Case Name: David McGraw v. Shaherbano Haider, et al.

Case No.: 17CV312114

Defendant Tahera Rizvi’s Demurrer to Plaintiff’s Complaint

Defendants Shaherbano Haider, Syed Haider, and Tahera Rizvi (“Rizvi”) are the owners of certain real property located at 1345 Michigan Avenue in San Jose (“Premises”) comprised of a two-story house. (Complaint, ¶3.) Defendants Shaherbano Haider and Syed Haider (collectively, “Haiders”) live on the upper floor of the house. (Id.) On or about December 2015, plaintiff David McGraw (“McGraw”) and defendants entered into an oral rental agreement whereby defendants leased the lower floor of the house (“Unit”) to McGraw on a month-to-month basis at the rate of $3,440 per month. (Complaint, ¶¶3 and 6.)

On or about July 5, 2016, Manuel Duarte from the City of San Jose’s Department of Planning, Building and Code Enforcement inspected the Premises and issued a Compliance Order (“Order”) on July 13, 2016 requiring occupancy of the Unit to cease immediately due to the Unit’s location in a flood zone. (Complaint, ¶7.) Defendants never informed plaintiff McGraw of the Order and, instead, defendant Haiders concealed the negative results and substance of the Order. (Complaint, ¶8.) Defendant Haiders represented to plaintiff McGraw that the Unit was fully permitted and safe for continued occupancy. (Id.)

In or about May 2017, plaintiff McGraw expressed concerns to defendant Haiders that he had been living in an illegal rental unit. (Complaint, ¶10.) In retaliation, defendant Haiders issued a 30-day Notice to Quit to plaintiff by e-mail. (Id.) Plaintiff McGraw retained legal counsel and demanded defendants make plaintiff whole for all the damages he suffered. (Complaint, ¶11.) Defendant initially acquiesced but in June 2017, defendants ceased communications and took further retaliatory action including, but not limited to, shutting off plaintiff McGraw’s electricity and water heater. (Complaint, ¶¶11 – 12.) Despite demands by plaintiff and his attorney, defendants refused to restore habitability to the Unit. (Complaint, ¶13.)

On June 22, 2017, plaintiff McGraw filed a complaint against defendants asserting causes of action for:

(1) Breach of Contract
(2) Breach of Implied Warranty of Habitability
(3) Breach of Covenant of Quiet Enjoyment
(4) Unlawful Interruption and Termination of Utility Service
(5) Negligence Per Se
(6) Constructive Eviction
(7) Injunctive Relief

On October 5, 2017, defendant Rizvi filed the motion now before the court, a demurrer to plaintiff’s complaint.

III. Defendant Rizvi’s demurrer to plaintiff McGraw’s complaint is OVERRULED.

Defendant Rizvi demurs to all causes of action in plaintiff McGraw’s complaint by arguing, initially, that there is no allegation that she is a party to the contract. Defendant Rizvi overlooks the allegations found at paragraphs 2 and 6. Taken together, those two paragraphs of the complaint allege, in relevant part, “Defendant Tahera Rizvi (“Rizvi” and collectively with Haider, the “Defendants”) … entered into an oral rental agreement….” To the extent plaintiff asserts contract-based causes of action, plaintiff McGraw has adequately alleged defendant Rizvi is a party to the contract. “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.)

Defendant Rizvi also focuses on the allegation that she does not live at the Premises and instead “[lives] near the Premises” and on the allegation that the Haiders “held herself [sic] out as and in fact was the agent of Defendant Rizvi.” Defendant Rizvi’s residence is not an element to any of the claims being asserted by plaintiff McGraw. Plaintiff’s allegation that the Haiders acted as agents for defendant Rizvi is also sufficient to support liability against a principal. “Generally, an allegation of agency is an allegation of ultimate fact and is, of itself, sufficient to avoid a demurrer.” (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376.)

Defendant Rizvi also demurs on the basis of uncertainty. “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.” (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616 (Khoury).) A “demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶7:85, pp. 7(I)-41 to 7(I)-42 citing Khoury, supra, 14 Cal.App.4th at p. 616.) Here, the complaint is not so uncertain that defendant Rizvi cannot determine what allegations must be admitted or denied or what claims are directed against her.

Accordingly, defendant Rizvi’s demurrer to plaintiff McGraw’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.