Arno Murayama vs James Nielsen et al

Before the Court is Defendants James Nielsen (“Mr. Nielsen”) and Virginia Nielsen’s (“Ms. Nielsen”) (collectively, “Defendants” or the “Nielsens”) motion for summary adjudication in their favor and against Plaintiff Arno Murayama (“Plaintiff”).

I. BACKGROUND

This action arises out of residential landlord-tenant relationship and a dispute over the status of the tenancy. According to the allegations of the operative Second Amended Complaint3 (“SAC”), Defendants own a parcel of land in unincorporated Santa Clara County (the “Property”) which has a Morgan Hill address. (SAC, ¶ 9.)

In 2012, James started renting out the dwelling unit at 2290 McDonald Lane in Morgan Hill (the “Rental property”); no building permit was ever issued for the construction of this dwelling but one was issued for dwelling unit at 2295 McDonald Lane. (Id., ¶¶ 12-13.) Because the Rental Property was built without the requisite permits and no certificate of occupancy has been issued, it is an illegal dwelling unit. (Id., ¶ 14.)

On March 6, 2022, Defendants leased the Rental Property to Bradly Bishop pursuant to a lease agreement (the “Lease”). (SAC, ¶ 15.) Mr. Bishop resided in the Rental Property from March 15, 2022 though March 11, 2024, when he passed away. (Id., ¶ 17.) Plaintiff is the surviving spouse of Mr. Bishop and special administrator of his estate, with the parties having been married in January 2014. (Id., ¶¶ 1-3.) Plaintiff lived and worked in San Francisco during the week and lived with Mr. Bishop on the weekends in the Rental Property. (Id., ¶ 19.) After Mr. Bishop’s passing, Plaintiff resided in the Rental Property until April 30, 2024. (Ibid.)

Mr. Bishop was admitted to the hospital in February 2024 with a terminal illness. (SAC, ¶ 22.) On February 12, 2024, Plaintiff informed Defendants of Mr. Bishop’s illness and asked for instructions to remit the upcoming rent due. (Ibid.) Defendants provided Plaintiff the necessary information and he wired the rent payment from his and Mr. Bishop’s joint account, which was accepted by Defendants. (Id., ¶ 23.)

On February 15, 2024, Mr. Nielsen entered the Rental Property to clean the pool; he had not provided notice as required by statute and coerced the housekeeper to allow him into the dwelling until, where he took pictures and video of the interior. (SAC, ¶¶ 26-27.) Plaintiff alleges that Defendants trespassed on the Rental Property the following day to photograph or videotape the inside of the garage. (Id., ¶ 28.)

Defendants were aware of Mr. Bishop’s passing the day after he died, and accepted rent from Plaintiff via wire transfer on that date. (SAC, ¶ 31-32.) As of March 16, 2024,

3 Plaintiff’s motion for leave to file a third amended complaint is set to be heard on May 27, 2026; her ex parte application requesting that the court advance the hearing date on this motion in order for it to be heard prior to the instant motion for summary judgment was denied. 13

Defendants had not issued a notice of termination of the Lease, had not commenced unlawful detainer proceedings, or obtained from the court a judgment or writ of possession for the Rental Property. (SAC, ¶ 33.) Plaintiff alleges that Defendants attempted to evict Plaintiff that day by use of “force, willful threats or menacing conduct” in violation of Civil Code sections 1940.2 and 1954, subdivision (c). (Id., ¶ 34.) Defendants abandoned the effort to evict Plaintiff after his counsel informed them that he was Mr. Bishop’s surviving spouse. (Id., ¶ 35.) Plaintiff was so “terrorized and afraid” due to Defendants’ actions and therefore informed them on his intent to vacate on April 30, 2024. (Id., ¶ 36.)

Despite having such notice, Defendants continued to engage in conduct which violated Civil Code sections 1940.2 and 1954, subdivision (c), including: preventing Plaintiff from removing vehicles from the Property that were owned by him, Mr. Bishop or their business; preventing the housekeeper from taking a BBQ gifted to her by Plaintiff; sending a text to Plaintiff telling him that it was illegal for him to remove of Mr. Bishop’s possessions from the Property, that his sister and mother would be arriving, and that the Santa Clara Sheriff’s Department had been notified that he was trying to collect business assets and put them in his name alone; posted notices of termination of the lease which claimed to be posted on behalf of the Santa Clara County Sheriff; and flew drones over the Rental Property, attempting to look in its windows. (SAC, ¶ 37.)

