Preview
ROBERT M. MALTZ, ESQ. — State Bar No. 143078
: ELECTRONICALLY
STRATMAN, PATTERSON & HUNTER
Mailing ‘Address FILED
P.O. Box 258829, Oklahoma City, OK 73125-8829 aeccayoren aemacol
Physical Address
505 14th Street, Suite 400 07/21/2015
Oakland, CA 94612-1913 Clerk of the Court
BY:ANNIE PASCUAL
Phone: (510) 457-3440 Deputy Clerk
Fax: (510) 238-8968
Attorney for Defendant,
WONG FAMILY REVOCABLE TRUST
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
QING MEI HUA, dba as HUA'S WORLD, Case No.: CGC-15-545627
UNLIMITED JURISDICTION
Plaintiffs,
ASSIGNED TO FOR ALL PURPOSES:
vs. DEPT: Not Assigned
WONG FAMILY REVOCABLE TRUST, et al. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
Defendants. DEMURRER
a Praga 25,2015
TIME: GYB0 at:
DEPT; St
L
INTRODUCTION
According to the complaint, this action arises from a commercial landlord tenant dispute.
Plaintiff Qing Mei Hua dba Hua’s World claims she rented commercial property from defendant Wong
Family Revocable Trust located at 950 Geneva Avenue, San Francisco, California (“Geneva Avenue
Property”).’ In December of 2014, a rainstorm hit the San Francisco Bay Area and caused damage to
the Geneva Avenue Property and her business. Specifically, plaintiff alleges that because defendant
failed to maintain the roof of the Geneva Avenue Property, water entered plaintiff's business and ruined
' The complaint contains inconsistent facts as to the location of plaintiff's business, what it does, and a description of the
building housing the business. (Complaint, parags. 4, 6, 9, and 14.)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -1her merchandize. Plaintiff further alleges that trash and debris blocked a drainage pipe along the
northwestern portion of the roof, which resulted in water accumulating on the roof. Plaintiff also
complained of the absence of a screen cover on the drainage pipe to prevent trash and debris from
entering the pipe. Further, plaintiff complained that the base of the drain pipe was cracked and
dilapidated. Moreover, plaintiff complained that a nearby waste vent pipe was poorly maintained and
that water entered through the base of the vent pipe. In short, defendant failed to maintain and make
timely repairs, which resulted in the subsequent water damage.
The complaint attempts to state causes of action for (1) breach of implied warranty of
habitability; (2) negligent maintenance of premises; (3) maintenance of nuisance; (4) intentional
infliction of emotional distress; (5) constructive eviction; and (6) breach of contract. Based on the
prayer for relief, there are six causes of action. However, the complaint sets forth seven causes of
action. Defendant is assuming that the “first” cause of action for negligence (page 5-7, parags. 41-49) is
not separate from the second cause of action for negligent maintenance of premises (pages 8-10, parags.
58-66).
Hit
it
ft
Also, in the complaint, plaintiff alleges that at the time she rented the premises, it was “unfit for
human occupation” (Complaint, parag. 50) and that defendant is responsible for repair of the roof.
However, plaintiff failed to attach a copy of the lease agreement to the complaint, which sets forth the
condition of the property at the time of the lease and the responsibility of cach party for maintenance and
repairs. Plaintiff only included two excerpts of the lease agreement to the complaint (paragraphs 42 and
43).
In addition, Hua’s World (a wholesale/retail clothing business) is located on Geneva Street (a
? A description of the premises as “unfit for human occupation” suggests that a residential lease instead of a commercial lease}
was entered into. Plaintiff appears to confuse residential leases with commercial leases. For instance, in the second cause of
action for negligent maintenance of premises, plaintiff refers to Civil Code section 1941. This Code section refers to
residential leases. (Civil Code section 1940, et seq.)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -2one story building) and not 1125 Clement Street, San Francisco, California (a three story building). In
the complaint, plaintiff provides inconsistent facts as to the location of Hua’s World, what it does, and a
description of the building. (See paragraphs. 4, 6, 9, and 14.) Finally, given the above, the complaint is
uncertain and ambiguous. The complaint also fails to set forth facts sufficient to constitute a cause of
action. Therefore, the demurrer should be sustained.
i.
