Brown vs. Buwalda

Demurrer to 6th cause of action: violation of the Rosenthal Fair Debt Collection Practices Act.

This cause of action states sufficient facts. Moving party contends that this cause of action fails because the “Modification Agreement” does not include the junior loan. However, as discussed above in connection with the 3rd cause of action, plaintiff states sufficient facts to dispute the amounts claimed by defendant, on other grounds.

Moving Party shall give notice.

12 Brown vs. Buwalda

2025-01516756 1. Demurrer to Amended Complaint 2. Motion to Strike Portions Of Complaint 3. Demurrer to Amended Complaint 4. Motion to Strike Complaint

Demurrer

Sixth Cause of Action for Intentional Infliction of Emotional Distress

Belmont defendants

Belmont argues plaintiffs have not alleged Belmont’s conduct was extreme or outrageous. Belmont further alleges plaintiff haven’t set forth sufficient facts establishing they have experienced emotional distress. Finally, Belmont contends it is alleged plaintiffs discovered the presence of toxic mold on September 3, 2024, when Belmont was no longer a property manager.

Buwalda

Buwalda argues the FAC is devoid of specific allegations regarding the nature and extent of the alleged severe emotional distress Plaintiffs claim they suffered due to Defendant’s conduct. Plaintiffs make general and conclusory allegations that they “suffered severe mental anguish and emotional suffering past and future,” “acute and ongoing anguish of being unable to protect their family” and “were required to and did seek medical attention, and will need medical attention in the future” without stating what kind of medical attention they sought, whether it was from a mental health professional or some other kind of medical professional.

Opposition

In opposition, plaintiffs contend property managers can be liable in tort for habitability related misconduct. Defendants contend the FAC alleges only a failure to repair. However, the FAC states a prolonged pattern of knowing, deliberate conduct, repeated complaints over more than 20 months; water intrusion and mold spreading through multiple areas; and a January 2024 overflow causing widespread damage, among various other habitability issues. FAC ¶¶ 26, 29, 35, 39, 43, 49-53, 167-179. Belmont’s knowledge that the conditions were affecting Plaintiffs’ health and worsening the minor Plaintiff’s asthma; Belmont’s representations that it would seek consent for repairs; Belmont’s refusal to remediate because the property was being sold; and continued exposure until professional testing confirmed toxic mold.

Id. Thus, Belmont knew of health impacts, intentionally allowed water intrusion and mold to worsen, refused without justification remediation because of the sale, and failed to fulfill its duties despite more than 20 months of continuous complaints, intestinal pains, constipation, memory issues, coughing, rashes, and worsening asthma requiring extra doctor visits and new medications while he was residing at the premises. FAC ¶ 58. Minor Plaintiff suffered these physical and emotional symptoms because of Belmont’s intentional inaction.

Id. Plaintiff Alicia suffered fatigue, dry cough, eye crusting, rashes, acne, body aches, constant sore throat, insomnia, anxiety, physiciandiagnosed toxic mold exposure, Penicillium/Aspergillus-related infection, resistant staph infection, and abnormal weight loss all arising throughout her tenancy at the premises. FAC ¶ 59. Plaintiff Tiffany suffered exhaustion, mood swings, weight loss, body and joint pain, brain fog, anxiety, depression, coughing, asthma, intestinal pains, memory issues, and rashes while she resided at the premises.

FAC ¶ 60. All Plaintiffs sought medical treatment and incurred medical expenses. FAC ¶¶ 61, 68.

The opposition further argues Buwalda was not a remote owner unaware of the problem, he personally walked through the unit in December 2023, promised to address ongoing problems, and was personally aware of the issues and Plaintiffs’ health concerns, including Abraham’s asthma diagnosis. FAC ¶¶28-70. Despite that knowledge, Buwalda failed to remediate the dangerous conditions during the remainder of his ownership. Id. Up to the July 2024 sale, Buwalda did nothing to remediate water leakage and mold despite repeated complaints spanning more than 20 months of requests and notifications. Id at ¶43.

