Cecily Vizas and Shane Lachtman v. The Ocean Terrace Condominium Association, et al.

the court ordered a transcript. Therefore, the court reduces Honda's memorandum of costs by $9,602.13.

E. Other Costs Finally, Plaintiff challenges Honda's claimed $3,614.48 in "other" costs including duplication charges, delivery of trial boxes, pickup of trial boxes, and court reporter fees and transcripts on the grounds that none of these items is supported by invoices or receipts. Plaintiff further argues that delivery and pickup charges are not recoverable. "Transcripts of court proceedings not ordered by the court" are expressly not allowable as costs under section 1033.5.

Here, Attachment 15 to Honda's memorandum of costs includes a request for $3,000.00 for court reporter fees and transcripts. While the court finds that a court reporter's presence is reasonably necessary to the litigation, the court finds that Honda has not shown that the transcripts were ordered by the court. Honda's counsel declares that he mistakenly miscalculated the cost of court reporting fees for three days of trial, with the correct total amounting to $8,331.64. (Bakaly Decl., P. 6.)

Regarding Honda's claimed costs for "duplications" and delivering and picking up the trial boxes, the court finds that Honda has not sufficiently shown that these costs were reasonably necessary to the litigation. Accordingly, the court reduces Honda's memorandum of costs by $3,614.48.

CONCLUSION Based on the foregoing, Plaintiff's Motion to Tax Costs is GRANTED in part and DENIED in part. The court grants Plaintiff's Motion to Tax the memorandum of costs by $13,216.61. Moving party is ordered to give notice of ruling.

Moving Party: Defendant A-1 Quality Restoration, Inc. dba ServPro of Downtown Long Beach Responding Party: Plaintiffs Cecily Vizas and Shane Lachtman RULING The court considered the moving papers, opposition, and reply. ServPro's Motion to Strike Punitive Damages is GRANTED with leave to amend.

PROCEDURAL BACKGROUND On January 31, 2024, Plaintiffs Cecily Vizas and Shane Lachtman (collectively, "Plaintiffs") filed a complaint against Defendants The Ocean Terrace Condominium Association ("Ocean Terrace"), Professional Community Management - An Associa Company ("Associa"), M. Roy Nelson Inc. dba Horizon Management ("Horizon Management"), William S. Ruiz ("Ruiz"), an individual and as Trustee of the William S. Ruiz Personal Trust, and DOES 1 through 50, inclusive (collectively, "Defendants"), alleging nine causes of action for: (1) Nuisance; (2) Breach of Contract (CC&Rs); (3) Negligence (1); (4) Negligence (2); (5) Fraud/Concealment; (6) Negligent Misrepresentation; (7) Premises Liability; (8) Intentional Infliction of Emotional Distress; and (9) Breach of Fiduciary Duty.

On April 23, 2024, Defendants Ocean Terrace, Associa, and Horizon Management filed a cross-complaint against Defendant Ruiz as individual and as trustee, alleging two causes of action for: (1) Indemnity; and (2) Contribution.

On October 15, 2024, Defendant Ruiz also filed a cross-complaint against Defendants Ocean Terrace, Associa, and Horizon Management alleging four causes of action for: (1) Implied equitable indemnity; (2) Comparative Contribution; (3) Equitable Indemnity; and (4) Declaratory Relief.

On February 17, 2026, Plaintiffs filed an amendment to their complaint identifying DOE 1 as ServPro of Downtown Long Beach/Signal Hill ("ServPro"). The same day, Plaintiffs filed three additional amendments to their complaint identifying DOE 2 as Indoor Restoration Environmental Services, LLC, DOE 3 as David G. Kutzer ("Kutzer"), and DOE 4 as Genevieve Trousdale ("Trousdale").

On June 3, 2026, Plaintiffs filed a first amended complaint ("FAC") against Defendants, alleging the same nine causes of action.

On August 13, 2026, ServPro filed the instant Motion to Strike. On August 26, 2026, Plaintiffs filed an opposition. On September 2, 2026, ServPro filed a reply.

