Ana Verdugo et al. v. Depot Willows, LLP et al.

Plaintiffs filed the operative second amended complaint (SAC) in September 2025. The SAC alleges causes of action for: (1) “Breach of Contract”; (2) “Neglect”; (3) “Retaliation”; (4) “Harassment”; (5) “Forgery”; (6) “Fraud”; and (7) “False Advertising.” There are approximately 550 pages of documents attached to the 63-page SAC as exhibits. “A complaint (or cross-complaint) is supposed to consist of ‘(1) a statement of the facts constituting the cause of action, in ordinary and concise language, and (2) a demand for judgment. . . .’ (Code Civ. Proc., § 425.10, subd. (a), italics added.) A pleading is no place to quote, paraphrase, or even allude to the testimony of witnesses.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 867, fn. 1.)

At issue is Defendants’ demurrer to the SAC, filed in October 2025. Plaintiffs filed an opposition to this demurrer in January 2026. The court has not considered Plaintiffs’ attempts at unauthorized amendments to the SAC filed without leave of court: (1) a “separate declaration in support of the” SAC filed in October 2025, and (2) a “notice of errata” that attempted to change the headings of causes of action that was filed in April 2026.

LEGAL STANDARDS FOR DEMURRERS

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (See Cal. 11

Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

Where a demurrer is to an amended complaint or cross-complaint, the court “may consider the factual allegations of prior complaints, which a plaintiff may not discard or avoid by making contradictory averments, in a superseding, amended pleading.” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034, internal quotations omitted; see also Doe v. United States Youth Soccer Assoc. (2017) 8 Cal.App.5th 1118, 1122.)

The court cannot consider extrinsic evidence when ruling on a demurrer. This includes declarations. The court has considered the declaration from defense counsel Umid Babojanov only to the extent it discusses the meet and confer efforts required by statute. The court has also not considered the 31-page declaration in support of the SAC filed by Plaintiffs without leave of court. Finally, “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273.)

DISCUSSION

Defendants demur to the SAC on the basis that all causes of action fail to state sufficient facts. (See notice of demurrer and demurrer.)

As an initial matter, the SAC states that Plaintiffs “have rearranged the causes of action in chronological order, while still stating the same causes of action as alleged in their initial complaint and first amended complaint.” (SAC at ¶ 5.) The court observes that the stated bases for several causes of action in the FAC––alleged violations of various California and federal statutes––were not included in the SAC.

First Cause of Action—Breach of Contract

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

The demurrer to this cause of action as alleged in the FAC (as the third cause of action) was sustained because it did not identify what contract it was based on and did not allege that Plaintiffs had performed their obligations under that unidentified contract. It also improperly included a series of alleged statutory violations. (See Sept. 2, 2025 order at p. 10:7-14.)

Defendants contend that the SAC still fails to identify the contract, fails to allege that Plaintiffs had fulfilled all of their contractual responsibilities or were excused from doing so, and fails to allege damages proximately caused by the alleged breaches.

The SAC now identifies the alleged contract as the written lease agreement between Plaintiffs and Defendants, a copy of which is attached to the SAC as exhibit A. Similar to the FAC, the first cause of action lists a series of apparently unrelated incidents that Plaintiffs allege violated various provisions of the lease, but these provisions are now identified. The 12

first cause of action also alleges proximately caused damages at least to the extent it alleges that Plaintiffs were eventually evicted in part because of the alleged contract violations.

But the first cause of action does not adequately allege that Plaintiffs were in compliance with their obligations under the written lease agreement or were excused from doing so. The conclusory general allegation in paragraph 7 of the SAC that “Plaintiffs met all terms of the contract relevant to this lawsuit” does not satisfy this requirement. As noted above, in ruling on a demurrer the court does not accept as true contentions, deductions, or conclusions of fact or law.

Plaintiffs bear the burden of demonstrating that an amendment would cure the defect identified on demurrer. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145 (Shaeffer) [“The onus is on the plaintiff to articulate the ‘specifi[c] ways’ to cure the identified defect, and absent such an articulation, a trial or appellate court may grant leave to amend ‘only if a potentially effective amendment [is] both apparent and consistent with the plaintiff’s theory of the case.’”].)

Plaintiffs’ opposition does not meet this burden, as it asserts that the demurrer should be overruled as to the entire SAC. Contrary to what the opposition suggests, the SAC does not allege a cause of action for breach of the implied warranty of habitability. That is a separate cause of action, distinct from a breach of contract cause of action. Plaintiffs have not alleged a cause of action for breach of the implied warranty of habitability at any point in this lawsuit.