In reply, Belmont argues it cannot be liable because plaintiffs admit the owner prevented Belmont from taking any action in response to plaintiffs’ complaint (paragraph 179.)

To establish an IIED claim, a plaintiff must prove three elements: (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. Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182. The conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908.

Property managers acting as agents of landlords can be held liable for IIED claims. For example, in Burnett v. Chimney Sweep, (2004) 123 Cal.App.4th 1057, the court held that “allegations against property manager of lessees’ tort claims in connection with toxic mold on premises were sufficient to survive a motion for judgment on the pleadings” where the manager had a duty to repair unsafe conditions and breached that duty. The court found that whether the lessor’s conduct in failing to remediate excessive moisture and toxic mold was sufficiently extreme and outrageous to support an IIED claim was a question of fact.

The critical issue is whether refusing to fix defects because the property is being sold constitutes “extreme and outrageous” conduct. Courts have found outrageous conduct in landlord-tenant cases involving unlawful lockouts, (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1104, retaliatory rent increases after tenants exercised repair rights, (Aweeka v. Bonds (1971) 20 Cal.App.3d 278), and deliberate failures to maintain habitability that endangered tenant health. However, mere breach of the duty to repair, standing alone, typically does not meet the outrageousness threshold. The refusal to repair must be accompanied by circumstances demonstrating intentional or reckless disregard for the tenant’s wellbeing, such as knowledge of dangerous conditions, awareness of tenant vulnerability, or conduct that violates statutory duties.

In Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, the court concluded that whether the failure to act was extreme and outrageous presents a factual question that cannot be resolved as a matter of law on demurrer or similar motions. The analysis focuses on the defendant’s knowledge and intent. In Stoiber, the plaintiff alleged she suffered extreme emotional distress as a result of the landlord’s and property manager’s knowing, intentional, and willful failure to correct defective conditions. The court did not require that the landlord engage in affirmative misconduct like threats or harassment; rather, the knowing inaction itself — the deliberate failure to remedy known dangerous conditions — could constitute the extreme and outrageous conduct necessary for IIED liability.

Stoiber, id. This approach has been followed in subsequent California cases, including Burnett v. Chimney Sweep, which applied the same framework to property managers who failed to remediate toxic mold despite knowledge of the dangerous condition.

Courts examine whether the property manager knew about dangerous conditions, understood the health risks, repeatedly failed to properly address the problem, or showed deliberate indifference to tenant safety. A leak that poses immediate health hazards (such as toxic mold or sewage) combined with deliberate inaction is more likely to meet the outrageousness standard than a longerlasting but less dangerous condition that the landlord is actively attempting to repair. Stoiber, supra.

Belmont argues that it cannot, as a matter of law, be liable here due to the allegations of paragraph 179 which indicate it could not act without the authority of the owner, and the owner withheld consent. That is an important fact, but is something for the jury to consider when deciding if plaintiff met the required “outrageousness” prong of the tort.

In the property manager context specifically, courts consider whether the manager knowingly failed to remedy dangerous conditions, regardless of claimed constraints on the manager’s authority. The analysis in Stoiber and Burnett centered on whether the property manager’s knowing inaction was extreme and outrageous — a factual question for the jury — without carving out a defense based on the manager’s relationship with the property owner. A property manager who knows of dangerous conditions and fails to act cannot simply point to the owner’s withheld consent as a shield; rather, the manager’s decision to remain inactive despite that knowledge becomes part of the conduct evaluated for outrageousness.

If the manager truly lacked authority to act, that might bear on whether the manager’s conduct was intentional or reckless, but it would be analyzed within the elements of intent and outrageousness, not as a separate affirmative defense that categorically defeats liability.

