver B. Mitchell, III filed a Complaint against Defendant William Warren Group Inc. dba Storquest (hereinafter “StorQuest”).

The operative First Amended Complaint (FAC) alleges causes of action for:

1) Sexual Harassment in Violation of the Unruh Civil Rights Act;

2) Sexual Based Discrimination in Violation of the Unruh Civil Rights Act;

3) Gender Violence in Violation of California Civil Code 52.4;

4) Breach of Contract in Violation of Civil Code 1622;

5) Negligence in Violation of Cal. Civ. Code 174;

6) Conversion in Violation of Cal. Civ. Code 3336;

7) California Civil Conspiracy AND;

8) Intentional Infliction of Emotional Distress.

On June 10, 2022, Defendant StorQuest filed a demurrer to Plaintiff’s FAC.

On July 06, 2022, Plaintiff filed an opposition.

On January 04, 2022, Defendant filed a reply.

MEET AND CONFER

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred, in person or telephonically, to determine whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. (CCP) § 430.41.)

The meet and confer requirement has been met. (Jaidi Decl. ¶ 4, Ex. A, B.)

Legal Standard

¿A. Demurrer¿¿¿¿¿

¿¿¿¿

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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B. Motion to Strike¿¿¿¿

¿¿¿

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); 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”].)¿¿¿¿¿

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C. Leave to Amend¿¿¿¿¿

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“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

Discussion

Allegations in the FAC

This case arises out of a dispute over a storage unit and a storage lease agreement.

On or about November 16, 2019, Plaintiff rented a storage unit from Defendant. (FAC ¶ 7.) Plaintiff agreed to pay a monthly rental fee of $126.00 per month plus $10.00 for insurance, plus additional late fees for late payment. (FAC ¶ 8.)

On May 27, 2020, the Mayor of the City of Los Angeles, Eric Garcetti issued Final Ordinance No. 186660, effective June 3, 2020, providing temporary protection for occupants of self-service storage facilities during the COVID-19 pandemic. (FAC ¶ 12.)

Under the ordinance, Plaintiff asked for a rent deferral on August 13, 2020. (FAC ¶ 16.)

Plaintiff alleges that on August 13, 2020, he emailed Mara Paredes stating:

“Dear Ms. Parades, Today, I responded to an email for the Los Angeles Hill Street location advising of a payment status. Upon my exit from the facility at or around 5:45 PM the property manager advised me saying she was instructed by management to inform all tenants that the temporary deferment was rescinded and that any such tenant would be barred from entry and accessing their unit. I performed a cursory review and have determined that on August 7, 2020, the Mayor of Los Angeles did not lift or repeal the declared state of emergency authorizing the deferment payment plan. Please advise. Oliver.”

(FAC ¶ 17.)

On August 13, 2020, Plaintiff also emailed StorQuest stating:

“Dear StorQuest-Los Angeles/Hill, On August 6, 2020, in response to Los Angeles Municipal Code, Section 49.85.2, we requested a deferral of rent and other related charges beginning on August 7, 2020, our normal monthly due date. On August 6 2020 @2:54 pm, a representative from StorQuest responded ‘granting’ our deferral. On August 14, 2020, our access code was “denied’ preventing immediate access to our unit. According to information obtained from on-site employees on 8/14/20 our access code was disabled due to non-payment and late fees. The denial of access to include the applying of late fees is in ‘direct’ conflict with the Los Angeles Municipal Code, Section 49.85.2. The code specifically states: A. If an occupant of storage space at a self-service storage facility is unable to pay rent or other charges during the local emergency period due to circumstances related to the COVID-19 pandemic, the occupant may defer payment of that rent and other charges until three months following the expiration the local emergency period. B. The occupant shall provide written notice to the owner no later than seven days after rent or other charges are due. C. No owner shall charge a late fee or interest on rent or other charges deferred under the provisions of this article. F. No owner shall terminate a rental agreement on the basis of the occupant’s deferral of payment rent or other charges as provided in this section.

[ . . .]

On August 14, 20202, when I were [sic] communicating with on-site staff, they explained to me that they were advised the deferral was for a period of three months and had expired July 31, 2020. This statement is in direct conflict with Covid 19 orders issued by the Los Angeles mayor’s Office. Section A of the Code states “the occupant may defer payment of the rent and other charges until three months following the expiration of the emergency period. . . .”

