Demurrer and Motion to Strike re Second Amended Complaint (Judge Holly J. Fujie)










      CASE NO.: BC724056




Date:  February 18, 2020

Time: 8:30 a.m.

Dept. 56

FSC:  October 6, 2020

Jury Trial: October 19, 2020


MOVING PARTIES: Defendants AvalonBay Communities, Inc. (“AvalonBay”) and Archstone Oakwood Toluca Hills, LLC (“Archstone”)

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.

Defendants filed a demurrer to the third and eighth causes of action in the SAC.  Defendants also filed a motion to strike portions of 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: Third Cause of Action

“A complaint for fraud must allege the following elements: (1) knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”  (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.)  To state a fraud-based cause of action a plaintiff must plead “facts which show how, when, where, to whom, and by what means the representations were tendered.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)  “[F]raud must be pled specifically; general and conclusory allegations do not suffice.”  (Id.)  “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.”  (Id.)  “A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater.  In such a case, the plaintiff must allege the names of the persons who made the allegedly false representations, their authority to speak, to whom they spoke, what they said or wrote down, and when it was said or written.”  (Id.)  “The case law . . . is clear that in California negligent misrepresentation is a form of fraud and deceit.”  (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 403.)  To state a cause of action for negligent misrepresentation a plaintiff must plead the “[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.)

The Court finds that Plaintiff’s third cause of action is not pled sufficiently.  Pursuant to the third cause of action, the SAC pleads in a conclusory manner that Defendants had no basis to believe that their representations were true and made them for the sole purpose for pecuniary gain and to have Plaintiff continue to pay rent and increases in rent. (SAC at ¶ 97.)  Also, the SAC alleges that Defendants’ authorized representatives Michael Dowling, Tammy Watkins, and Brenna Humburg made misrepresentations from 2016 to 2018, but does not allege their authority to make representations for Defendants and does not specify the means by which such representations were given.  (Id. at ¶ 96.) Pursuant to the third cause of action, Plaintiff fails to specifically plead that Defendants made a misrepresentation of past or existing material fact.  (Id. at ¶¶ 95-100.)

Therefore, the Court SUSTAINS the demurrer of Defendants to the third cause of action in the SAC with 20 days leave to amend.

Issue No.2: Eighth Cause of Action

“The elements of 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.”  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)  “The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Id.)  “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.”  (Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 617.)   “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.)  To plead extreme and outrageous conduct, specific facts must be set forth because “[g]enerally, conduct will be found actionable where the recitation of facts to an average member of the community would arose his resentment against the actor and lead him to exclaim, Outrageous!”  (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1515-1516.)  Conclusory allegations will not suffice to state a cause of action for intentional infliction of emotional distress.  (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1422.)   A complaint “must plead specific facts that establish severe emotional distress resulting from defendant’s conduct.”  (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093,1114.)  Where a plaintiff “has suffered no physical harm but only mental distress, the defendant is liable only when his conduct is outrageous or goes beyond all reasonable bounds of decency.”  (Fuentes v. Perez (1977) 66 Cal.App.3d 163, 170.)

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) he continued to complain about this conduct but Defendants lied about and hid said dangerous conditions creating the uninhabitable and dangerous condition (Id.); (6) Plaintiff suffered extreme pain, humiliation, fear and anxiety, and extreme distress due to Defendants’ conduct (Id.); (7) 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 (8) 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 against Defendants. Pursuant to the eighth cause of action, Plaintiff does not allege any physical harm.  The facts alleged in the SAC with respect to Defendants do not rise to the level of extreme and outrageous conduct under McMahon which would cause the average member of the community to state “Outrageous!”  In fact, the actions in the SAC of Defendants amount to trivialities, petty oppressions, and annoyances. Whether conduct is outrageous is a question of fact under So.  As such, the Court finds that Defendants’ conduct as alleged in the SAC does not rise to the level of outrageous conduct.

Thus, the Court SUSTAINS with 20 days leave to amend the demurrer of Defendants to the eighth cause of action in the SAC.


            Defendants filed a motion to strike and seek to strike punitive damages allegations from the SAC.  Specifically, Defendants seek to strike punitive damages from: (1) paragraph 94 in the SAC; (2) paragraph 100 in the SAC; (3) paragraph 115 in the SAC; (4) paragraph 124 in the SAC; and (5) the prayer for punitive damages located on page 44 of the SAC at paragraph 5.

Given that the Court has found Plaintiff’s third and eighth causes of action are insufficient with respect to Defendants, as indicated by sustaining Defendants’ demurrers to those causes of action with leave to amend, the Court finds it appropriate to grant Defendants’ motion to strike with respect to paragraphs 100 and 124 in the SAC.  Also, under Tomaselli which is cited below, negligence is not conduct that can support punitive damages, so the Court finds it appropriate to grant Defendants’ motion to strike with respect to paragraph 115 in the SAC.

The Court will only address Plaintiff’s claims for punitive damages with respect to paragraph 94 in the SAC and the prayer for relief located on page 44 of the SAC.

Legal Standard

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.”

Issue No.1: Punitive Damages

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression.  Malice is defined as either “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.”  (Civil Code § 3294(c)(1).)  “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.)  Fraud under California Civil Code, Section 3294(c)(3) “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.”  California Civil Code, Section 3294(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Punitive damages thus require more than the mere commission of a tort.  (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

Specific facts must be pled in support of punitive damages.  (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)  A “conclusory characterization of [a] defendant’s conduct as intentional, wilful and fraudulent [is] [a] patently insufficient statement of oppression, fraud, or malice.”  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 865.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.”  (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.”  (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.)  Conduct that is merely negligent will not support a claim for punitive damages.  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)  Punitive damages “are not a favorite of the law and the granting of them should be done with the greatest of caution.  They are allowed only in the clearest of cases.”  (Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526.)

“An employer shall not be liable for [punitive] damages . . . based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety or others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.”  (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572.)  Specific facts must be pled in support of punitive damages.  (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)


The Court finds that Plaintiff has not stated facts indicating malice, fraud, or oppression on behalf of Defendants.  Plaintiff pleads with respect to his punitive damages allegations that Defendants acted with malice, fraud, and oppression because: (1) they failed to advise him that the work set forth in the Tenant Habitability Plan would not be adhered to or completed within the time constraints set forth therein (SAC at ¶ 94); (2) he was required to live on a premises with asbestos, dust, debris, chemicals, noxious odors, loud noise, lack of security, property damage, and lack of a toilet (Id.); (3) construction began on the premises and is still not complete (Id.); (4) there was multiple incidents of lack of security at the complex including murder and mail theft (Id.); (5) he continued to complain about conditions at the complex but Defendants hid such conditions and created the uninhabitable and dangerous conditions (Id.); and (6) he was placed in fear for his life and health due to the exposure to toxic chemicals and extremely stressful conditions caused by Defendants conduct and Defendants prevented him from having a working toilet immediately after his prostate surgery.  (Id.)  The Court finds that these allegations are not enough to warrant punitive damages.  Additionally, given that Defendants are corporations, Plaintiff has not alleged facts indicating that such actions were done by an officer, director, or managing agent of the respective corporations under White. There are no facts pled with respect to the “authorized representatives” to warrant a finding of advanced knowledge or ratification of such conduct committed by such “authorized representatives” of Defendants.

Therefore, the Court finds it appropriate to strike punitive damages from paragraph 94 in the SAC and the prayer for relief located on page 44, paragraph 5 of the SAC.

Defendants’ motion to strike is GRANTED in its entirety with 20 days leave to amend.

Moving parties are 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 18th day of February 2020


  Hon. Holly J. Fujie

Judge of the Superior Court