Nikka Freeman et al v. Neil Patel et al

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 12 Honorable Nahal Iravani-Sani, Presiding Courtroom Clerk, Ryan Nguyen 191 North First Street, San Jose, CA 95113 Telephone: (408) 882-2230

DATE: 07/29/2026 TIME: 9:00 A.M. and 9:01 A.M.

LINE # CASE # CASE TITLE RULING LINES 1-2 24CV444354 Nikka Freeman et al vs MOTION TO STRIKE & DEMURRER Neil Patel et al Please Ctrl click (or scroll down to) Line 1-2 LINES 3-4 24CV445907 Jin Yin vs Hiu Yip et al MOTION: SANCTIONS

Defendant’s motion for sanctions; untimely filed supplemental opposition briefing by Plaintiff; Defendant’s request to strike Plaintiff’s supplemental opposition was considered; courts have a policy favoring disposition of cases on the merits rather than on procedural grounds. The court admonishes Plaintiffs’ counsel to comply with the court rules and procedures with respect to future filings. Defendant’s request for continuance to file and serve substantive reply is GRANTED.

Defendant shall file the supplemental consolidated sanctions submission and supporting billing records by September 18, 2026. No further response by Plaintiff. The Court will thereafter determine the appropriate sanctions, if any, and the amount thereof.

Continued to September 30, 2026 at 9:00 in Department 12.

LINE 5 25CV455853 Silicon Valley MOTION TO STRIKE &/OR TAX COSTS Taxpayers Association, Inc. et al vs Please Ctrl click (or scroll down to) Line 5 City of Campbell et al. LINE 6 25CV459137 Alexander Xue DEMURRER vs EMC Santana Row, LLC Please Ctrl click (or scroll down to) Line 6

Calendar Line 1-2 Case Name: Nikka Freeman, et al. v. Neil Patel, et al. Case No.: 24-CV-444354

Factual and Procedural Background

This is a personal injury action brought by plaintiffs Nikka Freeman and Alicia Freeman (collectively, “Plaintiffs”) as a result of bedbug bites during their stay at a hotel owned and operated by defendants Neil Patel, Morgan Hill Hotel, LP, and Hampton Inn Morgan Hill (collectively, “Defendants”).

On July 31, 2024, Plaintiff filed a complaint alleging causes of action for: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent Concealment; (5) Private Nuisance; (6) Public Nuisance; and (7) Breach of Contract.

On April 28, 2025, defendant Morgan Hill Hotel, LP (erroneously sued and served as Hampton Inn Morgan Hill) (“Morgan Hill”) filed the following motions: (1) a demurrer to the first, third, fourth, fifth, sixth, and seventh causes of action; and (2) a motion to strike punitive damages allegations. Plaintiffs did not file oppositions to the motions. The motions were heard and submitted on October 15, 2025. The court (Hon. Monahan) thereafter sustained the demurrer with leave to amend and the motion to strike was rendered moot.

On November 13, 2025, Plaintiff filed the operative first amended complaint (“FAC”) asserting the same causes of action against Defendants.

On December 29, 2025, defendant Morgan Hill filed the motions presently before the court, a demurrer and motion to strike to the FAC. Plaintiffs filed written oppositions. Morgan Hill filed reply papers.

A further case management conference is also scheduled for July 29, 2026.

Demurrer to the FAC

Defendant Morgan Hill argues the first, third, fourth, fifth, sixth, and seventh causes of action are subject to demurrer for failure to state a valid claim and uncertainty. (Code Civ. Proc., § 430.10, subds. (e), (f).)

Untimely Oppositions

In reply, defendant Morgan Hill contends the court should not consider the oppositions to the motions as they were untimely filed and served.

Code of Civil Procedure section 1005, subdivision (b), requires all opposing papers to be filed and served at least nine court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing. (Cal. Rules of Court, Rule 3.1300(d).) If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate. (Ibid.)

Here, the instant demurrer and motion to strike were filed on December 29, 2025. The hearing on the motions is scheduled for July 29, 2026. Thus, Plaintiffs were required to file and serve their oppositions no later than July 16, 2026 to be considered timely. Plaintiffs however did not file and serve their oppositions until July 20, 2026, two court days beyond the deadline imposed by the rules of court. Despite the late oppositions, defendant Morgan Hill timely filed and served reply papers addressing the substantive merits of the oppositions.

