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PETERSON & PETERSON
AN ASSOCIATION OF ATTORNEYS
769 MONTEREY BOULEVARD ELECTRONICALLY
SAN FRANCISCO, CALIFORNIA 94127-2299 FILED
‘TELEPHONE (415) 586-7460 Superior Court of Califomia,
County of San Francisco
By Robert H. Peterson, II, Bar #111963 09/24/2015
Clerk of the Court
ATTORNEYS FOR Defendant BY:ROMY RISK
JENNIFER NGAT ee
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
ASHLEY HERSHBERGER, No. CGC-15-547392
Plaintiff, DEFENDANT JENNIFER NGAI’S
MEMORANDUM OF POINTS AND
vs. AUTHORITIES IN SUPPORT OF
DEMURRER
JENNIFER NGAI, WOON KEUNG NGAI,
AND DOES 1 THROUGH 20, Date: February 24, 2016
Time: 9:30 a.m.
Defendants Dept: 302
Reference Number: 09230224-05
|. STATEMENT OF FACTS
Ashley Hershberger was a tenant in a unit at 1602 — 24" Avenue, San Francisco,
California (hereinafter referred to as “the property”) from June 15, 2014 to June 15, 2015.
During this period, the property was owned by Woon Keung Ngai and Mo Yee Ngai as
Trustees of the Woon Keung & Mo Yee Ngai Revocable Trust 2002. (See Grant Deed, Exhibit
A of Request for Judicial Notice). Jennifer Ngai is the daughter of Woon Keung Ngai and Mo
Yee Ngai, but she has no ownership interest in the property. Jennifer Ngai is and was a
tenant in one of the units in the property. The property has three rental units. Jennifer Ngai
would translate for her parents, whose English speaking is limited and she helped them collect
the rent, but she had no ownership of the property and she had no control over the property,
other than the control she exercised over her own unit as a tenant. Jennifer Ngai did not sign
the lease or rental agreement with Ashley Hershberger and her name appears nowhere on
DEFENDANT JENNIFER NGAI'S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEMURRER, Page 14the document (Exhibit C to the Complaint).
On August 14, 2015, Ashley Hershberger filed her complaint for damages, naming
Jennifer Ngai as a defendant. In her complaint, she alleges that Jennifer Ngai owned,
operated, and was otherwise responsible for management of the property. She alleges that
the written rental agreement was between her and defendants, including Jennifer Ngai, even
though Jennifer Ngai’s signature is not on the document and it does not name Jennifer Ngai
as an owner or manager of the property. Ashley Hershberger then alleges nine causes of
action against Jennifer Ngai which are predicated on the false premise that Jennifer Ngai was
an owner of the property. Jennifer Ngai therefore demurs to each cause of action for failure to
state a cause of action against her since she neither owned nor controlled the unit in which
Ashley Hershberger resided.
The Complaint is attached to the Declaration of Robert H. Peterson, III and all
references to “Complaint” refer to this document.
ll. ARGUMENT
California Code of Civil Procedure Section 430.10 (e) provides that one ground for a
demurrer is that “the pleading does not state facts sufficient to constitute a cause of action.”
California Code of Civil Procedure Section 430.10 (d) provides that one ground for a demurrer
is that “there is a defect or misjoinder of parties.” The identity of the owner of the property at the
time of the allegations by Plaintiff Ashley Hershberger has been established as Woon Keung
Ngai and Mo Yee Ngai as Trustees of the Woon Keung & Mo Yee Ngai Revocable Trust 2002
(Grant Deed, Exhibit A of Request for Judicial Notice). Further, the lease agreement (Exhibit C
to the Complaint) establishes that the maintenance of the common area is the responsibility of
the landlord and that Defendant Jennifer Ngai was not a party to the lease agreement nor was
she listed as the landlord. Plaintiff cannot establish the essential element of possession,
ownership, or control over the property at any time material to the action. As explained below,
this showing is necessary to constitute all of the alleged causes of action against Defendant
Jennifer Ngai.
DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEMURRER, Page 2There is nothing in the Complaint to suggest that Defendant Jennifer Ngai is legally
responsible for any conditions, dangerous or otherwise, of the property. Only plaintiff's
conclusory allegations and contentions stand for any of these assertions.