(FAC ¶ 18.)

Plaintiff goes on to explain that the rental deferment had not yet expired and was due to expire three months after the local emergency was lifted. (FAC ¶ 18.) Plaintiff alleges that StorQuest Los Angeles/Hill violated the Los Angeles Municipal Code Section 49.85.2, Item F when it disabled Plaintiff’s access code “thus preventing immediate access to our unit” to collect a debt or terminating a rental agreement. (FAC ¶ 18.) Plaintiff requested that the access code be immediately reinstated and that all late fees, lien fees, and any other applicable fees be waived or frozen under the Los Angeles Municipal Code, Section 49.85.2. (FAC ¶ 18.)

Mary Hernandez, Store Manager, on August 18, 2020, at 5.39 pm, responded to Plaintiff’s email on behalf of StoreQuest stating:

“Hello Oliver, the original cutoff date for the emergency contingency was extended until the month of September. As any delinquent account, the access code will be placed on hold for the time being. However, this will not limit your access to your unit, via our office. Should you have any questions or concerns, feel free to contact me.”

(FAC ¶ 20.)

Plaintiff responded to Mary Hernandez’s email reiterating the terms of the rent deferral ordinance and the fact that the ordinance also for the deferral of rent and other charges incurred during the local emergency period. (FAC ¶ 21.) “No owner shall charge a late fee or interest on rent or other charges deferred under the provision of this article.” (FAC ¶ 21.) Accordingly, Plaintiff asserts StorQuest violated Section 49.85.2 of the Los Angeles Municipal Code when it charged him a late fee that restricted his ability to personally access his storage unit. (FAC ¶ 21.)

Plaintiff alleges that it is a standard industry practice that when a self-storage locker is rented, a person is issued a Personal Identification Number as a gate code access to their self-storage locker. (FAC ¶ 21.) Plaintiff alleges that when StorQuest restricted his gate access by not allowing him to enter his Personal Identification Number, StorQuest effectively terminated Plaintiff’s right to enter the premises in accordance with the contract with StorQuest. “Nowhere in the contract does it stipulate access is to be granted via the office.” (FAC ¶ 21.)

On October 8, 2020, StorQuest sent an email to Plaintiff purporting to state:

“Hello Oliver, this is your StorQuest-Los Angeles/Hill with a lien alert for your storage account. It is important that you address this issue with us.”

(FAC ¶ 22.)

Plaintiff responded to the email on October 8, 2020, reminding StorQuest that per the emergency order, Plaintiff elected to delay payment and since the order had not been lifted, fees were to be temporarily suspended, including late fees and any lien fees due. (FAC ¶ 23.)

On October 8, 2020, Mary Hernandez on behalf of StorQuest informed Plaintiff that StorQuest’s system automatically sent out lien notices and to disregard the email. (FAC ¶ 24.)

Plaintiff alleges that on April 11, 2022, Plaintiff entered StorQuest’s premises at 3707 S. Hill Street and was advised that Plaintiff had two options, Plaintiff could vacate the premises or stay and face a lien against his property, including restricting access to his property and space. (FAC ¶ 25.) Plaintiff felt he was under duress and pressured to accept a departure date of April 22, 2022, to vacate StorQuest’s premises. (FAC ¶ 25.)

On April 22, 2022, the moveout date be changed to April 30, 2022, at Plaintiff’s request (FAC ¶ 28.)

The Court notes that Article 14.05, Section 49.85.2 was repealed by Ordinance No. 187,487 effective as of June 23, 2022. Accordingly, Section 49.85.2 was still in effect on the date Plaintiff was given the option to vacate the premises or have a lien taken against his property.

Plaintiff alleges that if StorQuest intends to place a lien on his personal property, and they have failed to comply with Business and Professions Code section 21703. (FAC ¶ 29.) Plaintiff alleges that because StorQuest intends to sell Plaintiff’s property at auction to recover unpaid rent without complying with the Self-Service Storage Facilities Act, StorQuest will be guilty of the intentional tort of conversion. (FAC ¶¶ 29, 31.)

Lastly, the Court notes that although Plaintiff alludes to other Defendants, no other Defendant other than StorQuest is mentioned in the Complaint.

