TOKUKO SYLVESTER VS MARC KUNZE, ET AL.

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 2:00 PM LINE 5 25-CLJ-01541 TOKUKO SYLVESTER VS MARC KUNZE, ET AL.

TOKUKO SYLVESTER PRO PER MARC KUNZE CHARLES J. SMITH

DEFENDANTS’ DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

TENTATIVE RULING:

For the reasons stated below, defendants Marc and Amanda Kunze’s Demurrer to plaintiff Tokuko Sylvester’s May 4, 2026 Second Amended Complaint (SAC) is SUSTAINED WITHOUT LEAVE TO AMEND as to all asserted claims. (Code Civ. Proc. § 430.10, subd. (e).)

Although leave to amend is liberally allowed, such leave should not be granted where, in all probability, amendment would be futile. (Foroudi v. Aerospace Corp. (2020) 57 Cal.App.5th 992, 1001.) It is the burden of the party seeking leave to amend to show the possibility that amendment can cure the legal defects of the pleading. (A.J. Fistes Corp. v. GL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 687 (A.J. Fistes).)

If plaintiff seeks leave to amend, she should properly contest the tentative ruling and appear at the hearing (in person or via Zoom) to state facts that provide a reasonable possibility that she can state a cause of action as to the violations alleged.

A.

Background

As alleged in her SAC, plaintiff Tokuko Sylvester is the former landlord of defendants Marc and Amanda Kunze. For about three years, defendants leased a rental unit from plaintiff in Pacifica, California. Defendants vacated the property on May 31, 2021. Plaintiff contends that after defendants moved out, she discovered that they had damaged several items in the rental unit, which she repaired or replaced at some expense. Plaintiff filed her initial Complaint on February 27, 2025;l a First Amended Complaint on March 11, 2025; and the operative Second Amended Complaint on May 4, 2026. The SAC alleges that defendants damaged several items and appliances in the rental unit, including a dishwasher, a kitchen faucet, and a garbage disposal.

The court previously granted defendants’ motion for judgment on the pleadings which was directed to plaintiff’s FAC. (April 15, 2026 Order.) Plaintiff’s SAC asserts the following causes of action: (1) intentional infliction of emotional distress (IIED”; (2) fraud; (3) elder abuse; (4) negligence; and (5) “neglect.” Defendants again demur to all asserted claims.

B. Legal standard

“[I]t is well settled that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief [citation].” (John’s Grill, Inc. v. The Hartford Financial Services Group, Inc. (2024) 16 Cal.5th 1003, 1013 (John’s Grill), quoting Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 (Alcorn).)

A court reviewing a demurrer accepts as true the facts alleged in the complaint as well as those of which it may take judicial notice (John’s Grill, supra, 16 Cal.5th at p. 1008, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank)), but does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) The complaint is construed liberally (Code Civ. Proc., § 452), and facts that may be inferred from those expressly alleged must also be accepted as true. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405.)

To properly state a cause of action, a complaint must allege every element of that cause of action. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1134.) And to be sustained, a “demurrer must dispose of an entire cause of action.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

“[I]t is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Aubry, supra, 2 Cal.4th at p. 967.) Leave to amend should not be granted where, in all probability, amendment would be futile. (Foroudi, supra, 57 Cal.App.5th at p. 1001.) The party seeking leave to amend has the burden of demonstrating the possibility that amendment can cure the legal defects of the pleading. (A.J. Fistes, supra, 38 Cal.App.5th at p. 687.)

Discussion

The Demurrer is SUSTAINED as to the intentional infliction of emotional distress (IIED) cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Pleading an IIED claim requires factual allegations showing that the defendant(s) engaged in “extreme and outrageous” conduct. (CACI 1600.) To be “extreme and outrageous,” the alleged conduct must be “’so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, cleaned up and citation omitted.) “Liability for intentional infliction of emotional distress “‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’” (Ibid., citing Rest. 2d Torts, § 46, com. d.)

While the court is sympathetic to plaintiff’s situation, and agrees with plaintiff’s argument that different people and cultures may disagree about what constitutes “extreme and outrageous” conduct, the court does not agree that the SAC’s allegations, reasonably construed, can sustain an IIED claim. The SAC does not allege that the defendants intentionally caused any damage to plaintiff’s property, nor does it allege that defendants took any of plaintiff’s property for their benefit. Rather, it alleges that defendants unintentionally damaged some items and appliances during their tenancy, that they attempted some repairs without plaintiff’s written consent, and that

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ they did not fully disclose the property damage, and instead characterized it as “normal wear and tear.” Reasonably construed, these allegations do not rise to the level of “extreme and outrageous” conduct necessary to support an IIED claim.