Furthermore, Morgan Hill does not identify any prejudice as a result of the untimely oppositions nor does there appear to be any prejudice in this instance. The court therefore will consider the merits of the oppositions. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806 [courts have a policy favoring disposition of cases on the merits rather than on procedural grounds].) The court admonishes Plaintiffs’ counsel to comply with the court rules and procedures with respect to future filings.

Failure to State a Valid Claim

“ ‘The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of the cause of action on assumed facts without a trial.’ [Citation.] ‘Conversely, a general demurrer will be overruled if the complaint contains allegations of every fact essential to the statement of a cause of action, regardless of mistaken theory or imperfections of form that make it subject to special demurrer.’ [Citation.]” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 291-292 (Morris).)

“A complaint, with certain exceptions, need only contain a ‘statement of the facts constituting the cause of action, in ordinary and concise language’ [citation] and will be upheld ‘ “so long as [it] gives notice of the issues sufficient to enable preparation of a defense.” ’ [Citation.] ‘[T]o withstand a demurrer, a complaint must allege ultimate facts, not evidentiary facts or conclusions of law.’ [Citation.]” (Morris, supra, 78 Cal.App.5th at p. 292.)

First Cause of Action: Battery

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.)

The tort is not limited to direct body-to-body contact. (See Mount Vernon Fire Insurance Corporation v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881.) Instead, the intent element requires that the defendant either intended to commit a battery or was substantially certain that battery would result from his/her conduct. (CACI 1320; Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 (Ashcraft).)

“In an action for civil battery the element of intent is satisfied if the evidence (or allegations) shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” (Ashcraft, supra, 228 Cal.App.3d at p. 613.)

In the first cause of action, Plaintiffs allege in pertinent part:

“Defendants, and DOES 1 through 20, inclusive, intentionally assigned Plaintiffs to a room that they knew, or reasonably should have known, presented a substantial certainty of harmful and offensive contact with bedbugs. Defendants, and DOES 1 through 20, inclusive, knew that assigning a room with a known or suspected infestation would cause Plaintiffs to be bitten and come into contact with bedbugs, yet Defendants deliberately failed to warn Plaintiffs or take corrective action.” (FAC at ¶ 54.)

On demurrer, defendant Morgan Hill argues Plaintiffs do not plead sufficient facts to establish the required intent to support a battery claim. The court is not persuaded as Plaintiffs specifically allege that:

“The intent element of battery is satisfied because Defendants, and DOES 1 through 20, inclusive, knew with substantial certainty that harmful and offensive contact would result by renting and assigning an infested room to Plaintiffs. Defendants’ concealment of the infestation, failure to disclose the hazardous condition, and deliberate decision to assign the room despite prior knowledge constitute intentional conduct and willful disregard for Plaintiffs’ safety.” (FAC at ¶ 55.)

The FAC further alleges that: (1) Defendants knew the subject hotel had a prior bedbug infestation through online guest reviews; (2) Defendants deliberately chose to turn a blind eye to this infestation and prior guest complaints; (3) front desk personnel and hotel management knew about the bedbug infestation in the hotel and specifically, Plaintiffs’ room, and intentionally did not disclose this material fact to Plaintiffs at check-in; and (4) Defendants deliberately chose to not eradicate the bedbug infestation which caused Plaintiffs to be bitten by bedbugs. (FAC at ¶¶ 31, 32, 34, 41.)

These supporting facts along with the allegations in the first cause of action are sufficient to state a claim for battery as Defendants’ intentional conduct made it substantially certain that Plaintiffs would be bitten bedbugs. Moreover, defendant Morgan Hill does not direct the court to any legal authority suggesting that a battery claim cannot arise from a bedbug infestation in this context.

Consequently, the demurrer to the first cause of action on the ground that it fails to state a valid claim is OVERRULED.

