PISTIOLAS’s Demurrer to FRAIRE and HEREDIA’s First Amended Cross-Complaint
sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing severe, including terminating, sanctions. (Ibid.)
Plaintiff failed to obey this court’s December 15, 2025 order to respond to Defendant’s form interrogatories and requests for production, set one within ten days. Plaintiff failed to pay the ordered $2,400 in monetary sanctions. Further, Plaintiff has a history of failing to appear at case management conferences or file case management conference statements, conduct for which Plaintiff’s counsel has previously been sanctioned. The court finds that terminating sanctions are warranted for Plaintiff’s abuse of the discovery process, failure to obey a court order, and failure to attend hearings or file required documents in this case. (See Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 11 [requirements for terminating sanctions met where party failed to respond to court order and failed to attend hearings].)
Defendant’s unopposed motion is granted. This case is ordered dismissed without prejudice.
SPIRO PISTIOLAS v. ERIK GIOVANNI FRAIRE and CINDY HEREDIA Case No. CL25-04630
PISTIOLAS’s Demurrer to FRAIRE and HEREDIA’s First Amended Cross-Complaint
Plaintiff and Cross-Defendant SPIRO PISTIOLAS demurs to Defendants and Cross- Complainants Plaintiffs ERIK GIOVANNI FRAIRE and CINDY HEREDIA’s first amended cross-complaint alleging causes of action for (1) breach of contract, (2) breach of the implied warranty of habitability, (3) fraud, (4) negligence, (5) intentional infliction of emotional distress, (6) violation of Civil Code section 1942.2, (7) violation of Civil Code section 789.3, and (8) common counts.
The court observes that Cross-Complainants filed a second amended cross-complaint on July 2, 2026. An amended pleading supersedes the original pleading and so moots a challenge to the now-defunct original pleading. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.) However, a party may only amend its pleading without leave of court or stipulation of the parties after a demurrer is filed if the amended pleading is filed within the time for opposition to the demurrer. (Code Civ.
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Proc., § 472.) Cross-Defendant served his demurrer on January 22, 2026, with hearing noticed for July 10, 2026. The deadline for filing opposition to Cross-Defendant’s demurrer was June 26, 2026; indeed, Cross-Complainants submitted opposition to the demurrer before that deadline. (Code Civ. Proc., § 1005, subd. (b) [opposition papers due 9 court days before hearing on demurrer].) Cross- Complainants did not submit a stipulation of the parties or obtain leave of court to file the second amended cross-complaint.
Cross-Complainants’ submitted second amended cross-complaint does not supersede the original complaint or moot the
demurrer in these circumstances. Cross-Complainants’ untimely filed second amended cross-complaint is ordered struck.
The court therefore proceeds to analysis of the demurrer to the first amended crosscomplaint.
Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, 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.) Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) 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.) The court also assumes the truth of facts appearing in exhibits attached to the complaint. (Mead v.
Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) If the facts appearing in attached exhibits expressly contradict allegations of the complaint, the facts in the exhibit take precedence. (Ibid.)
Breach of Contract. The elements of a cause of action for breach of contract are (1) the existence of a valid contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) breach, and (4) damages. (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 447.)
The first amended cross-complaint does not sufficiently allege breach of contract because it does not describe the terms of a contract between the parties in sufficient detail to support the stated conclusion that the poor condition of rented premises was a breach of any contractual requirement.
Breach of the Implied Warranty of Habitability. To establish a breach of the implied warranty of habitability a plaintiff must plead (1) the existence of a material defective condition affecting the premises’ habitability, (2) notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, (3) reasonable time for the landlord to correct the deficiency, and (4) damages. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) A loss of habitability may also be pled as a tort resulting from such a breach. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 911.)