A DEMURRER IS PROPERLY SUSTAINED WHERE THE
COMPLAINT IS UNCERTAIN AND FAILS TO STATE FACTS
SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION
Code of Civil Procedure section 430.10 sets forth the grounds for a demurrer as follows:
“The party against whom a complaint . . . has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one
or more of the following grounds:
OR
(e) The pleading does not state facts sufficient to constitute a cause of action.
(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’
includes ambiguous and unintelligible.
To establish that plaintiff adequately pled even one of the causes of action, plaintiff must show
she pled facts sufficient to establish every element of that cause of action. (Friendly Village Community
Assn., Inc., v. Silva & Hill Construction Co. (1973) 31 Cal.App.3d 220, 224-225 [affirming the
sustaining of a demurrer when plaintiff failed to allege any facts which would support only one of the
elements of the cause of action}.) Thus, if the defendant negates any essential element of a particular
cause of action, this court should sustain the demurrer to that cause of action. (Sher v. Leiderman (1986)
181 Cal.App.3d 867, 885-886; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.)
A pleading “must allege facts not conclusions.” (Ankeny v. Lockheed Missiles & Space Co.
(1979) 88 Cal.App.3d 531, 537.) A demurrer does not admit “conclusions of fact.” (Serrano v, Priest
(1971) 5 Cal.3d 584, 591; Appl v. Lee Swett Livestock (1987) 192 Cal.App.3d 466, 470.) The court does}
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -310
iL
not, however, assume the truth of contentions, deductions or conclusions of law. (Hernandez v. General}
Adjustment Bureau (1988) 199 Cal.App.3d 999, 1002.)
Ill.
THE ENTIRE COMPLAINT IS UNCERTAIN
Pursuant to Code of Civil Procedure section 430.10(f), a party may demur to a complaint where
it is uncertain. As used in section 430.10(f), “uncertain” includes ambiguous and unintelligible. In the
present action, the entixe complaint is uncertain due to inconsistencies set forth in the complaint,
First, based on the prayer for relief, there are six causes of action. However, the complaint sets
forth seven causes of action. Defendant is assuming that the “first” cause of action for negligence (page
5-7, parags. 41-49) is not separate from the second cause of action for negligent maintenance of
premises (pages 8-10, parags. 58-66). Both are causes of action based in negligence.
Second, plaintiff alleges that the premises were “unfit for human occupation” at the time she
entered into the lease (Complaint, parag. 50) and that defendant is responsible for repair of the roof.
However, plaintiff failed to attach a copy of the lease agreement to the complaint, which sets forth the
condition of the property at the time of the lease and the responsibility of each party for maintenance and):
repairs. Plaintiff only included two excerpts of the lease agreement to the complaint (paragraphs 42 and
43).
Third, Hua’s World (a wholesale/retail clothing business) is located on Geneva Street (a one
story building) and not 1125 Clement Street, San Francisco, California (a three story building). In the
complaint, plaintiff provides inconsistent facts as to the location of Hua’s World, what it does, and a
description of the building. (See paragraphs. 4, 6, 9, and 14.) Defendant is assuming the roof damage
occurred at the one story building located at Geneva Street and not the three story building located at
Clement Street, Given the above. the complaint is uncertain and ambiguous. Therefore, the demurrer
should be sustained.
Iv.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -4NO IMPLIED WARRANTY OF HABITABILITY IN COMMERCIAL
LEASES
Plaintiff's first cause of action is for breach of the implied warranty of habitability. However, the]
implied warranty of habitability has not been extended to commercial leases. In fact, commercial
landlords have no obligation to maintain or repair the premises absent an express covenant in the lease.
(Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 671.) Here, since the parties
entered into a commercial lease, there can be no breach of the implied warranty of habitability.
Vv.
PLAINTIFF'S CAUSE OF ACTION FOR MAINTENANCE OF
NUISANCE FAILS BECAUSE IT IS DERIVATIVE OF NEGLIGENCE
Plaintiff's third cause of action for “maintenance of nuisance” fails because there really is one
cause of action as between a claim for nuisance and a claim for negligence. Nuisance is a field of tort
liability; it is not a tort separate from the negligence claim. (Van Zyl v. Spiegelberg (1969) 2
Cal. App.3d 367, 372.)