Plaintiff was forced to retain private security to prevent Defendants from forcibly attempting to enter the Rental Property. (Id. at ¶ 37(iv).)

After receiving notice of termination of lease from Plaintiff, Defendants failed to provide notice of an “initial inspection” pursuant to Civil Code section 1950.5. (SAC, ¶ 38.) On April 20, 2024, Plaintiff emailed Defendants to set up a move out inspection; Defendants did not acknowledge the email. (Id., ¶ 39.) Plaintiff’s follow-up email on April 26, 2024 also went unanswered. (Id., ¶ 40.) On April 30, 2024, Plaintiff moved out of the Rental Property. (Id., ¶ 41.) Defendants failed to timely provide a statutory statement of damages, ultimately providing one to Plaintiff’s counsel on May 22, 2024. (Id., ¶ 44.) On June 4, 2024, Plaintiff responded to the statement with a demand for return of the security deposit; this demand was rejected by Defendants’ counsel on June 6, 2024. (Id., ¶¶ 45-46.)

Based on the foregoing, Plaintiff initiated this action in June 2024. The operative SAC was filed on July 17, 2025 and asserts the following causes of action: (1) breach of implied warranty of habitability; (2) constructive eviction- breach of covenant of quiet enjoyment; (3) violation of Civil Code section 1950.5- failure to conduct initial moveout inspection; (4) bad faith retention of security deposit; (5) breach of the lease agreement; (6) conversion; (7) intentional infliction of emotional distress (“IIED”); (8) violation of Penal Code section 496; (9) violation of Business & Professions Code section 17200 (“UCL”); (10) violation of Civil Code section 1159; and (11) trespass.

On January 28, 2026, Defendants filed the instant motion for summary adjudication of the first (breach of implied warranty of habitability), second (constructive eviction), fifth (breach of lease agreement), seventh (IIED), ninth (violation of UCL) and tenth (violation of Civil Code section 1159) causes of action. On April 14, 2026, Plaintiff filed his opposition to this motion, as well as a request for dismissal of the tenth cause of action. Accordingly, Defendants’ motion is now moot as to this claim.

II. MOTION FOR SUMMARY ADJUDICATION

A. Legal Standard

“A motion for summary judgment shall be granted when ‘all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ([Code Civ. Proc., § 437c, subd. (c).) Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint [or similar pleading]. (§ 437c, subd. (f).) ... Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)

B.

Discussion

The primary arguments in Defendants’ motion are: Plaintiff never had any rights under the Lease because he was not a signatory to its terms nor a third-party beneficiary; no tenancy existed between Defendants and Plaintiff such that he was entitled to habitability rights; and Defendants’ conduct towards him was neither extreme nor outrageous.

1. Breach of Lease Agreement (Fifth Cause of Action)

In the fifth cause of action, Plaintiff alleges that Defendants failed to comply with paragraph 4 of the Lease by failing to return the security deposit to Mr. Bishop’s estate, and by leasing the Rental Property, an illegal building due to have been built without a building permit, to Mr. Bishop. (SAC, ¶¶ 53-57, 94-97.) Defendants maintain that they are entitled to summary adjudication of this claim because (1) Plaintiff cannot sue for breach of the lease as he is neither a party to Lease nor a third-party beneficiary of its terms; (2) Plaintiff cannot recast non-contract grievances as breach of the Lease; and (3) even assuming the existence of a enforceable lease claim, Plaintiff cannot recover the types of contract damages sought absent a recognized exception.

It is undisputed that Plaintiff is not a signatory to the Lease; only Mr. Bishop and Mr. Nielson are. (See Plaintiff’s Opposing Separate Statement in Support of Opposition to Motion for Summary Adjudication (“PUMF”) No. 2.) It is also undisputed that Plaintiff is simply listed on the March 2022 rental application submitted by Mr. Bishop to Defendants as the “In Case of Emergency” contact for Mr. Bishop, and the relationship is stated as “friend.” (PUMF No. 40.) Plaintiff testified he was not a party to the Lease and he and Mr. Bishop did not put both of their names on it because they were having difficulty renting a place with both names as a married couple, and he “had [his] lease already” for the San Francisco property he resided in during the week. (See Defendants’ Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”) No. 41.)

