CASE NO.: BC724056



Date:  February 4, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Defendant Fine Stone & Cabinetry, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Sean Ross Paul

            The Court has considered the moving, opposition, and reply papers.


            Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants alleging causes of action for: (1) breach of express and implied contract; (2) breach of the covenant of good faith and fair dealing/breach of express/implied warranty of habitability; (3) fraud, negligent misrepresentation, and concealment; (4) negligence—premises liability; (5) negligence, negligent supervision, and negligent management (owner and manager); (6) negligence; (7) violation of California Business and Professions Code, Section 17200; and (8) intentional infliction of emotional distress.  Plaintiff’s SAC arises from alleged wrongful actions with respect to a construction project at Plaintiff’s apartment complex where he was a tenant.

            Moving Defendant filed a demurrer to the seventh and eighth causes of action in the SAC.  Moving Defendant asserts that the SAC fails to allege facts that support the seventh and eighth causes of action.  Moving Defendant also filed a motion to strike portions of the SAC.

Preliminary Issue

            In his opposition, Plaintiff asserts that Moving Defendant is in default and cannot demur or move to strike with respect to the SAC.

            California Code of Civil Procedure, Section 430.40(a) says that “[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.”  California Code of Civil Procedure, Section 435 allows a party “within the time allowed to respond to a pleading may serve and file a notice o f motion to strike the whole or any part thereof” with respect to a pleading.  California Code of Civil Procedure, Section 430.80(a) says that “[i]f the party against whom a complaint or cross-complaint ahs been filed fails to object to the pleading, either by demurrer or answer, that party is deemed to have waived the objection unless it is an objection that the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action.”

            California Rules of Court, Rule 3.110(g) says that “[i]f a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed.  The Court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default.”  “[It is now well established by the case law that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional time within which to plead and he is not strictly in default.”  (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141.)  “The proper procedure is for the plaintiff to move to strike the defendant’s untimely pleading, and if the court grants such relief, thereafter proceed to obtain the entry of defendant’s default.”  (Id.)

            The Court finds Plaintiff’s argument that Moving Defendant is in default and thus lacks the ability to demur or move to strike with respect to the SAC is meritless.  Default has never been entered against Moving Defendant, and as such Plaintiff’s argument lacks support. Additionally, Plaintiff did not follow proper procedure. Plaintiff should have moved to strike Moving Defendant’s demurrer and motion to strike if Plaintiff in fact believed that Moving Defendant waived the ability to demur or move to strike via filing an untimely pleading pursuant to Goddard.

            The Court therefore will consider Moving Defendant’s demurrer and motion to strike in connection with the SAC.


            The meet and confer requirement has been met.


“A demurrer tests the sufficiency of a complaint as a matter of law.”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.”  (Id.)  “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.”  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.”  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.”  (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.)  In ruling on a demurrer, a court “may also take notice of exhibits attached to the complaints. If facts appearing in the exhibits contradict those alleged, the facts in exhibits take precedence.”  (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)  A demurrer will be sustained without leave to amend if there exists no “reasonable possibility that the defect and be cured by amendment.”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  “The burden of proving such reasonable possibility is squarely on the plaintiff.”  (Id.)

Issue No.1: Seventh Cause of Action

California Business and Professions Code, Section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”   To have standing under Section 17200 to sue “Proposition 64 requires that a plaintiff have lost money or property to have standing to sue.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.)  The economic injury must have been a result of the unfair competition.  (Id.)  “Section 17200 borrows violations from other laws by making them independently actionable as unfair competitive practices.”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) “Lost money or property—economic injury—is itself a classic form of injury in fact.”  (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.)  “A plaintiff alleging unfair business practices” is required to “state with reasonable particularity the facts supporting the statutory elements of the violation.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)  “[W]here a claim of an unfair act or practice is predicated on public policy, . . . Celtech . . . requires that the public policy which is a predicate to the action must be tethered to specific constitutional, statutory, or regulatory provisions.”  (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 848.)  “The UCL’s purpose is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.”  (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.)

Pursuant to the seventh cause of action in the SAC, Plaintiff has grouped Moving Defendant with the other Defendants but does not specify the acts of Moving Defendant that allegedly give rise to this cause of action. (SAC at ¶¶ 117-118.)  Plaintiff does not indicate exactly which practices of Moving Defendant were unfair, unlawful or fraudulent.  The SAC does not allege that Moving Defendant violated a specific constitutional, statutory, or regulatory provision. Additionally, Plaintiff has failed to set forth with the required particularity how the actions of Moving Defendant specifically caused him to lose money or damage to his property. Plaintiff’s seventh cause of action in the SAC is insufficiently pled.

Therefore, the Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of Moving Defendant to the seventh cause of action in the SAC.  Plaintiff has failed to meet his burden under Blank that there is a reasonable possibility that the defects with respect to the seventh cause of action can be remedied.  Plaintiff has had multiple opportunities to state a cause of action in connection with his seventh cause of action.  Plaintiff has filed three iterations of his complaint: (1) the initial complaint; (2) a First Amended Complaint; and (3) the SAC.