FACTUAL BACKGROUND Plaintiffs allege that on July 15, 2016, Plaintiff Vizas purchased the property located at 3200 La Rotonda Dr. Unit #114 in Rancho Palos Verdes, California (the "Property"). (FAC, P. 30.) Plaintiffs allege that during the escrow process, an inspector reported elevated levels of moisture in the interior walls at the Property. (FAC, P. 30.)

Plaintiffs allege that Ocean Terrace is the homeowner's association responsible for maintaining the Property's common areas, and Ocean Terrace hired Horizon Management to manage and maintain the common areas, after which Ocean Terrace hired Associa to take over the property management duties. (FAC, P. 33.)

Plaintiffs allege that in September and October 2016, a common area sewage line backup event occurred beneath Plaintiffs' Unit #114, and Ocean Terrace, Horizon Management, and Associa denied, minimized, or concealed the condition. (FAC, P.P. 39-41.) Plaintiffs allege that they repeatedly reported habitability concerns, including moisture-saturated walls, water intrusions from interior drywalls, and severe mold growth. (FAC, P. 44.)

Next, Plaintiffs allege that in April 2019, "an incident occurred involving the Unit directly above Plaintiff's Property, Unit #216, owned by Defendant Ruiz." (FAC, P. 45.) Plaintiffs allege that a malfunction in Ruiz's bathtub caused water to pour through Unit #114's ceiling, and Ruiz failed to adequately remediate the issue. (FAC, P. 45.) Plaintiffs allege that on April 6, 2019, water from Unit #216 overflowed unto Unit #114. (FAC, P. 47.)

Plaintiffs allege that ServPro was retained to perform remediation work following the water-intrusion event, yet ServPro left water-saturated materials in place and represented that the work had been properly completed. (FAC, P.P. 48-51.) Plaintiffs allege that when ServPro began the remediation work on April 22, 2019, "it knew that the underlying flood event had occurred more than two weeks earlier and knew, or consciously disregarded, that concealed cavity materials and insulation had remained wet long enough to create a substantial risk of microbial contamination, concealed deterioration, and occupant exposure if those materials were not properly removed, verified, and cleared." (FAC, P. 53.)

Plaintiffs allege that in August 2016, Plaintiff Lachtman began experiencing nausea, fatigue, and flu-like symptoms, and in 2017, Plaintiff Vizas began experiencing severe fatigue, nasal congestion, red eyes, and headaches, and subsequently began experiencing memory loss, cognitive fog, heavy breathing, and muscle aches. (FAC, P. 64.)

Plaintiffs allege that in July 2021, a leak from Unit #216 led to water intruding into Unit #114, and similar incidents occurred in March and May 2022 when the refrigerator supply line malfunctioned, causing further flooding inside Unit #114. (FAC, P. 65.) Plaintiffs further allege that an environmentalist found that the walls and the ceilings of the Property contained toxic mold, and the rooms and closets in Plaintiffs' unit contained water damage and toxic fungal growths. (FAC, P. 81.)

LEGAL STANDARD The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. Section 436(a).) The court may also strike 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. Section 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc. Section 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. Section 437(a).)

DISCUSSION Moving Party's Argument ServPro moves to strike Plaintiffs' prayer for punitive and exemplary damages against ServPro and the supporting allegations on the grounds that Plaintiffs have not alleged sufficient facts to support an award of punitive damages against ServPro. ServPro argues that at most, Plaintiffs allege negligence on the part of ServPro, by alleging that ServPro failed to complete a mold remediation project to Plaintiffs' satisfaction. ServPro further argues that Plaintiffs' FAC is deficient pursuant to Civil Code Section 3294 because it fails to identify a corporate officer, director, or managing agent who authorized or ratified the allegedly improper remediation work.

Opposing Party's Argument Plaintiffs argue that the FAC has alleged that ServPro left water-saturated, concealed materials in place, omitted adequate monitoring, moisture verification, and post-remediation clearance, and yet represented to Plaintiffs that the remediation work was properly completed, which rises to the level of conscious disregard. Next, Plaintiffs argue that Civil Code Section 3294(b) requires only a category of corporate defendants rather than referring to specific individuals. Plaintiffs further argue that making allegations on information and belief is proper when the facts are in a defendant's exclusive possession. Finally, Plaintiffs argue that ServPro's reliance on Erlich v. Menezes (1999) 21 Cal.4th 543 is improper because the cited case never addresses punitive damages.

