Kamron Bateni et al vs Sierra Property Group Inc et al

Case Number

24CV02162

Case Type

Hearing Date / Time

Fri, 02/14/2025 - 10:00

Nature of Proceedings

Case Management Conference; Demurrer and Motion to Strike

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of defendant Sierra Property Group, Inc., to plaintiffs’ first amended complaint is sustained as to the sixth cause of action, and overruled as to the seventh cause of action, with leave to amend.

(2) For all reasons discussed herein, the motion of defendant Sierra Property Group, Inc., to strike portions of plaintiffs’ first amended complaint is granted, in part. Prayer for relief, paragraph 4, is stricken from plaintiffs’ first amended complaint. Except as granted herein, the motion is otherwise denied.

(3) Plaintiffs shall, on or before February 28, 2025, file and serve their second amended complaint, if any.

Background:

The first amended complaint (FAC) filed by plaintiffs Kamron Bateni (Bateni), Mackenzie Bennetts (Bennetts), Aidan Delong (Delong), Justin Hill-Kocak (Hill-Kocak), and Emma Welch (Welch) (collectively, plaintiffs) against defendants Sierra Property Group, Inc. (Sierra), Manning Holdings, LLC (Manning), John Nastro (John), and Barbara Nastro (Nastro) (collectively, defendants) is, for present purposes, the operative pleading. (Note: Due to common surnames, the Court will refer to individual defendants by their first names to avoid confusion. No disrespect is intended). In the FAC, which was filed on August 6, 2024, plaintiffs allege seven causes of action: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) breach of the covenant of quiet enjoyment; (4) tortious breach of the warranty of habitability; (5) negligence; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress. As alleged in the FAC:

Plaintiffs are college students. (FAC, ¶ 1.) On June 20, 2023, Welch, Bennetts, and Hill-Kocak moved into Unit 3 of a duplex located at 6650 Trigo Avenue in Goleta, California (the premises). (FAC, ¶¶ 1, 5-6 & Exh. 1.) (Note: The address alleged in paragraph 1 of the FAC appears incorrect based on information appearing in exhibit 1.) Delong and Bateni moved in to the premises shortly thereafter. (FAC, ¶ 6 & Exh. 2.) The premises is owned by Manning Holdings, John, and Barbara. (FAC, ¶ 2.) Sierra manages, repairs, and maintains the premises. (FAC, ¶ 3.)

Beginning in the Winter of 2023, plaintiffs began experiencing health issues which improved when plaintiffs left the premises, such as during a holiday break. (FAC, ¶  9.) On February 13, 2024, Hill-Kocak observed large amounts of mold growth on the walls, window frame, curtains, and box spring. (FAC, ¶ 10.) When Hill-Kocak contacted Sierra on February 14, 2024, about the presence of mold, Sierra said it was simply a “cleanliness issue”, did not acknowledge the serious nature of the problem despite visibly observing the presence of mold in Hill-Kocak’s bedroom, and failed to take immediate action to remediate the mold. (Ibid.)

On February 15, 2024, a mold inspection company hired by plaintiffs performed an inspection of the premises which included tests within the bathroom and Hill-Kocak’s bedroom window, and testing for air quality and moisture. (FAC, ¶¶ 11 & 13.) On February 16, 2024, representatives of Sierra visited the premises and also performed a brief inspection. (FAC, ¶ 12.)

On February 19, 2024, plaintiffs received the results from their mold inspection company, which included a mold report indicating the presence of zero-tolerance or toxic mold throughout the premises. (FAC, ¶¶ 13-14.) The mold inspection company notified plaintiff that the results of the inspection were the “worst they have ever seen” and advised plaintiffs to vacate the premises as soon as possible. (FAC, ¶ 15.) Plaintiffs had to locate alternative lodging on an emergency basis, and were forced to leave behind their personal property and belongings which were rendered unusable due to being exposed to high levels of toxic mold. (FAC, ¶ 16.)

When plaintiffs notified Sierra of the results of the mold inspection, Sierra claimed that plaintiffs could remain safely at the premises and that the only remediation involved removing wet drywall. (FAC, ¶ 15.) In addition, Sierra induced Delong to move back into the premises by promising that it was safe to live in. (FAC, ¶ ¶ 17.) Within 3 to 4 days, Delong became sick again from toxic mold exposure. (Ibid.)

Though evidence of potential mold issues was present when plaintiffs moved into the premises, defendants represented to plaintiffs, at the time plaintiffs moved in, that there was no mold present within the premises. (FAC, ¶ 7.) Previous tenants had informed defendants of severe water damage and significant health problems while living at the premises. (Ibid.) On November 29, 2023, a pipe broke behind a toilet, which flooded the downstairs bathroom of the premises. (FAC, ¶ 8.) Welch reported the flooding to Sierra, who opened up the bathroom wall for repairs but ultimately did not complete the repair, leaving an exposed hole in the bathroom wall. (Ibid.) The bathroom wall partially caved in due to the presence of moisture within the wall itself. (FAC, ¶ 10.)

On September 10, 2024, Manning Holdings, John, and Barbara answered the FAC, generally denying its allegations and asserting nineteen affirmative defenses, and filed a cross-complaint (the Manning Cross-Complaint) alleging five causes of action for comparative fault, equitable indemnity, implied contractual indemnity, breach of contract, and contribution against Sierra.