Generally, a non-party to an agreement cannot bring an action for its breach. (See Gruenberg v. Aetna Insurance Company (1973) 9 Cal.3d 566, 576.) A non-party to an agreement who was an intended beneficiary of its terms may be able to sue for breach, but Plaintiff admits that he is not proceeding in that capacity but instead as a “tenant by operation of law and conduct.” The problem for Plaintiff is that that while a non-signatory to a lease can, 15

under certain circumstances, become a tenant, that does not mean he is entitled to enforce provisions of a lease agreement to which he is not a party or a third-party beneficiary. (See Parkmerced Co. v. San Francisco Rent Stabilization & Arbitration Bd. (1989) 215 Cal.App.3d 490, 494-495; see Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1414.) In his opposition, Plaintiff argues that he was a tenant based on the totality of circumstances, but this does not equate to standing to file suit for purported breaches of the Lease, and he notably offers no authority which provides to the contrary. Because Plaintiff was not a party to the Lease, he cannot sue for breach of its terms. Therefore, Defendants’ request for summary adjudication of the fifth cause of action is GRANTED.

2. Breach of Implied Warranty of Habitability (First Cause of Action)

In the first cause of action, Plaintiff alleges that the Rental Property is an illegal dwelling because it was built without a building permit and suffered from “significant” habitability issues. (SAC, ¶¶ 51-55.) He further alleges that by leasing such a property to Mr. Bishop, Defendants’ breached the Lease and as a result of this breach, he and Mr. Bishop “suffered discomfort and annoyance, all to his general damage in the sum of $252.98 for each day of occupancy of the Rental Property beginning March 15, 2022.” (Id., ¶¶ 56-57.)

Defendants contend that they are entitled to summary adjudication of this claim because: (1) Plaintiff had no rights under the Lease and was not a tenant; (2) even if Plaintiff was a tenant, a habitability breach requires more than mere amenities issues or de minimis defects as alleged by Plaintiff; and (3) the implied warranty extends only to conditions Defendants knew or should have discovered, and post-commencement defects require actual or constructive notice.

As discussed above, Plaintiff is not a party to the Lease. However, that does not necessarily mean he was not a tenant. “It is well established that a tenancy need not be created by lease but may be created by occupancy by consent.” (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 750.) “A tenancy may be created by consent and acceptance of rent, despite the absence of a lease.” (Cobb v. San Francisco Residential Rent Stabilization & Arbitration Bd. (2002) 98 Cal.App.4th 345, 352, citing Getz v.

City of West Hollywood (1991) 233 Cal.App.3d 625, 629.) While it is generally true that the basis for the implied warranty is a lease agreement (see Green v. Superior Court (1974) 10 Cal.3d 616, 631 (Green) [holding that a warranty of habitability is implied by law in residential leases]), it makes little sense that a landlord would not have to warrant the habitability of a residence to a party that had not executed a lease- written or oral- but otherwise qualified as a “tenant” due to having the landlord’s consent to reside in the property and accepting rent.

Under this warranty, a landlord “covenants that premises he leases for living quarters will be maintained in a habitable state for the duration of the lease.” (Knight v. Halsthammar (1981) 29 Cal.3d 46, 52 (Knight).) Thus, the Court rejects Defendants’ contention that because Plaintiff was not a signatory to the Lease, he cannot sue for breach of the implied warranty as a matter of law.

The next question becomes, was Plaintiff a tenant? Defendants do not establish that he was not because the entirety of their argument that he was not a tenant is that he was not a signatory to the Lease. But as held by the authorities cited above, a non-signatory to a lease can still be a tenant. In their reply, Defendants emphasize that the Lease prohibited assignment of that agreement or subletting without their written content (UMF No. 4-5, 21) and argue that Plaintiff therefore could never have been a tenant. But they cite no authority which provides that if the circumstances exist for an individual to qualify as a tenant, any potential tenancy is defeated by a provision in a lease agreement that the purported tenant was not a party to. Nor 16

is the Court persuaded that this would be the result because if the circumstances creating a tenancy exist- including the landlord’s consent to the tenant’s occupancy- it is separate from the existing lease. Because Defendants have not established that Plaintiff was not a tenant, the Court will not grant summary adjudication on this basis.