Undisputed evidence establishes that Defendant Jennifer Ngai did not have any
degree of possession, ownership or control of the property. Defendant Jennifer Ngai has
thus negated the essential element of control over the property which is an element of any
cause of action based on a dangerous condition of the property or based on a requirement to
repair or maintain any condition of the property. Premises which are not under the ownership,
possession, or control of a defendant cannot give rise to a duty to maintain those premises in
a safe condition, or to warn of hazards which might exist there. As the court notes in Hamilton
v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, a case involving non-liability for adjacent
property:
Generally, a landowner has no right to control and manage property owned by
another. (Donnell v. California Western School of Law (1988) 200 Cal.App.3d
715,725.) Accordingly, a defendant cannot be held liable for a defective or
dangerous condition of property which defendant did not own, possess, or
control. (isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d
112,134.) “[T]he duty to take affirmative action for the protection of individuals
coming onto one's property ‘is grounded in the possession of the premises and
the attendant right to control and manage the premises.’ [Citation.] Without the
‘crucial element’ of control over the subject premises [citation], no duty to
exercise reasonable care to prevent injury on such property can be found.
(Gray v. America WestAirlines, Inc. (1989) 209 Cal.App.3d 76, 81.)”
(Hamilton, supra, at 1711.)
Whether the duty of due care exists in a particular established circumstance is always
a question oflawfor determination by the court. As the Court of Appeal held
in Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76:
In premises liability cases, summary judgment may properly be granted where a
defendant unequivocally establishes its lack of ownership, possession, or control
of the property alleged to be in a dangerous or defective condition. (Citation).
This follows from the rule that the duty to take affirmative action for the
protection of individuals coming onto one's property ‘is grounded in the
possession of the premises and the attendant right to control and manage the
premises.’ [Citing Steinmetz v. Stockton City Chamber of Commerce (1985) 169
Cal.App.3d 1142, 1146]. Without the ‘crucial element’ of control over the subject
premises [citing Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232,239],
DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN
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no duty to exercise reasonable care to prevent injury on such property can be
found.
—Gray, supra, 209 Cal.App.3d at 81.
The undisputed facts establish that, as a matter of law, Defendant Jennifer Ngai had
no duty of inspection and remedy, or of warning, of any allegedly dangerous condition as she
had no possession, custody or control of the property.
The issue of whether the moving defendant had a duty to plaintiff with respect to the
alleged dangerous condition is one of law for the court. The evidence establishes that plaintiff
cannot prove facts to constitute the basis of the essential element of duty to plaintiff on the
part of Jennifer Ngai as alleged in the first through ninth causes of action.
A. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR
NEGLIGENCE
The first cause of action, for negligence, states that “By reason of the personal and
fiduciary relationships between plaintiff and DEFENDANTS arising out of the lease
agreement, DEFENDANTS owed Plaintiff the duty to exercise reasonable care in the
ownership, operation, management, and control of the subject premises ...” (Complaint, 22)
On a demurrer, courts consider matters which may be judicially noticed. (Daar v. Yellow Cab
Co., 67 Cal. 2d 695, 716, 433 P.2d 732, 747 (1967)). It should be judicially noticed that
Defendant Jennifer Ngai was not the owner of the property as is apparent from the Grant
Deed, as Exhibit A to Request for Judicial Notice, and therefore is not the owner or lessor of
the property and does not owe a duty or any obligation to Plaintiff Ashley Hershberger, nor did
Defendant Jennifer Ngai sign the lease or rental agreement attached to the Complaint as
Exhibit C. The complaint fails to state a cause of action for negligence against defendant
Jennifer Ngai because she was not an owner and not a party to the lease agreement.
Therefore Jennifer Ngai did not owe any duty to Plaintiff Ashley Hershberger arising from the
rental of the property, and therefore the demurrer should be sustained with regard to this first
cause of action.
B. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR BREACH
DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEMURRER, Page 4OF THE WARRANTY OF HABITABILITY
The second cause of action is for the Breach of Implied Warranty of Habitability. As
stated previously, since Jennifer Ngai is neither the owner of the property and was not a party
to the lease/rental agreement, she does not owe any duty regarding the warranty of
habitability. California Civil Code Section 1941 states, “The lessor of a building intended for
occupation of human beings must, in the absence of an agreement to the contrary, put it into
a condition fit for such occupation, and repair all subsequent dilapidations thereof, which
render it untenantable, except such as are mentioned in section nineteen hundred and twenty-
nine.” An essential element in Section 1941, is that the “lessor” owes this duty. Since
Jennifer is not a lessor, then she owes no duty concerning an alleged breach the warranty of
habitability, and the demurrer should be sustained with regard to this second cause of action.
C. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR BREACH OF
THE WARRANTY OF QUIET ENJOYMENT
The third cause of action is for Breach of Warranty of Quiet Enjoyment. California Civil
Code Section 1927 states, “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.” An essential element is that the person be the one who “lets” or
rents the property. In the present case, the complaint fails to state a cause of action for
Breach of Warranty of Quiet Enjoyment against Defendant Jennifer Ngai because Jennifer
Ngai was not an owner of the property, did not “let” or rent the property to Ashley
Hershberger, and was not a party to the lease/rental agreement. As stated previously, since
Jennifer Ngai is neither the owner of the property and was not a party to the lease/rental
agreement, she does not owe any duty regarding the warranty of quiet enjoyment. Therefore,
the demurrer should be sustained with regard to this third cause of action.
D. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The fourth cause of action is for Intentional Infliction of Emotional Distress. The
DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEMURRER, Page 5OQ on B&B WN
complaint fails to state a cause of action for Intentional Infliction of Emotional Distress against
defendant because it fails to allege that the conduct was extreme and outrageous, an element
to the cause of action for intentional infliction of emotional distress. (Hughes v. Pair, 46 Cal.
4th 1035, 1050, 209 P.3d 963, 976 (2009).
Additionally, the complaint bases this cause of action “in renting an illegal unit and
refusing to make repairs, were intentionally done to cause harm to the Plaintiff ...”
(Complaint, 44) The complaint fails to state a cause of action for Intentional Infliction of
Emotional Distress against Defendant Jennifer Ngai because, as stated previously, she was
not an owner of the property and she did not rent the unit to plaintiff and she had no duty to
make repairs. Therefore, the demurrer should be sustained with regard to this fourth cause of
action.
E. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR FRAUD
The fifth cause of action is for fraud. The complaint alleges “DEFENDANTS
intentionally misled the Plaintiff as to the legality and habitability of the unit” (Complaint, 151)
and “Plaintiff relied on DEFENDANTS’ representation as to the legality of the unit in entering
the lease.” (Complaint, 52) As stated previously, since Jennifer Ngai neither owned the
property nor was a party to the lease/rental agreement, the cause of action for fraud should
fail as she is not responsible for the legality or habitability of the unit. Therefore, the demurrer
should be sustained with regard to this fifth cause of action.
F. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR PRIVATE
NUISANCE
The sixth cause of action is for Private Nuisance. The complaint alleges that
“DEFENDANTS interfered with Plaintiffs use and enjoyment of the subject premises”
(Complaint, 59) and “DEFENDANTS, by acting or failing to act, created a condition or
permitted a condition to exist that was harmful to Plaintiff's health; was indecent or offensive to
the senses; and was an obstruction to the free use of the property, so as to interfere with the
comfortable enjoyment of life or the subject premises.” (Complaint, 60) Since each cause of
DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN
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action is predicated on the allegation that the unit was uninhabitable and/or illegal, and since
Jennifer Ngai was not responsible for the rental of the unit to plaintiff and was not an owner of
the property, this sixth cause of action should fail. Therefore, the demurrer should be
sustained with regard to this sixth cause of action.
G. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR
NEGLIGENT MISREPRESENTATION
The seventh cause of action is for Negligent Misrepresentation. The complaint alleges
that “DEFENDANTS at all times represented to Plaintiff that the rental unit was legal with a
certificate of occupancy” (Complaint, 68) and “Plaintiff relied on these representations in
agreeing to rent the subject property and agreeing to pay rent each month thereafter.”