Further, and independently, the IIED cause of action has a two-year statute of limitations. (Code Civ. Proc., § 335.1; Wassmann v. South Orange County Community College Board (2018) 24 Cal.App.5th 825, 852-853.) The two-year statute of limitations has run as to the IIED claim, for the reasons discussed below under the “negligence” cause of action.

The Demurrer is SUSTAINED as to the “fraud” cause of action. (Code Civ. Proc. § 430.10, subd. (e).)

Fraud comes in many forms, including fraud by intentional misrepresentation (CACI 1900), and fraud by concealment (CACI 1901). Regardless of the type of fraud alleged, a fraud claim must be pled with specificity. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996)12 Cal.4th 631, 645 (Lazar).) “‘[T]he policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.’ [Citation.] [¶] This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid., quoting Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, cleaned up and further citations omitted in original.)

The pleading must contain enough information to show: (1) a false representation or concealment of material fact; (2) knowledge of the falsity; (c) intent to defraud to induce reliance; (4) justifiable reliance; and (5) damage based on that reliance. (Philipson & Shnon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.)

The SAC does not sufficiently plead a claim for fraud by intentional misrepresentation, for multiple reasons. (CACI 1900.) First, it does not identify any misrepresentation of fact. It only alleges that defendants mischaracterized the damage to the rental unit as “normal wear and tear” (SAC, at pp. 2-4; 8), even though the damage, according to plaintiff, was more significant than normal wear and tear. (Ibid.) Defendants’ characterization of the property condition as “normal wear and tear” constitutes their opinion rather than a misrepresentation of an existing fact. Further, even if defendants’ alleged statement could be viewed as a misrepresentation of fact, it is not plead with specificity, because the SAC does not specify who, that is, which of the defendants, made this statement, or when, how, where, to whom it was made. (Lazar, supra,12 Cal.4th at p. 645.)

Further, and independently, plaintiff’s fraud claim, whether by intentional misrepresentation or concealment, is time-barred. (Code Civ. Proc., § 338, subd. (d).) (See discussion, below, under the “negligence” cause of action.) Plaintiff’s own pleadings establish that plaintiff discovered the essential facts concerning defendants’ alleged fraud, including any alleged concealment of property damage, very shortly (within about a month) after defendants

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ vacated the unit on May 31, 2021. Because plaintiff did not file her initial Complaint until February 27, 2025, the three-year statute of limitations has run as to the fraud claim.

The Demurrer is SUSTAINED as to the “elder abuse” cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

The SAC alleges “financial elder abuse,” which is governed by Welfare & Institutions Code, section 15610.30, which states:

(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following:

(1) 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.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.

The statute addresses the taking of an elder’s property “for a wrongful use or with intent to defraud.”

Reasonably construed, the SAC does not allege financial elder abuse. The SAC alleges that defendants unintentionally caused damage to several items and/or appliances before they vacated the rental unit, that they improperly tried to repair some of the items, and failed to fully disclose some of the damage to plaintiff. Specifically, the SAC alleges that defendants damaged and/or did not properly repair a dishwasher, a garbage disposal, and a faucet. Section 15610.30 targets the wrongful taking of an elder’s property for the defendant’s own benefit — not the incidental alteration of, or repairs to, or damage to leased property during a tenancy.

Plaintiff’s SAC suggests (without directly alleging) that defendants may have removed and/or replaced parts of some appliances during their repair attempts. (SAC, at pp. 2, 8.) But the SAC does not clearly identify any specific item that defendants allegedly removed from the property. Further, by any objective reading, replacing parts of an appliance as part of an attempted repair cannot be reasonably be viewed as misappropriating or stealing plaintiff’s property for defendants’ benefit. Reasonably construed, the SAC contains no allegations that defendants took or appropriated plaintiff’s property “for a wrongful use or with intent to defraud.”

Nor can a dispute about the return of a security deposit be reasonably viewed as an appropriation or taking of plaintiff’s property.

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ Accordingly, the alleged conduct does not fall within the elder abuse statute.