Plaintiffs contend they have alleged sufficient facts to support the claim. They cite to the following paragraphs: 26, 29, 35, 39, 43, 49- 53, 167-179. The state as follows:

26. Plaintiffs called Belmont’s maintenance men, including Anthony and Mario, and would complain about these ongoing issues. Also told them that these issues were affecting the health, including that the water intrusion was worsening the minor plaintiffs asthma. Despite this, the premises was not properly remediated at any time throughout plaintiffs tenancy and the plaintiff’s asthma became worse.

29. In January 2024, plaintiffs noticed water intrusion and mold on patio. There was a hole in the roof over the patio which leaked. During that same month, a substantial amount of water backed up and over flowed from the 2nd floor to the bedroom hallway, the adjacent bedroom, the first floor kitchen ceiling and wall and cabinetry, and the patio ceiling area. Musty odors and physical discoloration consistent with mold growth became widespread following this overflow event.

35. The water intrusion in the bathrooms and the accompanying mold consistently got worse due to the lack of action by Belmont and Buwalda.

39. They just frequently complained to Belmont and bewildered about the kitchen water intrusion through the tenant portal. Plaintiffs also independently complained to Carrasco a Belmont employee. At one point, Carrasco expressly told plaintiffs that Belmont was not going to fix anything because they were selling the property.

43. The login to RS real estate plus in July 2024. That time, Belmont and Buwalda had done nothing to remediate the water leakage and mold despite plaintiffs repeated complaints, spanning more than 20 months of ongoing effort requests and notifications.

49. On September 3, 2024, plaintiffs had a mold inspection done in the premises by a professional mold inspection company. The inspector found visible microbial growth at the drywall of the kitchen ceiling inside the upper cabinet, with moisture readings indicating the ceiling and walls extending behind the kitchen cabinet and countertop were wet.

50. In the bathroom the mold inspector noted microbial shower and bathtub area, by the drywall next to the shower and signs of water damage extending behind the toilet. He documented an active water leak from the shower plumbing in his report.

51. On September 22nd, 2020 a second test was conducted in the premises. This test was also positive for potentially toxic mold.

52. Plaintiffs paid for the mold tests of the premises themselves.

53. Plaintiffs informed all defendants of both positive test results. Despite this information there was no remediation of any tech conducted in the rental unit.

167. Persistent without the mediation for the full duration inefficiency, Approximately 2 years from October 2022 through October 2024. Mold and water intrusion were present in the upstairs bathroom in the first month of occupancy in November 2022, spread to the kitchen in approximately May 2023, then spread to the patio area of the rental unit by January 2024. A catastrophic overflow event in January 2024 caused water to flood from the second floor bathroom through the bedroom hallway, adjacent bedroom, kitchen ceiling and walls, and patio ceiling, causing widespread water damage and accelerating mold growth. By September 2024, professional mobile inspection confirmed mold in the rental unit.

168. As a direct result of this two-year exposure, all three Plaintiffs developed serious physical conditions that were documented by treating physicians and confirmed by laboratory testing. Plaintiff Alicia Bermumen was diagnosed with toxic mold exposure by her treating physician, with fatigue, dry cough, eye crusting, rash, chest, back and body acnes, constant sore throat, insomnia and anxiety. All symptoms have been present since 2022. She suffered with a drug-resistant staph infection too and abnormal weight loss. Minor Plaintiff, Abraham, had asthma and experienced flare ups severe enough to warrant new medications and more frequent doctor visits, directly caused by the mold conditions in the rental unit. Plaintiff Tiffany Brown suffered, among other symptoms, exhaustion, body and joint pain, brain fog, anxiety, depression, intestinal pain and coughing.

169. Defendants... made no attempt whatsoever to alleviate the problems. . .

170. The Defendants acted outrageously in failing to remediate the water intrusion and mold despite Plaintiffs repeated complaints thereby allowing the Plaintiffs to become sick and sicker over the course of 24 months they resided in the rental unit.

171. The Belmont Defendants. . . acted outrageously in failing to remediate the water intrusion and mold “because they were selling the property”. . .