(Complaint, 69) Since this cause of action is predicated on the rental of the unit to plaintiff,
and since Jennifer Ngai was not responsible for the rental of the unit to plaintiff and was not
an owner of the property, this seventh cause of action should fail. Therefore, the demurrer
should be sustained with regard to this seventh cause of action.
H. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR VIOLATION
OF THE SAN FRANCISCO RENT ARBITRATION AND STABILIZATION ORDINANCE
The eighth cause of action is for Violation of the San Francisco Rent Arbitration and
Stabilization Ordinance. The complaint states, “The DEFENDANTS rented Plaintiff an illegal
unit” (Complaint, 77) and “The DEFENDANTS did not timely obtain the necessary permits to
demolish the unit or legalize the unit.” (Complaint, 78) | Since this cause of action is
predicated on the rental of the unit to plaintiff, and since Jennifer Ngai was not responsible for
the rental of the unit to plaintiff and was not an owner of the property, and was in no way
responsible for obtaining permits regarding the unit or the property, this eighth cause of action
should fail.
Residential Rent Stabilization and Arbitration Ordinance Section 37.9(a) states, “A
landlord shall not endeavor to recover possession of a rental unit unless . . .” An essential
element in Section 37.9(a), (c), and (f), is that the “landlord” attempts to recover possession.
DEFENDANT JENNIFER NGAI'S MEMORANDUM OF POINTS AND AUTHORITIES IN
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In the present case, the complaint fails to state a cause of action for a violation of Residential
Rent Stabilization and Arbitration Ordinance Section 37.9(a) against defendant Jennifer Ngai
because Jennifer Ngai was not the “landlord” of the property, did not rent the property to
Ashley Hershberger, could not “recover possession” of the property that was not hers, and
was not a party to the lease/rental agreement. Therefore, the demurrer should be sustained
with regard to this eighth cause of action.
|. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR VIOLATION
OF PROPOSITION M OF THE SAN FRANCISCO RENT STABILIZATION AND
ARBITRATION ORDINANCE
The ninth cause of action is for Violation of Proposition M of the San Francisco Rent
Stabilization and Arbitration Ordinance. The complaint states, “DEFENDANTS failed to
provide housing services to Plaintiff as required by law as the unit was not habitable nor a
legal rental unit. DEFENDANTS failed to perform repairs and maintenance as required by law
and failed to exercise due diligence in completing repairs and maintenance by allowing mold
and plumbing problems to continue unrepaired and not exercising due diligence in completing
the repairs once undertaken.” (Complaint, 789) As stated previously, since Jennifer Ngai
neither owned the property nor was a party to the lease/rental agreement, the cause of action
for Violation of Proposition M of the San Francisco Rent Stabilization and Arbitrations
Ordinance should fail as she is not responsible for providing housing services to plaintiff nor is
she required to perform repairs or maintain the property. Since Jennifer is not a landlord or
owner, then she does not owe a duty to plaintiff regarding repairs. Therefore, the demurrer
should be sustained with regard to this ninth cause of action.
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Ill. CONCLUSION
Based on the reasons set forth above, defendant respectfully request that the court
grant defendant's motion to demurrer plaintiff's complaint.
Dated: September 23, 2015 PETERSON & PETERSON
MVS
By.
ROBERT H. PETERSON, III
Attorney for Defendant
JENNIFER NGAI
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PROOF OF SERVICE
|, ROBERT H. PETERSON, III, am employed in the City and County of San Francisco,
State of California. | am over the age of 18 years and not a party to the within action. My
business address is 769 Monterey Blvd., San Francisco, California 94127.
