Anfanger v. Ganzberg, et al.

CASE NO.: 25SMCV05502 MOTION: Demurrer to the First Amended Complaint HEARING DATE: 8/18/2026

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP Sec.Sec. 430.30, 430.70.)

At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A "demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law." (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP Sec. 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP Sec.Sec. 436(a)-(b); see Stafford v. Shultz (1954) 42 Cal.2d 767, 782 ["Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded"].)

"Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿ in what manner ¿plaintiff can amend the complaint, and¿ how ¿that amendment will change the legal effect of the pleading.¿(Id.)

ANALYSIS

Defendant Andrew Weiss dba Regency Property Management demurs to the Sixth Cause of Action for Promissory Fraud and Concealment as stated in Plaintiff Nancy Anfanger's First Amended Complaint ("FAC"). Weiss also moves to strike the request for punitive damages against him.

Promissory Fraud and Concealment

Generally, the elements of fraud are: "(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) "The elements of promissory fraud . . . are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promise to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promisee." (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.)

To state a claim under a concealment theory, a plaintiff must allege: (1) the defendant "concealed or suppressed a material fact," (2) the defendant was "under a duty to disclose the fact to the plaintiff," (3) the defendant "intentionally concealed or suppressed the fact with the intent to defraud the plaintiff," (4) the plaintiff was "unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact," and (5) "as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage." (BiglerEngler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-11.)

Absent a fiduciary relationship between the parties, a duty to disclose can arise in three circumstances: (1) the defendant had exclusive knowledge of the material fact; (2) the defendant actively concealed the material fact; or (3) the defendant made partial representations while also suppressing the material fact. (Id. at 311; LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.) The California Supreme Court "has described the necessary relationship giving rise to a duty to disclose as a 'transaction' between the plaintiff and defendant ...." (Bigler-Engler, supra, 7 Cal.App.5th at 311.)

In California, fraud must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) "The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered." (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)¿¿

The sixth cause of action arises from Regency/Weiss's alleged false promises to Plaintiff to induce her into moving into the unit in the property. (FAC P. 154.) This includes representations that the Property was well maintained, that Defendants would promptly fix all things that needed to be repaired, and that they habitually complied with all city, state and federal law. (FAC P. 155.) Plaintiff was also promised that she could stay in the apartment for years, as she had lived in her last apartment for 15 years. (Id.) The guaranteed renewal was especially important to Plaintiff, since her disabilities make moving activities more difficult. (Id., P. 157.) Defendant also promised that he would mediate any issues within a reasonable time period. (Id., P. 158.)

According to the FAC, Defendant did not intend to perform the promises when he made them and had no intention of complying with law as he had not maintained the building for decades, did not seek legally required permits to do all work for decades, and routinely permitted known dangerous conditions to exist on the Property unabated. (Id., P. 159.) Defendant intended that Plaintiff rely on said promises. (Id., P. 160.)

The FAC does not allege when the above representations were made, where they were made, and by what means they were made. The FAC only offers a generalized statement that Defendant made the above representations to Plaintiff. (Id., P.P. 154-158.) The statement of facts concerning Weiss and the lease negotiations do not reveal the requisite information. (FAC P.P. 7, 14-18, 29-34.) At best, these allegations suggest that Defendant may have made some of the representations at some point in mid-December 2024. But the FAC does not establish this with specificity. For example, the FAC states that "Defendants" "assured" Plaintiff that they were very prompt in addressing repairs and ensuring everything was kept in good working order. (Id., P. 32.) Again, this does not state when this representation was made, where this was made, by whom this was made, and by what means this was made.

Further, the FAC alleges that Plaintiff relied upon Defendant's false representation that the gas had been shut off and the fireplace was rendered inoperable prior to her taking possession of the unit. (Id., P. 7.) This representation also needs further specific facts, including when this representation was made, how it was made, what was specifically said, and where it was made. The FAC also claims Weiss lied about other facts, but the FAC does not establish these lies as material to Plaintiff's reliance, or with the necessary specificity. (See e.g., FAC P.P. 14-15 [re: work permits, licensed workers], P. 17 [false service of unspecified documents].)

Additionally, Plaintiff does not plead, with specificity, reliance and resulting damages. Plaintiff alleges mere conclusions that she reasonably relied on said promises when signing the lease and taking possession of the unit and that, as a result, she was injured. (FAC, P.P. 33, 161-163.) Plaintiff, however, does not allege facts that she would have acted differently if she had known of the true facts. In other words, Plaintiff must allege that she would not have entered into the lease if she knew that Weiss's representations were false.