Reply Argument ServPro argues that Plaintiffs failed to plead subjective knowledge of an immediate hazard by a qualified corporate managing agent. ServPro argues that Plaintiffs were required to explicitly show that a corporate managing agent personally engaged in, authorized, or ratified the alleged wrongful conduct. Next, ServPro argues that Plaintiffs' allegations that ServPro performed defective work does not constitute "despicable" conduct but rather constitutes ordinary negligence. ServPro argues that Plaintiffs have failed to allege a conscious decision by ServPro to abandon safety protocols.

Merits of the Motion A. Meet and Confer Requirements Code of Civil Procedure Section 435.5(a) provides that before filing a motion to strike, the moving party shall meet and confer in person or by telephone 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., Section 435.5(a).) Here, ServPro's counsel declares that on June 24, 2026, ServPro's counsel and Plaintiffs' counsel spoke over the telephone to meet and confer regarding the instant motion. (Herrmann Decl., P. 2.) Therefore, the court finds that the meet and confer requirements have been satisfied.

B. Punitive Damages 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.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, Section 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." (College Hospital, Inc., supra, 8 Cal.4th at 725.) "A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.

In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences." (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) "As amended to include [despicable], 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." (College Hospital, Inc., supra, 8 Cal.4th at 725.) The statute's reference to despicable conduct represents a "new substantive limitation on punitive damage awards." (Ibid.) Despicable conduct is "conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as 'having the character of outrage frequently associated with crime.'" (Tomaselli v.

Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) "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.)

ServPro moves to strike Plaintiffs' prayer for punitive and exemplary damages against ServPro in addition to the FAC's supporting allegations at paragraph 138 on the grounds that at most, Plaintiffs allege negligence on the part of ServPro. Additionally, ServPro argues that Plaintiffs have failed to identify a corporate officer, director, or managing agent who authorized or ratified the allegedly improper remediation work, as required by Civil Code Section 3294(b). Pursuant to Civil Code Section 3294(b), punitive damages against a corporation require that "the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation."

Here, Plaintiffs' FAC refers only to "ServPro," rather than to any specific individuals or even more generally to ServPro's officers, directors, managers, or agents. Plaintiffs allege that ServPro "knowingly undertook remediation of an aged water-loss condition in an occupied residence, omitted necessary removal and verification measures, left saturated concealed materials in place, and nevertheless treated or represented the work as complete." (FAC, P. 138.) Plaintiffs further allege that ServPro's invoice states that "No monitoring" was performed, "confirming the omission was a deliberate scope decision rather than an inadvertent oversight." (FAC, P. 138.)

The court agrees with ServPro that Plaintiffs have failed to identify any managing agent, officer, or director of ServPro, nor have Plaintiffs referred to any individual associated with ServPro at all, instead referring broadly to "ServPro" as an entity. Therefore, the court finds that the allegations of Plaintiffs' FAC are insufficient to support a request for punitive damages against ServPro. Accordingly, ServPro's Motion to Strike is GRANTED.

C. Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 ("When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.").) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court finds that there is a reasonable possibility of successful amendment by Plaintiffs as the facts develop during discovery. Accordingly, the court GRANTS Plaintiffs leave to amend.

CONCLUSION Based on the foregoing, ServPro's Motion to Strike Punitive Damages is GRANTED with leave to amend. Plaintiffs are to file and serve any amended pleading within 30 days. Moving party is ordered to give notice of ruling.

********** Demurrer to Plaintiffs' First Amended Complaint and Motion to Strike Moving Party: Defendants Genevieve Trousdale and David Kutzer Responding Party: Plaintiffs Cecily Vizas and Shane Lachtman RULING The court considered the moving papers, opposition, and reply. Moving Defendants' Demurrer to Plaintiffs' FAC is SUSTAINED in its entirety with leave to amend. Moving Defendants' Motion to Strike is GRANTED in its entirety without leave to amend.