172. The Defendants . . . acted outrageously because it was shown the water leakage and mold by Plaintiffs in person but continued to fail to remediate the problems thereby causing plaintiffs to become sicker.

. . .

174. The defendants either intended to cause or acted in reckless disregard of the probability of causing plaintiffs extreme emotional distress.

175. At all relevant times, the Defendants had actual or constructive knowledge of extreme and outrageous conduct described herein, and condoned, ratified, and participated in such extreme and outrageous acts.

176. As a proximate result of the said conduct, Plaintiffs has suffered mental anguish and emotional suffering past and future in an amount in excess of the minimum jurisdiction of this Court and according io proof.

177. As a further and proximate result of the said conduct, Plaintiffs were required to and did seek medical attention, and will need medical attention in the future, all to Plaintiffs damages in a sun according to proof.

178. Defendant Belmont’s conduct extended over a period of more than 20 months of active complaints from Plaintiffs, from November 2022 through the July 2024 sale, during which Belmont affirmatively represented through its employee Anthony that it would seek consent for repairs, induced Plaintiffs to remain in the unit through this representation, and then systematically canceled or ignored maintenance requests and ultimately acknowledged through Carrasco that it had no intention of performing repairs, This deliberate pattern of misrepresentation and knowing refusal to protect Plaintiffs from confirmed toxic exposure constitutes extreme and outrageous conduct exceeding the standard of civilized conduct.

179. Defendant Buwalda, as owner and lessor, authorized and ratified Belmont’s refusal to remediate during the entirety of his ownership period. Buwalda received notice of the conditions through Belmont and was the party whose consent was required for repairs to be authorized. By withholding that consent and allowing Plaintiffs to remain exposed to toxic mold for over 20 months, including after the mold spread to multiple areas of the unit and Plaintiffs’ health began visibly deteriorating, while simultaneously planning and executing the sale of the property, Buwalda acted with conscious disregard for the probability that Plaintiffs would suffer severe emotional distress.

The Court overrules the demurrer to this cause of action. There are sufficient allegations as to how long the condition existed or exactly what physical conditions the plaintiffs allegedly suffered from as a result of the defects. This version of the pleading states enough facts showing Belmont’s conduct was sufficiently outrageous to support the claim.

With regard to Buwalda, a landowner’s IIED exposure is grounded in a direct statutory and common law duty. The lessor of a building intended for the occupation of human beings must put it into a condition fit for such occupation and repair all subsequent dilapidations that render it untenantable. Civ. Code section 1941. Where a landlord has notice of uninhabitable conditions not caused by the tenants themselves, the landlord’s breach of the implied warranty of habitability exists whether or not the landlord has had a reasonable time to repair.

Knight v. Hallsthammar (1981) 29 Cal.3d 46. A landowner who knowingly, intentionally, and willfully fails to correct defective conditions — including mold — may state a cause of action for IIED, and whether such conduct is sufficiently extreme and outrageous is a factual question precluding dismissal on the pleadings. Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1056. The landowner’s liability is thus direct, arising from the lease relationship, statutory obligations under Civil Code § 1941, and the implied warranty of habitability.

In sum, based on the authority above, the Court overrules the demurrer to this cause of action against Buwalda.

Seventh Cause of Action for Constructive Eviction

Asserted by Belmont only

Belmont argues plaintiffs concede they did not vacate the premises during Buwalda’s ownership of the property and Belmont’s management of the property. They allege they vacated the premises on October 13, 2024 after RS Real Estate Plus became owners of the property. Belmont contends plaintiffs did not vacate the property within a reasonable time.

Belmont further argues it was not a landlord, but a property manager and therefore cannot be liable for constructive eviction.

In opposition, plaintiffs contend they have alleged Defendant allowed the conditions to persist including: water intrusion, toxic mold, and structural disrepair in the bathrooms, kitchen, and patio were never remediated during the entire period of Defendant’s ownership or management. Thereafter it carried through to the date of constructive eviction on October 13, 2024. Defendant’s sustained failure to act was a proximate cause of the uninhabitable conditions that forced Plaintiffs from the unit.