In El Escorial Owners’ Ass'n v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, a multiparty
construction defect case, Escorial alleged construction defect based on negligence and nuisance causes
of action. The fourth cause of action in Escorial's complaint was labeled nuisance and incorporated
allegations of the first cause of action for negligence. Escorial did not allege facts to describe the
nuisance and did not show how the nuisance cause of action differed from the first cause of action for
negligence. Escorial sought the same monetary relief for the nuisance that it requested in its cause of
| action for negligence. “Where negligence and nuisance causes of action rely on the same facts about
lack of due care, the nuisance claim is a negligence claim. (Citations omitted.” (/d. at 1349.) The
Court of Appeal found the trial court properly rejected the nuisance cause of action:
«___Escorial's nuisance cause of action was merely a clone of the first cause
of action using a different label. [Citations omitted. | “ ‘... “The torts of
negligence and nuisance ... frequently are, coexisting and practically
inseparable... A nuisance in many, if not in most, instances, especially
with respect to buildings or premises, presupposes negligence.”...’
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -s|, conduct’ which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable
[Citations.]” (Lussier v. San Lorenzo Valley Water Dist., supra, 206
Cal.App.3d at p. 104.)
Here, as in Escorial, the negligence and nuisance causes of action rely on similar facts and seek
nearly the same recovery. The claim of nuisance presupposes negligence. The cause of action for
| nuisance is derivative and duplicative. Furthermore, plaintiff fails to identify when the nuisance
occurred and when she notified defendant of the nuisance. Therefore, plaintiff has failed to allege
sufficient facts to state a cause of action for “maintenance of nuisance”.
; Vi.
1
i PLAINTIFF’S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS FAILS
The elements of plaintiff's intentional infliction of emotional distress cause of action are: “(1)
extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of
the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional distress [by defendant’s outrageous
conduct.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1120.) Plaintiff has not alleged facts
' setting forth the requisite elements.
To support a cause of action for intentional infliction of emotional distress, there must be conduct
so outrageous that it is “so extreme as to exceed all bounds of that usually tolerated in a civilized
community,” (Christensen y, Superior Court (1991) 54 Cal. 3d 868, 903.) As the court explained in
i Agostini v, Strycula (1965) 231 Cal.App.2d 804, 808:
Generally, the case is one which the recitation of the facts to an average
\ member of the community would arouse his resentment against the actor
and lead him to exclaim “Outrageous!” (Citations omitted.)
Additionally, in order to successfully plead a cause of action for intentional infliction of
emotional distress, plaintiff must allege she suffered severe emotional distress. Severe emotional
distress is defined as “highly unpleasant mental suffering or anguish from ‘socially unacceptable
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -«[person] in a civilized society would be expected to endure it."” (Schild v. Rubin (1991) 232 Cal.App.3d
755, 762-163.) “Severe” distress is not substantiated merely by an allegation of a plaintiff’ s “subjective
state of discomfort.” (Lee v. Bank of America (1990) 218 Cal.App.3d 914, 920.) For example, in
Paulson v. State Farm (1994, C.D. Cal.) 867 F.Supp. 911, 919, the court denied recovery based on
allegations of “frustration, depression, nervousness and anxiety” for which plaintiffnever sought
medical care. Evidence showing plaintiff was angry or disturbed does not suffice. (Porter v. Firestone
(1993) 6 Cal.4th 965, 1004.)
In the instant case, no facts are alleged that defendant acted with extreme and outrageous conduct
with the intention of causing, or reckless disregard of the probability of causing, emotional distress. The]
fact that a defendant’s acts did cause the plaintiff emotional distress is not sufficient to prove intentional
infliction of emotional distress. (Cummings v. Spire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1423,
citing Fletcher v. Western National Life Ins, Co. (1970) 10 Cal.App.3d 376, 394.) The element of intent
is key.
i McDonell y. American Trust (1955) 130 Cal.App.2d 296 is instructive. In McDonell, plaintiff
tenant sued defendant commercial landlord for injuries sustained when the tenant slipped and fell on
water that had entered her store due to defects in the roof and roof drains. The landlord knew of the
problems with the roof and roof drains and that the problems could cause injury to plaintiff's person
and/or property, but did not remedy the conditions.
