FIRESTONE vs COLISEUM ENTERPRISES, LLC, et al.

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds [including that] the pleading does not state fact sufficient to constitute a cause of action” and that “the pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” (CCP § 430.10(e)and (f).)

Discussion 24CV066691: FIRESTONE vs COLISEUM ENTERPRISES, LLC, et al. 05/26/2026 Hearing on Motion to Strike DEFENDANT LAPHAM COMPANY INC.’S NOTICE OF MOTION AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; filed by The Lapham Company, Inc. (Defendant) CRS# 428728145528 in Department 518 According to the FAC, Lapham is and has been property manager of the subject premises from July 15, 2020 to present. (FAC ¶ 8.) They are also the agent for Seth Jacobson and entered the lease agreements on his behalf. (FAC ¶ 12 – 13, 16, exhibits 1 – 2.)

Breach of Warranty of Habitability, Breach of Covenant of Quiet Enjoyment, and Breach of Contract (First, Second, and Seventh Cause of Action)

Lapham asserts that they are not a party to the residential lease contract and therefore cannot be liable for the first, second, and seventh causes of action. (MPA, p. 8 – 10.) Defendant relies on Stoiber v. Honeychuck where the Court of Appeal held that although “the agent defendants may not be held liable under the implied warranty [of habitability] theory, causes of action may be stated against them in tort.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929.)

Plaintiffs also cite to Stoiber claiming that Lapham has a tort duty to Plaintiffs for their negligent performance under the contract. (Opp. pp. 3 – 4.) The Court agrees that Plaintiffs may have tort claims against Lapham.

The court in Stoiber applied the factors articulated in J'Aire Corp. v. Gregory to conclude that rental agents owed a duty of ordinary care toward tenants because (1) the transaction between the rental agent and the property owner was clearly intended to affect tenants, and (2) harm to tenants was foreseeable if the rental agent failed to properly perform its management duties. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 930 – 931, citing to J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799.) Thus, causes of action in tort may be stated against the landlord's agents under proper facts.

Since the first, second, and seventh causes of action sound in contract law, Lapham cannot be held personally liable on contract theories. Plaintiffs are correct that there may be tort claims against managers but those would be based on negligence theories and not breaches of contract. The FAC appears to assert these are contract claims based on the lease and does not mention any negligence theories.

For these reasons, the demurrer as to Lapham regarding the first cause of action are SUSTAINED WITHOUT LEAVE TO AMEND. The demurrer as to Lapham regarding the second and seventh causes of action are SUSTAINED WITH LEAVE TO AMEND insofar as Plaintiffs are allowed to assert negligence causes of action using the theories of failure to provide habitable premises and/or quiet enjoyment, if they can supply relevant facts.

Violation of Statutes: Civil Code §§ 1941, 1941.1, 1941.3, 1941.4, 1942. 4, 1950.5 and Health and Safety Code § 17920.3 (Fifth Cause of Action)

Lapham asserts that the violations under these statutes can only be asserted against the owner and/or landlord of the property. (MPA, pp. 10 – 11) Civil Code §§ 1941.1, 1941.3, 1941.4, 1942.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV066691: FIRESTONE vs COLISEUM ENTERPRISES, LLC, et al. 05/26/2026 Hearing on Motion to Strike DEFENDANT LAPHAM COMPANY INC.’S NOTICE OF MOTION AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; filed by The Lapham Company, Inc. (Defendant) CRS# 428728145528 in Department 518 4, and 1950.5 explicitly do not apply to agents as they specify that they apply to landlords or lessors.

An exception arises under California Civil Code § 1941.3, which imposes specific securityrelated duties on "the landlord, or his or her agent, of a building intended for human habitation." These duties include installing and maintaining operable dead bolt locks on main entry doors, window security devices for openable windows, and locking mechanisms on common area exterior doors in multifamily developments. The statute provides that a landlord or authorized agent "shall not be liable for a violation unless he or she fails to correct the violation within a reasonable time after he or she either has actual notice of a deficiency or receives notice of a deficiency" (Civil Code § 1941.3 (b).)

Thus, this provision expressly extends statutory duties and liability directly to property managers and agents, representing a legislative departure from the general contractual rule that the implied warranty of habitability is limited to landlords. So, with the appropriate facts, Plaintiffs may have a claim under this statute against Lapham. Currently, the complaint alleges that “the premises did not have locking mechanisms which complied with applicable fire and safety codes” but does not indicate whether notice was given and to which defendant. (FAC ¶ 77.)

Health and Safety Code § 17920.3 is purely definitional in that it defines what constitutes a "substandard building" but contains no liability provisions targeting any specific party.

For these reasons, the demurrer as to Lapham regarding the fifth cause of action is SUSTAINED WITH LEAVE TO AMEND as to Civil Code § 1941.3 if Plaintiffs can supply appropriate facts.

Constructive Eviction (Sixth Cause of Action)

Lapham asserts that the violations under these statutes can only be asserted against the owner and/or landlord of the property. (MPA, p. 11.)

Constructive eviction is a claim reserved for landlords under contract law; however, a property manager could be liable for constructive eviction under a negligence theory. Thus, this would only be available as to Lapham as a negligence cause of action, not a traditional contract claim.

