SEAN MCCULLOUGH VS. ARVAND SABETIAN, ET AL

August 21, 2026 Law and Motion CalendarPAGE 2 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Case Title / Nature of Case 9:00 AM Line 1 25-CIV-02066 SEAN MCCULLOUGH VS. ARVAND SABETIAN, ET AL

SEAN MCCULLOUGH THOMAS W.J. PURTELL ARVAND SABETIAN ARIEL M. GOZZIP

Defendants’ Demurrer to Plaintiff’s First Amended Complaint

TENTATIVE RULING:

Defendants Watergate Sales, Inc. dba Woodlake Anchor, and Clement Joseph Stein III’s Demurrer to Plaintiff Sean McCullough’s First Amended Complaint (“FAC”) filed November 24, 2025, is SUSTAINED in part and OVERRULED in part.

In reaching its decision the Court considered all the submitted and relevant pleadings, including the Complaint, the Notice of Demurrer and Demurrer with Memorandum of Points and Authorities (“MPA”), Opposition brief, Reply, and any declarations as submitted.

Background

Plaintiff Sean McCullough was a residential tenant at 1726 Sequoia Ave., Unit 7, Burlingame, CA 94010 from May 1, 2024, until February 18, 2025. (Compl. ¶ 13, and FAC ¶ 13.) The Complaint alleges that Defendant Kam Ho Lau, Ziprent; Arvand Sabetian, Woodlake Anchor, and Clement Joseph Stein III owned managed, maintained, and controlled the apartment unit. (Compl. ¶ 14 and FAC ¶ 14.) Plaintiff claims to have taken possession of the subject property pursuant to a lease contract, which should have been attached to the FAC as Exhibit A (FAC, pg. 3, lines 24-25), but the FAC as filed inexplicably has no such exhibit attached.

Plaintiff alleges he was constructively evicted because the apartment contained numerous substandard and dangerous conditions, including unpermitted electrical and plumbing work, severe leaks, and violations of local building and housing codes. Plaintiff alleges that these conditions rendered the unit unsafe and unlawful for habitation and that Defendants knowingly allowed the property to remain in this condition. Plaintiff asserts that these issues caused him physical harm, emotional distress, and a loss of use of the property, ultimately resulting in his constructive eviction on February 18, 2025. (Compl. ¶¶ 13, 16-17 and FAC ¶¶ 13, 16-17.)

Plaintiff’s FAC still alleges the same following causes of action: (1) Negligence; (2) Breach of the Implied Warranty of Habitability; (3) Breach of the Implied Warranty of Quiet Enjoyment; (4) Intentional Infliction of Emotional Distress; (5) Breach of Contract; (6) Breach of the Covenant of Good Faith and Fair Dealing; and (7) Private Nuisance.

Moving defendants generally demur to the FAC on the grounds that the third, fourth, fifth, sixth

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ and seventh causes of action fail to state facts sufficient to constitute a cause of action against them pursuant to Code of Civil Procedure section 430.10 subdivision (e). (See McKenney v. Purepac Pharm. Co. (2008) 167 Cal.App.4th 72, 77 [discussing meaning of the term “general demur”].) These are the same grounds on which defendants had demurred to the original Complaint, as the Complaint was only very minimally altered in the FAC.

Plaintiff opposes, contending that the FAC is proper on the basis that the Court already ruled on the prior Demurrer to the original Complaint’s seventh cause of action for Private Nuisance, and that the balance of the FAC is properly pled though little substantive or meritorious argument was made.

Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) Though failure to sufficiently meet and confer is not ground to overrule or sustain a demurrer (Code Civ. Proc., § 430.41(a)(4)) counsel are reminded that adherence to these professional courtesies and standards greatly assist the goals of the litigation process and system to address those issues which cannot be resolved informally upon their merits. Here, the Court notes the parties did not meet and confer as required because Plaintiff’s counsel was again unresponsive to defense counsel’s efforts to arrange their meeting. (Declaration of Katharine Burlington, Esq. ¶¶4-5.)

Legal Standard

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. (Code Civ. Proc., §§ 430.10 (e), 430.30, 430.70.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Code Civ. Proc., § 430.10 (e); (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) A special demurrer for uncertainty, Code of Civil Procedure section 430.10, subdivision (f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v.

Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, a demurrer for uncertainty is strictly construed because “ambiguities can be clarified under modern discovery procedures.” (Ibid. [internal citation omitted].)

When considering demurrers, courts give the complaint a reasonable interpretation, reading it as a whole and the parts in their context, in the light most favorable to the plaintiff and liberally construed with a view to attaining substantial justice among parties. (Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012, 1016-1017 [citations omitted].) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) In reviewing the complaint on demurrer, therefore, the trial court has an independent duty to “determine whether or not the ... complaint alleges facts sufficient to state a

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) When a plaintiff “has stated a cause of action under any possible legal theory” it is error to sustain a demurrer. (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200.)

Third Cause of Action – Breach of Implied Warranty of Quiet Enjoyment

It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment.... In recent years, the covenant of quiet enjoyment has been expanded, and in this state, for example, it insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]

(Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 291–292.)

Here, the FAC adequately alleges the interruption of Plaintiff’s quiet enjoyment of his apartment unit. To wit, working plumbing and sewage, electrical components in compliance with state law which amounted to violations of city building code for which defendants received notices. Plaintiff also alleges there were severe leaks. (FAC¶¶ 16-17.) However, the FAC once again does not adequately discuss or allege how the moving defendants are responsible. It is still unclear which of the moving defendants are parties to the lease agreement. It is also unclear what are each of the moving defendants’ relationship to or responsibility to the subject property. Plaintiff needs to identify a specific defendant(s) and then state what said defendant(s) actually did to Plaintiff or his apartment unit.

There are only conclusory and generic allegations that “Plaintiff took possession of a unit pursuant to a contract with Defendants (hereinafter “Contract”)...” (FAC ¶ 15) and that “Defendants KAM HO LAU; and DOES 1 to 10;... ZIPRENT; ARVAND SABETIAN, an individual: WOODLAKE ANCHOR; CLEMENT JOSEPH STEIN III, an individual; and DOES 1 to 10 managed, maintained, and controlled the Subject Property.” (FAC ¶14.) Defendant’s repeated argument that the “complaint lumps together multiple allegations against multiple defendants” is a point that is again well taken. Defendant’s MPA, pg. 5, lines 5-11.

Although relevant to the Fifth Cause of Action – Breach of Contract discussed below, the Court also addresses the following deficiency here. It is established and axiomatic that the terms of a contract may be plead by setting forth its specific terms, or by attaching a copy of the contract and incorporating it by reference. See, Santa Rosa Bank v. Paxton (1906) 149 Cal. 195, 198-199; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 (citations to Witkin omitted); Heritage Pacific Financial LLC v. Monroy (2013) 215 Cal.App.4th 972, 993. Relatedly, a contract must be identified as either being written, oral, or implied by conduct and if not so stated, is subject to demur. CCP § 430.10(g). Merely claiming a “contract” exists without more, is wholly insufficient.

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ This point was specifically addressed on the Demurrer to the original Complaint. Plaintiffs apparently attempted to cure this defect, by claiming to attach a copy of the Contract. FAC, pg. 3, lines 24-25. However, the filed FAC does not have an Exhibit A, and does not have any agreement attached.

This claim fails to state sufficient facts, and accordingly, the demurrer is SUSTAINED with leave to amend.

Fourth Cause of Action – Intentional Infliction of Emotional Distress (IIED)

The elements of a cause of action for IIED are “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273, as modified on denial of reh'g (May 15, 2023), review denied (Aug. 9, 2023).) “It must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.’ [Citation.]” (Potter, 6 Cal.4th at 1002, emphasis original.)

Here, for the reasons stated above, it is still not clear the conduct was directed by the instant defendants, what their involvement is on the subject property, or whether or not they are even parties to the lease agreement.

All Plaintiff has done is allege substandard housing conditions, largely in a conclusory fashion and without factual detail. The FAC fails to allege, and Plaintiff’s Opposition does not even argue for, any extreme or outrageous conduct, any specific intent or recklessness, nor any nonconclusory facts showing the alleged severity of the claimed emotional distress. Instead, Plaintiff’s opposition merely quotes conclusions from the FAC, and argues it mirrors the pleading requirements of CACI 1600. Opposition, pg. 8, lines 14-17. Therein lies part of the problem, as CACI 1600 outlines bare pleadings and legal theory, not the facts needed to be placed in an operative complaint to withstand a demurrer.