The tenant sued landlord and alleged several counts, including an allegation of intentional tort.
| The trial court sustained demurrers to the complaint without leave to amend and entered judgment for
the landlord. The tenant appealed. The Court of Appeal held that the facts did not support an
intentional tort or conduct so recklessly disregardful of the rights of others as to show malice. As the
Court stated in McDonell, “Calling this a "wilful" failure to repair was not the same as saying defendant
acted with a wrongful personal intent to injure or in reckless disregard of the rights of others.” (Ud. at
300.) The court did find that the facts stated could be read to allege negligence.
i
‘That is the case here. This case involves a commercial landlord and a tenant’s complaint of
| failure to repair. However, plaintiff, in vague and conclusory language, simply alleges that defendant
5
leased a commercial building to her with defects and failed to repair the defects despite requests for
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -710
WV
27
28
repairs. ‘There is no indication as to when plaintiff placed defendant on notice of the defective
conditions. Even if no repairs were made, a failure to repair does not mean an intent to do harm. Given
the facts of this case, there are not enough facts alleged to support a claim for an intentional tort such as
| intentional infliction of emotional distress.
Moreover, plaintiff merely alleges she “suffered extreme mental anguish and emotional and
physical distress... .” (Complaint, parag. 76.) Plaintiff states no facts indicating exactly what her
injuries were as a result of this distress. She alleges a “subjective state of discomfort” and draws
conclusions, without factual support for the same. Plaintiff has not established “intense, enduring and
nontrivial emotional distress that no reasonable [person] in a civilized society would be expected to
endure.” (Schild v. Rubin, supra, 232 Cal.App.3d at 762-63.) Also, plaintiff fails to state when she
suffered the alleged emotional distress, whether she sought medical care for her emotional distress, and
that her complaints were not merely subjective. As such, this allegation simply does not rise to the level
of "severe" emotional distress necessary to maintain the cause of action.
Because plaintiff has not, and cannot, allege sufficient facts to state a cause of action for
intentional infliction of emotional distress, the demurrer to the fourth cause of action should be
sustained.
VIL
THE BREACH OF CONTRACT CLAIM FAILS
To state a breach of contract cause of action, plaintiff must allege facts demonstrating (1) the
contract; (2) plaintiff’s performance; (3) defendants’ breach; and (4) damage to plaintiff resulting from
\the breach. (McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.) As discussed
“above, the usual way to plead breach of a written contract is to allege its making and either attach a copy
‘of the contract to the compiaint and incorporate it by reference or recite it verbatim in the complaint.
Here, the terms of the lease agreement is not provided and not all relevant portions are pled with any
certainty. In other words, plaintiff does not state exactly what terms of the lease agreement was
violated. As such, no claim is pled,
VILL.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -2CONCLUSION
For all the foregoing reasons, defendant respectfully requests that this Court sustain this
demurrer.
DATED: July 4% 2015 STRATMAN, PATTERSON & HUNTER
BY: S~ —
ROBERT M. MALTZ, ESQ.
Attorney for Defendant,
WONG FAMILY REVOCABLE TRUST
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -9Re: Hua-y. Wong Family Revocable Trust, et al.
Case Number: CGC-15-545627
PROOF OF SERVICE
Code of Civil Procedure §§ 1013a, 2015.5
Iam a resident of the State of California and over the age of eighteen years, and not a party to the}
within action, My business address is 505 14th Street, Suite 400, Oakland, CA 94612-1913. On July
; 2015, I served the following document(s):
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
BDEMURRER
By placing the document(s) listed above in a sealed envelope, addressed as set forth
7 below, and placing the envelope for collection and mailing in the place designated for
\ such in our offices, following ordinary business practices.
By transmitting via facsimile the document(s) listed above to the fax number(s) set
______ forth below on this date before 5:00 p.m.
By causing a true copy thereof to be personally delivered to the person(s) at the
address(es) set forth below.
By electronically serving the document(s) described above via a Court approved File
& Serve vendor on those recipients designated on the Transaction Receipt located on
the vendor’s Website.
By electronically serving tbe document(s) to the electronic mail address set forth
below on this date before 5:00 p.m. pursuant to the signed stipulation of the parties
and consistent with Code of Civil Procedure section 1010.6(a)(2).
SEE ATTACHED SERVICE LIST
Iam readily familiar with the firm’s practice of collection and processing correspondence for
mailing with the United States Postal Service. Under that practice, it would be deposited with U.S.
Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I
‘am aware that on motion of the party served, service is presumed invalid if postal cancellation date or
| postage meter date is more than one day after date of deposit for mailing in affidavit.