Because there has been some improvement in the pleading of this cause of action from the FAC to the SAC, and it is not yet apparent that it would be futile to do so, the court will grant leave to amend the first cause of action for breach of written contract. The court does not grant leave to add any new causes of action or new parties. “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. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

Second Cause of Action—“Neglect”

There is no common law civil cause of action for neglect. Judge Chung previously noted that, as alleged in the FAC as the fourth cause of action, this cause of action was most reasonably interpreted as “another attempt to allege a series of statutory violations as one cause of action. . . . None of these statutory violations is alleged with sufficient particularity to state a cause of action.” (See Sept. 2, 2025 order at p. 10:16-24.) As now alleged in the SAC, Plaintiffs have removed all references to statutes from the “neglect” cause of action and have asserted a new theory: that damages to a car owned by Plaintiffs during rehabilitation work in March 2022 “demonstrate negligence and constitute breach of contract.” They also reference apparently unrelated later incidents in August and December 2022 and June 2023. (See SAC at ¶¶ “2.0-2.20.”)

This cause of action continues to fail to state sufficient facts. As an initial matter, a party cannot combine negligence and breach of contract into a single cause of action. Most of what is alleged appears to be an attempt to allege negligence. “The elements of a cause of action for negligence ... are (a) a legal duty to use due care; (b) a breach of such legal duty; 13

[and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) A fundamental element of any cause of action for negligence is the existence of a legal duty of care running from the defendant to the plaintiff. (Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 593.) “In order to establish negligence, a plaintiff must demonstrate a duty on the part of defendant, breach of that duty, causation and damages.” (Strong v. State of Cal. (2011) 201 Cal.App.4th 1439, 1449.) Whether a duty of care exists is a question of law for the court. (Id.)

Describing a series of disputes with Defendants and claiming damages does not adequately state a cause of action for negligence. The second cause of action does not sufficiently allege that any damage suffered by Plaintiffs from any of the described incidents was proximately caused by a breach of a legal duty either of the Defendants owed Plaintiffs. Defendants’ demurrer to the second cause of action on the ground that it fails to state sufficient facts is sustained.

The opposition argues that sufficient facts are alleged, but refers to statutes that are not alleged in the SAC. A demurrer was sustained to the FAC on the basis that Plaintiffs failed to adequately allege violations of those statutes, and Plaintiffs subsequently removed all references to those statutes in the SAC. Those statutes cannot be a basis for the second cause of action because the removal of statutory references served to abandon those theories. As explained in the prior demurrer order, if Plaintiffs wished to allege statutory causes of action, such causes of action would have to be pleaded separately and with the particularity required for statutory claims.

Plaintiffs’ opposition does not meet their burden to show how the second cause of action could be amended. The court will grant further leave to amend the second cause of action as a common law negligence cause of action only. The court does not grant leave to reassert the allegations of statutory violations Plaintiffs alleged in the FAC but abandoned when filing the SAC.

Third Cause of Action—“Retaliation”

There is no common law cause of action for retaliation. Judge Chung found that, as alleged in the FAC as the fifth cause of action, this appeared to be an unsuccessful attempt to allege retaliatory eviction under Civil Code section 1942.5. (See Sept. 2, 2025 order at p. 11:2- 8.) The general rule is that statutory causes of action must be pleaded with particularity. (See Lopez v. Southern California Rapid Transit District (1985) 40 Cal.3d 780, 795; Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) When a statutory cause of action is alleged, “the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate.” (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d. 1, 5.)

All references to statutes, including Civil Code Section 1942.5, have now been removed from the SAC and the third cause of action. (See SAC at pp. 30-36.) Defendants’ demurrer to the third cause of action on the ground that it fails to state sufficient facts is sustained.

Plaintiffs’ opposition does not meet their burden to show how the defect could be cured. The opposition simply recites the elements of retaliatory eviction under Civil Code section 1942.5, but again all references to that statute have been removed from the SAC. As no common law cause of action for retaliation exists, further leave to amend the third cause of action is denied.

Fourth Cause of Action—“Harassment”

There is no common law cause of action for harassment. In the prior demurrer order, Judge Chung concluded that this cause of action as alleged in the FAC could “only reasonably be interpreted as asserting a cause of action for violation of Civil Code section 1940.2— sometimes referred to as a ‘constructive eviction’ cause of action.” The previous demurrer to this cause of action was sustained because the statutory claim was not alleged with sufficient particularity. (See Sept. 2, 2025 order at p. 11:10-16.)

As now alleged in the SAC, this cause of action continues to appear to be an attempt to plead a violation of Civil Code section 1940.2. But all references to the statute have been removed and the claim continues to not be pleaded with the particularity required for a statutory claim. Defendants’ demurrer to the fourth cause of action on the ground that it fails to state sufficient facts is sustained.

The opposition does not meet Plaintiffs’ burden to show how the defect could be cured through further amendment. Plaintiffs argue that they are alleging a violation of Civil Code section 1940.2, despite all statutory references having been removed from the SAC and the lack of sufficient particularity. As no common law cause of action for harassment exists, further leave to amend the fourth cause of action is denied.

Fifth Cause of Action—“Forgery”

There is no civil cause of action for forgery. The prior demurrer was sustained to this cause of action (the second in the FAC) because the claim “improperly” attempted “to combine alleged violations of unrelated statutes into one confusing cause of action,” and because “[n]othing in Penal Code section 470 indicates that a private right of action to enforce it is available in a civil lawsuit.” (Sept. 2, 2025 order at p. 9:19-25.)