Plaintiff was a residential tenant at the subject premises from May 1, 2024, until February 18, 2025. (Compl. ¶ 13, and FAC ¶ 13.) Thus all facts that would have provided support to a cause of action for IIED would be within Plaintiff’s personal knowledge since that timeframe, and we are now approximately a year and half after the tenancy ended. If there was specific extreme and outrageous conduct, plaintiff should have alleged it. If there were facts to demonstrate the severity of the alleged emotional distress, again plaintiff should have alleged it. Despite having been granted the opportunity to amend, plaintiff has not done so, which is demonstrative that such facts do not exist.

It is not an abuse of discretion to sustain a demurrer without leave to amend, if plaintiff is unable to show there is a reasonable possibility that the defect can be cured by amendment. Aubry v. Tri- City Hospital Dist. (1992) 2 Cal.4th 962, 967. “The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect by amendment.” Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501. Plaintiff’s Opposition fails to even argue, at all, that it can somehow cure the same defects that existed in the Complaint and which were repeated in the FAC. Any

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ reasonable articulation of how it can cure is utterly missing. Instead, the entire Opposition is grounded in argument that the bare legal conclusions of the FAC are sufficient, which again supports a finding that Plaintiff has no actual facts to state in cure. On this cause of action, the Court finds that “amendment would be futile.” (Nelson v. Tucker Ellis, LLP (2020) 48 Cal.App.5th 827, 848 [internal citations and quotations removed].)

Accordingly, the demurrer is SUSTAINED without leave to amend.

Fifth Cause of Action – Breach of Contract

“ ‘A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach[,] and damage to plaintiff resulting therefrom.’ ” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031.) “ ‘A lease is both a contract and a conveyance; under such an agreement there are rights and obligations based upon the relationship of landlord and tenant as well as upon the contractual promises.’ ” (Ibid.) “In every lease the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises.... [T]he landlord is bound to refrain from action which interrupts the tenant's beneficial enjoyment.” (Guntert v.

City of Stockton (1976) 55 Cal.App.3d 131, 138.) “It should be unnecessary to observe that a breach of contract is actionable without requiring the plaintiff to establish bad faith or malice.” (Id. at p. 141, 126 Cal.Rptr. 690.) (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 655–656.)

As noted on the prior demurrer to the complaint, it is established and axiomatic that the terms of a contract may be plead by setting forth its specific terms, or by attaching a copy of the contract and incorporating it by reference. See, Santa Rosa Bank v. Paxton (1906) 149 Cal. 195, 198-199; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 (citations to Witken omitted); Heritage Pacific Financial LLC v. Monroy (2013) 215 Cal.App.4th 972, 993. Relatedly, a contract must be identified as either being written, oral, or implied by conduct and if not so stated, is subject to demur. CCP § 430.10(g). Merely claiming a “contract” exists without more, is wholly insufficient.

It appears that Plaintiffs attempted to cure this defect by claiming to attach a copy of the contract. FAC, pg. 3, lines 24-25. However, the filed FAC does not have an Exhibit A, i.e. there is no agreement attached. In light of this attempt, there would appear to be a possibility that plaintiff can cure this still glaring defect, and plaintiff will be given one final opportunity.

The Court also notes that the allegations for this cause of action, are exactly the same as between the complaint and the FAC. See, Complaint ¶¶ 35-39 and FAC ¶¶ 41-45. Plaintiff would be well advised to not only address the utter omission of attaching the actual agreement, but to also address the substance of Defendant’s Demurrer. This need is readily highlighted by the fact that Plaintiff’s counsel has again failed to meet and confer before this demurrer was filed.

Accordingly, the demurrer is SUSTAINED with leave to amend.

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Sixth Cause of Action – Breach of Covenant of Good Faith and Fair Dealing

“A cause of action for tortious breach of the covenant of good faith and fair dealing requires the existence and breach of an enforceable contract as well as an independent tort. (See Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 57, 248 Cal.Rptr. 217 [“The inherent precondition to such a tort claim is the existence and breach of an enforceable contract.”].)” (Innovative Business Partnerships, Inc. v. Inland Counties Regional Center, Inc. (2011) 194 Cal.App.4th 623, 631– 632.)

