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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
Fra nc'Ine Stevens et al vs Bernice MacSwain Hea ring Sta rt Time: 9:00 AM
17CV316395 Hearing Type: Hearing: Motion to Strike
Date of Hearing: 03/06/2018 Comments:
Heard By: Stoelker, Ja mes L Location: Department 13
Courtroom Reporter: -
No Record Transcribed Courtroom Clerk: Robert Gutierrez
Cou rt lnte rprete r:
Court Investigator:
Parties Present: Future Hearings:
Stevens, Fra ncine Plaintiff
Sulliva n,Gary W. Attorney
Exhibits:
-
The tentative ruling iscontested by Plaintiff.
Plaintiffinforms the Court that she no longer contests the tentative ruling.
The tentative ruling isadopted. See below for ruling.
Case Na me: Stevens, et al. v.MacSwain
Case No.: 17-CV-316395
Defenda nt Bernice MacSwain (
Defendant )demurs to the first amended complaint (
FAC ) filed by plaintiffs
Fra ncine Stevens( Stevens )
and Scott Harris ( Harris ) (collectively, Plaintiffs ) and moves to strike portions
contained therein.
This action for retaliatory eviction arises out of a Iandlord-tenant dispute. According to the allegations of the
FAC, on April 9, 2016, Stevens entered into a month to month lease agreement with Defenda nt for a rental
property located in Campbell (the Property ). (FAC, 9—10.) It was understood at the time of the signing that
Harris was going to reside in the Property with Stevens. Plaintiffs allege that subsequent to the signing of the
lease, Defendant unlawfully increased the rent on the Property in an amount not permitted under California
law.
At the time Plaintiffswere to move in, the prior tena nt s possessions were sti|| on the Property. In early June
2016, Plaintiffsobtained a cou rt order requiring the prior tena nt to remove her possessions, however, she
failed to do so. (FAC, 21.) Defenda nt refused to pay anything towards the cost of removing the prior tenant
s possessions or inventory or store the items as required by law. (ld., 23.) Consequently, Plaintiffs were
unable to fullymove into the Property. (|d.)
On July 28, 2016, Plaintiffs received a 30-day eviction notice. (FAC, 25.) When they inquired about it,
Defenda nt told them to ignore itas ithad been issued by her son, who did not have the authority to do so.
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MINUTE ORDER
Approximately a year later, Plaintiffs paid Defenda nt su ms for back rent as well as su ms for futu re rents due;
however, Defendant failed to apply the latter amou nts to Plaintiffs future obligations. (FAC, 27.) Shortly
thereafter, on July 27, 2017, Defenda nt posted a three-day notice to pay or quit as well as a 60-day notice to
vacate, explaining to Plaintiffs that she wanted them to vacate so that she could sell the Property. (|d., 30.)
Defenda nt then filed an unlawful detainer action to evict Plaintiffs. (ld.) Plaintiffs allege that this action was
fraudulent, with Defenda nt overstating the amou nt of rent clue from them. (|d.)Defenda nt ultimately
dismissed the action without prejudice based on perceived problems with the amou nt of rent claimed to be
clue. (Id., 32.)
On October 6, 2017, Defenda nt filed a second unlawful detainer action based on Plaintiffs purported failure
to vacate after the 60-day notice expired. (FAC, 31.) The pa rties settled the matter prior to trial pu rsuant to
a written settlement agreement.
On December 22, 2017, based on allegations that the firstunlawful detainer was filed in retaliation for them
asserting their rights as tenants, Plaintiffs filed the FAC asserting the following claims :
(1)breach of contract/
implied wa rra nty of habitability; (2) retaliatory eviction; (3) retaliatory eviction: was brought without
probable cause; (4) retaliatory eviction: was initiated with malice; (5) retaliatory eviction: fraudulent intent;
(6) intentional misrepresentation,- (7)fraudulent suppression of material facts/fraudulent concealment,- ancl
(8) violation of California tena nt s rights.
On January 29, 2018, Defenda nt filed the instant demurrer to each of the eight causes of action asserted in
the FAC on the grounds of failu re to state facts sufficient to constitute a cause of action and uncertainty.
