Devin Rose v. ARGO5, LLC

The plumber who arrived to inspect the situation informed plaintiff that the water heater should have been replaced several years earlier since it was 10 to 15 years past the warranty. (FAC, P. 17.) The plumber noted that mold remediation and floor replacement should be performed due to the water leak. (FAC, P. 20.) After the water heater was replaced, there was a buzzing coming from the new water heater and it did not heat water properly for showers. (FAC, P. 23.) ARGO5 refused to make further repairs or adjustments. (Ibid.)

Plaintiff had an ongoing negative interactions with Wilson, one of his neighbors. (FAC, P.P. 27-35.) Plaintiff made numerous noise complaints to ARGO5 pertaining to Wilson. (FAC, P. 25.) In November 2025, Wilson made knowingly false statements to police alleging that plaintiff had chased Wilson and her boyfriend with a large knife. (FAC, P.P. 27, 33, 34, 84.) Plaintiff was questioned by the police and the police took no further action against plaintiff. (FAC, P. 29.) Plaintiff had several other negative interactions with Wilson or her associates at or around the Apartment. (FAC, P.P. 28, 33-35.) ARGO5's owner or its attorneys have a connection to a non-profit owned by Wilson's family or a scholarship foundation that awarded scholarships to Wilson and her boyfriend, including through donations. (FAC, P.P. 26, 39, 40.)

In December 2024, plaintiff was served with 3-day notice to quit by email which cited "nuisance" as well as "making threats with a knife" as the basis for the eviction proceedings. (FAC, P. 37.) Plaintiff was forced to vacate the Apartment at the end of March 2025. (FAC, P. 56.)

Analysis

(1) Standard on Demurrer

"Because the function of a demurrer is to test the sufficiency of a pleading as a matter of law, we ... assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law. [Citation.] It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment." (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247).

"The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded." (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043.)

"[I]n ruling on a demurrer the trial court may take into account in addition to the complaint itself any matter that may be properly considered under the doctrine of judicial notice." (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1133-1134.)

(2) Negligence/Premises Liability

"The elements of a cause of action for premises liability are the same as those for negligence. A plaintiff must prove a legal duty to use care, breach of that legal duty, and a breach that is a proximate cause of injury." (Kaney v. Custance (2022) 74 Cal.App.5th 201, 214.)

"A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises." (Ibid.)

"The failure to fulfill the duty is negligence." (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478.)

"Whether a duty should be imposed on a defendant depends on factors ... include[ing] foreseeability of harm plus the burden on the defendant and the consequences to the community of imposing a duty." (Kaney v. Custance (2022) 74 Cal.App.5th 201, 215.)

"The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis. [Citations.] Foreseeability as to duty is based on whether an event's nature might generally give rise to a foreseeable injury, whereas foreseeability in the negligence and causation context requires a more fact-specific inquiry." (Formet v. The Lloyd Termite Control Co. (2010) 185 Cal.App.4th 595, 601-602, internal quotation marks omitted.)

Here, based on a reasonable reading of the FAC, the FAC alleges that ARGO5 knew plaintiff's water heater was defective, other tenants had similar problems with leaking water heaters, plaintiff's water heater was past due for replacement, plaintiff sent a picture to ARGO5 of his defective water heater, and ARGO5 failed to exercise due care to inspect or repair the water heater. As a result, the FAC alleges that plaintiff was injured when he slipped on water that leaked from the defective water heater. Plaintiff has alleged the elements of negligence against ARGO5. The court will overrule the demurrer as to this cause of action.

(3) Retaliatory Eviction

A landlord may be liable to a tenant in a civil action for retaliatory eviction. (Civ. Code Sec. 1942.5, subd. (h).)

"[I]t is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee ... has lawfully and peaceably exercised any rights under the law." (Id., subd. (d).)

If the tenant is "not in default as to the payment of rent" and is evicted within 180 days after submitting an oral or written complaint "for the purpose of correction of a condition relating to tentability," the landlord has the burden to prove that the eviction was not in retaliation to the tenant's complaints. (Id., subd. (a)(2).)

Here, plaintiff alleges he engaged in protected activity by complaining to ARGO5 regarding habitability and repair issues following the July 20, 2024, water heater failure and flooding, including requests that ARGO5 repair the water heater, replace damaged flooring, and address moisture conditions and potential mold. Plaintiff alleges he was current on his rent and that he was served with a 3-day notice to quit within the 180-day window following his complaints. Plaintiff further alleges that the eviction proceedings were initiated in retaliation for his lawful complaints. Plaintiff has alleged the basic elements of retaliatory eviction against ARGO5 under Civil Code section 1942.5. The court will overrule the demurrer as to this cause of action.

(4) Constructive Eviction in Violation of Civil Code Section 1927

"An agreement to let upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same." (Civ. Code, Sec. 1927.)

"There is a 'presumption that a landlord intends the natural and probable consequences of his acts; and where the acts of the landlord effectively deprive the tenant of the use and enjoyment of the premises, the intent to evict is implied from the character of the acts done [Citations.]' [Citation] [] '[A]ny disturbance of the tenant's possession by the lessor or at his procurement ... which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time.' " (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 292.)

Here, the FAC alleges that the ongoing disputes with Willson and her affiliates, as well as the water heater issues, resulted in constructive eviction. Plaintiff alleges that ARGO5 failed to take steps to prevent the ongoing harassment by Wilson and her affiliates. Plaintiff alleges that the water heater was replaced by ARGO5, but the new water heater made a buzzing sound and failed to provide adequate hot water. Plaintiff alleges that ARGO5 refused to further address the water heater issue. Plaintiff alleges that because of these issues, he was forced to vacate the Apartment at the end of March 2025.

