Greg Gianotti v. Salacup Nardito et al.

After Plaintiff’s son called the City of San Jose on Plaintiff’s behalf, the City conducted inspections of the property on September 11, 2025, and September 16, 2025. (Id. at ¶¶ 12, 13.) The City determined that the unit was in substandard condition and unsafe for human habitation, and cited the property for multiple habitability violations for a pest infestation, a hazardous gas leak, a structural defect in the bathroom floor, and failure to maintain habitable conditions including safe appliances, pest-free housing and structurally sound premises. (Id. at ¶¶14, 15.)

Plaintiff was forced to vacate the unit, as continued occupancy posed an unreasonable threat to his health and safety. (Id. at ¶ 16.)

Plaintiff alleges causes of action for elder abuse, breach of warranty of habitability, nuisance, violation of San Jose Tenant Protection Ordinance, unfair business practices, breach of covenant of quiet enjoyment, breach of contract, negligence, substandard housing in violation of San Jose Municipal Code, negligent infliction of emotional distress, and constructive eviction. Among other forms of relief, the Complaint prays for injunctive relief prohibiting Defendant from continuing to rent the Property in uninhabitable condition and requiring compliance with all applicable housing codes, punitive damages under Civil Code section 3294, attorneys’ fees, and civil penalties.

Defendant demurred to Plaintiff’s first cause of action for elder abuse, fourth cause of action for violation of San Jose Tenant Protection Ordinance, ninth cause of action for negligent infliction of emotional distress, and prayer for

1 Defendant’s demurrer states that Defendant was erroneously sued as “Salacup Nardito,” and Nardito Salacup is correct.

injunctive relief on January 15, 2026. Defendant also moved to strike “all demands and references to punitive damages in Plaintiff’s Complaint” and “Plaintiff’s prayer for attorney’s fees pursuant to Code of Civil Procedure Section 1021.5” on January 15, 2026 (Motion to Strike, p. 4:3-13.)

II. DEMURRER

A.

Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (Mathews v. Becerra (2019) 8 Cal.5th 756, 762, internal citations and quotations omitted; see also Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. ... Thus, ... the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.)

In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact.” (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.)

B. Discussion

i. First Cause of Action: Elder Abuse

Defendant demurs to Plaintiff’s cause of action for elder abuse, arguing that the Complaint alleges a landlord-tenant relationship between Plaintiff and Defendant and this alone cannot support an elder abuse claim absent additional facts showing a duty to provide medical care or custodial services. (Demurrer, p. 4:9-13.)

The Elder Abuse and Dependent Protection Act defines an elder as any California resident above the age of 65. (Welf. & Inst. Code, § 15610.27.) Welfare and Institutions Code section 15610.07 includes financial abuse in its definition of “abuse of an elder or dependent adult.” (Welf. & Inst. Code, § 15610.07, subd. (a)(3).) Financial abuse of an elder occurs when a person “takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst.

Code, § 15610.30, subd. (a)(1).) “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code § 15610.30, subd. (b).) The applicable statute does not require a showing of a custodial relationship or medical provider relationship to sustain a claim of elder financial abuse.

Here, Plaintiff alleges that Plaintiff is over 65 and thus elderly within the meaning of the Welfare and Institutions Code (Complaint, ¶ 8.), that Defendant obtained Plaintiff’s property in the form of rent money (ibid.), and that Defendant obtained Plaintiff’s rent money for wrongful use in a manner that Defendant knew or should have known was likely to be harmful to Plaintiff by failing to repair Plaintiff’s residence after Plaintiff complained (Complaint, ¶ 12.). Defendant argues in the Reply to Opposition to Demurrer (“Reply”) that Plaintiff did not plead elder financial abuse, only elder abuse, in his Complaint. (Reply, pp. 2:26-3:3.)

Plaintiff’s first cause of action pleads elder abuse under Welfare and Institutions Code section 15600, et seq. The Complaint alleges sufficient facts to sustain a claim of elder financial abuse and thus alleges sufficient facts to sustain a claim of elder abuse.