(Code Civ. Proc., 430.10, subds. (e) ancl (f).) Defendant also filed the motion to strike portions of the FAC,
specifically those pertaining to punitive damages and emotional distress da mages. (Code Civ. Proc., 435
and 436.) Plaintiffsoppose the motions.
|.Defendant sRequest for Judicial Notice
In support of her demurrer and motion to strike, Defendant requests that the Cou rt ta ke judicial notice of the
Stipulation for Entry ofJudgment filed in the second unlawful detainer action on December 20, 2017. As this
item is a cou rt record, it is aproper subject ofjudicial notice pu rsuant to Evidence Code section 452,
subdivision (cl).Accordingly, Defenda nt s request forjudicial notice is GRANTED.
||.Demurrer
As set forth above, Defenda nt demurs to each of the eight causes of action asserted in the FAC on the
grounds of failure to state facts sufficient to constitute a cause of action ancl uncertainty.
The firstcause of action appears to allege a breach of contract based on a breach of the implied warra nty of
habitability. As a general matter, a warra nty of habitability is implied as a matter of law in a|| residential
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MINUTE ORDER
rental agreements. (Green v. Su perior Cou rt (1974) 10 Ca|.3d 616, 629, 631, 637.) This implied wa rra nty
recognizes the realities of the modern urban landlord-tena nt relationship, and imposes upon the Ia ndlord
the obligation to maintain leased dwellings ina habitable condition throughput the term of the lease.
(Peterson v. Su perior Court (1995) 10 Cal.App.4th 1185, 1204.) Defenda nt asserts that because Harris was
not a party to the rental agreement with Defendant, which is attached to the FAC as Exhibit 1, he cannot
maintain this claim. This argument is well ta ken, as it is clear that the rental agreement was entered into
between Stevens and Defendant only, and the implied wa rra nty arises out of that agreement. An individual
who is not a party to an agreement has no sta ncling to enforce a breach of its terms. (See, e.g., Windham at
Carmel Mou ntain Ranch Assn. v. Su periorCourt (2003) 109 Cal.App.4th 1162.) Thus, no claim has been
stated by Harris against Defendant.
As for Stevens, Defendant maintains that the claim is uncertain because it is not clear from the allegations of
the FAC who the source of alleged breach of the implied warra nty of habitability is: Defenda nt or the prior
tena nt, Kristen Harris. The Cou rt, however, does not find this contention persuasive based on what is actually
pleaded in the operative pleading and the natu re ofa demurrer based on uncertainty. Such a ground is
generally disfavored, ancl wi|| be sustained only where the allegations of the pleading are so unintelligible
that the defenda nt cannot respond to them. (See Khoury v. Maly s of Calif., Inc. (1993) 14 Cal.App.4th 612,
616 [stating that [a] demurrer for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery procedures ].) Here,
Plaintiffs allege that Defendant breached the implied warra nty of habitability by: failing to repair or replace
the broken window in the master bedroom; failing to disclose a rat/mice/termite infestation on the Property;
ancl failing to remove the prior tena nt s personal property as required by law. (FAC, 40-45.) None of the
foregoing can be properly characterized as unintelligible. Consequently, Defenda nt s argu ment with respect
to Stevens is without merit. |n accorda nce with the foregoing analysis, Defenda nt s demurrer to the first
cause of action on the grou nd of failure to state facts sufficient to constitute a cause of action is SUSTAINED
WITHOUT LEAVE TO AMEND as to Harris ancl her demurrer to this claim on the ground of uncertainty is
OVERRULED.
Turning to the second cause of action, Defenda nt maintains that no claim for retaliatory eviction has been
stated because Plaintiffs have not affirmatively alleged that they were not in default on the payment of rent
on the Property, i.e., that they were current, as of the date of service of the 60-day notice to vacate on July
27, 2017. Alternatively, Defenda nt continues, this claim is uncertain because of the lack of clarity regarding
whether Plaintiffs were current with their rent obligations.
As a matter of public policy, the law protects tena nts against retaliatory eviction, i.e., actual or constructive
eviction motivated by an intent on the part of the Ia ndlord to punish tena nts for their exercise of legally-
protected rights. (See Ba relav. Su perior Court (1981) 30 Ca|.3d 244, 249; Civ.Code, 1942.5.) Statutorily,
CivilCode section 1942.5 broadly prohibits landlords from evicting residential tena nts, raising their rent or
decreasing housing services in retaliation against the exercise of lawful tenant rights.