¥ declare under penalty of perjury under the laws of the State of California that the above is true
and. correct.
7
y Lanois
Executed on July _¢ , 2015, at Oakland /Califorgia.
See
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER .- 10Re: Hua v. Wong Family Revocable Trust, et al.
Case Number: CGC-15-545627
SERVICE LIST
Emmanuel Enyinwa, Esq.
Law Office of Emmanuel Enyinwa
807 Montgomery Street
San Francisco, CA 94133
Attorney for, Qing Mei Hua, dba as Hua's World
Phone: (415) 956-6100
Fax: (415) 956-6111
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -11
Preview
ROBERT M. MALTZ, ESQ. — State Bar No. 143078 : ELECTRONICALLY STRATMAN, PATTERSON & HUNTER Mailing ‘Address FILED P.O. Box 258829, Oklahoma City, OK 73125-8829 aeccayoren aemacol Physical Address 505 14th Street, Suite 400 07/21/2015 Oakland, CA 94612-1913 Clerk of the Court BY:ANNIE PASCUAL Phone: (510) 457-3440 Deputy Clerk Fax: (510) 238-8968 Attorney for Defendant, WONG FAMILY REVOCABLE TRUST SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO QING MEI HUA, dba as HUA'S WORLD, Case No.: CGC-15-545627 UNLIMITED JURISDICTION Plaintiffs, ASSIGNED TO FOR ALL PURPOSES: vs. DEPT: Not Assigned WONG FAMILY REVOCABLE TRUST, et al. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF Defendants. DEMURRER a Praga 25,2015 TIME: GYB0 at: DEPT; St L INTRODUCTION According to the complaint, this action arises from a commercial landlord tenant dispute. Plaintiff Qing Mei Hua dba Hua’s World claims she rented commercial property from defendant Wong Family Revocable Trust located at 950 Geneva Avenue, San Francisco, California (“Geneva Avenue Property”).’ In December of 2014, a rainstorm hit the San Francisco Bay Area and caused damage to the Geneva Avenue Property and her business. Specifically, plaintiff alleges that because defendant failed to maintain the roof of the Geneva Avenue Property, water entered plaintiff's business and ruined ' The complaint contains inconsistent facts as to the location of plaintiff's business, what it does, and a description of the building housing the business. (Complaint, parags. 4, 6, 9, and 14.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -1her merchandize. Plaintiff further alleges that trash and debris blocked a drainage pipe along the northwestern portion of the roof, which resulted in water accumulating on the roof. Plaintiff also complained of the absence of a screen cover on the drainage pipe to prevent trash and debris from entering the pipe. Further, plaintiff complained that the base of the drain pipe was cracked and dilapidated. Moreover, plaintiff complained that a nearby waste vent pipe was poorly maintained and that water entered through the base of the vent pipe. In short, defendant failed to maintain and make timely repairs, which resulted in the subsequent water damage. The complaint attempts to state causes of action for (1) breach of implied warranty of habitability; (2) negligent maintenance of premises; (3) maintenance of nuisance; (4) intentional infliction of emotional distress; (5) constructive eviction; and (6) breach of contract. Based on the prayer for relief, there are six causes of action. However, the complaint sets forth seven causes of action. Defendant is assuming that the “first” cause of action for negligence (page 5-7, parags. 41-49) is not separate from the second cause of action for negligent maintenance of premises (pages 8-10, parags. 58-66). Hit it ft Also, in the complaint, plaintiff alleges that at the time she rented the premises, it was “unfit for human occupation” (Complaint, parag. 50) and that defendant is responsible for repair of the roof. However, plaintiff failed to attach a copy of the lease agreement to the complaint, which sets forth the condition of the property at the time of the lease and the responsibility of cach party for maintenance and repairs. Plaintiff only included two excerpts of the lease agreement to the complaint (paragraphs 42 and 43). In addition, Hua’s World (a wholesale/retail clothing business) is located on Geneva Street (a ? A description of the premises as “unfit for human occupation” suggests that a residential lease instead of a commercial lease} was entered into. Plaintiff appears to confuse residential leases with commercial leases. For instance, in the second cause of action for negligent maintenance of premises, plaintiff refers to Civil Code section 1941. This Code section refers to residential leases. (Civil Code section 1940, et seq.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -2one story building) and not 1125 Clement Street, San Francisco, California (a three story building). In the complaint, plaintiff provides inconsistent facts as to the location of Hua’s World, what it does, and a description of the building. (See paragraphs. 