Defendants Paul Jensen and Pamela Jensen (“Defendants” together) unopposed Demurrer to the Second Amended Complaint (“SAC”) is SUSTAINED in part and OVERRULED in part.

Plaintiff is granted one final leave to amend and file a Third Amended Complaint within 15-days of service of notice of the ruling on the Demurrer and Motion to Strike (“MTS”).

Defendants demur to the 1st, 2nd, 3rd, and 4th causes of action of the SAC on the basis that they each fail to state facts sufficient to constitute a cause of action (CCP § 430.10(e)) and they are each uncertain, ambiguous, and unintelligible (CCP § 430.10(f)).

A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  The issue is the sufficiency of the pleading, not the truth of the facts alleged.  Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.  Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer.  Day v. Sharp (1975) 50 Cal.3d 904, 914;  Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.

“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.]  However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]”  Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672

Under Section 430.10(e) the test is whether the complaint states any valid claim entitling plaintiff to relief, even if plaintiff’s cause of action is improperly titled, or an improper remedy is stated.  Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38.   Under a general demurrer, plaintiff’s complaint must fail to state a valid cause of action for the demurrer to be sustained.

Uncertainty is also a disfavored ground on a demurrer. See, Rutter, Civil Procedure Before Trial, Section 7:85.  A demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.  Also, grounds not stated in the notice of demurrer may be disregarded by the court.  CCP § 430.60.

Finally, if a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any reasonable possibility that plaintiff can state a good cause of action.  Goodman v. Kennedy (1976)

18 Cal.3d 335, 349.  But if a party cannot amend to state a valid cause of action, or the party opposing the demurrer cannot state how a valid cause of action can be pled, which the opposing party has the burden of proof on, then the demurrer should be sustained without leave to amend.  Hendy v. Losse (1991) 54 Cal.3d 723, 742.

1)   COA #1 – Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.”  Richman v. Hartley (2014) 224 Cal. App. 4th 1182, 1186.

Plaintiff has alleged the existence of a written contract between the parties, and attached the contract to the SAC.  SAC ¶¶ 7-8 and 48; Ex. 1 (“Contract”).

The SAC alleges the following breaches:

–         Only Defendants are permitted to live on the Property, however Plaintiff alleges that three additional unauthorized adults live on the Property as their primary residences.  SAC ¶ 49a;

–         Defendants are required to use the Property as an abode exclusively for living, sleeping, dining, etc., and that except for the garage, the Property was not to be used as a storage facility or used for storing flammable materials.  SAC ¶ 52; Contract, p. 2 – #8A.  Plaintiff alleges Defendants use living areas for unauthorized storage, including flammable materials.  SAC ¶ 52.

–         The Contract requires Defendants to not expose the Property to loss, including creating a fire hazard (“Tenant shall properly use, operate and safeguard Premises. . .” Contract, 3 – #11A).  SAC ¶ 52.  Defendants have breached the Contract by using the Property as a storage for flammable materials, including, “multiple filled cardboard boxes, inordinate amount of stacked materials, and fabric items. . . 60-80 feet of electrical cords from house to outdoor fountain.”  Id.

–         Defendants are required to notify Plaintiff immediately in writing of any issues.  SAC ¶ 52; Contract, p. 3 – #11A.  Plaintiff alleges that Defendants ripped-up carpet in the living room and discarded new and good condition pad in the living room, guest bedroom, and study, without first informing Plaintiff and without any emergent need.  Id.

Plaintiff alleges she has been damaged by the above actions in the amount of $12,020.00, to date, in out-of-pocket expenses, with additional full amount damages to be determined when Defendants move out, as well as increased wear and tear on the Property due to unauthorized individuals living on the Property.  SAC ¶ 53.  Unlike the FAC, Plaintiff has specifically identified the clauses of the contract that have been breached in the SAC.  SAC ¶ 52.  Finally, Plaintiff states she fully performed all duties that were required of her by the contract.  SAC ¶ 50.  While Plaintiff could likely have gone into more in depth regarding what duties she was required to perform under the contract, she has pled enough.  Again, a demurrer for uncertainty will only be sustained where the complaint is so poorly pled that a defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.  Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.   The Court does note Plaintiff states in SAC ¶ 57 that she has the duty to repair and maintain the Property and that Defendants interfered with Plaintiff’s ability to perform.