While Defendant iscorrect that relief under the aforementioned statute for retaliatory eviction is not
available to tena nts who are indefault of the payment of rent (see Civ. Code, 1942.5, subd. (a)),she cites no
authority for the proposition that a tenant asserting such a claim needs to affirmatively plead that he or she is
current with an applicable rental obligations in order to state a claim for retaliatory eviction. Because
retaliatory eviction can also be asserted as an affirmative defense to an unlawful detainer, it is easy to see
why, in such a circu msta nce, that a tenant defenda nt would be expected to plead whether or not he or she
was in default where the action is based on nonpayment of rent. The same cannot necessarily be said where
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MINUTE ORDER
the claim asserted
'Is
remedially 'Inan action for damages. Thus, the Cou rt does not find this argument
persuasive, nor does itfind persuasive Defenda nt s contention that Stevens failure to clarify whether she was
'In default or not when the 60-day notice was served renders this pleading uncertain within the meaning of
Code of Civil Procedure section 430.10, subdivision (f).Consequently, Defenda nt s demurrer to the second
cause of action on the grou nds of failure to state facts sufficient to constitute a cause of action ancl
uncertainty OVERRULED.
'Is
Defenda nt next ma kes the sa me argu ment with respect to the third, fourth and fifth causes of action, which
all appear to assert some va riation of retaliatory eviction, arguing that none are recognized causes of action
in California. The Court agrees, noting that Plaintiffs have cited no authority as the basis for claims for
retaliatory eviction without probable cause, retaliatory eviction initiated with malice and retaliatory
eviction fraudulent intent and do not otherwise, in their opposition, dispute Defenda nt s assertion that the
foregoing claims do not exist under the law. Therefore, Defenda nt s demurrer to the third, fourth ancl fifth
cause of action on the grou nds of uncertainty and failure to state facts sufficient to constitute a cause of
action is SUSTAINED WITHOUT LEAVE TO AMEND.
Plaintiffs sixth cause of action is for intentional misrepresentation, based on allegations that Defenda nt made
false or misleading statements in the first unlawful detainer action. The essential elements of fraud are: (1)
misrepresentation (false representation, concealment, or nondisclosu re); (2) knowledge of falsity (scienter);
(3) intent to defraud (i.e., to induce reliance);(4) justifiable reliance; and (5) resulting damage. [Citation.]
(Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474.) Plaintiffs maintain that they relied on
these statements to their detriment, but upon review of this cause of action, the Cou rt is in agreement with
Defenda nt that it is entirely unclear how this was the case. As Defenda nt notes in her supporting
memora ndum, claims for fraud must be pleaded with specificity, which necessitates pleading facts which
show how, when, where, to whom, and by what means the representations were tendered. (Sta nsfield v.
Starkey (1990) Cal.App.3d 59, 73.) Plaintiffs sixth cause of action falls well short of this standa rd.
Consequently, Defendant s demurrer to the sixth cause of action on the grou nds of uncertainty ancl failure to
state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS LEAVE TO AMEND.
Plaintiffs seventh cause of action for fraudulent suppression of material facts/fraudulent concealment is very
similar to the preceding cause of action in that it sounds in fraud and is based on the first unlawful detainer
filing by Defendant. Where it differs is that rather than involving affirmative misrepresentations, the claim is
predicated on the allegation that Defendant suppressed the fact that Plaintiffs were current with their rent
when she filed the action to evict them based on nonpayment of rent. (FAC, 81-83.) In demurring to this
claim, Defendant asserts that the filing ancl dismissal ofan unlawful detainer action in ancl of itself does not
amount to an intentional misrepresentation and that Plaintiffappears to be alleging a claim for malicious
prosecution, but fails to plead the specific facts necessary to state such a claim, or even for fraud. Thus,
Defenda nt concludes, no claim for fraudulent concealment has been stated.