4, 6, 9, and 14.) Finally, given the above, the complaint is uncertain and ambiguous. The complaint also fails to set forth facts sufficient to constitute a cause of action. Therefore, the demurrer should be sustained. i. A DEMURRER IS PROPERLY SUSTAINED WHERE THE COMPLAINT IS UNCERTAIN AND FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION Code of Civil Procedure section 430.10 sets forth the grounds for a demurrer as follows: “The party against whom a complaint . . . has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: OR (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. To establish that plaintiff adequately pled even one of the causes of action, plaintiff must show she pled facts sufficient to establish every element of that cause of action. (Friendly Village Community Assn., Inc., v. Silva & Hill Construction Co. (1973) 31 Cal.App.3d 220, 224-225 [affirming the sustaining of a demurrer when plaintiff failed to allege any facts which would support only one of the elements of the cause of action}.) Thus, if the defendant negates any essential element of a particular cause of action, this court should sustain the demurrer to that cause of action. (Sher v. Leiderman (1986) 181 Cal.App.3d 867, 885-886; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) A pleading “must allege facts not conclusions.” (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.) A demurrer does not admit “conclusions of fact.” (Serrano v, Priest (1971) 5 Cal.3d 584, 591; Appl v. Lee Swett Livestock (1987) 192 Cal.App.3d 466, 470.) The court does} MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -310 iL not, however, assume the truth of contentions, deductions or conclusions of law. (Hernandez v. General} Adjustment Bureau (1988) 199 Cal.App.3d 999, 1002.) Ill. THE ENTIRE COMPLAINT IS UNCERTAIN Pursuant to Code of Civil Procedure section 430.10(f), a party may demur to a complaint where it is uncertain. As used in section 430.10(f), “uncertain” includes ambiguous and unintelligible. In the present action, the entixe complaint is uncertain due to inconsistencies set forth in the complaint, First, based on the prayer for relief, there are six causes of action. However, the complaint sets forth seven causes of action. Defendant is assuming that the “first” cause of action for negligence (page 5-7, parags. 41-49) is not separate from the second cause of action for negligent maintenance of premises (pages 8-10, parags. 58-66). Both are causes of action based in negligence. Second, plaintiff alleges that the premises were “unfit for human occupation” at the time she entered into the lease (Complaint, parag. 50) and that defendant is responsible for repair of the roof. However, plaintiff failed to attach a copy of the lease agreement to the complaint, which sets forth the condition of the property at the time of the lease and the responsibility of each party for maintenance and): repairs. Plaintiff only included two excerpts of the lease agreement to the complaint (paragraphs 42 and 43). Third, Hua’s World (a wholesale/retail clothing business) is located on Geneva Street (a one story building) and not 1125 Clement Street, San Francisco, California (a three story building). In the complaint, plaintiff provides inconsistent facts as to the location of Hua’s World, what it does, and a description of the building. (See paragraphs. 4, 6, 9, and 14.) Defendant is assuming the roof damage occurred at the one story building located at Geneva Street and not the three story building located at Clement Street, Given the above. the complaint is uncertain and ambiguous. Therefore, the demurrer should be sustained. Iv. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -4NO IMPLIED WARRANTY OF HABITABILITY IN COMMERCIAL LEASES Plaintiff's first cause of action is for breach of the implied warranty of habitability. However, the] implied warranty of habitability has not been extended to commercial leases. In fact, commercial landlords have no obligation to maintain or repair the premises absent an express covenant in the lease. (Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal.2d 666, 671.) Here, since the parties entered into a commercial lease, there can be no breach of the implied warranty of habitability. Vv. PLAINTIFF'S CAUSE OF ACTION FOR MAINTENANCE OF NUISANCE FAILS BECAUSE IT IS DERIVATIVE OF NEGLIGENCE Plaintiff's third cause of action for “maintenance of nuisance” fails because there really is one cause of action as between a claim for nuisance and a claim for negligence. Nuisance is a field of tort liability; it is not a tort separate from the negligence claim. (Van Zyl v. Spiegelberg (1969) 2 Cal. App.3d 367, 372.) In El Escorial Owners’ Ass'n v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, a multiparty construction defect case, Escorial alleged construction defect based on negligence and nuisance causes of action. The fourth cause of action in Escorial's complaint was labeled nuisance and incorporated allegations of the first cause of action for negligence. Escorial did not allege facts to describe the nuisance and did not show how the nuisance cause of action differed from the first cause of action for negligence. Escorial sought the same monetary relief for the nuisance that it requested in its cause of | action for negligence. “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. (Citations omitted.” (/d. at 1349.) The Court of Appeal found the trial court properly rejected the nuisance cause of action: «___Escorial's nuisance cause of action was merely a clone of the first cause of action using a different label. [Citations omitted. | “ ‘... “The torts of negligence and nuisance ... frequently are, coexisting and practically inseparable... A nuisance in many, if not in most, instances, especially with respect to buildings or premises, presupposes negligence.”