Third Cause of Action: Intentional Infliction of Emotional Distress

The elements of an intentional infliction of emotional distress claim are (1) the defendant’s conduct was extreme and outrageous; (2) the defendant intended to cause emotional distress or recklessly disregarded the probability of causing emotional distress; (3) the plaintiff suffered severe emotional distress; and (4) the defendant’s outrageous conduct was the cause of the severe emotional distress. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)

On demurrer, defendant Morgan Hill first asserts there are no facts pled establishing extreme and outrageous conduct to support a claim for intentional infliction of emotional distress.

“An essential element of a cause of action for intentional infliction of emotional distress is ‘extreme and outrageous conduct by the defendant.’ [Citation.]” (Yurick v. Super. Ct. (1989) 209 Cal.App.3d 1116, 1123.) “[T]he standard for judging outrageous conduct does not provide a ‘bright line’ rigidly separating that which is actionable from that which is not. Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.” (Id. at p. 1128.) “[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities, or threats which are considered to amount to nothing more than mere annoyances.

The plaintiff cannot recover merely because of hurt feelings.” (Ibid.) Thus, “[c]onduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

“Moreover, to support the cause of action, ‘[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.’ [Citation.]” (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 130.)

In the third cause of action, Plaintiffs allege in relevant part:

“The conduct of Defendants, and DOES 1 through 20, inclusive, was so extreme as to exceed all bounds tolerated in a civilized community, in that Defendants intentionally prioritized occupancy and revenue over guest safety; intentionally maintained a room in circulation despite known or suspected infestation; intentionally failed to train or supervise employees in sanitation, inspection, or pest control; intentionally failed to disclose material facts to Plaintiffs; and intentionally ignored obvious indicators that guests would be exposed to harm.” (FAC at ¶ 82.)

The pleaded facts suggest there may be extreme and outrageous conduct by defendant Morgan Hill who, despite prior knowledge about the bedbugs, deliberately failed to eradicate the infestation and intentionally concealed the existence of the bedbugs from Plaintiffs during check-in at the hotel. But, as pointed out on demurrer, there are no facts demonstrating that such extreme and outrageous conduct was directed toward Plaintiffs or in their presence so no cause of action has been stated.

Also, “[o]nly emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress. [Citation.]” (Angie M. v. Super. Ct. (1995) 37 Cal.App.4th 1217, 1227 (Angie M.).) In Angie M., the Court of Appeal determined the plaintiff failed to allege sufficient facts showing she suffered “severe” emotional distress in an action for unlawful seduction and childhood sexual abuse. The appellate court observed that the plaintiff “pleaded no facts demonstrating the nature, extent or duration of her alleged emotional distress.” (Ibid.; see Bogard v.

Emplrs Casualty Co. (1985) 164 Cal.App.3d 602, 617 [“Although appellants alleged they suffered severe emotional distress, they failed to set forth any facts which indicate the nature or extent of any mental suffering incurred as a result of Employers’ alleged outrageous conduct.”].)

Defendant Morgan Hill persuasively argues that Plaintiffs fail to plead facts establishing severe emotional distress and the nature and extent of any emotional suffering. Plaintiffs appear to concede this point as they fail to address it in their opposition. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [failure to address point is “equivalent to a concession”]; see also Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal. App. 4th 507, 529 [failure to challenge a contention in a brief results in the concession of that argument].)

Therefore, the demurrer to the third cause of action is SUSTAINED for failure to state a valid claim.

Fourth Cause of Action: Fraudulent Concealment

“[T[he elements of an action for fraud and deceit based on 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.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)

“Fraud must be pleaded with specificity rather than with ‘ “general and conclusory allegations.” ’ [Citation.] The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. [Citation.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 (West).) The specificity requirement applies equally to a cause of action for fraud and deceit based on concealment. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.)

Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214 Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)

In the fourth cause of action, Plaintiffs allege in pertinent part:

“Defendants, and DOES 1 through 20, inclusive, actively concealed the existence of bedbugs in the Subject Hotel and in Plaintiffs’ room by: (1) intentionally failing to inform Plaintiffs of prior or suspected bedbug activity; (2) intentionally failing to warn Plaintiffs of the unsafe condition of the room; (3) intentionally maintaining infested rooms in circulation; and (4) intentionally failing to implement or enforce procedures that would have resulted in the discovery and treatment of the infestation.” (FAC at ¶ 92.)