None of the foregoing arguments are well taken. First,the filing ancldismissal of the firstunlawful detainer
action isnot alleged to itself qualifyas the fraudulent concealment; rather, conduct which occurred within
the action, Defenda nt s failure to disclose to Plaintiffs that they were
i.e., not in default, is. Second, the Court
is not persuaded that Plaintiffs intention is to plead malicious prosecution, as they have pleaded, while in
conclusory terms, the elements of fraudulent concealment. Finally, the heightened pleading standa rd
attenda nt to most claims for fraud is not strictly applied to claims for fraudulent concealment specifically,
given the absence of affirmative misrepresentations. (See Alfaro v. Community Housing Improvement System
& Planning Assn., |nc. (2009) 171 Cal.App.4th 1356, 1384 [stating [h]ow does one show how and by what
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means somethingdidn t happen, or when never happened, or
'It
where itnever happened? ].) As none of
the argu ments asserted by Defendant in support of her demurrer to the seventh cause of action are
persuasive, her demurrer to this claim on the grou nds of uncertainty and failure to state facts sufficient to
constitute a cause of action is OVERRULED.
Finally, Plaintiffs allegean eighth cause of action for violation of California Tena nt s Rights in the Judicial
Complaint portion of the FAC, but none in the actual body of the pleading in which they set forth the specific
facts of their claims. Plaintiffs do not dispute the deficiencies in this claim in their opposition. Consequently,
it is not clear what the basis of this claim is, and therefore Defenda nt s demurrer to the eighth cause of action
on the grou nds of failure to state facts sufficient to constitute a cause of action ancl uncertainty is SUSTAINED
WITHOUT LEAVE TO AMEND.
|||.Motion to Strike
In her motion to strike, Defenda nt moves to strike Plaintiffs request for punitive damages, allegations
relating thereto, and allegations regarding their alleged emotional distress. It is Defendant s contention that
Plaintiffs have failed to plead facts entitling them to punitive da mages ancl da mages for emotional distress.
As a general matter, the right to exemplary or punitive damages requires proof of oppression, fraud, or
malice on the pa rt ofthe defenda nt by clear and convincing evidence. (Civ. Code, 3294, subd. (3).) For
pleading pu rposes, in order to support a prayer for punitive or exemplary damages, the complaint must allege
ultimate facts of the defendant s oppression, fraud or malice. (Cyrus v. Haveson (1976) 65 Cal.App.3d 306,
316-317.) Simply pleading the statutory terms oppression, fraud or malice is insufficient to adequately
allege punitive da mages, but only to the extent that the complaint pleads facts to support those allegations.
(Blegen v. Su perior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations
demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864,
872.) However, the complaint wi|| be read as a whole so that even conclusory allegations may suffice when
read in context with facts alleged as to the defenda nt s wrongful conduct. (Perkins v. Su per. Ct. (1981) 117
Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).
Here, malice and fraud serve as the fou ndation for Plaintiffs request for punitive damages. Under the
punitive damages statute, Civil Code section 3294, malice isdefined as conduct which is intended by the
defenda nt to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a
willful and conscious disrega rd of the rights or safety of others. (Civ. Code, 3294, subd. (c)(1).) Despicable
conduct, in turn, has been described as conduct that is so vile, base, contemptible, miserable, wretched or
loathsome that it would be looked down upon ancl despised by ordinary decent people. (Mock v. Michigan
Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Finally, fraud is defined as an intentional
misrepresentation, deceit, or concealment of a material fact known to the defenda nt with the intention on
the part of the defenda nt of thereby depriving a person of property or legal rights or otherwise causing injury.
(Civ. Code, 3294, subd. (c)(3).)
Upon review of the FAC in total, the Cou rt is in agreement with Defenda nt that Plaintiffs have failed to plead
facts which support the imposition of punitive da mages. As cu rrently pleaded, there is nothing in the FAC
that describes malicious conduct on her part in her dealings with Plaintiffs ancl their tenancy of her property.
The allegation that Defenda nt acted with malice is conclusory and insufficient, without more, to support the
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imposition of damages pu rsuant to CivilCode section 3294. Accordingly, to the extent that Defenda nt s
motion seeks to strike Plaintiffs request for punitive damages and allegations relating thereto, it is GRANTED
WITH 10 DAYS LEAVE TO AMEND.