The Demurrer is SUSTAINED as to the “negligence” cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

On its face, the statute of limitations has run on plaintiff’s negligence claim. A negligence claim based on alleged property damage is governed by a three-year statute of limitations. (Code Civ. Proc., § 338.) Plaintiff alleges that defendants’ lease ended on May 31, 2021, and they vacated the property on that date. Plaintiff filed her initial Complaint on February 27, 2025, about three years and eight months later. In opposing the demurrer, plaintiff invokes the “delayed discovery” rule, arguing that her claims did not accrue until after defendants had vacated, when she learned the full extent of the damage they had done to her property.

A complaint that shows on its face, or from matters subject to judicial notice, that it is barred by the statute of limitations is subject to demurrer. (Minton v. Cavaney (1961) 56 Cal.2d 576, 581.) On demurrer, the running of the statute must appear “clearly and affirmatively” from the face of the complaint (or from matters subject to judicial notice). It is not enough that the complaint might be time-barred. (Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32, 42.

“Generally speaking, a cause of action accrues at the time when the cause of action is complete with all of its elements.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 806–807.) “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Ibid.) “A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ (Ibid, citing Gutierrez v.

Mofid (1985) 39 Cal.3d 892, 897 [“the uniform California rule is that a limitations period dependent on discovery of the cause of action begins to run no later than the time the plaintiff learns, or should have learned, the facts essential to his claim”].) “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Ibid.) “[B]y discussing the discovery rule in terms of a plaintiff’s suspicion of ‘elements’ of a cause of action, it was referring to the ‘generic’ elements of wrongdoing, causation, and harm.” (Ibid.) “In so using the term ‘elements,’ we do not take a hypertechnical approach to the application of the discovery rule.

Rather than examining whether the plaintiffs suspect facts supporting each specific legal element of a particular cause of action, we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them.” (Ibid.)

Here, plaintiff’s own pleading establishes that her negligence claim accrued shortly after defendants vacated the property. In her SAC and in the Exhibits attached thereto, plaintiff makes clear that very shortly after defendants vacated on May 31, 2021, she and Mr. Rosson (the former co-owner) inspected the unit and discovered property damage that plaintiff believed defendants had caused, and in part, had attempted to conceal. The SAC alleges, in part:

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ The defendants’ tenancy ended on May 31, 2021. The plaintiff discovered extensive damages in the rental unit. The dishwasher, kitchen faucet, and garbage disposal were broken and there were damages to the floor and the cabinets ....

[Plaintiff] found water leakage from the garbage disposal. She also noticed the low part of the kitchen counter side panel expanded in size. It looked like the side panel absorbed water on the floor. The water leakage was witnessed by a cleaning lady, who [Plaintiff] hired, on June 7, 2021. (Exhibit 4) [Plaintiff] also noticed a plastic liner covering the kitchen sink cabinet floor. First, [Plaintiff] thought that the defendants wanted to make the inside pretty. No, that was not the case. [Defendants] were just hiding the water damages due to the leakage from the garbage disposal. [Plaintiff] immediately purchased both a new kitchen faucet and a new garbage disposal and hired a plumber to install them. Without these essential items, [Plaintiff] could not have rented the rental unit immediately.

... [Plaintiff] saw black molds ... inside of the dishwasher. (Exhibit 5 and 6) [It is difficult to show the details of the photo. The photo was taken on June 16, 2021 just a day before a new dishwasher’s arrival.

When [Plaintiff] started the dishwasher, within a minute, the soap bubbles and water started overflooding from the side edges and the bottom of the dishwasher; and, the soap bubbles and water rapidly covered the floor around the dishwasher. (Exhibit 7: p.1 and p.2) [the photo of June 8, 2021: it is difficult to show the water on the floor. ... [Plaintiff] immediately stopped the machine and opened the door. The inside of the dishwasher was filled with water and soap bubbles. (Exhibit 8) [The photo of June 8, 2021] By observing the dishwasher conditions, [Plaintiff] thought that the dishwasher was broken. ... [Plaintiff] immediately wondered, if the dishwasher was broken, why the defendants did not tell the problem to [Plaintiff] (or Rosson). [Plaintiff] needed to order a new dishwasher. [Plaintiff] was in a panic and very distressed because the new tenant, who already signed the lease agreement, was ready to move in very soon.

On June 7, 2021, [Plaintiff] emailed and stated (Exhibit 12: p.1):”Richard and I just discovered that there is significant water leakage at the bottom of the kitchen sink. Did you know there was a problem? Also, the faucet looks very bad. It looks like you put tape all around it. Water splashes all over. When did it become like that? Also, it seems that the dishwasher had not been used regularly...