Defendant now demurrers to the FAC on the basis that it is vague, uncertain, and fails to allege sufficient facts to sustain the causes of action alleged in the FAC.

I. Demurrer

1st COA: Sexual Harassment in Violation of the Unruh Civil Rights Act

Section 51.9 of the Unruh Civil Rights Act prohibits sexual harassment against a “person” who is in a “business, service or professional relationship” with the plaintiff. (Civ. Code, § 51.9, subd. (a)(1). The statute identifies a nonexclusive list of persons with whom a relationship may exist, including landlord or property manager. (Id. at subd. (a)(1)(A)-(I).) Section 51.9 requires that “[t]he defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” (Id. at subd. (2)) “The plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but not limited to, emotional distress or the violation of a statutory or constitutional right, as a result of the conduct described” above. (Id. at subd. (3).

Damages are “awarded as provided by subdivision (b) of [Civil Code] Section 52.” (Civ. Code, § 51.9, subd. (b).) Civil Code section 52, subdivision (b) states “Whoever denies the right provided by [Civil Code] Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right,” as well as “exemplary damages,” “attorney's fees as may be determined by the court,” and, for Civil Code section 51.7, a civil penalty. (Id.)

Plaintiff fails to state specific facts to show that Defendant engaged in sexual harassment and instead Plaintiff recites legal conclusions without specific facts:

“Plaintiff is informed and believed [sic] that thereon alleges that the aforementioned conduct of defendants, and each of them, denied, aided, or incited in a denial of, discriminated or made a distinction that denied plaintiff full and equal advantages, privileges, and services to Plaintiff, based solely upon plaintiff’s refusal to submit to harassment, and therefore constituted a violation of the Unruh Act.”

(FAC ¶ 45.)

Without any facts alleging the conduct Defendant engaged in, whether verbal, visual, or physical conduct that is sexual in nature, Plaintiff fails to state facts to sustain a cause of action for sexual harassment in violation of the Unruh Act.

Since this is Plaintiff’s first demurrer, the demurrer to the First Cause of Action is SUSTAINED WITH LEAVE TO AMEND.

2nd COA: Sexual Based Discrimination in Violation of the Unruh Civil Rights Act

“The language of the Unruh Act is clear and unambiguous: ‘All persons within the jurisdiction of this state are free and equal, and no matter what their sex ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever....’ The Act is to be given a liberal construction with a view to effectuating its purposes. (Citations.)” (Koire v. Metro Car Wash (1985) 40 Cal.3d 24, 28 [italics original]; see also Civ. Code, § 51.)

Plaintiff again fails to state specific facts and repeats the same legal conclusion:

(FAC ¶ 56.)

Accordingly, the demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND.

3rd COA: Gender Violence in Violation of California Civil Code 52.4

Civil Code section 52.4 states “[a]ny person who has been subjected to gender violence may bring a civil action for damages against any responsible party.” (Id. at subd. (a).) There is no civil liability for an employer for the acts of an employee under this statute unless the employer personally committed an act of gender violence. (Civ. Code, § 52.4(e).) Gender-motivated violence is a form of sex discrimination and means either:

“(1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.

(2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.”

(Civ. Code, § 52.4 subd. (c)(1-2).)

Plaintiff alleges that Defendant, and its unnamed agents, violated California Civil Code Section 52.4 “in that one or more acts inflicted on Plaintiff constitutes a criminal offense under state law and has an element of use, attempted use, or threatened use of physical force against his property; committed at least in part based on the gender of Plaintiff, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.” (FAC ¶ 65.)

Plaintiff again states a legal conclusion that:

“Plaintiff is informed and believed and thereon alleges that the aforementioned conduct of defendants, and each of them, denied, aided, or incited in a denial of, discriminated or made a distinction that denied plaintiff full and equal advantages, privileges, and services to Plaintiff, based solely upon plaintiff’s refusal to submit to harassment and therefore constituted a violation of California Civil Code section 52.4.”

(FAC ¶ 68.)

Since Plaintiff’s third cause of action is devoid of any facts relating to gender violence, the demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND.

4th COA: Breach of Contract in Violation of Civil Code 1622

Civil Code section 1622 does not provide a cause of action for breach of contract but instead states that “[a]ll contracts may be oral, except such as are specially required by statute to be in writing.