Defendants next argue that even if Plaintiff did have standing to sue for breach of the implied warranty of habitability, he has not pleaded conditions that actually qualify as actionable breaches. Under this implied warranty, a residential landlord covenants that the leased property will be maintained in a habitable state for the duration of the lease. (Green, supra, 10 Cal.3d at 637.) “In considering the materiality of an alleged breach, both the seriousness of the claimed defect and the length of time for which it persists are relevant factors.

Minor housing code violations standing alone which do not affect habitability must be considered de minimis and will not entitle the tenant to a reduction in rent; and likewise, the violation must be relevant and affect the tenant’s apartment or the common areas which he uses.” (Hinson v. Delis (1972) 26 Cal.App.3d 62, 70.) Whether the conditions breach the implied warranty is a question of fact. (Lehr v. Crosby (1981) 123 Cal.App.3d Supp. 1, 6.) Because the implied warranty cannot be waived or modified, a tenant’s remaining on the property after knowledge of the defects does not constitute either a waiver of the warranty or the tenant’s remedies for the breach. (Knight, supra, 29 Cal.App.3d at 54.) “[The] implied warranty of habitability does not require that a landlord ensure that leased premises are in perfect, aesthetically pleasing condition, but it does mean that ‘bare living requirements’ must be maintained.’ In most cases, substantial compliance with those applicable building and housing code standards which materially affect health and safety will suffice to meet the landlord’s obligations under the common law implied warranty of habitability. ...”

Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 914.)

In the SAC, Plaintiff specifically alleges that the Rental Property suffered from the following habitability issues: the tub in the master bathroom leaked; the pool’s plumbing “failed”; the air conditioning’s cooling capacity was “insufficient” for the size of the Rental Property; the microwave oven was “rusted and dropped particles on food”; and there was moisture present in the residence “so that mushrooms were growing out of the tiling around the fireplace hearth.” (SAC, ¶ 55.) Defendants insist that the foregoing are insufficient to qualify as actionable breaches, amounting to only amenities issues or de minimis violations.

The Court disagrees. Insufficient cooling and moisture within the residence significant enough to allegedly cause the growth of mushrooms is not de minimis and may impact the health and safety of those who reside within. Therefore, the Court will not grant Defendant’s request for summary adjudication on this basis.

Defendants lastly argue that the implied warranty only extends to conditions that they knew of or should have known of, and while this may be a correct summation of the law, they fail to establish that they did not have notice of the conditions that are the subject of this claim or that they otherwise had no reason to know about them. Given this as well as the foregoing, Defendants’ request for summary adjudication of the first cause of action is DENIED.

3. Constructive Eviction- Breach of Covenant of Quiet Enjoyment (Second Cause of Action)

In the second cause of action, Plaintiff alleges that Defendants breached Civil Code sections 1940.2 and 1954, subdivision (c), by attempting to evict him by the use of “force, 17

willful threats or menacing conduct constituting a course of conduct that [interfered] with [Plaintiff’s] quiet enjoyment of the [Rental Property] in violation of Section 1927 that [created] an apprehension of harm in a reasonable person.” (SAC, ¶ 34.) Plaintiff continues that as a result of the foregoing, Defendants terminated the tenancy without “just cause” and constructively evicted him. (Id., ¶ 66.)

Defendants maintain that summary adjudication of this claim in their favor is appropriate because Plaintiff cannot establish that they “substantially interfered” with his right to use and enjoy the Rental Property and that, as a result of that interference, he surrendered possession.

“A constructive eviction occurs when the acts or omissions ... of a landlord, or any disturbance of interfered with the tenant’s possession by the landlord, renders the premises, or a substantial portion thereof, unfit for the purposes for which they were leased, or has the effect of depriving the tenant for a substantial period of time of the beneficial enjoyment or use of the premises.” (Groh v, Kover’s Bull Pen, Inc. (1963) 221 Cal.App.2d 611, 614.) “Abandonment of the premises by the tenant within a reasonable time after the wrongful act of the landlord is essential to enable the tenant to claim a constructive eviction.” (Stoiber v.