The demurrer is again SUSTAINED with leave to amend, because the entirety of the contract is still improperly plead as noted above.

Seventh Cause of Action – Private Nuisance

In an action for private nuisance, plaintiff must prove an interference with its use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938; in accord, Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176.

Just as the Court already found in relation to the complaint, the Court again finds the FAC adequately alleges Plaintiff’s use and enjoyment was substantially interfered with to the point he evacuated the premises because of the interruptions to his use. (FAC ¶¶ 16-17.) Reasonable people would generally consider lacking adequate plumbing, sewage and electricity unreasonable. (Today's IV, Inc., supra, at 1176.). The allegations are sufficient for the cause of action to withstand demurrer, though insufficient to support the claim for punitive damages (see Motion to Strike below). Plaintiff’s argument that this second attempt to demurrer on this cause of action is in bad faith, appears valid. It was overruled for the Complaint, and is still overruled for the FAC.

Accordingly, the demurrer is OVERRULED.

Leave to Amend

“[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.” (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379.) Accordingly, LEAVE TO AMEND is GRANTED only on the current Third, Fifth and Sixth Causes of Action.

Any amended complaint must be filed within fourteen (14) days of entry of this Court’s Order and shall be in accordance with this ruling. Since the ruling on the demurrer to the original complaint was by and large not adhered to by Plaintiff’s counsel, this ruling will attempt to be more explicit:

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

• In ¶ 9 of the FAC, Plaintiff added “NOTE Defendants WOODLAKE ANCHOR; CLEMENT JOSEPH STEIN III, an individual, ARE NOT included in the definition of “Defendants.” This addition only created ambiguity, but it is up to Plaintiff’s counsel to leave it in or omit it. • The cause of action for Intentional Infliction of Emotional Distress (currently the 4th Cause in FAC) shall be dropped from any amended complaint due to the above ruling. • This will then leave only six (6) causes of action in any amended complaint renumbered as (1) Negligence, (2) Breach of the Implied Warranty of Habitability, (3) Breach of the Implied Warrant of Quiet Enjoyment, (4) Breach of Contract, (5) Breach of the Covenant of Good Faith and Fair Dealing, and (6) Private Nuisance. • Each of the causes of action in any amended complaint, shall clearly identify the actual name of the specific party or parties against whom each cause of action is directed.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ 9:00 AM Line 2 25-CIV-02066 SEAN MCCULLOUGH VS. ARVAND SABETIAN, ET AL

SEAN MCCULLOUGH THOMAS W.J. PURTELL ARVAND SABETIAN ARIEL M. GOZZIP

Defendants’ Motion to Strike Portions of Plaintiff’s First Amended Complaint

TENTATIVE RULING:

Defendants Lau, Ziprent, Sabetian, and Stein’s Motion to Strike portions of Plaintiff Sean McCullough’s First Amended Complaint (“FAC”) is GRANTED.

In reaching its decision the Court considered all the submitted and relevant pleadings including the Complaint, the Notice of Motion and Motion to Strike, Memorandum or Points and Authorities (“MPA”), Opposition brief, Reply and the declarations submitted by each party.

Defendants move for an order striking the following portions of Plaintiff’s FAC for punitive damages:

- The prayer for attorneys’ fees against movants on page 11, lines 10-11. - The prayer for attorneys’ fees against movants on page 13, line 4-5. - The prayer for attorneys’ fees against movants on page 15, line 7-8. - The prayer for punitive damages against movants on page 15, lines 21-22. - The prayer for punitive damages against movants on page 16, line 12-13.

(Notice of Motion to Strike, p.2.)

Plaintiff opposes, primarily on the basis that the Court already denied Defendant’s motion to strike as alleged in Plaintiff’s original Complaint.

Meet and Confer

A party filing a motion to strike “shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5.) Counsel are reminded that adherence to professional courtesies and standards greatly assist the goals of the litigation process and system to address issues which cannot be resolved informally upon their merits. Here, the Court notes the parties did not meet and confer as required because Plaintiff’s counsel was again unresponsive to defense counsel’s efforts to arrange their meeting. (Declaration of Katharine

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Burlington, Esq. iSo Demurrer ¶¶4-5.)