As for da mages based on emotional distress, Defendant asserts that this type of da mages appears to be
requested by Plaintiffs in the FAC. However, while the phrase emotional distress is contained in the FAC, it is
not clear that Plaintiffs are seeking these types of damages, or that such damages are being sought only in
connection with the breach of contract claim which, as Defendant notes, is generally impermissible. (See,
e.g., Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Ca|.App.4th 174, 188.) Importantly, emotional
distress damages are recoverable in actions based on a breach of the warranty of habitability. (See McNairy
v. C.K. Realty (2007) 150 Ca|.App.4th 1500.) Given this fact, Defenda nt s assertion that Plaintiffs request for
emotional distress da mages and allegations relating thereto must be stricken is unavailing and thus to the
extent that her motion seeks to strike these items, it is DENIED.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Fra nc'Ine Stevens et al vs Bernice MacSwain Hea ring Sta rt Time: 9:00 AM 17CV316395 Hearing Type: Hearing: Motion to Strike Date of Hearing: 03/06/2018 Comments: Heard By: Stoelker, Ja mes L Location: Department 13 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Robert Gutierrez Cou rt lnte rprete r: Court Investigator: Parties Present: Future Hearings: Stevens, Fra ncine Plaintiff Sulliva n,Gary W. Attorney Exhibits: - The tentative ruling iscontested by Plaintiff. Plaintiffinforms the Court that she no longer contests the tentative ruling. The tentative ruling isadopted. See below for ruling. Case Na me: Stevens, et al. v.MacSwain Case No.: 17-CV-316395 Defenda nt Bernice MacSwain ( Defendant )demurs to the first amended complaint ( FAC ) filed by plaintiffs Fra ncine Stevens( Stevens ) and Scott Harris ( Harris ) (collectively, Plaintiffs ) and moves to strike portions contained therein. This action for retaliatory eviction arises out of a Iandlord-tenant dispute. According to the allegations of the FAC, on April 9, 2016, Stevens entered into a month to month lease agreement with Defenda nt for a rental property located in Campbell (the Property ). (FAC, 9—10.) It was understood at the time of the signing that Harris was going to reside in the Property with Stevens. Plaintiffs allege that subsequent to the signing of the lease, Defendant unlawfully increased the rent on the Property in an amount not permitted under California law. At the time Plaintiffswere to move in, the prior tena nt s possessions were sti|| on the Property. In early June 2016, Plaintiffsobtained a cou rt order requiring the prior tena nt to remove her possessions, however, she failed to do so. (FAC, 21.) Defenda nt refused to pay anything towards the cost of removing the prior tenant s possessions or inventory or store the items as required by law. (ld., 23.) Consequently, Plaintiffs were unable to fullymove into the Property. (|d.) On July 28, 2016, Plaintiffs received a 30-day eviction notice. (FAC, 25.) When they inquired about it, Defenda nt told them to ignore itas ithad been issued by her son, who did not have the authority to do so. 3/6/20] 8 Printed: - 17CV316395 03/06/20] 8 Hearing: Motion t0 Strike Page 1 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Approximately a year later, Plaintiffs paid Defenda nt su ms for back rent as well as su ms for futu re rents due; however, Defendant failed to apply the latter amou nts to Plaintiffs future obligations. (FAC, 27.) Shortly thereafter, on July 27, 2017, Defenda nt posted a three-day notice to pay or quit as well as a 60-day notice to vacate, explaining to Plaintiffs that she wanted them to vacate so that she could sell the Property. (|d., 30.) Defenda nt then filed an unlawful detainer action to evict Plaintiffs. (ld.) Plaintiffs allege that this action was fraudulent, with Defenda nt overstating the amou nt of rent clue from them. (|d.)Defenda nt ultimately dismissed the action without prejudice based on perceived problems with the amou nt of rent claimed to be clue. (Id., 32.) On October 6, 2017, Defenda nt filed a second unlawful detainer action based on Plaintiffs purported failure to vacate after the 60-day notice expired. (FAC, 31.) The pa rties settled the matter prior to trial pu rsuant to a written settlement agreement. On December 22, 2017, based on allegations that the firstunlawful detainer was filed in retaliation for them asserting their rights as tenants, Plaintiffs filed the FAC asserting the following claims : (1)breach of contract/ implied wa rra nty of habitability; (2) retaliatory eviction; (3) retaliatory eviction: was brought without probable cause; (4) retaliatory eviction: was initiated with malice; (5) retaliatory eviction: fraudulent intent; (6) intentional misrepresentation,- (7)fraudulent suppression of material facts/fraudulent concealment,- ancl (8) violation of California tena nt s rights. On January 29, 2018, Defenda nt filed the instant demurrer to each of the