As alleged in the SAC, the fifth cause of action continues to allege forgery (of a lease) in a conclusory fashion. The opposition confirms that Plaintiffs are trying to allege a “criminal offense” of forgery under Penal Code section 470, despite all references to this statute having been removed from the SAC and the fifth cause of action not being alleged with particularity.

To enforce a Penal Code section in a civil court, there must be a private tort right of action to enforce the specific Penal Code section. (Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 145; see also Vasquez v. SOLO 1 Kustoms, Inc. (2018) 27 Cal.App.5th 84, 90-91 [“The Legislature’s intention to create a private cause of action must be expressly stated or strongly implied in the statutory language or legislative history.”].) Penal Code section 470 does not contain any language suggesting that the Legislature intended to create a private right of action to enforce it. The fifth cause of action therefore fails as a matter of law. The demurrer to the fifth cause of action is sustained without further leave to amend.

Sixth Cause of Action—“Fraud”

The prior demurrer to this cause of action, alleged as the first cause of action in the FAC, was sustained because it was not alleged with sufficient specificity for a fraud claim, and because it attempted to include alleged violations of several unrelated statutes. (See Sept. 2, 2025 order at pp. 8:19-9:17.)

“The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792 [citation omitted].) “Fraud must be pleaded with specificity rather than with general and conclusory allegations.

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.” (Id. at p. 793 [citation and quotation marks omitted].) Courts enforce the specificity requirement in consideration of its two purposes.

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.)

As alleged in the SAC, this cause of action now identifies a specific person who allegedly made false representations on behalf of Defendants at identified times. It alleges that Veronica Fisher, the alleged manager of the property in 2024, made false statements about the amount of rent owed in copies of ledgers provided to Plaintiffs, and that this was done to “facilitate eviction.” While the sixth cause of action also alleges that another manager, Benjamin Sheppard, also provided a ledger, it does not allege that this ledger intentionally contained false information.

But the sixth cause of action fails to allege that Plaintiffs reasonably relied on any of the alleged misrepresentations as to rent owed, etc., or that Plaintiffs suffered damages because of their reasonable reliance on those misrepresentations. To the contrary, the SAC suggests that Plaintiffs never believed any of the alleged misrepresentations by Veronic Fisher about the amount of rent due, and always believed the amount stated by Defendants was incorrect because of alleged discrepancies with other records and Plaintiffs’ own calculations. Defendants’ demurrer to the sixth cause of action on the ground that it fails to state sufficient facts is therefore sustained.

Plaintiffs’ opposition does not meet their burden to show how the defect in the sixth cause of action could be cured through amendment. But because it is not yet apparent that doing so would be futile, the court will grant leave to amend. Again, the court does not grant leave to add any new causes of action or parties.

Seventh Cause of Action—“False Advertising”

The False Advertising Law bars “any advertising device . . . which is untrue or misleading.” (Bus. & Prof. Code, § 17500.) “Because this law and the fraudulent prong of the unfair competition law substantively overlap, the plaintiff’s burden under these provisions is the same: To prevail on a claim under the False Advertising Law, [he] must show that ‘members of the public are likely to be deceived’ and must do so as adjudged through the eyes of ‘the reasonable consumer.’” (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1136 (Shaeffer).) A plaintiff must also allege an economic injury that was caused by the false advertising—advertising statements likely to deceive members of the general public under an objective reasonable consumer standard. (Id. at p. 1137.) As a statutory cause of action, false advertising must be alleged with particularity.

The prior demurrer was sustained as to this cause of action (alleged as the seventh cause of action in the FAC) because it failed “to sufficiently state that either of the Defendants engaged in advertising likely to deceive members of the general public under an objective standard or state that such advertising was the cause of economic injury to Plaintiffs.” (Sept. 2, 2025 order at p. 12:8-11.)

As alleged in the SAC, this cause of action continues to be based on Plaintiffs’ disputes with Defendants, their personal beliefs about the truth and accuracy of requests for donations sent out by Defendants, and their belief that they should not have been evicted. Plaintiffs did not cure the defect identified by the prior demurrer. As the seventh cause of action still does not allege with particularity that advertising statements by either of the Defendants were likely to deceive reasonable members of the general public under an objective standard, it does not state sufficient facts under the Shaeffer decision. Defendants’ demurrer is therefore sustained.

Plaintiffs’ opposition does not meet their burden to show how the defect could be cure. Because plaintiffs have not demonstrated a reasonable possibility that further amendment will allow them to adequately state a cause of action for violation of the False Advertising Law, further leave to amend the seventh cause of action is denied.

CONCLUSION

Defendants’ demurrer is SUSTAINED WITHOUT FURTHER LEAVE TO AMEND as to the third, fourth, fifth and seventh causes of action.

Defendants’ demurrer to the SAC is SUSTAINED WITH LEAVE TO AMEND as to the first, second, and sixth causes of action. The court does not grant leave to add any new causes of action or new parties. Any amended pleading must be filed and served no later than July 27, 2026.

The court will prepare the order.

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