Here, the court agrees with defendant Morgan Hill that Plaintiffs fail to plead fraud with the required specificity to state a cause of action. In particular, Plaintiffs do not allege facts showing Morgan Hill intended to defraud them. Nor do Plaintiffs plead facts sufficient to establish justifiable reliance. (See Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1185 [as with all fraud claims, concealment requires showing of justifiable reliance]) Plaintiffs do not proffer any substantive arguments in opposition addressing these points and thus the demurrer is sustainable on this ground.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED for failure to state a valid claim.

Fifth Cause of Action: Private Nuisance

Civil Code section 3479 defines a nuisance as:

“Anything 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.” (Civ. Code, § 3479.)

California law characterizes a nuisance as either a “public nuisance” or a “private nuisance.”

“A private nuisance claim is a claim for ‘a nontrespassory interference with the private use and enjoyment of land.’ [Citation.]” (Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 802.) To establish a private nuisance claim, a plaintiff must plead and prove: (1) an interference with the plaintiff’s use and enjoyment of that property; (2) that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer “substantial actual damage”; and (3) the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be “of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Ibid.)

In the fifth cause of action, Plaintiffs allege in relevant part:

“At the time Plaintiffs occupied the room, Defendants, and DOES 1 through 20, inclusive, permitted, maintained, and failed to remedy a harmful and offensive condition, namely an active infestation of Cimex lectularius (“bedbugs”) in the room assigned to Plaintiffs. This infestation constituted a substantial, continuous, and unreasonable interference with Plaintiffs’ right to use, occupy, and enjoy the premises in a manner safe, sanitary, and consistent with ordinary guest expectations.” (FAC at ¶ 102.)

“It is long established that ‘an action based upon a private nuisance as that term is known to the law may be maintained only by those whose property rights have been invaded; that while a [lawful] possessor of land is allowed to recover incidental damages for harms to his person or

chattels in an action for private nuisance, the action is not available for the protection of those interests to a person who has no property rights or privileges in land.’ [Citation.]” (Multani v. Knight (2018) 23 Cal.App.5th 837, 855; see Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125 [“Although ‘any interest sufficient to be dignified as a property right’ will support an action based on a private nuisance, and this includes within its purview a tenancy for a term, such right does not inure in favor of a licensee, lodger or employee.”]; see also Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 67 [“Guests in a hotel...are generally mere licensees and not tenants. They have only a personal contract, and acquire no interest in the realty.”].)

As pointed out on demurrer, Plaintiffs lack standing to pursue a private nuisance claim as they did not maintain any property rights invaded by defendant Morgan Hill. Rather, Plaintiffs were merely lodgers at the subject hotel without any property rights in the room they occupied for one night. Plaintiffs appear to concede the standing argument as they fail to address it in their opposition to the motion.

Consequently, the demurrer to the fifth cause of action is SUSTAINED for failure to state a valid claim.

Sixth Cause of Action: Public Nuisance

“ ‘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.’ [Citation.] As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’ [Citation.] The interference must be both substantial and objectively unreasonable. [Citations.]” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 (Melton).)

“The elements ‘of a cause of action for public nuisance include the existence of a duty and causation.’ [Citations.] Public nuisance liability ‘does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’ [Citations.]” (Melton, supra, 183 Cal.App.4th at p. 542.)

In the sixth cause of action, Plaintiffs allege in pertinent part:

“Defendants, and DOES 1 through 20, inclusive, created, permitted, and maintained a condition at the Subject Hotel that constituted a public nuisance, namely the presence and spread of Cimex lectularius (“bedbugs”) in guest rooms, common areas, and furnishings. The bedbug infestation constituted a condition that was injurious to health, indecent, offensive to the senses, and interfered with the comfortable enjoyment of life or property by members of the public who visited, stayed at, or used the facilities of the Subject Hotel.” (FAC at ¶ 111.)

“The presence of bedbugs at the Subject Hotel affected not only Plaintiffs but also other hotel guests and members of the public who patronized the property. The infestation posed a health and safety hazard, impacted the comfort and use of individuals occupying the premises, and created a risk of spreading bedbugs beyond the hotel into

the personal belongings, homes, and vehicles of guests. The condition was one that affected a substantial number of people simultaneously, and therefore constituted an interference with a public right.” (FAC at ¶ 113.)