eight causes of action asserted in the FAC on the grounds of failu re to state facts sufficient to constitute a cause of action and uncertainty. (Code Civ. Proc., 430.10, subds. (e) ancl (f).) Defendant also filed the motion to strike portions of the FAC, specifically those pertaining to punitive damages and emotional distress da mages. (Code Civ. Proc., 435 and 436.) Plaintiffsoppose the motions. |.Defendant sRequest for Judicial Notice In support of her demurrer and motion to strike, Defendant requests that the Cou rt ta ke judicial notice of the Stipulation for Entry ofJudgment filed in the second unlawful detainer action on December 20, 2017. As this item is a cou rt record, it is aproper subject ofjudicial notice pu rsuant to Evidence Code section 452, subdivision (cl).Accordingly, Defenda nt s request forjudicial notice is GRANTED. ||.Demurrer As set forth above, Defenda nt demurs to each of the eight causes of action asserted in the FAC on the grounds of failure to state facts sufficient to constitute a cause of action ancl uncertainty. The firstcause of action appears to allege a breach of contract based on a breach of the implied warra nty of habitability. As a general matter, a warra nty of habitability is implied as a matter of law in a|| residential 3/6/20] 8 Printed: - 17CV316395 03/06/20] 8 Hearing: Motion t0 Strike Page 2 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER rental agreements. (Green v. Su perior Cou rt (1974) 10 Ca|.3d 616, 629, 631, 637.) This implied wa rra nty recognizes the realities of the modern urban landlord-tena nt relationship, and imposes upon the Ia ndlord the obligation to maintain leased dwellings ina habitable condition throughput the term of the lease. (Peterson v. Su perior Court (1995) 10 Cal.App.4th 1185, 1204.) Defenda nt asserts that because Harris was not a party to the rental agreement with Defendant, which is attached to the FAC as Exhibit 1, he cannot maintain this claim. This argument is well ta ken, as it is clear that the rental agreement was entered into between Stevens and Defendant only, and the implied wa rra nty arises out of that agreement. An individual who is not a party to an agreement has no sta ncling to enforce a breach of its terms. (See, e.g., Windham at Carmel Mou ntain Ranch Assn. v. Su periorCourt (2003) 109 Cal.App.4th 1162.) Thus, no claim has been stated by Harris against Defendant. As for Stevens, Defendant maintains that the claim is uncertain because it is not clear from the allegations of the FAC who the source of alleged breach of the implied warra nty of habitability is: Defenda nt or the prior tena nt, Kristen Harris. The Cou rt, however, does not find this contention persuasive based on what is actually pleaded in the operative pleading and the natu re ofa demurrer based on uncertainty. Such a ground is generally disfavored, ancl wi|| be sustained only where the allegations of the pleading are so unintelligible that the defenda nt cannot respond to them. (See Khoury v. Maly s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616 [stating that [a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures ].) Here, Plaintiffs allege that Defendant breached the implied warra nty of habitability by: failing to repair or replace the broken window in the master bedroom; failing to disclose a rat/mice/termite infestation on the Property; ancl failing to remove the prior tena nt s personal property as required by law. (FAC, 40-45.) None of the foregoing can be properly characterized as unintelligible. Consequently, Defenda nt s argu ment with respect to Stevens is without merit. |n accorda nce with the foregoing analysis, Defenda nt s demurrer to the first cause of action on the grou nd of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND as to Harris ancl her demurrer to this claim on the ground of uncertainty is OVERRULED. Turning to the second cause of action, Defenda nt maintains that no claim for retaliatory eviction has been stated because Plaintiffs have not affirmatively alleged that they were not in default on the payment of rent on the Property, i.e., that they were current, as of the date of service of the 60-day notice to vacate on July 27, 2017. Alternatively, Defenda nt continues, this claim is uncertain because of the lack of clarity regarding whether Plaintiffs were current with their rent obligations. As a matter of public policy, the law protects tena nts against retaliatory eviction, i.e., actual or constructive eviction motivated by an intent on the part of the Ia ndlord to punish tena nts for their exercise of legally- protected rights. (See Ba relav. Su perior Court (1981) 30 Ca|.3d 244, 249; Civ.Code, 1942.5.) Statutorily, CivilCode section 1942.5 broadly prohibits landlords from evicting residential tena nts, raising their rent or decreasing housing services in retaliation against the exercise of lawful tenant rights. While Defendant iscorrect that relief under the aforementioned statute