Issue No.2: Eighth Cause of Action

“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.”  (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)  The conduct must be so outrageous that “it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Id.)  “Behavior 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 the acts are likely to result in illness through mental distress.”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122.)  “[I]nsults, indignities, threats, annoyances, petty oppressions, or other trvialities” do not give rise to liability for an IIED cause of action. (Id.)  Facts must be set forth to apprise “the nature or extent of any mental suffering incurred as a result of [defendant’s] alleged outrageous conduct.”  (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)  With respect to a cause of action for intentional infliction of emotional distress a plaintiff “must allege with greater specificity the acts which are so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Schlauch v. Hartford Accident & Indemnity Co. (1983) 146 Cal.App.3d 926, 936.)  “[W]hether conduct is outrageous is usually a question of fact.”  (So v. Shin (2013) 212 Cal.App.4th 652, 672.)

Pursuant to the eighth cause of action in the SAC, Plaintiff alleges that: (1) Defendants failed to advise Plaintiff that the work set forth in the Tenant Habitability Plan would not be adhered to either as the volume of work to be performed or that such work would be done within the time constraints set forth in the Tenant Habitability Plan (SAC at ¶ 120); (2) Plaintiff was required to live in a premises that was dangerous due to the presence of asbestos, lead, fine particulate matter, dust, debris, chemicals, noxious odor, loud persistent noise, lack of security, entrance into his unit without notice, theft, property damage, extreme invasions of his personal privacy, lack of a toilet when he had a specific medical need for one, fraud and refusal to relocate him (Id.); (3) Defendants denied Plaintiff personal privacy to his extreme distress, he had to disclose his prostate condition and they deprived him of a restroom which he needed after prostate surgery which was humiliating and painful (Id.); (4) in 2018, Defendants caused the premises to flood and refused to remediate (Id.); (5) Plaintiff suffered extreme pain, humiliation, fear and anxiety, and extreme distress due to Defendants’ conduct (Id.); (6) Plaintiff was placed in fear for his life due to the criminal activity, lack of security, unauthorized entry into his home, and was in fear for his life and health due to exposure to toxic chemicals (Id.); and (7) Defendants’ conduct caused him extreme stress and he experienced extreme humiliation and pain when Defendant prevented him from having a working toilet immediately after prostate surgery.  (Id.)

The Court finds that the allegations in the SAC do not state a cause of action for intentional infliction of emotional distress. Plaintiff fails to allege specific facts pursuant to the eighth cause of action against Moving Defendant.  With respect to Moving Defendant specifically, Plaintiff alleges that: (1) new flooring was installed in the common areas, and that it prevented access to his unit and common areas because it was noisy, dirty, and created noxious odors which made the premises and Plaintiff’s unit and due to such work walls were breached releasing lead-based paint (SAC at ¶ 51); and (2) Moving Defendant, along with the other contractors, throughout construction continually shut down Plaintiff’s water, gas, and power.  (Id. at ¶ 55.)  The facts alleged in the SAC with respect to Moving Defendant do not rise to the level of extreme and outrageous conduct. In fact, the actions in the SAC against Moving Defendant amount to a series of annoyances and trivialities.  The actions of Moving Defendant in the SAC do not the bounds of decency usually tolerated in a civilized community.

The Court SUSTAINS WITHOUT LEAVE TO AMEND the demurrer of Moving Defendant to the eighth cause of action in the SAC for the reasons set forth above with respect to denying leave to amend in connection with the seventh cause of action in the SAC.  Plaintiff has failed to meet his burden that there exists a reasonable possibility that the defects with respect to the eighth cause of action in the SAC can be remedied by amendment.


            Moving Defendant filed a motion to strike and seeks to strike punitive damages allegations from the SAC.  Specifically, Moving Defendant seeks to strike punitive damages from: (1) paragraph 117 in the SAC; (2) paragraph 124; and (3) the prayer for relief located on page 44 of the SAC at paragraph 5.

California Code of Civil Procedure, Section 436(a) allows a court to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.”  California Code of Civil Procedure, Section 436(b) allows a court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Due to only the sixth, seventh, and eighth causes of action being asserted against Moving Defendant, those causes of action are the only bases in which Plaintiff can seek punitive damages against Moving Defendant. As indicated above, Plaintiff’s seventh and eighth causes of action in the SAC are not adequately pled and as such the Court sustained the demurrer to those causes of action without leave to amend.  Thus, Plaintiff’s only basis for punitive damages against Moving Defendant is the sixth cause of action for negligence in the SAC. Punitive damages, however, are not available for a negligence cause of action.  (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 828.)

Therefore, the Court GRANTS Moving Defendant’s motion to strike.

            Moving Party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at as directed by the instructions provided on the court website at  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

          Dated this 4th day of February 2020