Plaintiff Firestone asserts that Defendants rendered the premises “unfit for use as a residence, the escalating dangerousness given lack of premises security, the dire and looming threat of catastrophic fire or explosions” but it is unclear which Defendant caused the unfitness. (FAC ¶ 82.)

For these reasons, the demurrer as to Lapham regarding the sixth cause of action are SUSTAINED WITH LEAVE TO AMEND if Plaintiff wishes to reassert this as a negligence cause of action under a constructive eviction theory with appropriate and specific facts as to Latham.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV066691: FIRESTONE vs COLISEUM ENTERPRISES, LLC, et al. 05/26/2026 Hearing on Motion to Strike DEFENDANT LAPHAM COMPANY INC.’S NOTICE OF MOTION AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; filed by The Lapham Company, Inc. (Defendant) CRS# 428728145528 in Department 518

Punitive Damages (Eighth Cause of Action)

Lapham asserts that punitive damages are improper because it is not a cause of action and further there are no allegations against Lapham being guilty of fraud, oppression, or malice. (MPA, p. 11 – 12.)

“In California there is no separate cause of action for punitive damages.” (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1164.)

Punitive damages require evidence that the defendant is guilty of oppression, fraud, or malice. (CCP § 3294.) Plaintiff is required to plead facts supporting fraud, oppression, or malice as to the underlying cause of action and rise and fall with that cause of action (e.g. IIED, or fraud).

While Plaintiffs do state that Defendants “employed on-site management that was non responsive, drug addled, and prone to violence” (FAC ¶ 24) this statement is conclusory and does not specify to which defendant management company this statement is referring.

None of the causes of action pled in the FAC support punitive damages.

For these reasons, the demurrer as to Lapham regarding the eighth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Note Regarding Nuisance and IIED Claims

The Court notes that the opposition suggests that Plaintiff intended that the second cause of action be one for nuisance and the fourth causes of action to include an intentional infliction of emotional distress (“IIED”) cause of action. (Opp. p. 6.) Neither the word nuisance nor the term intentional infliction of emotional distress appears in the body of the FAC. If Plaintiffs wish to add these causes of action to their complaint, they must seek leave of court. “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel.

Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, 57 Cal.Rptr. 227 [leave to amend complaint does not constitute leave to amend to add new defendant].)” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Uncertainty and Conspiracy

Lapham asserts that the FAC is uncertain because it fails to state the party against whom each cause of action is made, in violation of CRC, Rule 2.112. (MPA, p. 7.)

Plaintiffs plead that, “Plaintiffs are informed and believe and thereon allege that each of the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV066691: FIRESTONE vs COLISEUM ENTERPRISES, LLC, et al. 05/26/2026 Hearing on Motion to Strike DEFENDANT LAPHAM COMPANY INC.’S NOTICE OF MOTION AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; filed by The Lapham Company, Inc. (Defendant) CRS# 428728145528 in Department 518 fictitiously named Defendants conspired with the others to commit the illegal acts described in this first amended complaint, are responsible in some manner for the occurrences herein alleged, and that Plaintiffs’ damages as herein alleged were proximately caused by those Defendants.” (FAC ¶ 19.) Conspiracy is conclusively pled in the FAC.

Plaintiffs’ FAC does not comply with Rules of Court, Rule 2.112, because the moving parties and the Court were not adequately informed as to which claim was directed at which defendant. Further, conclusory pleading of conspiracy is not enough, a complaint must plead specific, factual allegations that plausibly suggest an illegal agreement occurred.

California courts require specific elements of civil conspiracy be pleaded with factual support. “The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from an act done in furtherance of the common design.” (Thompson v. California Fair Plan Assn. (1990) 221 Cal.App.3d 760, 767.)

Further, the conspiring defendants must have “actual knowledge of the planned tort combined with intent to aid in its commission.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.)

Thus, the FAC fails to comply with California Rules of Court, Rule 2.112. As such, the Defendants and the Court are not adequately informed regarding which claim is directed at which defendant. The allegations refer to “Defendants” collectively. As written, the complaint fails to acquaint defendants with sufficient notice to enable their preparation of their defense.

For this reason, the demurrer as to the entire complaint is SUSTAINED WITH LEAVE TO AMEND for uncertainty.

Motion to Strike

Since the demurrer removed the punitive damages cause of action and the entire complaint is sustained with leave to amend as to its uncertainty, the motion to strike punitive damages and attorney’s fees is moot.

Thus, the motion to strike is DENIED as moot.

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PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV066691: FIRESTONE vs COLISEUM ENTERPRISES, LLC, et al. 05/26/2026 Hearing on Motion to Strike DEFENDANT LAPHAM COMPANY INC.’S NOTICE OF MOTION AND MOTION TO STRIKE FIRST AMENDED COMPLAINT; filed by The Lapham Company, Inc. (Defendant) CRS# 428728145528 in Department 518 To contest a tentative ruling, a party should do the following:

First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.

Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."

Please note the Court does not permit remote appearances for motions for summary judgment that are contested. If you contest a Motion for Summary Judgment, you must appear in person.

For all other motions (unless otherwise noted in the tentative ruling), Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Department 518 is inviting you to a scheduled ZoomGov meeting.

Topic: Department 518's Personal Meeting Room

Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16054307984

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