for retaliatory eviction is not available to tena nts who are indefault of the payment of rent (see Civ. Code, 1942.5, subd. (a)),she cites no authority for the proposition that a tenant asserting such a claim needs to affirmatively plead that he or she is current with an applicable rental obligations in order to state a claim for retaliatory eviction. Because retaliatory eviction can also be asserted as an affirmative defense to an unlawful detainer, it is easy to see why, in such a circu msta nce, that a tenant defenda nt would be expected to plead whether or not he or she was in default where the action is based on nonpayment of rent. The same cannot necessarily be said where 3/6/20] 8 Printed: - ]7CV316395 03/06/20] 8 Hearing: Motion t0 Strike Page 3 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER the claim asserted 'Is remedially 'Inan action for damages. Thus, the Cou rt does not find this argument persuasive, nor does itfind persuasive Defenda nt s contention that Stevens failure to clarify whether she was 'In default or not when the 60-day notice was served renders this pleading uncertain within the meaning of Code of Civil Procedure section 430.10, subdivision (f).Consequently, Defenda nt s demurrer to the second cause of action on the grou nds of failure to state facts sufficient to constitute a cause of action ancl uncertainty OVERRULED. 'Is Defenda nt next ma kes the sa me argu ment with respect to the third, fourth and fifth causes of action, which all appear to assert some va riation of retaliatory eviction, arguing that none are recognized causes of action in California. The Court agrees, noting that Plaintiffs have cited no authority as the basis for claims for retaliatory eviction without probable cause, retaliatory eviction initiated with malice and retaliatory eviction fraudulent intent and do not otherwise, in their opposition, dispute Defenda nt s assertion that the foregoing claims do not exist under the law. Therefore, Defenda nt s demurrer to the third, fourth ancl fifth cause of action on the grou nds of uncertainty and failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND. Plaintiffs sixth cause of action is for intentional misrepresentation, based on allegations that Defenda nt made false or misleading statements in the first unlawful detainer action. The essential elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosu re); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance);(4) justifiable reliance; and (5) resulting damage. [Citation.] (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474.) Plaintiffs maintain that they relied on these statements to their detriment, but upon review of this cause of action, the Cou rt is in agreement with Defenda nt that it is entirely unclear how this was the case. As Defenda nt notes in her supporting memora ndum, claims for fraud must be pleaded with specificity, which necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Sta nsfield v. Starkey (1990) Cal.App.3d 59, 73.) Plaintiffs sixth cause of action falls well short of this standa rd. Consequently, Defendant s demurrer to the sixth cause of action on the grou nds of uncertainty ancl failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS LEAVE TO AMEND. Plaintiffs seventh cause of action for fraudulent suppression of material facts/fraudulent concealment is very similar to the preceding cause of action in that it sounds in fraud and is based on the first unlawful detainer filing by Defendant. Where it differs is that rather than involving affirmative misrepresentations, the claim is predicated on the allegation that Defendant suppressed the fact that Plaintiffs were current with their rent when she filed the action to evict them based on nonpayment of rent. (FAC, 81-83.) In demurring to this claim, Defendant asserts that the filing ancl dismissal ofan unlawful detainer action in ancl of itself does not amount to an intentional misrepresentation and that Plaintiffappears to be alleging a claim for malicious prosecution, but fails to plead the specific facts necessary to state such a claim, or even for fraud. Thus, Defenda nt concludes, no claim for fraudulent concealment has been stated. None of the foregoing arguments are well taken. First,the filing ancldismissal of the firstunlawful detainer action isnot alleged to itself qualifyas the fraudulent concealment; rather, conduct which occurred within the action, Defenda nt s failure to disclose to Plaintiffs that they were i.e., not in default, is. Second, the Court is not persuaded that Plaintiffs intention is to plead malicious prosecution, as they have pleaded, while in conclusory terms, the elements of fraudulent concealment. Finally, the heightened pleading standa rd attenda nt to most claims for fraud is not strictly applied to claims for fraudulent concealment specifically, given the absence of affirmative misrepresentations. (See Alfaro v. Community Housing Improvement System & Planning