Plaintiff asserts that less specificity is required under the circumstances. It is true that less specificity is required if it appears from the nature of allegations that defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385.) This rule derives from the logic that specificity of pleading is intended to apply only to affirmative representations and not omissions. (See Id. at 1384 [observing it is harder to apply the requirement of specificity to a case of simple nondisclosure, since "How does one show 'how' and 'by what means' something didn't happen, or 'when' it never happened, or 'where' it never happened?"].)

Here, however, the facts do not rely on fraud by omission. Instead, Plaintiff alleges Defendant made affirmative representations to Plaintiff during the leasing process. (FAC P.P. 29-34, 154-158.) Based on such allegations, Plaintiff necessarily has the information concerning the misrepresentation(s) made to her. Conversely, Defendant possesses no greater information on the alleged affirmative misrepresentations allegedly given to Plaintiff. Plaintiff should know what was represented to her. Thus, Plaintiff must specifically allege the circumstances of the misrepresentations. Accordingly, the demurrer is SUSTAINED with 20 days leave to amend.

Motion to Strike Punitive Damages

"In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]" (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

"The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]" (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.) A complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code Sec. 3294 (a).)

"Malice is defined in the statute as conduct 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725.) Despicable is a powerful term used to describe circumstances that are "base," "vile," or "contemptible." (Id. at 726.) The statute "plainly indicates that absent an intent to injure the plaintiff, "malice" requires more than a "willful and conscious" disregard of the plaintiffs' interests.

The additional component of "despicable conduct" must be found." (Ibid.) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code Sec. 3294(c)(3).)

In the habitability context, courts have permitted requests for punitive damages at the pleading stage in cases where, despite actual notice, defendants intentionally failed to remediate persistent uninhabitable conditions presenting serious health hazards. For example, in Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, the court found that a plaintiff could recover punitive damages for numerous persistent uninhabitable conditions of which she repeatedly notified the landlord defendants. (Id. at 921.)

The plaintiff alleged specific uninhabitable conditions, including heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard. (Ibid.) Despite notice, the defendants knowingly, intentionally and willfully failed to correct the defective conditions by not even attempting to repair the defects, except on one occasion where they sent a plumber in response to a complaint regarding the toilet. (Id. at 913.)

Though, the Court must note that Stoiber was decided before the amendments to the punitive damages statute which added the element of "despicable" conduct to the definition of malice.

Defendant moves to strike specific paragraphs alleging malice, oppression and fraud. The FAC alleges malicious, oppressive, and fraudulent conduct in connection with the causes of action for negligence, habitability, trespass, quiet enjoyment, negligent hiring, fraud, breach of contract, covenant of fair dealing, disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, Unruh violation, and elder abuse.

The FAC alleges that Defendant intended to harm Plaintiff for malicious purposes. For example, the FAC alleges Weiss allegedly knew that the malfunctioning gas fireplace in the unit, as well the common gas water heater, was leaking gas and spewing carbon monoxide into the unit due to an improper connection involving the air conditioning vents. (FAC P.P. 7, 36-43.) Weiss knowingly permitted this leak to continue unabated until the gas alarm went off and Plaintiff called the gas company herself, which resulted in the heater being red tagged.

Only after the heater was red-tagged were Defendants forced to fix the issue. (Id., P. 44.) As a result, Plaintiff was exposed to leaking gas, which not only risked killing her, but also caused damages. (Id., P.P. 64, 69.) The FAC emphasizes that Defendant's conduct was an intentional decision to expose Plaintiff to a known dangerous condition so that she would be harmed. (Id., P. 7.)

The habitability action also alleges that Defendant intentionally failed to maintain the certain habitable conditions, including: effective weather/waterproofing; broken windows which cannot safely open or close; doors that are "barely hanging onto the walls" and which do not lock properly; the aforementioned gas issues, which are still not maintained in good working order; occasional water shutoffs for days at a time due to Defendant's intentional failure to maintain the pipes and water heater; accumulation of filth, debris and pests, including unabated roaches inside Plaintiff's unit. (Id., P. 81.)

Defendant also has not put back Plaintiff's smoke detector, which poses a safety issue. (Id., P. 84.) Defendant had notice of said issues for years, but decided not to repair them, in conscious disregard of Plaintiff's safety and with the intent to injure Plaintiff. (Id., P.P. 81, 84, 88-89.) Defendant lied about the potential for repairs, emphasizing his conscious disregard for his duty to repair. (Id., P. 85.)