The elements of a claim for breach of contract are: "(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 821.) In addition, the complaint must demonstrate damages proximately caused by the breach. (St. Paul Ins. v. American Dynasty (2002) 101 Cal.App.4th 1038, 1060.) Furthermore, “the complaint must [also] indicate on its face whether the contract is written, oral, or implied by conduct.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452. at 458-59 citing Code Civ. Proc., § 430.10, subd. (g).) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Id. at p. 459 [internal citations omitted].)

Plaintiff fails to state sufficient facts to sustain a cause of action for breach of contract. First, Plaintiff fails to specify whether the contract that exists between him and Defendant is oral, written, or implied by conduct. Second, Plaintiff fails to state what damages he sustained due to the breach of contract. Third, Plaintiff fails to specify what terms of the contract Defendant breached.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED WITH LEAVE TO AMEND.

5th COA: Negligence Violation of Cal. Civ. Code 174

Plaintiff’s opposition clarifies that this cause of action is for violations of Civil Code section 1714 subdivision (a) which states:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.”

In other words, section 1714 establishes “‘the general duty of each person to each person to exercise, in his or her activities, reasonable care for the safety of others.’” (T.L. v. City Ambulance of Eureka, Inc. (2022) 83 Cal.App.5th 864, 875 citing Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) Accordingly, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where clearly supported by public policy. (Id. at 875 [internal citations and quotations omitted].)

Plaintiff’s fifth cause of action is devoid of any facts specifying what duty Defendant owed Plaintiff that gives rise to a cause of action for negligence or what damage Plaintiff suffered.

Plaintiff states:

“That intentionally and willfully disregarded the Defendant StorQuest, own policies and procedures and the laws of the State of California conspired to, and intentionally and willfully violated California Civil Code section 1714, that StorQuest failed to abide statutory regulations and that StorQuest ‘negligence’ was a substantial factor in causing Mr. Mitchell’s harm.”

(FAC ¶ 79.)

Accordingly, the demurrer to the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND.

6th COA: 10) Conversion in Violation of Cal. Civ. Code 3336

Civil Code section 3336 provides the damages for a claim for wrongful conversion, but not the cause of action:

“The detriment caused by the wrongful conversion of personal property is presumed to be:

First—The value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and

Second—A fair compensation for the time and money properly expended in pursuit of the property.”

(Civ. Code, § 3336.)

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial.”

(Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)

Here, again, Plaintiff’s sixth cause of action is devoid of any facts to sustain a cause of action for conversion. Plaintiff fails to allege that he was denied access to his storage unit, only that he had to go through StorQuest’s office to obtain access. Moreover, if Plaintiff was asked to vacate the storage unit, then Defendant has not engaged in the tort of conversion and Plaintiff has not yet suffered damages.

The demurrer to the sixth cause of action is SUSTAINED WITH LEAVE TO AMEND.

7th COA: Civil Conspiracy

“To prove a claim for civil conspiracy, Kidron was required to provide substantial evidence of three elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.) Civil Conspiracy is not a cause of action “legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. (Citation.) By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. (Citation.) In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511.)

Accordingly, “the basis of a civil conspiracy is the formation of a group of two or more persons who have agreed to a common plan or design to commit a tortious act. (Citations.) The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose. (Citations.)” (Kidron, supra, 40 Cal.App.4th at 1582.)

Plaintiff’s seventh cause of action is also devoid of any facts identifying what the conspiracy was or the specific law Defendant conspired to violate and who else apart from Defendant engaged in the conspiracy. Plaintiff only alleges that:

“The Defendants did unlawfully, willfully, knowingly, and intentionally devise and implement schemes and artifices to deprive the Plaintiff of their fundamental rights, and did unlawfully, willfully, knowingly and intentionally conspire together with various individual representatives of Defendants, to allow to be executed, these schemes, practices, and actions that deprived Plaintiff of his fundamental rights.”

(FAC ¶ 89.)

Accordingly, the demurrer to the seventh cause of action is SUSTAINED WITH LEAVE TO AMEND.

8th COA: Intentional Infliction of Emotional Distress (IIED)

A claim for Intentional Infliction of Emotional Distress (IIED) requires:

“(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.”

(Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [internal citations and quotations omitted].)