...’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -s|, conduct’ which entails such intense, enduring and nontrivial emotional distress that ‘no reasonable [Citations.]” (Lussier v. San Lorenzo Valley Water Dist., supra, 206 Cal.App.3d at p. 104.) Here, as in Escorial, the negligence and nuisance causes of action rely on similar facts and seek nearly the same recovery. The claim of nuisance presupposes negligence. The cause of action for | nuisance is derivative and duplicative. Furthermore, plaintiff fails to identify when the nuisance occurred and when she notified defendant of the nuisance. Therefore, plaintiff has failed to allege sufficient facts to state a cause of action for “maintenance of nuisance”. ; Vi. 1 i PLAINTIFF’S CLAIM FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FAILS The elements of plaintiff's intentional infliction of emotional distress cause of action are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress [by defendant’s outrageous conduct.]” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1120.) Plaintiff has not alleged facts ' setting forth the requisite elements. To support a cause of action for intentional infliction of emotional distress, there must be conduct so outrageous that it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community,” (Christensen y, Superior Court (1991) 54 Cal. 3d 868, 903.) As the court explained in i Agostini v, Strycula (1965) 231 Cal.App.2d 804, 808: Generally, the case is one which the recitation of the facts to an average \ member of the community would arouse his resentment against the actor and lead him to exclaim “Outrageous!” (Citations omitted.) Additionally, in order to successfully plead a cause of action for intentional infliction of emotional distress, plaintiff must allege she suffered severe emotional distress. Severe emotional distress is defined as “highly unpleasant mental suffering or anguish from ‘socially unacceptable MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -«[person] in a civilized society would be expected to endure it."” (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762-163.) “Severe” distress is not substantiated merely by an allegation of a plaintiff’ s “subjective state of discomfort.” (Lee v. Bank of America (1990) 218 Cal.App.3d 914, 920.) For example, in Paulson v. State Farm (1994, C.D. Cal.) 867 F.Supp. 911, 919, the court denied recovery based on allegations of “frustration, depression, nervousness and anxiety” for which plaintiffnever sought medical care. Evidence showing plaintiff was angry or disturbed does not suffice. (Porter v. Firestone (1993) 6 Cal.4th 965, 1004.) In the instant case, no facts are alleged that defendant acted with extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, emotional distress. The] fact that a defendant’s acts did cause the plaintiff emotional distress is not sufficient to prove intentional infliction of emotional distress. (Cummings v. Spire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1423, citing Fletcher v. Western National Life Ins, Co. (1970) 10 Cal.App.3d 376, 394.) The element of intent is key. i McDonell y. American Trust (1955) 130 Cal.App.2d 296 is instructive. In McDonell, plaintiff tenant sued defendant commercial landlord for injuries sustained when the tenant slipped and fell on water that had entered her store due to defects in the roof and roof drains. The landlord knew of the problems with the roof and roof drains and that the problems could cause injury to plaintiff's person and/or property, but did not remedy the conditions. The tenant sued landlord and alleged several counts, including an allegation of intentional tort. | The trial court sustained demurrers to the complaint without leave to amend and entered judgment for the landlord. The tenant appealed. The Court of Appeal held that the facts did not support an intentional tort or conduct so recklessly disregardful of the rights of others as to show malice. As the Court stated in McDonell, “Calling this a "wilful" failure to repair was not the same as saying defendant acted with a wrongful personal intent to injure or in reckless disregard of the rights of others.” (Ud. at 300.) The court did find that the facts stated could be read to allege negligence. i ‘That is the case here. This case involves a commercial landlord and a tenant’s complaint of | failure to repair. However, plaintiff, in vague and conclusory language, simply alleges that defendant 5 leased a commercial building to her with defects and failed to repair the defects despite requests for MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -710 WV 27 28 repairs. ‘There is no indication as to when plaintiff placed defendant on notice of the defective conditions. Even if no repairs were made, a failure to repair does not mean an intent to do harm. Given the facts of this case, there are not enough facts alleged to support a claim for an intentional tort such as | intentional infliction of emotional distress. Moreover, plaintiff merely alleges she “suffered extreme mental anguish and emotional and physical distress... .” (Complaint, parag. 