14-701850
1. Defendant Miramontes Properties, LLC’s Demurrer to the Complaint is OVERRULED, with 14-days to Answer.

The demurrer to 1st cause of action for fraud is OVERRULED.

The allegations are not contradictory. Although Plaintiff signed the subject Addendum, Plaintiff alleges that Defendant fraudulently concealed the fact that the home was previously treated for mold and that the home had a mold problem. In addition, Plaintiff alleges that this defect was not readily apparent at the time the lease agreement was entered into by the parties.

In addition, a demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Here, the Complaint is not so bad that Defendant cannot reasonably respond.

Further, Defendant contends that there was no elevated levels nor any detection of mold. However, these allegations are questions of fact, and for purposes of a demurrer, the court must accept the allegations in the Complaint as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) The allegations of the Complaint are that there was a mold problem, Defendant concealed this issue and failed to disclose the same to Plaintiff, and Plaintiff would not have entered into the lease agreement and suffered injury as a result thereof.

The demurrer to the 2nd cause of action for breach of lease is OVERRULED.

Defendant is improperly alleging factual allegations in its opposition papers that are not set forth in the Complaint. In addition, the issue of whether Plaintiff promptly (or failed to promptly) report the mold issue is a question of fact that cannot be resolved on a demurrer, and does not pertain to the issue of whether the Complaint sufficiently alleges a claim for breach of contract. Further, the Complaint is not so bad that Defendant cannot reasonably respond.

The demurrer to the 3rd cause of action for negligence is OVERRULED.

Defendant basically contends that it did not owe Plaintiff a duty of care because Plaintiff had possession of the subject property. Thus, Defendant contends that it was Plaintiff’s duty (and not Defendant’s duty) to remedy the defective condition of the property. Defendant cites to Williams v. Foster (1989) 216 Cal.App.3d 510, Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, Salinas v. Martin (2008) 166 Cal.App.4th 404, Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, and Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142 in support of the above contention. However, all of these cases are distinguishable because the injured plaintiff in those cases were suing the landowner (or the person who controlled the subject property) for premise defect and/or negligence. None of the cases cited to pertain to a landlord’s duty to a tenant. Further, the Complaint is not so bad that Defendant cannot reasonably respond.

Defendant’s Request for Judicial Notice: The court GRANTS judicial notice of the Complaint filed in this action and the Exhibits attached thereto (RJN 1-3.) (Evid. Code Section 452(d).)

Defendant Miramontes Properties, LLC’s Demurrer to the Complaint is OVERRULED, with 14-days to Answer. Plaintiff has alleged sufficient facts to support each cause of action, and the causes of action are not so uncertain that Defendant cannot reasonably respond.

Defendant’s Request for Judicial Notice: The court GRANTS judicial notice of the Complaint filed in this action and the Exhibits attached thereto (RJN 1-3.) (Evid. Code Section 452(d).)

Moving party is to give notice.

2. Defendant Miramontes Properties, LLC’s Motion to Strike Portions of the Complaint is GRANTED in part and is DENIED in part, with 14-days to Answer.

The request to strike punitive damages is DENIED. Plaintiff has sufficiently alleged fraud in support of her request for punitive damages.

The request to strike paragraph 20, 21, 23 and 24 from the Complaint is DENIED. Defendant has failed to discuss this contention and/or set forth any legal authority with respect to the same in the memorandum of points and authorities. Therefore, Defendant has failed to meet its burden of establishing that those paragraphs should be stricken.

The request to strike the request for $100,000 in damages is GRANTED. (Complaint, at paragraph 40 and Prayer of Relief, at Section 1.) Plaintiff is not allowed to state the amount she seeks to recover for personal injuries pursuant to CCP Section 425.10(b). In addition, Plaintiff does not oppose this contention in the opposition papers.

Moving party is to give notice.