The Demurrer is OVERRULED as to this cause of action.

2)   COA #2 – Breach of Covenant of Good Faith and Fair Dealing

“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made.”  Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 349.  “The covenant “cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.”’”  Agosta v. Astor (2004) 120 Cal. App. 4th 596, 607.

The SAC states the benefits Plaintiff is deprived of are 1) not being verbally and physically assaulted and threatened by Defendants, which create ongoing fear, stress, and worry (SAC ¶ 58); 2) prohibiting Plaintiff from performing her duty to maintain and repair the Property (SAC ¶ 59); 3) Defendants have increased Plaintiff’s burden by incurring unnecessary costs and expenses thereby reducing actual net rent receipts (SAC ¶ 60); and 4) Defendants have demanded Plaintiff be accompanied by an attorney whenever she entered the Property (SAC ¶ 61).

Plaintiff has not identified the clause in the contract that prohibits Defendants from increasing Plaintiff’s burden under the contract, nor has she specified what the baseline burden is or how it was increased by Defendants.   The only facts that may support this cause of action would be interfering with Plaintiff’s reasonable performance of her duty to repair and maintain the property and reducing Plaintiff’s net receipts.  SAC ¶ 60.  However, these are a stretch and do not overcome Defendants’ demurrer.  The allegations of verbal assault and requirements of having an attorney present, while potentially inappropriate, are not considered under the Contract.  As to the allegations of depriving Plaintiff of the peaceful enjoyment of her life, exacerbating her infirmed condition, and creating ongoing worry, stress, and fear, none of those items are considered under the contract, nor do they support this cause of action.

The Demurrer is SUSTAINED with one final leave to amend.

3)   COA #3 – Intentional Infliction of Emotional Distress

The elements of IIED 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.  Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.

“To state a cause of action, the conduct alleged must be “‘so extreme and outrageous “as to go beyond all possible bo[u]nds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”’” [Citations omitted.] “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 that the acts are likely to result in illness through mental distress.”  Hailey v. California Physicians’ Serv. (2007) 158 Cal. App. 4th 452, 474, as modified on denial of reh’g (Jan. 22, 2008).

Where the offensive conduct was not undertaken for the purpose of causing the harm received proof of the intent of the actor to cause such harm, in substance, may be supplied by proof of circumstances showing the conduct was of that nature which reasonably should have been recognized as likely to cause the harm sustained.  Spackman v. Good (1996) 245 Cal. App. 2d 518.

Plaintiff’s allegations against Defendants boil down to 1) efforts to promote mold growth (SAC ¶¶ 64-65); 2) Defendants alleging they would bring a lawsuit against Plaintiff (SAC ¶¶ 66-68); 3) “running up” defense attorney fees and costs; and 4) one apparently brief instance where defendant Paul Jensen (“Paul”) yelled at Plaintiff to leave the property and threatened to sue Plaintiff.  FAC ¶¶ 33-34, 71.

While Paul’s statements may have offended Plaintiff, they do not appear to, “be “‘so extreme and outrageous “as to go beyond all possible bo[u]nds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”’” Hailey, supra.  While Plaintiff alleges Defendants have a position of power over Plaintiff due to Defendants being tenants and refusing to repudiate the lease (SAC ¶¶ 69-70), that is an extreme reach to suggest that causes Defendants to be in a position of power over Plaintiff.

Regarding promoting mold growth and running up defendants’ attorney fees, neither of those are examples of extreme conduct that would be regarded as atrocious in civilized society.  First, as to promoting mold growth, the allegations of the SAC state that Defendants hired a restoration company that refused to state there was any health risk, presumably associated with mold.  SAC ¶ 64-65.  It is unclear from the SAC how Defendants promoted mold growth or how that would inflict emotional distress on Plaintiff.  As to the increased defense attorney costs and fees, those are items that have been incurred by Defendants, not Plaintiff.  Plaintiff, in pro per, does not appear to have incurred any similar fees or costs.  Attorney fees and litigation costs are regularly incurred with litigation. Neither the allegation of mold growth promotion nor Defendants’ attorney fees support a cause of action for IIED.

Plaintiff has failed to allege facts sufficient to support a cause of action for IIED.

The Demurrer is SUSTAINED with one final leave to amend.