PROCEDURAL BACKGROUND On January 31, 2024, Plaintiffs Cecily Vizas and Shane Lachtman (collectively, "Plaintiffs") filed a complaint against Defendants The Ocean Terrace Condominium Association ("Ocean Terrace"), Professional Community Management - An Associa Company ("Associa"), M. Roy Nelson Inc. dba Horizon Management ("Horizon Management"), William S. Ruiz ("Ruiz"), an individual and as Trustee of the William S. Ruiz Personal Trust, and DOES 1 through 50, inclusive (collectively, "Defendants"), alleging nine causes of action for: (1) Nuisance; (2) Breach of Contract (CC&Rs); (3) Negligence (1); (4) Negligence (2); (5) Fraud/Concealment; (6) Negligent Misrepresentation; (7) Premises Liability; (8) Intentional Infliction of Emotional Distress; and (9) Breach of Fiduciary Duty.

On April 23, 2024, Defendants Ocean Terrace, Associa, and Horizon Management filed a cross-complaint against Defendant Ruiz as individual and as trustee, alleging two causes of action for: (1) Indemnity; and (2) Contribution.

On October 15, 2024, Defendant Ruiz also filed a cross-complaint against Defendants Ocean Terrace, Associa, and Horizon Management alleging four causes of action for: (1) Implied equitable indemnity; (2) Comparative Contribution; (3) Equitable Indemnity; and (4) Declaratory Relief.

On February 17, 2026, Plaintiffs filed an amendment to their complaint identifying DOE 1 as ServPro of Downtown Long Beach/Signal Hill ("ServPro"). The same day, Plaintiffs filed three additional amendments to their complaint identifying DOE 2 as Indoor Restoration Environmental Services, LLC, DOE 3 as David G. Kutzer ("Kutzer"), and DOE 4 as Genevieve Trousdale ("Trousdale").

On June 3, 2026, Plaintiffs filed a first amended complaint ("FAC") against Defendants, alleging the same nine causes of action.

On July 6, 2026, Defendants Kutzer and Trousdale (collectively, "Moving Defendants") filed the instant Demurrer and Motion to Strike. On August 26, 2026, Plaintiffs filed a Non-Opposition to Moving Defendants' Motion to Strike and an opposition to Moving Defendants' Demurrer. On September 1, 2026, Moving Defendants filed a reply.

FACTUAL BACKGROUND Plaintiffs allege that on July 15, 2016, Plaintiff Vizas purchased the property located at 3200 La Rotonda Dr. Unit #114 in Rancho Palos Verdes, California (the "Property"). (FAC, P. 30.) Plaintiffs allege that during the escrow process, an inspector reported elevated levels of moisture in the interior walls at the Property. (FAC, P. 30.)

Plaintiffs allege that Ocean Terrace is the homeowner's association responsible for maintaining the Property's common areas, and Ocean Terrace hired Horizon Management to manage and maintain the common areas, after which Ocean Terrace hired Associa to take over the property management duties. (FAC, P. 33.)

Plaintiffs allege that in September and October 2016, a common area sewage line backup event occurred beneath Plaintiffs' Unit #114, and Ocean Terrace, Horizon Management, and Associa denied, minimized, or concealed the condition. (FAC, P.P. 39-41.) Plaintiffs allege that they repeatedly reported habitability concerns, including moisture-saturated walls, water intrusions from interior drywalls, and severe mold growth. (FAC, P. 44.)

Next, Plaintiffs allege that in April 2019, "an incident occurred involving the Unit directly above Plaintiff's Property, Unit #216, owned by Defendant Ruiz." (FAC, P. 45.) Plaintiffs allege that a malfunction in Ruiz's bathtub caused water to pour through Unit #114's ceiling, and Ruiz failed to adequately remediate the issue. (FAC, P. 45.) Plaintiffs allege that on April 6, 2019, water from Unit #216 overflowed unto Unit #114. (FAC, P. 47.)

Plaintiffs allege that ServPro was retained to perform remediation work following the water-intrusion event, yet ServPro left water-saturated materials in place and represented that the work had been properly completed. (FAC, P.P. 48-55.)

Plaintiffs allege that in August 2016, Plaintiff Lachtman began experiencing nausea, fatigue, and flu-like symptoms, and in 2017, Plaintiff Vizas began experiencing severe fatigue, nasal congestion, red eyes, and headaches, and subsequently began experiencing memory loss, cognitive fog, heavy breathing, and muscle aches. (FAC, P. 64.)