Honeychuck (1980) 101 Cal.App.3d 903, 926.) The covenant of quiet enjoyment is breached when an act or omission of the landlord “substantially interferes” with the tenant’s right to use and enjoy the premises for the purposes he or she intended to use it for. (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591.)

While Defendants assert that Plaintiff cannot establish that they “substantially interfered” with his right to use and enjoy the Rental Property, they do not articulate in any detail how this is the case. Accordingly, they do not meet their initial burden and their request for summary adjudication of the second cause of action is DENIED.

4. IIED (Seventh Cause of Action)

In the seventh cause of action, Plaintiff alleges that the actions Defendants committed in the five days after Mr. Bishop’s death on March 16, 2024 in order to force him to leave the Rental Property were “extreme and outrageous” and caused him to suffer “extreme” emotional distress. (SAC, ¶¶ 128-133.) Defendants assert that they are entitled to summary adjudication of this claim because Plaintiff (1) cannot establish extreme and outrageous conduct by Defendants and (2) cannot establish that he suffered severe emotional distress.

Generally, in order to establish a cause of action for IIED, a plaintiff must plead and prove the following: “(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.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1609, internal citations and quotations omitted.) In order for conduct to be considered outrageous for the purpose of tort liability, it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

Defendants urge that their actions towards Plaintiff were not “extreme” or “outrageous” within the meaning of IIED because they consisted merely of: issuing a 30-day notice to quit 18

on March 25, 2024, terminating the tenancy as of April 30, 2024 (UMF No. 10-12); and requesting assistance from the Santa Clara County Sheriff’s Department for the “vacancy issue” on March 16, 2024, with responding deputies speaking to a third-party, not Plaintiff, and the deputies and Defendants leaving “calmly” after being informed Plaintiff was Mr. Bishop’s spouse. (UMF No. 17). Defendants continue that Plaintiff testified that he did not tell Defendants that he felt threatened by them. (UMF No. 42).

The Court does not believe the foregoing is sufficient to negate this element of Plaintiff’s IIED claim, as Defendants have not addressed all of the actions alleged to have been extreme and outrageous, including Defendants’ purportedly “forcing” their way inside the Rental Property and photographing the interior and then later re-entering without notice or permission and videotaping the premises, and contacting the sheriff’s office to report “trespassers” at the Rental Property prior to issuing any form of notice of termination or eviction in the weeks after Mr.

Bishop’s passing. (See SAC, ¶¶ 27, 28, 37.) Further, Defendants’ characterization of their actions and how they conducted themselves is disputed by Plaintiff, who submits evidence demonstrating a different version of events that might qualify as extreme and outrageous. (See Plaintiff’s Evidence in Support of Opposition to Motion for Summary Judgment, Exhibit 41 (Declaration of Arno Murayama), ¶¶ 20-45.) Thus, the Court will not grant Defendant’s request for summary adjudication on this basis.

Turning to Defendants’ second argument, while “emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Jing (189 Cal.App.4th 1354, 1376, internal citations and quotations omitted, emphasis in original.) “The California Supreme Court has set a ‘high bar’ for what can constitute severe distress.” (Ibid., internal citation and quotations omitted.) “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in a civilized society should be expected to endure it.” (Potter v.

Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004, internal quotations omitted.) Importantly, “[i]t is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397, italics added.)

Here, Defendants submit that Plaintiff cannot establish that he suffered severe emotional distress because he admitted that he did not seek medical care for emotional distress, did not suffer any physical injuries, did not take any medication for emotional distress and did not experience any loss of income. (UMF Nos. 26-30, 32, 33.) The Court believes this is sufficient for Defendants to meet their burden as this evidence indicates no substantial, severe and enduring emotional distress on Plaintiff’s part.

In his opposition, Plaintiff conversely argues that he suffered severe and extreme emotional distress, including panic attacks, insomnia, inability to eat, inability to attend to his business and extreme depression. His evidence of this is his own declaration and deposition testimony, as well as the declarations of friends. (See PUMF Nos. 26-30.) The Court believes that severe emotional distress be found from such evidence. California courts have held a plaintiff’s own testimony sufficient to establish the existence and severity of emotional distress. (See, e.g., Little v. Stuyvesant Life Ins. Co. (1977) 67 Cal.App.3d 451, 462 [plaintiff’s testimony held to constitute “substantial evidence” to support jury’s finding that she suffered 19

from severe emotional distress]; Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1096 [explaining that under California law, the “testimony of a single person, including the plaintiff, maybe sufficient to support an award of emotional distress damages”].) The declarations of Plaintiff’s friends also describe their observations of his emotional well-being, which corroborate Plaintiff’s account of his own condition. Given such evidence, the Court finds that triable issues of material fact exist with regard to Plaintiff’s claim for IIED. Accordingly, Defendant’s request for summary adjudication of the seventh cause of action is DENIED.