On February 14, 2003, | served the foregoing DEFENDANT JENNIFER NGAI’S
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER on each
person named below by placing a true copy thereof, enclosed in a sealed envelope,
addressed as follows:
Mark Hooshmand
Jasna Veledar
Hooshmand Law Group
22 Battery St., Ste 610
San Francisco, CA 94111
| am readily familiar with the business’ practice for the collection and processing of
correspondence for mailing with the United States Postal Service and the fact that the
correspondence would be deposited with the United States Postal Service that same day in
the ordinary course of business. On this date, the above-referenced correspondence was
place for deposit at San Francisco, California, and placed for collection and mailing following
ordinary business practices.
| declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: September 23, 2015 f t ye
ROBERT H. PETERSON, III
DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF DEMURRER, Page 10
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o © ON OD wm BR Ww NM RY Ba se Ba ea aw ew ew aw aw SBN 8&8 ® 8 RS 8S 6 et BaaRSR ES PETERSON & PETERSON AN ASSOCIATION OF ATTORNEYS 769 MONTEREY BOULEVARD ELECTRONICALLY SAN FRANCISCO, CALIFORNIA 94127-2299 FILED ‘TELEPHONE (415) 586-7460 Superior Court of Califomia, County of San Francisco By Robert H. Peterson, II, Bar #111963 09/24/2015 Clerk of the Court ATTORNEYS FOR Defendant BY:ROMY RISK JENNIFER NGAT ee SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO ASHLEY HERSHBERGER, No. CGC-15-547392 Plaintiff, DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF DEMURRER JENNIFER NGAI, WOON KEUNG NGAI, AND DOES 1 THROUGH 20, Date: February 24, 2016 Time: 9:30 a.m. Defendants Dept: 302 Reference Number: 09230224-05 |. STATEMENT OF FACTS Ashley Hershberger was a tenant in a unit at 1602 — 24" Avenue, San Francisco, California (hereinafter referred to as “the property”) from June 15, 2014 to June 15, 2015. During this period, the property was owned by Woon Keung Ngai and Mo Yee Ngai as Trustees of the Woon Keung & Mo Yee Ngai Revocable Trust 2002. (See Grant Deed, Exhibit A of Request for Judicial Notice). Jennifer Ngai is the daughter of Woon Keung Ngai and Mo Yee Ngai, but she has no ownership interest in the property. Jennifer Ngai is and was a tenant in one of the units in the property. The property has three rental units. Jennifer Ngai would translate for her parents, whose English speaking is limited and she helped them collect the rent, but she had no ownership of the property and she had no control over the property, other than the control she exercised over her own unit as a tenant. Jennifer Ngai did not sign the lease or rental agreement with Ashley Hershberger and her name appears nowhere on DEFENDANT JENNIFER NGAI'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 14the document (Exhibit C to the Complaint). On August 14, 2015, Ashley Hershberger filed her complaint for damages, naming Jennifer Ngai as a defendant. In her complaint, she alleges that Jennifer Ngai owned, operated, and was otherwise responsible for management of the property. She alleges that the written rental agreement was between her and defendants, including Jennifer Ngai, even though Jennifer Ngai’s signature is not on the document and it does not name Jennifer Ngai as an owner or manager of the property. Ashley Hershberger then alleges nine causes of action against Jennifer Ngai which are predicated on the false premise that Jennifer Ngai was an owner of the property. Jennifer Ngai therefore demurs to each cause of action for failure to state a cause of action against her since she neither owned nor controlled the unit in which Ashley Hershberger resided. The Complaint is attached to the Declaration of Robert H. Peterson, III and all references to “Complaint” refer to this document. ll. ARGUMENT California Code of Civil Procedure Section 430.10 (e) provides that one ground for a demurrer is that “the pleading does not state facts sufficient to constitute a cause of action.” California Code of Civil Procedure Section 430.10 (d) provides that one ground for a demurrer is that “there is a defect or misjoinder of parties.” The identity of the owner of the property at the time of the allegations by Plaintiff Ashley Hershberger has been established as Woon Keung Ngai and Mo Yee Ngai as Trustees of the Woon Keung & Mo Yee Ngai Revocable Trust 2002 (Grant Deed, Exhibit A of Request for Judicial Notice). Further, the lease agreement (Exhibit C to the Complaint) establishes that the maintenance of the common area is the responsibility of the landlord and that Defendant Jennifer Ngai was not a party to the lease agreement nor was she listed as the landlord. Plaintiff cannot establish the essential element of possession, ownership, or control over the property at any time material to the action. As explained below, this showing is necessary to constitute all of the alleged causes of action against Defendant Jennifer Ngai. DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 