Plaintiffs allege that in July 2021, a leak from Unit #216, leased by Moving Defendants, led to water intruding into Unit #114, and similar incidents occurred in March and May 2022 when the refrigerator supply line malfunctioned, causing further flooding inside Unit #114. (FAC, P. 65.) Plaintiffs allege that Ruiz leased, managed, communicated about, and acknowledged responsibility regarding Unit #216. (FAC, P. 66.)

Plaintiffs further allege that an environmentalist found that the walls and the ceilings of the Property contained toxic mold, and the rooms and closets in Plaintiffs' unit contained water damage and toxic fungal growths. (FAC, P. 81.)

LEGAL STANDARD A party may demur to a complaint on the grounds that it "does not state facts sufficient to constitute a cause of action." (Code Civ. Proc. Section 430.10(e).) A party may also demur to a pleading on the grounds that the pleading is uncertain. (Code Civ. Proc. Section 430.10(f).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) A special demurrer for uncertainty under Code of Civil Procedure section 430.10(f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond--i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) "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." (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) "The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action." (Hahn, supra, 147 Cal.App.4th at 747.)

On demurrer, a court does "not accept contentions, deductions or conclusions of fact or law." (Simonyan v. Nationwide Insurance Company of America (2022) 78 Cal.App.5th 889, 895.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations pled to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to demurrer to show the court that a pleading can be amended successfully. (Ibid.)

DISCUSSION Moving Party's Argument Moving Defendants demur to Plaintiffs' first cause of action for Nuisance and fourth cause of action for Negligence on the grounds that the FAC alleges no conduct by Moving Defendants and does not consistently allege Moving Defendants' ownership or control over the source of the alleged water intrusion. Moving Defendants argue that the FAC's allegations are contradictory because Plaintiffs allege that Ruiz owned and maintained Moving Defendants' unit and was responsible for the alleged maintenance failures.

Next, Moving Defendants argue that they owed no duty of care to Plaintiffs because Moving Defendants did not own the unit above Plaintiffs' unit, and exercised no control over the plumbing, the water line to the refrigerator, or any portion of the building outside their leased premises. Moving Defendants argue that Plaintiffs' first cause of action fails because Plaintiffs have not alleged conduct by Moving Defendants but instead attempt to impute Ruiz's duties as landlord to Moving Defendants.

Moving Defendants seek to strike Plaintiffs' prayer for punitive damages and reasonable attorney's fees on the grounds that Plaintiffs have not alleged specific facts regarding Moving Defendants' conduct in order to justify punitive damages, and Plaintiffs have not alleged a basis for attorney's fees.

Opposing Party's Argument Plaintiffs do not oppose the Motion to Strike but seek to clarify that Plaintiffs' prayers for punitive damages and attorney's fees do not apply to Moving Defendants. Plaintiffs argue that their causes of action for Nuisance and Negligence against Moving Defendants are sufficiently alleged because the FAC alleges that Moving Defendants' refrigerator flooded Plaintiffs' unit three times, and each time Moving Defendants failed to stop the leak, shut off the refrigerator, report the issue, or prevent it from occurring again.

Plaintiffs argue that liability may be established against a residential tenant if the tenant has possession, and that Moving Defendants are attempting to recharacterize Plaintiffs' claims as structural premises claims. Plaintiffs argue that they have not alleged that Ruiz's role was exclusive and argue that the FAC alleges that Moving Defendants occupied the upstairs unit, and thus possessed and controlled the property, including the refrigerator inside. Plaintiffs further argue that the FAC has alleged conduct by Moving Defendants, being their failure to stop operating the refrigerator.

Plaintiffs argue that they have alleged each element of their Nuisance cause of action and argue that the FAC's allegations are not contradictory. Plaintiffs argue that Moving Defendants have failed to properly reference Code of Civil Procedure Section 430.10(f) in attempting to bring their uncertainty argument.