The first amended cross-complaint sufficiently alleges a breach of the implied warranty of habitability. It states that Cross-Defendant rented premises to Cross-Complainants on a written lease and on a month-to-month basis after expiration of the lease. (1ACC at ¶¶ 1- 4.) It states that the premises suffered a rodent infestation and had unsafe and nonfunctional electrical and heating systems. (Id. at ¶ 5.) These are material defective
conditions affecting habitability. It states that Cross-Complainants notified Cross- Defendant of the material defective conditions with sufficient time to remedy them but he did not do so. (Id. at ¶ 6.) It states that Cross-Complainants have suffered damages from inhabiting uninhabitable premises including, without limitation, loss of enjoyment and damage to personal property. (Id. at ¶ 10.) More detail is not required to survive demurrer.
Fraud. The elements of a cause of action for fraud via intentional misrepresentation are: (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud involves a serious attack on character and so must be pled with specificity, including allegations of how, when, where, to whom, and by what means fraudulent representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)
The first amended cross-complaint’s general allegations that Cross-Defendant represented to Cross-Complainants that the premises were safe and habitable are not sufficiently specific to state a cause of action for fraud.
Negligence. To state a cause of action for negligence, the plaintiff must allege facts demonstrating (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) A tenant may state a cause of action for negligence against a landlord who does not maintain premises in habitable condition. (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299 (Erlach).)
The first amended cross-complaint’s factual allegations supporting the claim of breach of the implied warranty of habitability also suffice to state a claim for negligence.
Intentional Infliction of Emotional Distress. The elements of a cause of action for intentional infliction of emotional distress are (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard for the probability of causing, emotional distress, (2) the plaintiff’s suffering severe or extreme emotional distress, and (3) causation. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) The conduct in question must also be directed at the plaintiff or conducted in the presence of a plaintiff of whom the defendant is aware. (Id. at p. 903.) “Outrageous” conduct is that which is so extreme as to “exceed all bounds of that usually tolerated in a civilized community” and “intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1050-1051.) Mere insults, indignities, annoyances, and petty oppressions are insufficient to state outrageous conduct. (Ibid.) “Severe emotional distress” is “emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Id. at p. 1051.)
The first amended cross-complaint does not state a cause of action for intentional infliction of emotional distress. Cross-Complainants do not allege conduct by Cross- Defendant directed at them and intending to cause them emotional distress or done with reckless disregard of emotional distress. Cross-Complainants further do not allege specific severe emotional distress, only general statements that they suffered distress.
Violation of Civil Code Section 1942.4. Civil Code section 1942.4 provides that a landlord may not demand rent if the rented premises are untenantable, a public officer inspects the premises and gives the landlord written notice to abate or repair, the conditions are not remedied within thirty-five days of such notice, and the substandard conditions were not caused by the tenant’s acts or omissions. (Erlach, supra, 226 Cal.App.4th at p. 1298.)
The first amended cross-complaint contains no allegations that a public officer inspected the premises and provided Cross-Defendant statutory notice to abate or repair. It thus does not state a cause of action for violation of Civil Code section 1942.4.
Violation of Civil Code Section 789.3. Civil Code section 789.3 provides that a landlord shall not willfully cause, with intent to terminate occupancy of premises, interruption or termination of any utility service furnished to a tenant.
The first amended cross-complaint does not contain specific factual allegations showing how Cross-Defendant directly or indirectly caused interruption or termination of any utility service, with intent to terminate Cross-Complainants’ occupancy of the premises. There are only conclusory allegations stating that he did so. The first amended crosscomplaint does not state violation of Civil Code section 789.3.
Common Counts. Cross-Defendant’s demurrer does not challenge this cause of action in the first amended cross-complaint.
Leave to Amend. Leave to amend is proper where identified defects are amenable to cure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’s burden to show the trial court that a reasonable possibility exists that amendment can cure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60 Cal.App.5th 12, 42.) Cross-Complainants’ opposition does not demonstrate how identified defects might be cured by amendment, only making a general request for leave to amend.
Conclusion. Cross-Defendant’s demurrer is sustained without leave to amend with regard to the first amended cross-complaint’s causes of action for breach of contract, fraud, intentional infliction of emotional distress, and violation of Civil Code sections 1942.4 and 789.3. Cross-Defendant’s demurrer is overruled with regard to the first amended cross-complaint’s causes of action for breach of the implied warranty of habitability, negligence, and common counts.