2There is nothing in the Complaint to suggest that Defendant Jennifer Ngai is legally responsible for any conditions, dangerous or otherwise, of the property. Only plaintiff's conclusory allegations and contentions stand for any of these assertions. Undisputed evidence establishes that Defendant Jennifer Ngai did not have any degree of possession, ownership or control of the property. Defendant Jennifer Ngai has thus negated the essential element of control over the property which is an element of any cause of action based on a dangerous condition of the property or based on a requirement to repair or maintain any condition of the property. Premises which are not under the ownership, possession, or control of a defendant cannot give rise to a duty to maintain those premises in a safe condition, or to warn of hazards which might exist there. As the court notes in Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, a case involving non-liability for adjacent property: Generally, a landowner has no right to control and manage property owned by another. (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715,725.) Accordingly, a defendant cannot be held liable for a defective or dangerous condition of property which defendant did not own, possess, or control. (isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112,134.) “[T]he duty to take affirmative action for the protection of individuals coming onto one's property ‘is grounded in the possession of the premises and the attendant right to control and manage the premises.’ [Citation.] Without the ‘crucial element’ of control over the subject premises [citation], no duty to exercise reasonable care to prevent injury on such property can be found. (Gray v. America WestAirlines, Inc. (1989) 209 Cal.App.3d 76, 81.)” (Hamilton, supra, at 1711.) Whether the duty of due care exists in a particular established circumstance is always a question oflawfor determination by the court. As the Court of Appeal held in Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76: In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition. (Citation). This follows from the rule that the duty to take affirmative action for the protection of individuals coming onto one's property ‘is grounded in the possession of the premises and the attendant right to control and manage the premises.’ [Citing Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1146]. Without the ‘crucial element’ of control over the subject premises [citing Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232,239], DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 3oO © mW O@ Oo &F WwW DY = DON Ny NY Ss se se se Ba ew ew Bo an BN & & ® 8 BS S$ 6 wets at BRS no duty to exercise reasonable care to prevent injury on such property can be found. —Gray, supra, 209 Cal.App.3d at 81. The undisputed facts establish that, as a matter of law, Defendant Jennifer Ngai had no duty of inspection and remedy, or of warning, of any allegedly dangerous condition as she had no possession, custody or control of the property. The issue of whether the moving defendant had a duty to plaintiff with respect to the alleged dangerous condition is one of law for the court. The evidence establishes that plaintiff cannot prove facts to constitute the basis of the essential element of duty to plaintiff on the part of Jennifer Ngai as alleged in the first through ninth causes of action. A. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR NEGLIGENCE The first cause of action, for negligence, states that “By reason of the personal and fiduciary relationships between plaintiff and DEFENDANTS arising out of the lease agreement, DEFENDANTS owed Plaintiff the duty to exercise reasonable care in the ownership, operation, management, and control of the subject premises ...” (Complaint, 22) On a demurrer, courts consider matters which may be judicially noticed. (Daar v. Yellow Cab Co., 67 Cal. 2d 695, 716, 433 P.2d 732, 747 (1967)). It should be judicially noticed that Defendant Jennifer Ngai was not the owner of the property as is apparent from the Grant Deed, as Exhibit A to Request for Judicial Notice, and therefore is not the owner or lessor of the property and does not owe a duty or any obligation to Plaintiff Ashley Hershberger, nor did Defendant Jennifer Ngai sign the lease or rental agreement attached to the Complaint as Exhibit C. The complaint fails to state a cause of action for negligence against defendant Jennifer Ngai because she was not an owner and not a party to the lease agreement. Therefore Jennifer Ngai did not owe any duty to Plaintiff Ashley Hershberger arising from the rental of the property, and therefore the demurrer should be sustained with regard to this first cause of action. B. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR BREACH DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 4OF THE WARRANTY OF HABITABILITY The second cause of action is for the Breach of Implied Warranty of Habitability. As stated previously, since Jennifer Ngai is neither the owner of the property and was not a party to the lease/rental agreement, she does not owe any duty regarding the warranty of habitability. California Civil Code Section 1941 states, “The lessor of a building intended for occupation of human beings must, in the absence of an agreement to the contrary, put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable, except such as are mentioned in section nineteen hundred and twenty- nine.” An essential element in Section 1941, is that the “lessor” owes this duty. Since Jennifer is not a lessor, then she owes no duty concerning an alleged breach the warranty of habitability, and the demurrer should be sustained with regard to this second cause of action. C. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR BREACH OF THE WARRANTY OF QUIET ENJOYMENT The third cause of action is for Breach of Warranty of Quiet Enjoyment. California Civil Code Section 1927 states, “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.” An essential element is that the person be the one who “lets” or rents the property. In the present case, the complaint fails to state a cause of action for Breach of Warranty of Quiet Enjoyment against Defendant Jennifer Ngai because Jennifer Ngai was not an owner of the property, did not “let” or rent the property to Ashley Hershberger, and was not a party to the lease/rental agreement. As stated previously, since Jennifer Ngai is neither the owner of the property and was not a party to the lease/rental agreement, she does not owe any duty regarding the warranty of quiet enjoyment. Therefore, the demurrer should be sustained with regard to this third cause of action. D. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The fourth cause of action is for Intentional Infliction of Emotional Distress. The DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 5OQ on B&B WN complaint fails to state a cause of action for Intentional Infliction of Emotional Distress against defendant because it fails to allege that the conduct was extreme and outrageous, an element to the cause of action for intentional infliction of emotional distress. (Hughes v. Pair, 46 Cal. 4th 1035, 1050, 209 P.3d 963, 976 (2009). Additionally, the complaint bases this cause of action “in renting an illegal unit and refusing to make repairs, were intentionally done to cause harm to the Plaintiff ...” (Complaint, 44) The complaint fails to state a cause of action for Intentional Infliction of Emotional Distress against Defendant Jennifer Ngai because, as stated previously, she was not an owner of the property and she did not rent the unit to plaintiff and she had no duty to make repairs. Therefore, the demurrer should be sustained with regard to this fourth cause of action. E. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR FRAUD The fifth cause of action is for fraud. The complaint alleges “DEFENDANTS intentionally misled the Plaintiff as to the legality and habitability of the unit” (Complaint, 151) and “Plaintiff relied on DEFENDANTS’ representation as to the legality of the unit in entering the lease.” (Complaint, 52) As stated previously, since Jennifer Ngai neither owned the property nor was a party to the lease/rental agreement, the cause of action for fraud should fail as she is not responsible for the legality or habitability of the unit. Therefore, the demurrer should be sustained with regard to this fifth cause of action. F. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR PRIVATE NUISANCE The sixth cause of action is for Private Nuisance. The complaint alleges that “DEFENDANTS interfered with Plaintiffs use and enjoyment of the subject premises” (Complaint, 59) and “DEFENDANTS, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to Plaintiff's health; was indecent or offensive to the senses; and was an obstruction to the free use of the property, so as to interfere with the comfortable enjoyment of life or the subject premises.” (Complaint, 60) Since each cause of DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 6o© ON OD mH FF WwW DN = ym NNN DY HY KY BB B&B Be Be Ba Be ew Bw ow SB N 8S & ® SBR 8 8 6 et Sake SD RTS action is predicated on the allegation that the unit was uninhabitable and/or illegal, and since Jennifer Ngai was not responsible for the rental of the unit to plaintiff and was not an owner of the property, this sixth cause of action should fail. Therefore, the demurrer should be sustained with regard to this sixth cause of action. G. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR NEGLIGENT MISREPRESENTATION The seventh cause of action is for Negligent Misrepresentation. The complaint alleges that “DEFENDANTS at all times represented to Plaintiff that the rental unit was legal with a certificate of occupancy” (Complaint, 68) and “Plaintiff relied on these representations in agreeing to rent the subject property and agreeing to pay rent each month thereafter.” (Complaint, 69) Since this cause of action is predicated on the rental of the unit to plaintiff, and since Jennifer Ngai was not responsible for the rental of the unit to plaintiff and was not an owner of the property, this seventh cause of action should fail. Therefore, the demurrer should be sustained with regard to this seventh cause of action. H. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR VIOLATION OF THE SAN FRANCISCO RENT ARBITRATION AND STABILIZATION ORDINANCE The eighth cause of action is for Violation of the San Francisco Rent Arbitration and Stabilization Ordinance. The complaint states, “The DEFENDANTS rented Plaintiff an illegal unit” (Complaint, 77) and “The DEFENDANTS did not timely obtain the necessary permits to demolish the unit or legalize the unit.” (Complaint, 78) | Since this cause of action is predicated on the rental of the unit to plaintiff, and since Jennifer Ngai was not responsible for the rental of the unit to plaintiff and was not an owner of the property, and was in no way responsible for obtaining permits regarding the unit or the property, this eighth cause of action should fail. Residential Rent Stabilization and Arbitration Ordinance Section 37.9(a) states, “A landlord shall not endeavor to recover possession of a rental unit unless . . .” An essential element in Section 37.9(a), (c), and (f), is that the “landlord” attempts to recover possession. DEFENDANT JENNIFER NGAI'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 7So © 2 NN ® mM F&F WwW NY = Ny MYM NY HY HY B@ BB ew ewe ew Ba Bw sw & 8% 8 & Rk SS 8 8S 6 eis aszsan st In the present case, the complaint fails to state a cause of action for a violation of Residential Rent Stabilization and Arbitration Ordinance Section 37.9(a) against defendant Jennifer Ngai because Jennifer Ngai was not the “landlord” of the property, did not rent the property to Ashley Hershberger, could not “recover possession” of the property that was not hers, and was not a party to the lease/rental agreement. Therefore, the demurrer should be sustained with regard to this eighth cause of action. |. THERE IS NO CAUSE OF ACTION AGAINST JENNIFER NGAI FOR VIOLATION OF PROPOSITION M OF THE SAN FRANCISCO RENT STABILIZATION AND ARBITRATION ORDINANCE The ninth cause of action is for Violation of Proposition M of the San Francisco Rent Stabilization and Arbitration Ordinance. The complaint states, “DEFENDANTS failed to provide housing services to Plaintiff as required by law as the unit was not habitable nor a legal rental unit. DEFENDANTS failed to perform repairs and maintenance as required by law and failed to exercise due diligence in completing repairs and maintenance by allowing mold and plumbing problems to continue unrepaired and not exercising due diligence in completing the repairs once undertaken.” (Complaint, 789) As stated previously, since Jennifer Ngai neither owned the property nor was a party to the lease/rental agreement, the cause of action for Violation of Proposition M of the San Francisco Rent Stabilization and Arbitrations Ordinance should fail as she is not responsible for providing housing services to plaintiff nor is she required to perform repairs or maintain the property. Since Jennifer is not a landlord or owner, then she does not owe a duty to plaintiff regarding repairs. Therefore, the demurrer should be sustained with regard to this ninth cause of action. Mt Ml Il Wt Ml DEFENDANT JENNIFER NGAI'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 8Oo © ON OW HW ® ww NY = ND My MY Ss =e Be ew aw ew ew ew a BN SBR SS 8 8 6 esa SN ES Ill. CONCLUSION Based on the reasons set forth above, defendant respectfully request that the court grant defendant's motion to demurrer plaintiff's complaint. Dated: September 23, 2015 PETERSON & PETERSON MVS By. ROBERT H. PETERSON, III Attorney for Defendant JENNIFER NGAI DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 9oO © @ nN ® wm B® wW NY = NN NN NY KY BB Be BB Be Bw Bw Ba S&S N 8S BR BS ® 8 bea GB a eB KS PROOF OF SERVICE |, ROBERT H. PETERSON, III, am employed in the City and County of San Francisco, State of California. | am over the age of 18 years and not a party to the within action. My business address is 769 Monterey Blvd., San Francisco, California 94127. On February 14, 2003, | served the foregoing DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER on each person named below by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: Mark Hooshmand Jasna Veledar Hooshmand Law Group 22 Battery St., Ste 610 San Francisco, CA 94111 | am readily familiar with the business’ practice for the collection and processing of correspondence for mailing with the United States Postal Service and the fact that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business. On this date, the above-referenced correspondence was place for deposit at San Francisco, California, and placed for collection and mailing following ordinary business practices. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: September 23, 2015 f t ye ROBERT H. PETERSON, III DEFENDANT JENNIFER NGAI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER, Page 10