Legal Standard

A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Code Civ. Proc. § 437; Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342.) A court may, upon motion or in its discretion, “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” and “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ.

Proc, § 436, subds. (a)-(b).) An “irrelevant matter” is an allegation that “is not essential to the statement of a claim or defense,” “is neither pertinent to nor supported by an otherwise sufficient claim or defense,” or “a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subds. (b)-(c).)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721, 34 Cal.Rptr.2d 898, 882 P.2d 894.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “ ‘Malice’ ” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1); College Hospital, supra, 8 Cal.4th at p. 725, 34 Cal.Rptr.2d 898, 882 P.2d 894.) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ.Code, § 3294 subd. (c)(2).) (Turman v.

Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Due to the ruling on the Demurrer to the FAC on this same day, the requests below are essentially moot and for uniformity, the Court GRANTS the motion on:

- The prayer for attorneys’ fees against movants on page 11, lines 10-11. - The prayer for attorneys’ fees against movants on page 13, line 4-5. - The prayer for punitive damages against movants on page 15, lines 21-22.

On October 24, 2025 on the Motion to Strike portions of the Complaint, this Court held:

Upon review of the Complaint, the Court finds Plaintiff has alleged sufficient facts demonstrating the necessary level of oppression, fraud or malice to support a request for punitive damages.

The Court now revisits that ruling as it appears to have been somewhat in error. Note, that ruling does not need to be reversed since it was mooted by the filing of the FAC.

The Court of Appeal explains that “[i]n 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.”

August 21, 2026 Law and Motion Calendar PAGE 11 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.) When considering whether the ruling on such a motion is correct, the court should “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.) A plaintiff may recover punitive damages for a defendant’s “oppression, fraud or malice” if shown by “clear and convincing” evidence. (Civ. Code, § 3294, subd. (a).) Allegations that are “mere speculation” will not establish malice. (Henderson v. Sec. Nat. Bank (1977) 72 Cal.App.3d 764, 771.

The FAC’s Seventh Cause of Action for Private Nuisance that remains at issue, does not provide any ultimate facts to support a claim for punitive damages. However, it incorporates prior allegations. FAC, ¶ 52. The only potentially factually sufficient allegations are then in Paragraphs 16, 17 and 18.

Paragraph 16 of the FAC, alleges that “[s]substantial defective conditions existed at the Subject Property during Plaintiff’s tenancy” however, just concluding that there were existing or preexisting conditions does not demonstrate any actual despicable conduct, nor any conscious disregard of Plaintiff’s rights. Problematic is that this paragraph also does not delineate which of the Defendants it applies to.

Paragraph 17 of the FAC, then generally refers to Defendants negligently exposing “Plaintiff to unsafe, illegal, uninhabitable and dangers conditions” without any factual detail. Alleging a failure to provide working plumbing, but there are no facts on what was wrong with the plumbing. There is likewise a reference to a failure to repair “severe leaks” which leaks are not identified. The allegations then in a similar and repeated fashion, refers to “electrical components,” “sewage” and “appliances” that did not conform with applicable law without identifying anything that actually failed nor identifying the laws allegedly broken.

There is a reference to hiring “unlicensed contractors” but no actual substandard work is identified. Finally, the section ends with a conclusion, that “Defendants permitted the Subject Property to deteriorate into a dilapidated, substandard uninhabitable state” which is argument, not factual. Again problematic is that this paragraph also does not delineate which of the Defendants it applies to.

Paragraph 18 of the FAC, then essentially repeats the conclusory allegations of Paragraph 17, but finally attempts to allocate them to (apparently) only Defendants Woodlake Anchor and Clement Joseph Stein III. This is only helpful to ascertain that these allegations, only pertain to these two defendants, but the underlying allegations have the same problems as Paragraph 17.

Accordingly, Defendants’ Motion to Strike is GRANTED on:

- The prayer for attorneys’ fees against movants on page 15, line 7-8. - The prayer for punitive damages against movants on page 16, line 12-13.

The Court notes that leave to amend the FAC was granted on the above Demurrer. If Plaintiff intends to allege the necessary factual detail to support a claim for punitive damages on the Private Nuisance cause of action, then Plaintiff is granted leave to amend for that purpose.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

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HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.