Reply Argument Moving Defendants argue that Plaintiffs' opposition refers to allegations that are not found within the four corners of the FAC, by attempting to state that Moving Defendants owned and operated the refrigerator and had the ability to shut off its water. Moving Defendants argue that Plaintiffs have failed to allege that Moving Defendants controlled the refrigerator supply line or caused the supply line to fail, installed it, modified it, or affected the plumbing in any way. Therefore, Moving Defendants argue that at most, Plaintiffs' FAC alleges nonfeasance by Moving Defendants rather than affirmative conduct.

Regarding Plaintiffs' Nuisance claim, Moving Defendants argue that they are only mentioned by name within a paragraph that alleges a failure by Ruiz to repair water intrusions caused by Moving Defendants' refrigerator. Moving Defendants further argue that Plaintiffs' Nuisance cause of action relies upon the same facts as Plaintiff's Negligence cause of action, and thus both fail. Moving Defendants argue that Plaintiffs have not opposed the merits of their Motion to Strike and argue that Plaintiffs' argument that the prayers for punitive damages and attorney's fees are "self-limiting" supports Moving Defendants' motion.

Merits of the Motion A. Meet and Confer Requirements Before filing a demurrer, the demurring party is required to meet and confer "in person, by telephone, or by video conference with the party who filed the pleading that is subject to the demurrer for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer." (Code Civ. Proc. Section 430.41(a).) Here, Moving Defendants' counsel declares that on June 24, 2026, Moving Defendants' counsel emailed a meet-and-confer letter to Plaintiffs' counsel and the parties were not able to resolve the issues identified in Moving Defendants' letter. (Frankel Decl., P.P. 3-4.)

Because the parties have not met in person, by telephone, or by video conference, the court finds that the meet and confer requirements have not been met. However, the court will still discuss the merits of Defendant's demurrer because a failure to comply with the meet and confer requirements alone does not defeat a demurrer. (Code Civ. Proc. Section 430.41(a)(4).)

B. First Cause of Action for Nuisance To establish an action for private nuisance, (1) "the plaintiff must prove an interference with his use and enjoyment of his property"; (2) "the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage"; (3) "the interference with the protected interest must not only be substantial, but 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." (Mendez v.

Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263, citations, italics, brackets, and quotation marks omitted.) Moving Defendants' demur to Plaintiffs' first cause of action on the grounds that the FAC alleges only that Moving Defendants were tenants rather than owners of Unit #216, and thus Plaintiffs have failed to allege that Moving Defendants exercised control over the plumbing infrastructure, water line to Unit #216's refrigerator, or any portion of the Property outside their leased premises.

Within the body of the FAC, Plaintiffs allege that a leak from Unit #216, owned by Ruiz and leased by Moving Defendants, led to a water intrusion in Plaintiffs' Unit #114 due to the refrigerator supply line malfunctioning. (FAC, P. 65.) In Plaintiffs' first cause of action, Plaintiffs do not expressly name Moving Defendants at all, with the exception of alleging that "Ruiz failed to address and repair water intrusions into the common area walls stemming from leaks caused by his tenants', [Moving Defendants'], refrigerator." (FAC, P. 104.)

While Plaintiffs name Ocean Terrace, Horizon Management, Associa, Ruiz, and ServPro within Plaintiffs' Nuisance cause of action, Plaintiffs subsequently refer to "Defendants" generally. Therefore, the court finds that Plaintiffs have failed to allege any conduct by Moving Defendants to support Plaintiffs' Nuisance cause of action. Accordingly, Moving Defendants' Demurrer to Plaintiffs' first cause of action is SUSTAINED.

C. Fourth Cause of Action for Negligence In order to state a claim for negligence, Plaintiff must allege the elements of (1) "the existence of a legal duty of care," (2) "breach of that duty," and (3) "proximate cause resulting in an injury." (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Moving Defendants demur to Plaintiffs' fourth cause of action on the grounds that Plaintiffs have failed to sufficiently allege that Moving Defendants owed Plaintiffs a duty of care because Plaintiffs have alleged that Ruiz, as landlord, retained exclusive control over plumbing infrastructure within Unit #216.