Defendant’s demurrer to Plaintiff’s first cause of action for elder abuse is OVERRULED.

ii. Fourth Cause of Action2: San Jose Tenant Protection Ordinance

Defendant demurs to Plaintiff’s cause of action for violation of the San Jose Tenant Protection Ordinance, arguing that Plaintiff failed to allege facts establishing that the rental premises constitute an unpermitted unit within the meaning of the statute, and moreover even if the statute did apply to the property, the Ordinance only provides protections for tenants facing evictions and does not apply to Plaintiff. (Demurrer, p. 8:4-18.)

The Tenant Protection Ordinance (“the Ordinance”) (San Jose Mun. Code, § 17.23.1200, et seq.) establishes just cause protections and tenancy termination procedures for tenants, including tenants of unpermitted units. (San Jose Mun. Code, § 17.23.1230, subds. (A), (C).) Plaintiff alleged that the property in question was an “unpermitted unit” within the meaning of the Tenant Protection Ordinance (Complaint, ¶ 48.), but Plaintiff did not allege facts sufficient to sustain a claim that Defendant violated the Ordinance.

In opposition, Plaintiff points out the Ordinance “also requires a landlord to post certain notices at the property (SJMC § 17.23.1240) and prohibits retaliating against tenants (SJMC § 17.23.1270).” (Opposition to Demurrer, p. 3:26-28.) But the Complaint alleges neither that Defendant failed to post a notice of tenants’ rights nor that Defendant retaliated against Plaintiff.

Plaintiff also argues in opposition that the fourth cause of action arose under San Jose Municipal Code section 17.20.980, but that is the cause of action listed for the eighth cause of action in the Complaint for “Substandard Housing: Violation of San Jose Municipal Code § 17.20.900” (Complaint, ¶¶ 81-86.) Defendant does not demur to that cause of action, making the argument inapposite.

Defendant’s demurrer as to the fourth cause of action for violation of the San Jose Tenant Protection Ordinance is SUSTAINED WITH LEAVE TO AMEND.

iii. Ninth Cause of Action: Negligent Infliction of Emotional Distress

Defendant demurs to the Complaint’s cause of action for negligent infliction of emotional distress because “by law, negligent infliction of emotional distress [is] not an

2 The Complaint erroneously labels both the fourth and fifth causes of action as the “fourth” cause of action. The order will reflect the numbering in Defendant’s Demurrer and the Complaint.

independent cause of action and is entirely duplicative of Plaintiff’s negligence claim.” (Demurrer, p. 4:19-22.) While Plaintiff did not oppose the demurrer to the Complaint’s ninth cause of action, the court OVERRULES Defendant’s demurrer to the Complaint’s ninth cause of action.

Negligent inflection of emotional distress can be an independent cause of action. (See Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 214 [“[A] cause of action to recover damages for negligently inflicted emotional distress will lie...in cases where a duty arising from a preexisting relationship is negligently breached.”], Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 930 [“[w]e hold that a cause of action may be stated for the negligent infliction of serious emotional distress.”]; Downey v.

City of Riverside (2024) 16 Cal.5th 539 [overruling a demurrer to a cause of action for negligent infliction of emotional distress].) To the extent that Defendant argues the negligent infliction of emotional distress claim is duplicative of the negligence claim and a demurrer must be sustained on that basis, Defendant cites nothing in support of sustaining a demurrer on this ground. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without argument or authority in support is without foundation and requires no discussion].)

As such, Defendant’s demurrer to the Complaint’s ninth cause of action for negligent infliction of emotional distress is OVERRULED.

iv. Injunctive Relief

Defendant demurs to the prayer for injunctive relief in the Complaint on the basis that the requested injunctive relief of an order prohibiting Defendant from leasing the premises would provide no effectual relief to the Plaintiff because Plaintiff has already vacated the property. (Demurrer, p. 9:13-15.) “[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) Accordingly, Defendant’s demurrer to the Complaint’s prayer for injunctive relief is OVERRULED.

Defendant’s demurrer to Plaintiff’s first cause of action for elder abuse, ninth cause of action for negligent infliction of emotional distress and prayer for injunctive relief is OVERRULED. Defendant’s demurrer to Plaintiff’s fourth cause of action for violation of San Jose Tenant Protection Ordinance is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

III. MOTION TO STRIKE

A.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not drawn or filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) The court’s decision to strike the petition pursuant to section 436 is discretionary. (See Code Civ. Proc., § 436 [“The court may . . . strike”].)