“Defendants’ failure to maintain sanitary conditions and their failure to remedy or prevent bedbug infestations was unreasonable and unlawful, and constituted a substantial, continuous, and ongoing interference with public rights recognized under California Civil Code §§ 3479 and 3480.” (FAC at ¶ 114.)

The court finds there is no valid claim stated for public nuisance as Plaintiffs do not allege facts demonstrating the bedbug infestation affected the community at large. Instead, as stated above, Plaintiffs allege only a risk that the bedbugs would spread and impact areas beyond the hotel. (See FAC at ¶ 113.) Plaintiffs’ speculation regarding a perceived risk of bedbug infestation is not sufficient to state a claim for relief. Furthermore, as pointed out on demurrer, Plaintiffs fail to show that their harm (bitten by a bedbug) was any different than the harm suffered by any other person being bitten by a bedbug. (See CACI 2020 [to establish a public nuisance claim, plaintiff must show that he or she suffered harm that was different from the type of harm suffered by the general public].)

Plaintiffs appear to concede this final point as it is not addressed in their opposition to the motion.

Therefore, the demurrer to the sixth cause of action is SUSTAINED for failure to state a valid claim.

Seventh Cause of Action: Breach of Contract

To prevail on a cause of action for breach of contract, the plaintiff must allege and 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.)

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 contract must be attached and incorporated by reference. (Otworth v. Southern Pacific Transportation (1985) 166 Cal.App.3d 452, 459.) More recently, in an action based on a written contract, the plaintiff may plead the legal effect of the contract rather than its precise language. (See Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.)

In the seventh cause of action, Plaintiffs allege they entered into a valid and enforceable contract with Defendants when they reserved, paid for, and checked into a guest room at the subject hotel. (FAC at ¶ 119.) The alleged contract appears to be written as the contractual obligations arise from the reservation agreement, the check-in transaction, the terms and representations contained in the hotel’s marketing materials, and California law. (Ibid.) Thus, Plaintiffs must attach a copy of the contract, plead the terms verbatim in the body of the FAC, or plead the legal effect of the contract. Plaintiffs have not done so here and therefore the demurrer is sustainable on this ground.

Accordingly, the demurrer to the seventh cause of action is SUSTAINED for failure to state a valid claim.

Uncertainty

“ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “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.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

According to the notice of motion, defendant Morgan Hill argues the first, third, fourth, fifth, sixth, and seventh causes of action are subject to demurrer on the ground of uncertainty. But, this ground for demurrer is undeveloped as the moving papers only address the uncertainty argument as to the fourth cause of action. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [“We are not required to examine undeveloped claims or to supply arguments for the litigants”].) And, the specificity argument raised by Morgan Hill to the fraudulent concealment claim constitutes a ground for demurrer based on the failure to state a valid claim, not uncertainty. (See Wilhelm v.

Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331[“[T]he complaint fails to plead with specificity a factual basis for how Cohen ‘knew’ the representations she communicated to Goodman on behalf of Leedy were false.”].) Thus, the demurrer is not sustainable as to these claims on the ground of uncertainty.

Consequently, the demurrer to the first, third, fourth, fifth, sixth, and seventh causes of action on the ground of uncertainty is OVERRULED.

Leave to Amend

Should the court sustain any part of the demurrer, Plaintiffs request further leave to amend.

“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he (or she) can amend his (or her) complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.)

As stated above, the court sustained the demurrer to the third, fourth, fifth, sixth, and seventh causes of action. Plaintiffs have already been given an opportunity for leave to amend in response to a demurrer where they did not file written opposition. That said, this order, unlike the prior order on demurrer, provides guidance to Plaintiffs on the deficiencies to be corrected

in their amended pleading. Furthermore, the court finds the aforementioned defects to be easily correctable and thus will afford one more opportunity for leave to amend. (See Angie M., supra, 37 Cal.App.4th at p. 1227 [“The remaining pleading deficiencies regarding the nature and severity of the alleged emotional distress were easily corrected and leave to amend was granted.”].) Therefore, leave to amend is GRANTED as to the third, fourth, sixth, and seventh causes of action. The court however denies leave to amend the fifth cause of action which fails as a matter of law. (See Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 942 [“[W]here the nature of plaintiff’s claim is clear, but under substantive law no liability exists, leave to amend should be denied, for no amendment could change the result.”].)