Plaintiffs further contend Belmont’s timing argument ignores the new allegations. They have alleged Plaintiffs were induced to remain by repair representations, and that the conditions dramatically escalated and were professionally confirmed only in September 2024. FAC ¶ 187. Plaintiffs reasonably continued to rely on Belmont’s representations that repairs would be forthcoming throughout 2022 and 2023. Instead, due to Belmont’s intentional inaction the conditions escalated dramatically through the January 2024 overflow, spread of mold to multiple areas, and the September 3, 2024, professional mold inspection confirming toxic mold. FAC ¶ 188. Plaintiffs contend the timing issue is one of fact and cannot be decided on demurrer.

Finally, plaintiffs contend Belmont can be liable in tort for wrongful constructive eviction caused by its tortious conduct.

In reply, Belmont states this cause of action is a contract claim and cannot be asserted against a property manager pursuant to Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903.

Constructive eviction as occurs when "the landlord engages in acts that render the premises unfit for occupancy for the purpose for which it was leased, or deprive the tenant of the beneficial enjoyment of the premises.” California Apartment Assn. v. City of Pasadena (2025) 117 Cal.App.5th 187. More specifically, “any interference by the landlord by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession.” Kulawitz v. Pacific Woodenware & Paper Co. (1944) 25 Cal.2d 664. The interference must be “substantial” rather than “insignificant or inconsequential.” Lindenberg v. MacDonald (1950) 34 Cal.2d 678.

The complaint must allege specific acts or omissions by the property manager that interfered with the tenant's possession. “Any disturbance of the tenant’s possession by the lessor or at his procurement which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction.” Pierce v. Nash (1954) 126 Cal.App.2d 606. This can include physical interference with the premises, such as failing to repair a leaky roof, (Groh v. Kover’s Bull Pen, Inc. (1963) 221 Cal.App.2d 611), installing obstructions that interfere with business operations (Pierce v. Nash (1954) 126 Cal.App.2d 606) or allowing vermin infestation from other parts of the building. Buckner v. Azulai (1967) 251 Cal.App.2d Supp. 1013.

The alleged interference must render the premises “unfit for the purposes for which they were leased” or deprive 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. Courts consider both the extent of the physical interference and its impact on the tenant’s ability to use the property for its intended purpose. Dussin Investment Co. v. Bloxham (1979) 96 Cal.App.3d 308. The interference must affect a “substantial portion” of the premises, not merely an insignificant part. Tregoning v. Reynolds (1934) 136 Cal.App.154.

A critical factual allegation is that the tenant vacated the premises within a reasonable time after the landlord’s interference. “In order that there be a constructive eviction it is essential that the tenant should vacate the property. There is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment.” Cunningham v. Universal Underwriters (2002) 98 Cal.App.4th 1141.

What constitutes a reasonable time depends on the circumstances, but remaining in possession for more than six months of a one-year lease term was held unreasonable. Bakersfield Laundry Ass’n v. Rubin (1955) 131 Cal.App.2d Supp. 862.

"[T]here is no constructive eviction if the tenant continues in possession of the premises however much he may be disturbed in the beneficial enjoyment.” Veysey v. Moriyama (1921) 184 Cal.802. This requirement is absolute: “In order that there be a constructive eviction it is essential that the tenant should vacate the property.” Lori, Limited, v. Wolfe (1948) 85 Cal.App.2d 54. Belmont argues the claim fails as the plaintiffs did not move out of the premises until after the property was sold. That fact doesn’t really affect the merits of the demurrer. The fact that ownership transferred to a new entity during the tenant’s continued occupancy would not change this analysis, the issue turns on whether the tenant’s failure to vacate was within a reasonable time after the property manager’s alleged interference. Clark v. Spiegel (1971) 22 Cal.App.3d 74.