5. Violation of UCL (Ninth Cause of Action)

In the remaining claim at issue, Plaintiff alleges that Defendants violated the UCL by: leasing a property that was not a permitted dwelling and unfit for human habitation; attributing pre-existing damages to the tenant; attributing their failure to maintain the Rental Property to the tenant; and attributing wear and tear to the tenant. (SAC, ¶¶ 133-134.) Defendants contend that they are entitled to summary adjudication of this claim for the following reasons: (1) Plaintiff lacks standing to assert a UCL claim; (2) Plaintiff cannot obtain the requested nonrestitutionary relief under the UCL; and (3) Plaintiff lacks a viable predicate violation and equitable remedy.

“Business and Professions Code section 17200 et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 (Korea Supply).) “The UCL covers a wide range of conduct. It embraces anything that can properly be called a business practice and that at the same time is forbidden by law.” (Id.) “Section 17200 ‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices.

In addition, under section 17200, a practice may be deemed unfair even if not specifically proscribed by some other law.” (Id.) “By proscribing unlawful business practices, the UCL borrows violations of other laws and treats them as independently actionable. In addition, practices may be deemed unfair or deceptive even if not proscribed by some other law. Thus, there are three varieties of unfair competition: practices which are unlawful, or unfair, or fraudulent.” (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 48.)

The remedies under the UCL are limited to equitable relief such as injunctive relief and restitution. (See Korea Supply, supra, 29 Cal.4th at 1144 [explaining that the relief afforded by the UCL is “equitable in nature; damages cannot be recovered.”].)

In order to have standing to sue under the UCL, a plaintiff must allege that he or she “has suffered injury in fact and has lost money or property.” (Bus. & Prof. Code, § 17204.) In Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322 (Kwikset), the California Supreme Court held that to satisfy the standing requirement of Business & Professions Code section 17204, plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset, 51 Cal.4th at 327.)

First, with regard to the issue of standing, Defendants argue that the expenses incurred by Plaintiff to hire private security to guard the Rental Property on March 18, 2024 and which 20

they seek to recover, were not “caused” by them and thus cannot confer standing on Plaintiff under the UCL. The SAC does not identify this particular cost as conferring UCL standing on Plaintiff; in fact, Plaintiff does not specifically plead his basis for standing in the SAC at all. Nor does Plaintiff identify his basis for standing in his opposition, despite asserting that he has it. (See Opp. at 13:14-18.) This is a pleading defect. A motion for summary judgment/adjudication may be treated as a motion for judgment on the pleadings when it effectively tests the sufficiency of the pleadings rather than the evidence. (Taylor v.

Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 479.) This is a fundamental flaw in Plaintiff’s claim and the Court will treat Defendant’s motion with respect to the ninth cause of action as one for judgment on the pleadings and GRANT the motion with 10 DAYS’ LEAVE TO AMEND.

Turning to the damages claimed, Plaintiff seeks to recover rental payments paid for 25.5 months based on Defendants leasing a property that was not a permitted dwelling and was “unfit” for human habitation (SAC, ¶ 143, 145), the cost of retaining security guards to prevent them from entering the Rental Property, the security deposit (SAC, ¶ 145), a pool reimbursement, rent overpayment and electricity cross-metering invoices. (Opp. at 15:5-11.) Defendants’ urge that not all of these amounts are recoverable, but they do not persuasively negate each amount requested and whether they qualify as recoverable restitution.

The Court notes that other California decisions have required landlord defendants to disgorge rents in certain situations as restitution under the UCL; however, it expresses no opinion over whether such a situation exists here as alleged in the SAC. (See, e.g., People ex rel. Kennedy v. Beaumont Investment, Ltd. (2003) 111 Cal.App.4th 102, 135.)

The Court will prepare the final order.

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