Motion to Strike Punitive Damage Allegations

Defendant Morgan Hill moves to strike the punitive damages allegations in the FAC because: (1) Plaintiffs fail to allege specific facts supporting a claim for punitive damages against Morgan Hill; (2) Plaintiffs have not alleged sufficient facts for corporate ratification of alleged wrongful conduct; and (3) the punitive damage claims are ambiguous.

Analysis

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. [Citation.] ‘ “Malice” ’ is defined in the statute as conduct ‘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.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’ [Citation.] ‘ “Fraud” ’ is ‘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.’ [Citation.]” (Turman v.

Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Also, “[a]n employer shall not be liable for damages pursuant to subdivision (a), 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 of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages. [Citation.]” (Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510.)

As explained above, the court sustained the demurrer to the third, fourth, fifth, and sixth causes of action. Thus, the motion to strike the third cause of action, fourth cause of action, and paragraphs 106, 116, and 117 (item nos. 17-21 in the notice of motion to strike) in the FAC is MOOT.

The second cause of action is a claim for negligence, a nonintentional tort. “Where nonintentional torts involve conduct performed without intent to harm, punitive damages may be assessed ‘when the conduct constitutes conscious disregard of the rights or safety of others.’ [Citations.] ‘ “[A] conscious disregard of the safety of others may [thus] constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” ’ [Citations.]

Consequently, to establish malice, ‘it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless.’ [Citation.]” (Bell v. Sharp Cabrillo Hosp. (1989) 212 Cal.App.3d 1034, 1044.)

As to the negligence claim, defendant Morgan Hill moves to strike the phrase “reckless disregard” in paragraph 62 and the request for punitive damages in paragraph 77 (item nos. 15- 16 in the notice of motion to strike). The court finds Plaintiffs do not plead sufficient facts to support a claim for punitive damages in connection with the negligence cause of action. Therefore, the motion to strike these allegations is GRANTED.

The balance of the motion to strike is directed toward certain factual background allegations, the prayer for relief, and the entirety of the battery cause of action which survived demurrer (item nos. 1-14 and 22 in the notice of motion to strike). Here, the court concludes there are insufficient facts to support an award of punitive damages. Presumably, Plaintiffs are relying on malice to establish an entitlement to punitive damages and thus they should set forth facts with respect to malice specifically as to this defendant in their amended pleading. Also, as pointed out in the motion, Plaintiffs do not plead facts showing an officer, director or managing agent had advance knowledge of the alleged unfitness of any employee or staff who engaged in recklessness, malice, oppression or fraud. As a consequence, the motion to strike these allegations is GRANTED.

Leave to Amend

Should the court grant any part of the motion, Plaintiffs again request leave to amend. Unlike the demurrer, the court’s prior order did not address the motion to strike which was rendered moot by the sustaining of the demurrer. Thus, as the court, for the first time, identifies deficiencies with respect to the request for punitive damages, Plaintiffs will be afforded an opportunity for leave to amend. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [with respect to motion to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].) Accordingly, leave to amend is GRANTED.

Disposition

The demurrer to the first cause of action in the FAC on the ground that it fails to state a valid claim is OVERRULED.

The demurrer to the third, fourth, sixth, and seventh causes of action in the FAC is SUSTAINED WITH 10 DAYS LEAVE TO AMEND for failure to state a valid claim.

The demurrer to the fifth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a valid claim.

The demurrer to the first, third, fourth, fifth, sixth, and seventh causes of action on the ground of uncertainty is OVERRULED.

The motion to strike item nos. 17-21 in the notice of motion to strike is MOOT.

The motion to strike item nos. 15-16 in the notice of motion to strike is GRANTED WITH 10 DAYS LEAVE TO AMEND.

The motion to strike item nos. 1-14 and 22 in the notice of motion to strike is GRANTED WITH 10 DAYS LEAVE TO AMEND.

The court will prepare the Order.

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