The tort of intentional infliction of emotional distress is committed when the defendant's conduct is intentionally intrusive and outrageous and has a traumatic effect on the plaintiff’s emotional tranquility. (Alcorn v. Anbro Engineering (1970) 2 Cal. 3rd 493, 498.) “[B]ehavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Bogard v. Employers Cas. Co. (1985) 164 Cal. App. 3d 606, 616.)

Many cases have dismissed an IIED claim on demurrer, concluding that the facts do not amount to outrageous conduct as a matter of law. (See Bock v. Hansen (2014) 225 Cal.App.4th 215, 235; Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1608–1609; Coleman v. Republic Indemnity Ins. Co. (2005) 132 Cal.App.4th 403, 416–417; Ricard v. Pacific Indemnity (1982) 132 Cal.App.3d 886, 895.)

Plaintiff specifies that his IIED cause of action stems from actions StorQuest’s Store Manager, Mary Hernandez, took by phoning StorQuest’s District Manager for Southern California, Robert Arredondo, who advised Plaintiff he had two options that resulted in Plaintiff agreeing to vacate the premises on April 22, 2022. (FAC ¶ 93.) Plaintiff alleges that the above incident caused him emotional distress including humiliation, mental anguish, and extreme emotional and physical distress. (FAC ¶ 94.)

Plaintiff fails to allege that the conduct was outrageous and intentional or with reckless disregard of the probability of causing Plaintiff emotional distress. Moreover, Plaintiff has failed to show that the conduct was so outrageous that it exceeded all bounds of conduct usually tolerated in a civilized community.

The demurrer to the eighth cause of action is SUSTAINED WITH LEAVE TO AMEND.

II. Motion to Strike

Defendant moves to strike Plaintiff’s claims for punitive and exemplary damages as follows:

1) Page 24, Paragraph 50, indicating: “Defendants’ actions were, and are, willful, oppressive, and malicious. Accordingly, plaintiff is entitled to punitive damages against defendants, and each of them, in a sum according to proof at trial.”

2) Page 26, Paragraph 61, indicating: “Defendants, and each of them, acted and continue to act, with full knowledge of the consequences and damage being caused to plaintiff, by defendants’ actions, and defendants’ actions were, and are, willful, oppressive, and malicious. Accordingly, plaintiff is entitled to punitive damages against defendants…”

3) Page 27, Paragraph 64, indicating: “California Civil Code Section 52.4 provides: Any person who has been subjected to gender violence may bring a civil action for damages against any responsible party. The plaintiff may seek actual damages, compensatory damages, punitive damages, injunctive relief, any combination of those, or any other appropriate relief.”

4) Page 30, Paragraph 73, indicating: “Defendants, and each of them, acted and continue to act, with full knowledge of the consequences and damage being caused to plaintiff, by defendants’ actions, and defendants’ actions were, and are, willful, oppressive, and malicious. Accordingly, plaintiff is entitled to punitive damages against defendants…”

5) Page 34, Paragraph 95, indicating: “Defendants’ conduct as herein alleged was malicious and oppressive in that it was conduct carried on by Defendants in a willful and conscious disregard of Plaintiff’s rights and subjected him to cruel and unjust hardship. Plaintiff is therefore entitled to an award of punitive damages against Defendants.”

6) Page 34, “Request for Relief,” Paragraph 96, indicating: “Defendants, jointly and severally for Defendants’ willful, deliberate, and intentional violation of the Plaintiffs’ fundamental and State rights, resulting in damages to the Plaintiff including, but not limited to, relief in the following forms: actual and special damages, all legal fees and costs, and an award of exemplary or punitive damages.”

7) Page 35, “Prayer for Relief,” Paragraph 98, indicating: “treble and punitive damages; along with interests thereon at the highest rate allowable by law…”

8) Page 35, “Prayer for Relief,” Paragraph 104, indicating: “punitive redress for Threat, Duress, and Coercion, and Malicious Intent….”

Since the demurrer to Plaintiff’s First Amended Complaint was SUSTAINED WITH LEAVE TO AMEND, the Motion to Strike is GRANTED WITH LEAVE TO AMEND.

Conclusion

Defendant’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED WITH 30 DAYS LEAVE TO AMEND.

Defendant’s Motion to Strike is GRANTED WITH 30 DAYS LEAVE to Amend.

Moving party to give notice.