Plaintiffs inhabited the property from October 29, 2022 until October 13, 2024. They allege they noticed in May 2023 “there was water intrusion, bubbling and mold in the kitchen cabinet.” (Complaint, paragraph 26). The also allege they “initially noticed water intrusion and mold” in the patio in January 2024. So, it was over one year between the time they first discovered mold until the time they moved out. But this version of the pleading adds additional allegations indicating Plaintiffs were induced to remain by repair representations, and that the conditions dramatically escalated and were professionally confirmed only in September 2024. FAC ¶ 187. Plaintiffs contend they reasonably continued to rely on Belmont’s representations that repairs would be forthcoming throughout 2022 and 2023.

Because the reasonableness of the time to vacate is a jury question, Stoiber, supra, a tenant who remained in the premises for an extended period after discovering uninhabitable conditions — but did so in reliance on the landlord’s repeated assurances to repair — presents a factual basis for the jury to find that the delay was reasonable. The landlord’s own conduct in making those assurances is directly relevant to whether the tenant’s continued occupancy was reasonable under the circumstances.

Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281), and a landlord who induces a tenant to remain through promises of repair cannot easily argue that the resulting delay defeats the claim.

Based on the above, the demurrer to this cause of action is overruled.

Motion to strike

Belmont

Paragraph 145, Page 21, Lines 1 through 5 is located in the 4th cause of action for private nuisance. The Court strikes the punitive damages as requested. The allegation referenced is conclusory and unsupported by sufficient facts.

Paragraph 184, Page 26, Lines 22 through 25 is located in the sixth cause of action for intentional infliction of emotional distress. The Court denies the motion to strike this paragraph. As discussed above, plaintiffs have sufficiently stated a claim for intentional infliction of emotional distress. A properly alleged IIED cause of action will support a claim for punitive damages. IIED is a qualifying tort under Civil Code § 3294 because the elements of the tort inherently require conduct that constitutes malice, oppression, or fraud.

Because the very nature of IIED requires intentional or reckless conduct that is extreme and outrageous, a properly pleaded IIED claim necessarily alleges conduct that satisfies the malice or oppression requirements of § 3294. When a plaintiff adequately pleads the elements of IIED, those same allegations support a prayer for punitive damages without requiring additional factual allegations beyond what is needed to state the tort itself. See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217.

Page 29, Line 28, (Prayer for Damages), which states: “5. For punitive damages against all Defendants as alleged herein.” Where, as here, a punitive damages prayer incorporates by reference the allegations of the entire complaint — i.e., "as alleged herein" — and at least one cause of action adequately pleads facts supporting malice, oppression, or fraud, the motion to strike the prayer should be denied. In Monge v. Superior Court, (1986) 176 Cal.App.3d 503, the Court held there was no basis in law for granting a motion to strike where the plaintiffs’ noncontractual causes of action could include allegations seeking punitive damages and the charging allegations of the complaint, read as a whole, clearly contained sufficient allegations of fact which if proven would sustain an award of punitive damages upon defendants’ malice or oppression.

Similarly, in Perkins v. Superior Court, (1981) 117 Cal.App.3d 1, the court held that the trial court abused its discretion in striking all references to exemplary damages on the ground that the petitioner failed to state a cause of action for such damages, where the complaint adequately pleaded a cause of action for punitive damages. As plaintiffs have properly stated a claim for punitive damages in connection with the 6th cause of action, the Court denies the motion to strike.

Buwalda

Attorney fee references and request for prejudgment interest

Paragraphs 159, 163, page 29, line 27 and page 30, line 8.

The Court denies the motion to strike as to all references to attorney fees. Despite the availability of the motion to strike, it is improper to use that mechanism to eliminate a prayer for attorney fees. In Snatchko v. Westfield LLC, (2010) 187 Cal.App.4th 469, the court reversed an order striking a plaintiff’s prayer for attorney fees, holding that there is no requirement that the intent to seek attorney fees under Code of Civil Procedure § 1021.5 must be pleaded in the underlying action. The court explained that such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of judgment.

