DEMURRER
Defendants’ demurrer to the Second and Third Causes of Action is sustained, with leave to amend, on the limited grounds noted below. The demurrer is overruled in all other respects.
Allegations in Plaintiff’s Complaint
Plaintiff Michael Partow filed his Complaint against Defendants Justin Hilton and Debra Evans on March 16, 2026, alleging that Defendants damaged his property at 55 Wildomar in Mill Valley while they were tenants. Plaintiff further alleges that Defendants owe $1,075.94 more than what Plaintiff holds as a security deposit and also owe at least $28,600 to cover the cost of the balance of required repairs. Plaintiff asserts causes of action for breach of the lease, negligence, and intentional misrepresentation.
Procedural Deficiency
The Court draws Defendants’ attention to Local Rule 2.8(C)2, which requires attachment of the operative pleading as an exhibit to the demurrer.
Standard
“The function of a demurrer is to test the sufficiency of the complaint as a matter of law, and it raises only a question of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint “ordinarily is sufficient if it alleges ultimate rather than evidentiary facts” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550), but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [citation and internal quotations omitted].) Legal conclusions are insufficient. (Id. at
1098–1099; Doe, 42 Cal.4th at 551, fn. 5.) The court “assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247
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Discussion
Subject Matter Jurisdiction/Uncertainty
Defendants argue that the Court lacks subject matter jurisdiction over the Complaint, and/or the Complaint is ambiguous, because the Complaint is filed as limited jurisdiction but Plaintiff potentially seeks relief in excess of the $35,000 limited jurisdiction ceiling. (See Code Civ. Proc. § 85(a).) Defendants point out that Plaintiffs allege a “minimum $28,600” in repair damages and also seek punitive damages and attorney’s fees. The demurrer is not sustained on this basis. First, under Section 85(a), “attorneys’ fees, interest, and costs” are excluded from the cap. Second, the total amount of the relief sought is not clear from the allegations on the face of the Complaint. In order for a demurrer to be sustained, it is not enough that an action might be barred; it must necessarily be barred. (See CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.)
Uncertainty
Defendants contend that the Complaint is ambiguous because the last cause of action does not actually state it is the Third Cause of Action, paragraphs 25-27 are more appropriate for a misrepresentation claim rather than a negligence claim, the damages alleged are internally inconsistent because Plaintiff alleges both a $1,075 deficit beyond his security deposit and an additional minimum $28,600, and the pleading uses “WHEREFORE, Plaintiff prays for judgement [sic] as hereinafter set forth” in the middle of substantive causes of action.
“Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [citations and internal quotations omitted].)
The demurrer is not sustained on the ground of uncertainty. Two of the issues raised by Defendants (leaving out the word “Third” in the last cause of action and the location of the prayers for relief) are formatting issues only and do not prevent Defendants from responding to the claims asserted against them. Further, Plaintiff’s damages allegations are not inconsistent and the challenge to the allegations in paragraphs 25-27 should be made to the cause of action itself rather than the Complaint as a whole.
First Cause of Action
Defendants demur to the First Cause of Action, which they recognize as a cause of action for breach of contract (despite being titled “Property Damages”), on the ground that Plaintiff does
not plead his own performance or excuse for nonperformance, the specific provisions of the lease that Plaintiff alleges were breached, or resulting damages.
The demurrer to the First Cause of Action is overruled. “To state a cause of action for breach of contract, [a plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [the defendant’s] breach and the resulting damage. Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 [citations, internal quotations, and footnote omitted].)
Plaintiff has satisfied the requirement of pleading the contract by attaching a copy of the lease as Exhibit A to the Complaint, alleges performance or excuse for performance in paragraph 20, and alleges resulting damages in paragraph 21. This is all that is required to withstand a demurrer.
Second Cause of Action
Defendants demur to the Second Cause of Action for negligence on the ground that it is barred by the economic loss rule as Plaintiff alleges only damages resulting from an alleged breach of the lease. As currently pled, Plaintiff alleges conduct that falls within the scope of the parties’ contractual relationship and he does not allege duties owed by Defendants outside of this relationship.
The demurrer to this cause of action is therefore sustained, with leave to amend. (See Rattagan v. Uber Technologies, Inc. (2024) 17 Cal.5th 1, 20-21.)
Third Cause of Action
Defendants demur to the Third Cause of Action for intentional misrepresentation on the ground that Plaintiff does not allege how, when, where, to whom and by what means the alleged representation was made. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The demurrer on this ground is overruled as Plaintiff alleges who (Defendant Hilton, as Plaintiff assumes to use the pronoun “he”)), when (June 1, 2025), where (the property), how or what means (during a meeting), and what (that he will remedy the property damages). (Complaint, ¶29.)
Defendants also demur on the ground that the representation was about future conduct, which requires an allegation that Defendants did not intend to perform. Where a fraud cause of action is based on a false promise, “the necessary averment is the general statement the promise was made without any intention to perform it, or that the defendant did not intend to perform it. The absence of any such a general allegation is ordinarily a fatal defect.” (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 619 [citation and internal quotations omitted].)
Plaintiff does not allege that Defendant did not have an intent to perform when he stated he would repair the damages. The demurrer to this cause of action is sustained on this basis, with leave to amend.
Defendant to submit the order for entry.
Should any party wish to contest the tentative, they must provide proper notice to the court and opposing party. Hearing on the demurrer is continued to July 17, 2026, at 1:30 pm in this department.
Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444-7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.
IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.
FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).