Case Number: EC061557 Hearing Date: May 02, 2014 Dept: NCE

¿Demurrer is sustained in part and overruled in part as follows:

Demurrer to the fifth cause of action for negligence is overruled. There are allegations of
conduct alleged to have breached the duty such as parking too close to plaintiffs’ automobile,
denting plaintiffs’ car, inviting dangerous guests onto the premises, etc.

Demurrer to the sixth cause of action for breach of the Jeffries Lease is overruled. The court
cannot determine as a matter of law that the parties here did not intend to make the contract
expressly for the benefit of plaintiffs as third parties. The complaint alleges the lease contains
express terms which prohibited conduct which disturbs the peace of other tenants, or interferes
with the enjoyment, passage or convenience of another tenant. [Para. 87.] The case relied upon
by demurring party, Staples v. Hoefke (1987) 189 Cal.App.3d 1397, involved a commercial lease
and was a determination made on a motion for a nonsuit after plaintiff’s evidence had been
presented. Here, no evidence has been presented concerning the parties’ intent.

Demurrer to the seventh cause of action for negligent infliction of emotional distress is sustained
without leave to amend. Other than in third party bystander cases, negligent infliction of
emotional distress is not an independent tort, but rather a remedy for negligence, and depends on
an underlying negligence claim. Marlene F. v. Psychiatric Medical Clinic (1989) 48 Cal.3d 583,
588. Plaintiff has already alleged a negligence claim and the demurrer is sustained to this one as
duplicative.

Demurrer to the eighth cause of action for intentional infliction of emotional distress is
overruled. The conduct alleged is so extreme and outrageous as to exceed all bounds of that
usually tolerated in a civilized community [see e.g., para. 98 (theft, assaulting Zambo with water
from a hose, trespassing onto areas belonging to the plaintiffs, engaging in an ongoing campaign
of harassment, assaults and disruptive conduct)] and plaintiff sufficiently alleges severe
emotional distress has been suffered [para. 59].

Demurrer to the tenth cause of action for nuisance is overruled. The complaint alleges that
Jeffries sprayed water and shifted dirt onto plaintiffs’ property, dumped animal bones in their
garden, etc. The court cannot determine, as a matter of law, that the conduct alleged did not
cause a substantial or unreasonable interference with the use of plaintiffs’ unit.

Demurrer to the eleventh cause of action for assault is overruled. The complaint alleges that
Jeffries “acted with intent to cause harm” to plaintiffs on many occasions “such as when Jeffries
hissed at plaintiffs or sprayed water toward Zambo and her child, and others” such that plaintiffs
“reasonably believed that defendant Jeffries was about to touch them in a harmful manner.”
[Paras. 117, 118.]

Ten days to answer.