Case Name:   Salinas v. Sunding Brothers LLC, et al.

Case No.:       1-13-CV-252360

After full consideration of the arguments and the authorities submitted by each party, the court makes the following rulings:

This action arises from a dispute over a lease agreement.  In the complaint, plaintiff Angelica Salinas (“Plaintiff”) alleges that she is a disabled person who entered into a written agreement (“the Lease”) with defendants Sunding Brothers and Does 1-30 (collectively, “Defendants”) to lease real property in Milpitas (“the Property”).  (Compl., ¶¶ 7-8 & 22.)  Plaintiff alleges that defects in the condition of the Property made it uninhabitable, and after she complained of the defects, Defendants retaliated against her.  (Id., ¶¶ 9-21.)  Plaintiff filed the complaint on September 3, 2013, asserting causes of action against Defendants for (1) tortious breach of the implied warranty of habitability—violations of Civil Code section 1941; (2) contractual breach of the implied warranty of habitability—violations of Civil Code section 1941; (3) breach of contract; (4) breach of quiet enjoyment; (5) private nuisance; (6) premises liability; (7) retaliation in violation of Civil Code section 1942.5; (8) negligence; (9) constructive eviction—negligence; (10) violations of Civil Code sections 51, 51.5, and 52; (11) violations of Government Code section 12955 et seq.; (12) violation of Business and Professions Code sections 17200 et seq. and 17500; and (13) retaliatory eviction.  On May 1, 2014, Plaintiff amended the complaint to replace the fictitious name of Doe 1 with the name of defendant Jay Huang.

Defendant Jay Huang (“Defendant Huang”) demurs to each cause of action in the complaint on the ground of failure to allege sufficient facts to constitute a cause of action.  (See Code Civ. Proc., § 430.10, subd. (e).)  Defendant Huang argues that his demurrer should be sustained without leave to amend because Plaintiff does not allege any facts to support a cause of action against him personally, e.g., that he owned the Property or was a party to the Lease.

In opposition, Plaintiff submits her counsel’s declaration stating that Plaintiff disagrees with Defendant Huang’s assertion, but nevertheless declares that “to efficiently and effectively litigate the case,” Plaintiff requests leave to amend the complaint to clarify the allegations made against Defendant Huang.  Counsel attaches a copy of the proposed amended pleading to his declaration, and the proposed amended pleading appears to remedy the purported defects in the complaint identified by Defendant Huang.

Since the demurrer is unopposed but Plaintiff requests leave to amend and shows a reasonable possibility the deficiencies in the complaint can be cured (see Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850 [“it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment”]), Defendant Huang’s demurrer to each cause of action in the complaint is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

The Court will prepare the order.