If taken as true, such facts would establish malice on Defendant's part. Moreover, liberally construed, these facts could be found to be despicable conduct in willful/conscious disregard of the rights or safety of Plaintiff and other tenants. These allegations would therefore support the imposition of punitive damages as to the negligence and habitability claims. Additionally, these allegations are incorporated and support the claim for a tortious breach of quiet enjoyment, as well as the FEHA discrimination/retaliation claims. (FAC P.P. 118-121, 188-191, 223-225.) The punitive damages claim is well-pled as to those causes of action.

The remaining causes of action do not properly support the imposition of punitive damages. For instance, as to the trespass cause of action, the FAC does not allege sufficient facts showing that Defendant engaged in intentional conduct designed to injure Plaintiff or that he committed acts of despicable conduct with a willful and conscious disregard of the rights or safety of Plaintiff. The trespass claim only pertains to Defendants causing their vendors to perform an inspection of the unit under false pretenses.

Plaintiff purports to have put conditions on the vendor's entry, including that her property not be recorded by any means. (FAC P. 101.) However, the inspector took pictures. (Id., P. 102.) Plaintiff does not allege facts that this violation of her scope of consent to enter her apartment was legally supported, or specific facts which could be considered intentional conduct with the intent of injuring Plaintiff. Simply put, taking pictures of the unit during an inspection, even under false pretenses, could not be considered despicable conduct required for the imposition of punitive damages.

More facts would be needed to establish malice. Any alleged "fraud" here would also need to be supported with specific facts concerning the circumstances of Plaintiff's purported conditional consent and Defendant's notice to enter the unit. The request for punitive damages in connection with the trespass claim will be stricken with leave to amend.

As to the negligent hiring claim, the FAC does not allege that Weiss hired, supervised or retained vendors with the intent to harm Plaintiff. Plaintiff only provides generic allegations the vendors were unfit, that Weiss knew of the unfitness, but hired and retained them anyways. (FAC P.P. 143-147.) More specific facts are required to show the vendor's unfitness to support the imposition of punitive damages on such a claim. Thus, the motion will be granted with leave to amend as to the allegations supporting the imposition of punitive damages here.

As to the fraud claim, the motion is moot per the grant of leave to amend on demurrer. As a matter of law, the breach of contract cause cannot support imposition of punitive damages. (Civ. Code Sec. 3294(a); Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1054-1055.) Thus, the motion will be granted without leave to amend as to the breach of contract cause.

As to the FEHA accommodation claim, Defendant allegedly refused to provide unspecified reasonable accommodations. (FAC P.P. 202-205.) The FAC only provides the conclusion that this refusal was malicious, oppressive and fraudulent. (Id., P.P. 207-208.) Without specific facts showing that the refusal to provide a reasonable accommodation was malicious, oppressive or fraudulent, the motion to strike must be granted with leave to amend.

Similarly, as to the FEHA interactive process claim, more specific facts are required to show that Plaintiff sought a reasonable accommodation, such that Regency refusal to acknowledge the requests could be considered malicious, oppressive or fraudulent. (FAC P.P. 213-214.)

Accordingly, the motion to strike is: GRANTED as to the supporting allegations of the trespass, negligent hiring, fraud, FEHA accommodation, and FEHA interactive process claims, with 20 days' leave to amend; GRANTED without leave to amend as to the contract cause of action; and DENIED as to the remaining allegations.

Finally, the Court will caution Plaintiff against disparaging the Court in her legal briefs. Specifically, in the opposition to the motion to strike, Plaintiff states "[t]here are few more malicious, oppressive or fraudulent acts than putting human beings (again including Plaintiff and renters - no matter how much Defendants and the Court hates them) . . .." (Opp. p.2.) As a licensed attorney, the Court reminds Plaintiff that like all California lawyers, she is duty-bound to "maintain the respect due to the courts of justice and judicial officers." (Bus. & Prof.

Code, Sec. 6068(b). Plaintiff must act in a manner that "instill[s] public confidence in the legal system and our judicial system." (Scott C. Moody, Inc. v. Staar Surgical Co. (2011) 195 Cal. App. 4th 1043, 1048.) As stated in In re S.C., (2006) 138 Cal. App. 4th 396, 422, "[d]isparaging the trial judge is a tactic that is not taken lightly . . .. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is [sanctionable] for an attorney to make the unsupported assertion that the judge was 'act[ing] out of bias toward a party.' " Comments such as those made by Plaintiff are unsupported, and Plaintiff is cautioned against making such baseless allegations in the future.

Case Number: 26SMCV00127 Hearing Date: August 18, 2026 Dept: M CASE NAME: 15515 Sunset Blvd LLC, v. the Via De La Paz Association, et al.