Because there was no requirement that fees be pled at all, the trial court erred in striking the prayer based on a failure to adequately plead their basis, and the plaintiff’s failure to reallege the request in an amended complaint did not waive or forfeit the ability to seek fees at the conclusion of the case. Snatchko, supra.

The above is also true for a request for prejudgment interest. Because there is no requirement to plead prejudgment interest specifically, a motion to strike a prayer for prejudgment interest is improper. The right to prejudgment interest is determined by whether the statutory requirements are met, not by whether it was adequately pled in the complaint. Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279.

“Outrageous” and other punitive damages language in 6th cause of action

Paragraphs 173 and all requests (#9 through 18) regarding punitive damages language is located within the 6th cause of action for intentional infliction of emotional distress. The Court denies the motion to strike this paragraph. As discussed above, plaintiffs have sufficiently stated a claim for intentional infliction of emotional distress. A properly alleged IIED cause of action will support a claim for punitive damages. IIED is a qualifying tort under Civil Code § 3294 because the elements of the tort inherently require conduct that constitutes malice, oppression, or fraud.

Because the very nature of IIED requires intentional or reckless conduct that is extreme and outrageous, a properly pleaded IIED claim necessarily alleges conduct that satisfies the malice or oppression requirements of § 3294. When a plaintiff adequately pleads the elements of IIED, those same allegations support a prayer for punitive damages without requiring additional factual allegations beyond what is needed to state the tort itself. See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217.

Misc.

Paragraph 121 is located in the 3rd cause of action for breach of implied warranty of habitability. The Court strikes the punitive damages as requested. The allegation referenced is conclusory and unsupported by sufficient facts.

Page, 13, line 1 is located in the 1st cause of action for negligence. The Court strikes the language as requested. The allegation referenced is conclusory and unsupported by sufficient facts.

Page 15, line 10 does not refer the “intentional” conduct. It states: “As a direct and proximate result plaintiff are entitled to moving expenses according to proof.” As such, the Court denies the requested relief.

Page 20, lines 1-2 and page 21, lines 1-5 are located in the 4th cause of action for private nuisance. The Court strikes the language as requested. The allegation referenced is conclusory and unsupported by sufficient facts

Page 29, line 1 is located in the 7th cause of action for constructive eviction. The Court denies the motion to strike. A claim for punitive damages is properly stated.

Page 29, line 28: Prayer for punitive damages. The Court denies this request for the same reasons stated in connection with Belmont’s motion to strike above.

RULING:

Belmont

Defendant Belmont Brokerage and Management, Inc. dba Belmont Property Management’s demurrer to the Sixth Cause of Action for Intentional Infliction of Emotional Distress, and Seventh Cause of Action for Constructive Eviction is overruled in its entirety.

Belmont shall file and serve an answer to the First Amended Complaint within 21 days.

Belmont’s motion to strike is granted as to Paragraph 145, Page 21, Lines 1 through 5. The remaining requested relief is denied.

Belmont’s request for judicial notice is granted.

Buwalda

Defendant Vern Buwalda’s demurrer to the Sixth Cause of Action for Intentional Infliction of Emotional Distress is overruled.

Buwalda’s motion to strike is granted as to Paragraph 121, Page, 13, line 1, Page 20, lines 1-2 and page 21, lines 1-5. The remaining requested relief is denied.

Buwalda shall file and serve an answer to the First Amended Complaint within 21 days.

Defendants shall give notice.

13 Mariscal vs. Luis’ Auto Repair & Tires

2025-01520213 Motion to Be Relieved as Counsel of Record

The motion by Vahan Gabrielyan, Esq., Downtown LA Law Group, to withdraw as counsel for plaintiff Ramon Mariscal is GRANTED, effective upon filing proof of service of the signed order on the client. (Cal. Rules of Court, Rule 3.1362.)

Moving party shall give notice.