76.) Plaintiff states no facts indicating exactly what her injuries were as a result of this distress. She alleges a “subjective state of discomfort” and draws conclusions, without factual support for the same. Plaintiff has not established “intense, enduring and nontrivial emotional distress that no reasonable [person] in a civilized society would be expected to endure.” (Schild v. Rubin, supra, 232 Cal.App.3d at 762-63.) Also, plaintiff fails to state when she suffered the alleged emotional distress, whether she sought medical care for her emotional distress, and that her complaints were not merely subjective. As such, this allegation simply does not rise to the level of "severe" emotional distress necessary to maintain the cause of action. Because plaintiff has not, and cannot, allege sufficient facts to state a cause of action for intentional infliction of emotional distress, the demurrer to the fourth cause of action should be sustained. VIL THE BREACH OF CONTRACT CLAIM FAILS To state a breach of contract cause of action, plaintiff must allege facts demonstrating (1) the contract; (2) plaintiff’s performance; (3) defendants’ breach; and (4) damage to plaintiff resulting from \the breach. (McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104.) As discussed “above, the usual way to plead breach of a written contract is to allege its making and either attach a copy ‘of the contract to the compiaint and incorporate it by reference or recite it verbatim in the complaint. Here, the terms of the lease agreement is not provided and not all relevant portions are pled with any certainty. In other words, plaintiff does not state exactly what terms of the lease agreement was violated. As such, no claim is pled, VILL. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -2CONCLUSION For all the foregoing reasons, defendant respectfully requests that this Court sustain this demurrer. DATED: July 4% 2015 STRATMAN, PATTERSON & HUNTER BY: S~ — ROBERT M. MALTZ, ESQ. Attorney for Defendant, WONG FAMILY REVOCABLE TRUST MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -9Re: Hua-y. Wong Family Revocable Trust, et al. Case Number: CGC-15-545627 PROOF OF SERVICE Code of Civil Procedure §§ 1013a, 2015.5 Iam a resident of the State of California and over the age of eighteen years, and not a party to the} within action, My business address is 505 14th Street, Suite 400, Oakland, CA 94612-1913. On July ; 2015, I served the following document(s): MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF BDEMURRER By placing the document(s) listed above in a sealed envelope, addressed as set forth 7 below, and placing the envelope for collection and mailing in the place designated for \ such in our offices, following ordinary business practices. By transmitting via facsimile the document(s) listed above to the fax number(s) set ______ forth below on this date before 5:00 p.m. By causing a true copy thereof to be personally delivered to the person(s) at the address(es) set forth below. By electronically serving the document(s) described above via a Court approved File & Serve vendor on those recipients designated on the Transaction Receipt located on the vendor’s Website. By electronically serving tbe document(s) to the electronic mail address set forth below on this date before 5:00 p.m. pursuant to the signed stipulation of the parties and consistent with Code of Civil Procedure section 1010.6(a)(2). SEE ATTACHED SERVICE LIST Iam readily familiar with the firm’s practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I ‘am aware that on motion of the party served, service is presumed invalid if postal cancellation date or | postage meter date is more than one day after date of deposit for mailing in affidavit. ¥ declare under penalty of perjury under the laws of the State of California that the above is true and. correct. 7 y Lanois Executed on July _¢ , 2015, at Oakland /Califorgia. See MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER .- 10Re: Hua v. Wong Family Revocable Trust, et al. Case Number: CGC-15-545627 SERVICE LIST Emmanuel Enyinwa, Esq. Law Office of Emmanuel Enyinwa 807 Montgomery Street San Francisco, CA 94133 Attorney for, Qing Mei Hua, dba as Hua's World Phone: (415) 956-6100 Fax: (415) 956-6111 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER -11