Hernandez vs. Evergreen Royalle

Here, the Complaint alleges that Defendants caused Plaintiff to be touched by bed bugs, mold, rats, and other uninhabitable conditions. (Complaint¶52.)

Notably, the Complaint does not allege Defendants placed the bedbugs, rats, or mold into Plaintiffs’ room, with the intent that they be injured. Instead, Plaintiffs rely solely on Defendants’ alleged failure to take affirmative action to prevent Plaintiffs from being injured by the above, which does not suffice.

Plaintiffs cite no binding authority which supports the existence of a battery claim in this scenario, and no such California authority could be located.

At best, Plaintiffs cite Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672, nonbinding federal authority issuing from the 7th Circuit; however, this authority is non-availing to Plaintiffs. Although Mathias was a bed bug case, it was a negligence action and a post-judgment appeal of a punitive damages award, and therefore not informative on the issue of whether a battery cause of action is properly pled. Indeed battery was not litigated in that case.

Ultimately, as the Complaint does not allege any affirmative conduct by Defendants, which resulted in an offensive touching of Plaintiffs and, as the authority cited by Plaintiffs does not support their theory of liability, the Demurrer to this claim is SUSTAINED. Additionally, leave to amend, as to the First Cause of Action, is DENIED.

“[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Additionally, a court should sustain a demurrer without leave to amend where there is no “reasonable possibility that the defect can be cured by amendment.” (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 480-481). Similarly, leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436).

Here, Plaintiffs have not shown any ability to amend to allege a claim and, as indicated above, the claim is not supported by California authority.

Eleventh cause of action for Breach of Contract

“A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom.” (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1489.) The “failure to attach or to set out verbatim the terms of the contract [is] not fatal to [a] breach of contract cause of action.” (Miles v. Deutsche Bank Nat’l Trust Co. (2015) 236 Cal.App.4th 394, 402.) Rather, “ ‘a plaintiff may plead the legal effect of the contract rather than its precise language.’ ” (Ibid., citing Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.)

Plaintiff alleges that he entered into a written contract and/or rental agreement for the lease of Plaintiff’s Apartment Unit at Subject Apartments complex. (Complaint ¶167.) He further alleges that he made “payment of the lease price for the Plaintiff’s unit in the apartment.” (Id. ¶168.) Finally, he alleges Defendants “breached the contract by failing to provide Plaintiff a habitable unit for lodging, as evident by the presence of infestations of bed bugs, mold, rats, and other uninhabitable conditions in Plaintiff’s unit in the apartment.” (Id. ¶170.)

Plaintiff has alleged the existence of a written contract and the failure to attach a copy or set forth the terms verbatim is not fatal. He has alleged the legal effect of that contract and facts showing breach. Thus, the Demurrer to the eleventh cause of action is OVERRULED.

Thirteenth cause of action for Public Nuisance

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, § 3480.) A private plaintiff may bring a cause of action for public nuisance if the nuisance is “specially injurious” to the plaintiff. (Civ. Code, § 3493.)

Here, Plaintiff pleads:

“182. The above-mentioned unhabitable, unhealthy, and unsanitary conditions the community at large as these types of infestations easily spread (1) from one apartment unit to another through wall voids, plumping and electrical outlets, light switches, any cracks or voids present, etc.; (2) through personal property of those occupying the units and/or apartments, including Plaintiff’s furniture, bedding, clothing/apparel, shoes, and other personal belongings and tangible personal property that were exposed above-mentioned infestations and other uninhabitable and untenantable conditions, all of which can easily cause the spread of the infestation into the community and into another individuals’ residence thereby creating a risk of said infestations to other individuals’ homes; and (3) spread above-mentioned infestations and uninhabitable conditions from the home to the public which can affect the community at large.”

[Complaint ¶182.]

The above suggests that the mold/rat/bed bugs issue “could” affect the community at large, not that it did. There are no facts to suggest the issues existed in any other apartment but Plaintiff’s.

As such, demurrer is SUSTAINED with 20 days leave to amend.

As to the Motion to Strike, Defendant Evergreen Royalle, Ltd., and Jose Toro seek an order striking the following language from the Plaintiff’s Complaint:

“1. Subsection (4) of paragraph 61 [See Complaint, p. 13, lines 11-15], which states: (4) failed to retain and delayed retaining of professional services to remedy and eliminate the flood, including the poor weather proofing of the walls and ceiling; and professional abatement services to repair and remedy infestations of bed bugs, mold, rats, and other uninhabitable conditions, and other uninhabitable and untenantable conditions. [Flood language]

“2. Paragraph 129. [See Complaint, p. 28, lines 5-10]. [Attorney’s fees]

“3. Paragraph 130. [See Complaint, p. 28, lines 11-13]. [Damages]

“4. Paragraph 140. [See Complaint, p. 30, line 22 to p. 31, line 1]. [Punitive Damages] [sic]

“6. Paragraph 11 in the Prayer for Relief. [See Complaint, p. 37, lines 10-11]. [statutory damages pursuant to Civil Code §1940.2]

“7. Paragraph 13 in the Prayer for.] Relief. [See Complaint, p. 37, lines 13-15]. [Attorney’s Fees and Costs.]”

Defendants seek to strike irrelevant facts, attorney’s fees and costs, damages in the UCL cause of action, punitive damages, and statutory damages. However, in the Opposition, Plaintiff only addresses the punitive damages. Plaintiff’s failure to oppose the motion to strike may be treated as an implied concession to the merits of the same. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. (CRC 3.1113(a).)

As such, the motion is GRANTED as to all items above (except No. 4) without leave to amend.

As to punitive damages, Civil Code section 3294 provides in part:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.””

The policy of the law is to construe the pleadings “liberally ... with a view to substantial justice” (CCP § 452).

Additionally, “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” [Clauson v. Sup.Ct.

(Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255.]

In this instance, Plaintiff alleges on or about August 1, 2022, Plaintiff Hernandez moved into the apartment and discovered two rats in the apartment. He reported the rats to management and they brought rat traps. (Complaint ¶15, 16.) He alleges that mold and bed bugs were reported to Defendants. (See Complaint ¶16, 22.) However, Plaintiff pleads his “concerns were ignored.” (Complaint ¶22.) Plaintiff also pleads that he reported the bed bugs and mold once more (Complaint ¶26) and management sent someone to inspect the mold, however, “The personnel did not remove the mold in the wall nor change the top of the carpet in the affected areas that became damp from the water leak.” (Complaint ¶27.) As to the bed bugs, the apartment was treated for bed bugs on 8/8/2023. (Complaint ¶28.) Plaintiff moved out of the apartment on 8/19/2023.

Here, the length of time between the complaints and management’s response is unclear. However, it appears Plaintiff suffered from the bed bugs and mold for at least a year. And while the bed bugs could have been remediated, the mold issue was not. If true, this could warrant punitive damages.

Therefore, the Motion to Strike is DENIED as Item 4 above.

The Case Management Conference is continued to September 17, 2026 at 1:30 p.m.

Defendants to give notice. 109 Ally Bank vs. Carmona 25-01531431 Plaintiff Ally Bank (“Plaintiff”) applies to the Court for a writ of possession against defendant Alejandro S. Carmona (“Defendant”) regarding the subject 2021 Ford F-250 motor vehicle, Vehicle Identification No. 1FT7W2BT4MED43449.

Plaintiff has filed a proof of service showing that the Summons, Complaint, and Notice of Application for Writ of Possession and Hearing were served by substituted service on May 24, 2026 after personal service could not with reasonable diligence be effected. The documents were thereafter mailed on May 28, 2026 and service was not complete until June 8, 2026, which is insufficient notice for a hearing on June 25, 2026.

In light of the above, the hearing on Plaintiff’s Application for Writ of Possession is CONTINUED to July 23, 2026 at 1:30 p.m. Plaintiff is ORDERED to provide Defendant with sufficient notice of the continued hearing date and file a

proof of service no later than nine court days before the continued hearing date.

Moving party to give notice.