B. Punitive Damages

Defendant moves to strike “all demands and references to punitive damages in Plaintiff’s Complaint,” because Plaintiff’s Complaint did not sufficiently allege that Defendant acted with oppression, fraud or malice as required by Civil Code section 3294. (Motion to Strike, p. 4:3-8.) Civil Code section 3294 subdivision (c)(1) defines “malice” as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ.

Code, § 3294, subd. (c)(1).) Plaintiff alleges that Defendant leased an “uninhabitable and unsafe” property to Plaintiff that had a pest infestation, structural defects in the form of a hole on the bathroom floor, and a gas leak, that Plaintiff told Defendant about those conditions, and Defendant failed to remedy any of them. (Complaint, ¶¶ 9-12.) Plaintiff has thus sufficiently alleged that Defendant engaged in conduct “with a willful and conscious disregard of the rights or safety” of Plaintiff. (Civ.

Code, § 3294, subd. (c)(1); see Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903 [plaintiff could plead punitive damages in suit against landlord for dilapidated and unsafe condition of rental premises].) Accordingly, the motion to strike the punitive damages claim is DENIED.

Defendants’ motion to strike “exemplary damages” on line 9 on page 8 of the Complaint is MOOT as the court has sustained the demurrer on the fourth cause of action for violation of San Jose Tenant Protection Ordinance. Defendants’ motion to strike all other “demands and references to punitive damages in Plaintiff’s Complaint” is DENIED.

C. Attorneys’ Fees

Defendants move to strike Plaintiff’s “prayer for attorney’s fees pursuant to Code of Civil Procedure Section 1021.5[.]”3 (Motion to Strike, p. 4:9-13.) Defendant argues that because the instant action concerns only a former tenant, a single landlord, and one rental property, it does not seek to enforce an important right and, therefore, Code of Civil Procedure section 1021.5 does not apply. (Motion to Strike, p. 8:15-17.) “[A]n award under [Code of Civil Procedure] section 1021.5 requires a showing that (1) the litigation enforced an important right affecting the public interest; (2) it conferred a significant benefit on the general public or a large class of persons; and (3) the necessity and financial burden of private enforcement (or enforcement by one public entity against another) were such as to make the award appropriate.

Since the statute states the criteria in the conjunctive, each element must be satisfied to justify a fee award...The third element, the necessity and financial burden requirement, involves two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party’s attorneys.”

3 Defendants’ Motion to Strike also includes the following: “attorneys’ fees” on line 20 on page 11 of the Complaint (under the seventh cause of action for negligence); “attorneys’ fees and a civil penalty of five hundred dollars thereto” on line 14 on page 12 of the Complaint (under the eighth cause of action for substandard housing); “[d]isgorgement of all rent money collected on an unpermitted an[d] uninhabitable unit” on line 27 of page 13 of the Complaint, and “civil penalties against Defendants as allowed by the City of San Jose’s Municipal Code” (both under the prayer for relief). (Motion to Strike, p. 2:17-21, 23-24.)

Defendants’ Motion does not make any arguments as to why this court should strike the above portions of Plaintiff’s Complaint. As Defendants failed to present the grounds for striking these allegations, the court DENIES the Motion to Strike with respect to the above. (Code Civ. Proc., § 437, subd. (a).) (See People v. Dougherty, supra, 138 Cal.App.3d at p. 282 [a point asserted without argument or authority in support is without foundation and requires no discussion].)

(Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 157-158, internal quotation marks and citations omitted.)

If a plaintiff prevails in an unfair competition law claim, it may seek attorneys’ fees as a private attorney general pursuant to Code of Civil Procedure section 1021.5. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1179.) Defendant does not demur to the Complaint’s cause of action alleging unfair business practices. The motion to strike “prayer for attorney’s fees pursuant to Code of Civil Procedure Section 1021.5” on lines 10-11 on page 9 of the Complaint is DENIED.

IV. CONCLUSION

Defendants’ demurrer to Plaintiff’s first cause of action for elder abuse, ninth cause of action for negligent infliction of emotional distress and prayer for injunctive relief is OVERRULED. Defendants’ demurrer to Plaintiff’s fourth cause of action for violation of San Jose Tenant Protection Ordinance is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND. Defendants’ motion to strike is DENIED.

The court will prepare the Order.

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