Assn., |nc. (2009) 171 Cal.App.4th 1356, 1384 [stating [h]ow does one show how and by what 3/6/20] 8 Printed: - 17CV316395 03/06/20] 8 Hearing: Motion t0 Strike Page 4 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER means somethingdidn t happen, or when never happened, or 'It where itnever happened? ].) As none of the argu ments asserted by Defendant in support of her demurrer to the seventh cause of action are persuasive, her demurrer to this claim on the grou nds of uncertainty and failure to state facts sufficient to constitute a cause of action is OVERRULED. Finally, Plaintiffs allegean eighth cause of action for violation of California Tena nt s Rights in the Judicial Complaint portion of the FAC, but none in the actual body of the pleading in which they set forth the specific facts of their claims. Plaintiffs do not dispute the deficiencies in this claim in their opposition. Consequently, it is not clear what the basis of this claim is, and therefore Defenda nt s demurrer to the eighth cause of action on the grou nds of failure to state facts sufficient to constitute a cause of action ancl uncertainty is SUSTAINED WITHOUT LEAVE TO AMEND. |||.Motion to Strike In her motion to strike, Defenda nt moves to strike Plaintiffs request for punitive damages, allegations relating thereto, and allegations regarding their alleged emotional distress. It is Defendant s contention that Plaintiffs have failed to plead facts entitling them to punitive da mages ancl da mages for emotional distress. As a general matter, the right to exemplary or punitive damages requires proof of oppression, fraud, or malice on the pa rt ofthe defenda nt by clear and convincing evidence. (Civ. Code, 3294, subd. (3).) For pleading pu rposes, in order to support a prayer for punitive or exemplary damages, the complaint must allege ultimate facts of the defendant s oppression, fraud or malice. (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) Simply pleading the statutory terms oppression, fraud or malice is insufficient to adequately allege punitive da mages, but only to the extent that the complaint pleads facts to support those allegations. (Blegen v. Su perior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) However, the complaint wi|| be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defenda nt s wrongful conduct. (Perkins v. Su per. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255). Here, malice and fraud serve as the fou ndation for Plaintiffs request for punitive damages. Under the punitive damages statute, Civil Code section 3294, malice isdefined as conduct which is intended by the defenda nt to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disrega rd of the rights or safety of others. (Civ. Code, 3294, subd. (c)(1).) Despicable conduct, in turn, has been described as conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon ancl despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Finally, fraud is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defenda nt with the intention on the part of the defenda nt of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, 3294, subd. (c)(3).) Upon review of the FAC in total, the Cou rt is in agreement with Defenda nt that Plaintiffs have failed to plead facts which support the imposition of punitive da mages. As cu rrently pleaded, there is nothing in the FAC that describes malicious conduct on her part in her dealings with Plaintiffs ancl their tenancy of her property. The allegation that Defenda nt acted with malice is conclusory and insufficient, without more, to support the 3/6/20] 8 Printed: - ]7CV316395 03/06/20] 8 Hearing: Motion t0 Strike Page 5 0f 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER imposition of damages pu rsuant to CivilCode section 3294. Accordingly, to the extent that Defenda nt s motion seeks to strike Plaintiffs request for punitive damages and allegations relating thereto, it is GRANTED WITH 10 DAYS LEAVE TO AMEND. As for da mages based on emotional distress, Defendant asserts that this type of da mages appears to be requested by Plaintiffs in the FAC. However, while the phrase emotional distress is contained in the FAC, it is not clear that Plaintiffs are seeking these types of damages, or that such damages are being sought only in connection with the breach of contract claim which, as Defendant notes, is generally impermissible. (See, e.g., Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Ca|.App.4th 174, 188.) Importantly, emotional distress damages are recoverable in actions based on a breach of the warranty of habitability. (See McNairy v. C.K. Realty (2007) 150 Ca|.App.4th 1500.) Given this fact, Defenda nt s assertion that Plaintiffs request for emotional distress da mages and allegations relating thereto must be stricken is unavailing and thus to the extent that her motion seeks to strike these items, it is DENIED. 3/6/20] 8 Printed: - 17CV316395 03/06/20] 8 Hearing: Motion t0 Strike Page 6 0f 6