4)   COA #4 – Fraudulent Concealment

Concealment is, “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact”  Civ. Code § 1710(3).

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.”  Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.

Again, Plaintiff has pled no facts that support any of the elements of the cause of action for fraudulent concealment.  Plaintiff vaguely refers to the term “deferred maintenance” that was allegedly used by Defendants, but provides no explanation as to what that means.  While Plaintiff alleges that Defendants entered into the lease with the intent to sue Plaintiff (SAC ¶ 79), it does not appear that Defendants filed any such lawsuits against Plaintiff.  Plaintiff alleges Defendants failed to inform Plaintiff that Defendants were experienced in regularly bringing lawsuits (SAC ¶ 80), however the Contract states Defendants can be served notice at “Jensen & Associates, Trial Lawyers.”  SAC, Ex. 1, p. 6 § 32.  Presumably Plaintiff also did a background check of Defendants ability to pay the rent, which should have uncovered defendant Paul was an attorney.  Regardless however, Plaintiff has failed to allege that Paul being an attorney was a material fact or that Defendants were required to apprise Plaintiff of that information.  Finally, Plaintiff alleges Defendants concealed their opportunity, ability, and intent to bring a lawsuit against Plaintiff.  SAC ¶ 82.  Again, there is no evidence any lawsuit has been filed by Defendants against Plaintiff.  As anyone can theoretically file a lawsuit against any other person at any time, there is no duty of Defendants to notify Plaintiff they have the ability to sue Plaintiff.

The Demurrer is SUSTAINED with one final leave to amend.

  1. B)Motion to Strike

Defendants’ unopposed MTS portions of the SAC is GRANTED.

Defendants seek to strike the following items from the SAC:

–         “Defendants committed the despicable acts herein alleged maliciously, fraudulently, and oppressively, with the wrongful intent of injuring Plaintiff, and have acted with an improper and evil motive amounting to malice and fraud and in conscious disregard of Plaintiffs rights. Because the despicable acts taken toward Plaintiff were carried out in a deliberate, cold, callous and intentional manner in order to injure and damage Plaintiff, Plaintiff is entitled to recover punitive damages from Defendants in an amount according to proof.”  SAC ¶ 76;

–         “For punitive damages according to proof.” SAC Prayer No. 3;

–         “”For attorney fees and costs, according to proof.”

The only cause of action based in fraud in the SAC was the fourth cause of action for fraudulent concealment, which was properly demurrer to.  As such, the MTS is technically moot as to the first and second requested items.  However, even if it were not moot, Plaintiff has not pled facts sufficient to support punitive damages.

“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. . .”  CCP § 435(b)(1).  The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.”  CCP § 436(a).

Regarding punitive damage claims, “[n]ot only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”

Grieves v. Superior Court, 157 Cal. App. 3d 159, 166 (Ct. App. 1984)

Regarding punitive damages under Civ. Code § 3294:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

. . .

(c) As used in this section, the following definitions shall apply:

. . .

(3) “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.

It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice.”  A plaintiff must allege specific facts showing that defendant’s conduct was oppressive.  Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.

Fraud, “must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made [citations].” Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“Tarmann”].  Fraud must be pled with particularity. Comm. on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.  Particularity requires facts that, “show how, when, where, to whom, and by what means the representations were tendered.”  Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.  “[S]pecificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”  Tarmann, supra, 2 Cal.App.4th at 157-58.

As discussed in the ruling on the Demurrer, supra, Plaintiff has failed to properly allege any fraud on the part of Defendants.  As such, punitive damages are not supported by the allegations in the SAC and are properly subject to be struck.

Regarding the request for attorney fees and costs, the Contract between the parties requires a party to attempt to mediate prior to filing a lawsuit.  SAC, Ex. 1, p. 6 ¶ 35.  Specifically:

“Landlord and Tenant agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to court action. Mediation fees, if any, shall be divided equally among the parties involved.  If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to !hat party in any such action. . .”

As there is no evidence Plaintiff first attempted to mediate the issues before filing the lawsuit, the request for attorney fees and costs is struck.  Additionally, Plaintiff is self-represented in this matter and cannot recover “attorney fees” for her self-representation.


Plaintiff is granted one final leave to amend and file a Third Amended Complaint within 15-days of service of notice of the ruling on the Demurrer and MTS.

Defendants to serve notice.