ARGO5 submits the stipulated judgment in the matter styled, ARGO5, LLC v. Devin Rose, Santa Barbara Case No. 24CV07175, wherein the resulting judgment required plaintiff to surrender possession of the Apartment to ARGO5 under agreed upon terms and conditions. (Appendix, Ex. 2.)

The FAC does not allege facts to establish that ARGO5 is responsible for plaintiff's disputes with Wilson or that ARGO5 acted in concert with Wilson or her affiliates to harass plaintiff or make false police reports. Plaintiff does not allege facts that ARGO5 had the ability or authority to control Wilson or her affiliates or prevent them from taking these alleged actions. Plaintiff does not allege what ARGO5 reasonably could have done or should have done to prevent the alleged harassment or false police reports.

The water heater issue occurred in mid-2024, but plaintiff vacated the Apartment at the end of March 2025. The FAC does not allege a sufficient nexus between the water heater issues and plaintiff vacating the Apartment. These alleged facts, assuming their truth, do not establish acts by ARGO5 to deprive plaintiff of the use and enjoyment of the Apartment that caused him to vacate the Apartment in March 2025. The court will sustain the demurrer to this cause of action with leave to amend.

(5) IIED

"The elements of a cause of action for IIED are as follows: (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. [Citation] Additionally, '[i]t must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.' [Citation.] 'The requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.' " (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273.)

"Severe emotional distress means, then, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.)

"Behavior may be considered outrageous if a defendant abuses a position which gives him power to damage the plaintiff's interest." (Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123.)

"Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability." (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.)

For example, "a reasonable juror could conclude that forcing a patient who had recently miscarried to look at what she believed to be her dismembered fetus was extreme and outrageous." (So v. Shin (2013) 212 Cal.App.4th 652, 673.)

"[R]epeated threats of physical harm directed to plaintiffs, stated in graphic terms, were sufficient acts of extreme and outrageous conduct with intent to cause emotional distress." (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 809.)

Comparatively, acts of "defendants misleading plaintiffs into believing they would be compensated in an amount that would allow them to retire if they continued to work for [defendants] until the company was sold ... [are] not extreme or outrageous to support a cause of action for intentional infliction of emotional distress." (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 780-781.)

"The denial of benefits for an experimental treatment to a terminally ill patient may arouse our sympathy, but it cannot be regarded, standing alone, as outrageous conduct." (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.)

The FAC alleges that Wilson made intentionally false statements to the police, but does not make similar allegations against ARGO5. The FAC does not allege facts indicating that ARGO5 knew that Wilson's reports to the police were false or that ARGO5 acted in concert with Wilson in these actions. The allegations in the FAC pertaining to the water heater do not meet the standard of outrageous conduct as to actions by ARGO5. The court will sustain the demurrer to the cause of action for IIED with leave to amend.

(6) Motion to Strike

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof ...." (Code Civ. Proc., Sec. 435, subd. (b)(1).)

"The court may, upon a motion made pursuant to [s]ection 435, or at any time in its discretion, and upon terms it deems proper: [P.] ... [s]trike out any irrelevant, false, or improper matter inserted in any pleading." (Code Civ. Proc., Sec. 436, subd. (a).)

"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." (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

Here, ARGO5 asks the court to strike allegations of punitive damages and a demand for attorney fees by statute. ARGO5 asks the court to strike the following lines in the complaint: page 12, line 26 through page 13, line 2; page 13, lines 3 through 15; and page 13, lines 20 through 21. (See Motion, pp. 2-3.)

"In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant." (Civ. Code, Sec. 3294, subd. (a).)

"Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim." (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

" 'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff ...." (Civ. Code, Sec. 3294, subd. (c)(1).)

"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." (Clauson, supra, 67 Cal.App.4th at p. 1255.)

The court finds that the allegations, if true, are insufficient to establish that ARGO5 intended to cause injury to plaintiff with malice, committed fraud, or otherwise engaged in acts that would support punitive damages. (See Civ. Code, Sec. 3294, subd. (c); Civ. Code, Sec. 1942.5, subd. (h)(2).) The court will grant ARGO5's motion to strike allegations of punitive damages with leave to amend.

As to the argument pertaining to attorney fees, the recovery of attorney fees is permitted as to the second cause of action for retaliatory eviction. (See Civ. Code, Sec. 1942.5, subd. (i).)

"In any action brought for damages for retaliatory eviction, the court shall award reasonable attorney's fees to the prevailing party if either party requests attorney's fees upon the initiation of the action." (Ibid.)

Plaintiff's initial complaint sought the recovery of attorney fees. (Compl., p. 13, l. 26.) The court will deny ARGO5's motion to strike as to the demand for attorney fees by statute.

(7) Request for Judicial Notice

Pursuant to Evidence Code section 452, subdivision (d), judicial notice may be taken of the records of any court of this state or any court of record of the United States or of any state of the United States.

The court will grant ARGO5's request for judicial notice as to the stipulated judgment in the matter styled, ARGO5, LLC v. Devin Rose, Santa Barbara Case No. 24CV07175. (See Evid. Code, Sec. 452, subds. (c)-(d); Appendix, Ex. 2.)

To the extent granted, judicial notice of the documents described above extends to the existence of court records and statutes but does not extend to the truth of any facts contained in the documents that are subject to dispute or to any hearsay or irrelevant matter. (See Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)

The court will deny the request for judicial notice as to the remaining documents.

"It is not sufficient that the evidence [subject to judicial notice] be relevant to an argument made by its proponent. The evidence must be relevant to the disposition of the matter." (OneTaste Inc. v. Netflix, Inc. (2025) 116 Cal.App.5th 174, 194.)

Tentative Ruling: Robert Ottinger v. Paul P. Weishaar, et al.

Tentative Ruling: Robert Ottinger v. Paul P. Weishaar, et al.