[Plaintiff] emailed three times to ask about the kitchen sink faucet and leakage. “This is the third mail.” (Exhibit 12: p. 2) The defendants still did not reply. [Plaintiff] found a tape which the defendants put all around the faucet, and it was obvious that they knew that the water from the faucet splashed all over and they had tried to prevent the water from splashing.

In his email (June 8, 2021), Rosson listed three items that should have been mentioned by the defendant, Marc Kunze. On June 8, 2021, Rosson wrote (Exhibit 14: p.1 and p.2): “We asked you to give us a list of things that needed to be repaired on May 14. This list

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ was to include items that might require contractors to resolve as well as the purchase of parts. Marc walked me through his list of things. After you left, we discovered that a number of substantial issues had not been mentioned.”

On June 16, 2021, [Plaintiff] again requested them to answer four questions regarding seven damaged items. (Exh. 15: at p.1 Email title: the damages in the rental unit; see SAC and exhibits thereto at pp. 2-8 [italics added]; see also June 8, 2021 email from plaintiff (attached to SAC), stating that the kitchen faucet, garbage disposal, and dishwasher all need replacement [“Previous tenants were ‘very quiet’ about these problems. We only discover [sic] last Monday.”]; June 7, 2021 email from plaintiff to defendants (attached to SAC), stating: “Richard and I just discovered that there is significant water leakage at the bottom of the kitchen sink ...

Also the faucet looks very bad. It looks like you put tape all around it .... Also it seams that the dishwasher had not been used regularly ...”); and Rosson’s June 8, 2021 email to defendants (attached to SAC), stating: “After you left we discovered that a number of substantial issues had not been mentioned.

1. The dishwasher is not working.

2. The disposer is broken.

3. The kitchen faucet is broken. We have replaced and installed the three items listed above.”

In sum, plaintiff’s own pleadings establish that almost immediately after defendants vacated the property on May 31, 2021, she and/or Rosson inspected the property and discovered several items of alleged property damage, apparently caused by defendants. Plaintiff promptly communicated her concerns about the alleged property damage to the defendants, and inquired as to why they had not disclosed this damage prior to moving out. Plaintiff expressly suggested that defendants had concealed some of the claimed property damage.

Thus, by her own admissions, shortly after defendants vacated the unit on May 31, 2021, plaintiff had already discovered several items of alleged property damage, questioned defendants about the damage, and replaced several damaged appliances. Therefore, her negligence claim accrued at that time, which was still well over three years before plaintiff filed her initial complaint. Accordingly, the statute of limitations has run on the negligence claim. (Code Civ. Proc., § 338.) The fact that plaintiff may have later discovered additional property damage is irrelevant as to when the statute of limitations began to run.

The Demurrer is SUSTAINED as to the “neglect” cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

“Neglect” is not a recognized civil cause of action in California, and plaintiff cites no authority suggesting otherwise. Plaintiff appears to base this purported “cause of action” on defendant Marc Kunze’s failure to update his mailing address after he vacated the unit, and his failure to retrieve his Amazon packages that arrived at plaintiff’s property after Kunze moved out in May 2021. Even assuming this “cause of action” is mislabeled, these underlying facts do not appear sufficient to form the basis of any cognizable cause of action.

Finally, given the foregoing, the court need not address defendants’ uncertainty arguments. (Code Civ. Proc., § 430.10(f).)

August 19, 2026 Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ C. Leave to amend

The demurrer is SUSTAINED without leave to amend. Leave to amend should generally be granted if there is a reasonable possibility that the defects in the pleading can be cured. But the burden lies with plaintiff to show how the SAC can be amended and how a proposed amendment would change the legal effect. (Blank, supra, 39 Cal.3d at p. 318 [“The burden of proving such reasonable possibility is squarely on the plaintiff.”].) Here, plaintiff has already amended the Complaint twice, and has not suggested any manner in which the SAC could be amended to state a viable cause of action against defendants. Because granting leave to amend appears futile, the demurrer is sustained without leave to amend.

However, if plaintiff seeks leave to amend, she should properly contest the tentative ruling and appear at the hearing (in person or via Zoom) to state facts that provide a reasonable possibility that she can state a cause of action as to the violations alleged.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendants’ counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, providing written notice of the ruling to all parties who have appeared in this action, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), which states in part that the “prevailing party on a tentative ruling is required to prepare a proposed order repeating verbatim the tentative ruling” (emphasis added). The order should be e-filed only, do not email or mail a hard copy to the court.