Here, Plaintiffs allege that Moving Defendants, "as tenants and occupants of Unit #216, owed Plaintiffs a duty to use, monitor, maintain, and timely report the appliances, fixtures, and plumbing-connected conditions within Unit #216 with reasonable care so as not to cause unreasonable water intrusion into Unit #114 below." (FAC, P. 161.) Plaintiffs further allege that they "are informed and believe, and thereon allege, that [Moving Defendants] knew or should have known that the refrigerator supply line and/or related water-connected conditions in Unit #216 were leaking, defective, or malfunctioning, yet failed to take reasonable steps to stop, report, or mitigate the condition." (FAC, P. 161.)

Plaintiffs allege that while Moving Defendants occupied Unit #216, "a leak from that unit in July 2021 and later malfunctions of the refrigerator supply line in March and May 2022 caused repeated flooding into the common walls and connected materials affecting Unit #114." (FAC, P. 161.)

The court finds that Plaintiffs' allegation that Moving Defendants had knowledge of the refrigerator supply line defect is conclusory, as Plaintiffs have alleged no basis for Moving Defendants' awareness of this issue. Plaintiffs have alleged that remediation work was performed within Unit #114 and that Ruiz "managed, communicated regarding, and acknowledged responsibility concerning Unit #216," but have not alleged that Plaintiffs' concerns regarding the water intrusion were ever communicated to Moving Defendants. (FAC, P. 66.) Additionally, given the extensive factual detail regarding cracked and degraded plumbing within the complaint, Plaintiffs' allegation that Moving Defendants "should have known" that the refrigerator supply line was malfunctioning is conclusory. (FAC, P. 161.) Accordingly, Moving Defendants' Demurrer to Plaintiffs' fourth cause of action is SUSTAINED.

D. Motion to Strike The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. Section 436(a).) The court may also strike 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. Section 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ.

Proc. Section 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. Section 437(a).) Moving Defendants move to strike Plaintiffs' prayers for punitive and exemplary damages to the extent that Plaintiffs seek them against Moving Defendants, in addition to Plaintiffs' prayer for reasonable attorney's fees and costs. (FAC, Prayer P. 2; Prayer P. 7.)

Attorney's Fees "Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties." (Code Civ. Proc. Section 1021.) Here, Plaintiffs allege that "[t]he Association must further reimburse Plaintiff for her attorneys' fees and costs pursuant to California Civil Code Section 5975(c) and also pursuant to the express language of the CC&Rs." (FAC, P. 125.) The court finds that Plaintiffs have not alleged an agreement between Moving Defendants and Plaintiffs permitting the recovery of attorney's fees or a statutory basis for Plaintiffs' recovery of attorney's fees from Moving Defendants.

To the extent that the FAC seeks an award of reasonable attorney's fees against Moving Defendants, the court finds that Plaintiffs' prayer is improper. Accordingly, Moving Defendants' Motion to Strike is GRANTED as to Plaintiffs' prayer for reasonable attorney's fees.

Punitive Damages 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.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, Section 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." (College Hospital, Inc., supra, 8 Cal.4th at 725.) "A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.

In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences." (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) "As amended to include [despicable], 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." (College Hospital, Inc., supra, 8 Cal.4th at 725.) The statute's reference to despicable conduct represents a "new substantive limitation on punitive damage awards." (Ibid.) Despicable conduct is "conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as 'having the character of outrage frequently associated with crime.'" (Tomaselli v.

Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) "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.)

Moving Defendants argue that Plaintiffs have failed to allege specific conduct on the part of Moving Defendants that would justify punitive damages, and the court agrees. Here, Plaintiffs seek punitive and exemplary damages "against those Defendants whose conduct is alleged to have been malicious, oppressive, fraudulent, and/or carried on in conscious disregard of Plaintiffs' rights and safety, including Defendant ServPro, in an amount according to proof at trial." (FAC, Prayer P. 2.) Plaintiffs have since clarified in their Non-Opposition to the Motion to Strike that Plaintiffs do not seek punitive or exemplary damages against Moving Defendants. (Non-Opp., 2:9-11.)

Further, the court has identified no allegations by Plaintiffs regarding Moving Defendants' conduct that would warrant an award of punitive damages against them. Accordingly, Moving Defendants' Motion to Strike is GRANTED in its entirety.

E. Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 ("When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.").) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court notes that this is Moving Defendants' first demurrer filed in this action and finds that there is a reasonable possibility of Plaintiffs successfully amending the FAC to clarify Moving Defendants' conduct, knowledge of the refrigerator supply line defect, and role.

Accordingly, the court GRANTS Plaintiffs leave to amend their first and fourth causes of action. As Plaintiffs have clarified that they do not intend to seek punitive damages or attorney's fees against Moving Defendants, the court DENIES Plaintiffs leave to amend their prayers for punitive damages and attorney's fees to the extent that they were pled against Moving Defendants.

CONCLUSION Based on the foregoing, Moving Defendants' Demurrer to Plaintiffs' FAC is SUSTAINED in its entirety with leave to amend. Moving Defendants' Motion to Strike is GRANTED in its entirety without leave to amend. Plaintiffs are to file and serve any amended pleading within 30 days. Moving party is ordered to give notice of ruling.

Case Number: 25TRCV04159 Hearing Date: September 9, 2026 Dept: P Motion for Reconsideration Moving Party: Plaintiff B. Elliott Responding Party: Defendants Van Lingen Towing, Inc., Robert Van Lingen, and Sean Van Lingen RULING The court considered the moving papers and opposition. Plaintiff's Motion for Reconsideration is DENIED.

PROCEDURAL BACKGROUND On December 9, 2025, Plaintiff B Elliott ("Plaintiff") filed a complaint against Defendants Matthew Vander Horck, Kenneth "Kenny" Galan, Van Lingen Towing, Inc., Robert Van Lingen, Sean Van Lingen, and DOES 1 through 100, inclusive, alleging seven causes of action for: (1) Conversion (Civil Theft) & Trespass to Chattels; (2) Negligence; (3) Violation of Vehicle Code Sections 22651 and 22852; (4) Intentional Infliction of Emotional Harm; (5) Unfair Business Practices; (6) Unclean Hands; and (7) Damages & Injunctive Relief (Return of Personal Property).

On February 11, 2026, Plaintiff filed a first amended complaint ("FAC") against the same Defendants, alleging nine causes of action for: (1) Conversion; (2) Trespass to Chattels; (3) Negligence; (4) Violation of the Bane Act (Civil Code Section 52.1); (5) Violation of Vehicle Code Sections 22651 and 22852; (6) Intentional Infliction of Emotional Distress; (7) Unfair Business Practices (Against Van Lingen Towing); (8) Injunctive Relief (Against Van Lingen Towing); and (9) Violation of Procedural Due Process.

On March 25, 2026, Defendants Van Lingen Towing, Inc., Robert Van Lingen, and Sean Van Lingen (collectively, the "Van Lingen Defendants") filed a demurrer to Plaintiff's FAC and motion to strike. On May 6, 2026, the court sustained the Van Lingen Defendants' demurrer in its entirety with leave to amend and denied the motion to strike as moot.

On June 4, 2026, Plaintiff filed a second amended complaint ("SAC") against Defendants Matthew Vander Horck, Kenneth "Kenny" Galan, Van Lingen Towing, Inc., Robert J Van Lingen, Sean Van Lingen, Oscar Castro, Ruben Lopez, David Carmichael, "Mendoza (Serial #22936)," Mr. C's Tow, "Toni," employee of Mr. C's Tow, Ricky Northcott, Kurtis McElroy, and DOES 14 through 100, inclusive (collectively, "Defendants"), alleging seven causes of action for: (1) Conversion (Civil Theft); (2) Trespass to Chattels; (3) Violation of Vehicle Code Sections 22651, 22852, 22853; (4) Negligence; (5) False Arrest and False Imprisonment; (6) Bane Act; and (7) 42 U.S.C. Section 1983 - Unlawful Seizure and Deprivation of Property Without Due Process.

On June 23, 2026, the Van Lingen Defendants filed a demurrer to Plaintiff's SAC and a motion to strike. On July 29, 2026, the court sustained the Van Lingen Defendants' demurrer in its entirety without leave to amend and denied the motion to strike as moot.

On August 20, 2026, Plaintiff filed the instant motion. On August 28, 2026, the Van Lingen Defendants filed an opposition.