On October 10, 2024, Sierra filed a cross-complaint against Manning Holdings (the Sierra Cross-Complaint), alleging five causes of action for equitable indemnity, contribution, declaratory relief, apportionment of fault, and express indemnity. On October 11, 2024, Sierra answered the Manning Cross-Complaint, generally denying its allegations and asserting thirty-one affirmative defenses.

Manning Holdings filed its answer to the Sierra Cross-Complaint on November 13, 2024, generally denying its allegations and asserting twenty-one affirmative defenses.

The Sierra demurrer and motion to strike:

On October 9, 2024, Sierra filed a demurrer to the sixth and seventh causes of action alleged in the FAC on the grounds that plaintiffs have failed to state facts sufficient to constitute a cause of action.

Also on October 9, 2024, Sierra filed a motion to strike prayer paragraphs 4 and 5, and all references in the FAC to plaintiffs’ entitlement to punitive damages and attorney’s fees.

The demurrer and motion to strike of Sierra are each opposed by plaintiffs.

Analysis:

(1) Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) A demurrer assumes the truth of properly pleaded material allegations including facts which may be inferred from those expressly alleged, but not of contentions, deductions, or conclusions of fact or law. (Ibid.; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) The pleading subject to demurrer is given a reasonable interpretation and read as a whole, with all its parts in their context. (Ibid.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

The sixth cause of action:

Sierra objects to the sixth cause of action for intentional infliction of emotional distress on the grounds that plaintiffs have failed to allege facts sufficient to show that any conduct by Sierra was outrageous, or that plaintiffs suffered from severe emotional distress. 

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)

A reasonable interpretation of the FAC shows that plaintiffs associate the following allegations to the element of extreme and outrageous conduct: Sierra knew about the water intrusion into the premises and that prior tenants had suffered severe health problems; Sierra ignored the water intrusion and failed to properly repair a water leak in the bathroom of the premises; Sierra knew that unremedied water intrusion problems would result in the proliferation of mold at the premises; Sierra ignored reports of mold and other deadly toxins at the premises which resulted from water intrusion issues; Sierra represented that no mold was present within the premises for the purpose of inducing plaintiffs to occupy the premises; Sierra conducted a brief, superficial, and cursory inspection of mold present at the premises and represented that the presence of mold was a “cleanliness issue”; Sierra claimed that the only necessary remediation involved removing wet drywall; Sierra induced Delong to move back into the premises promising that it was safe. (FAC, ¶¶ 54-55, 57-59, 62 & 64-65.)

Plaintiffs further allege that Sierra’s conduct was undertaken for Sierra’s own profit and convenience, and exposed plaintiffs to serious health consequences from the potentially deadly mold caused by water intrusion into the premises. (FAC, ¶¶ 54-55.) Plaintiffs allege that their resulting emotional distress includes “constant worry over their health condition, worry about where to live, sleep difficulties and severe anxiety caused by physical and emotional illness.” (FAC, ¶ 65.)

Plaintiffs contend that the allegations described above are sufficient to show that Sierra abused their position of power as managers or owners of the premises, which gave Sierra the ability to damage plaintiffs’ interests. Plaintiffs also contend that the alleged failure by Sierra to warn plaintiffs of potentially deadly conditions at the premises is sufficient to demonstrate outrageous conduct by Sierra. Further, plaintiffs assert that they have sufficiently alleged facts demonstrating the nature or extent of any emotional distress or suffering that resulted from Sierra’s conduct.

Conduct may be considered extreme and outrageous when it arises “ ‘from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests.... [¶] The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. ‘ [Citation.]” (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372-373.)

Even if the Court were to assume without deciding that the allegations of the FAC are sufficient to show that Sierra was, to some extent, in a position of authority over plaintiffs with respect to plaintiffs’ interests in the premises, wholly absent from the FAC are allegations of fact sufficient to show that Sierra knew plaintiffs were peculiarly susceptible to emotional distress, and why, or that Sierra directed its conduct to plaintiffs in the face of this knowledge. The allegations of the FAC are also insufficient to show any intentional act by Sierra undertaken for the purpose of causing distress to plaintiffs. (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 165, fn. 5 [conduct must be of a nature which is calculated to and actually does cause serious mental distress].)

For all reasons discussed above, and notwithstanding whether or not the allegations of the FAC are sufficient to show that Sierra knew of water intrusion or the presence of mold at the premises, plaintiffs have failed to allege facts sufficient to show extreme or outrageous conduct by Sierra, including conduct which exceeds or is beyond all bounds of decency, or was calculated to cause severe emotional distress to plaintiffs.  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 [“major” outrage is essential to the tort of intentional infliction of emotional distress]; see also KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1030 [“conduct uninformed by sound judgment is not necessarily synonymous with extreme and outrageous conduct”].) Therefore, the Court will sustain the demurrer to the sixth cause of action on the grounds that plaintiffs have failed to allege facts sufficient to support the element of extreme or outrageous conduct.

Though the Court will sustain the demurrer of Sierra to the sixth cause of action on the grounds more fully discussed above, the Court also notes that allegations describing the emotional distress suffered by plaintiffs further detailed above are, without more, also insufficient to show that any distress inflicted by any purported conduct by Sierra was “ ‘so severe that no reasonable man could be expected to endure it.’” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.) Therefore, there exists sufficient additional grounds to sustain the demurrer as to the sixth cause of action alleged in the FAC.

The seventh cause of action:

As grounds for its demurrer to the seventh cause of action, Sierra contends that negligent infliction of emotional distress is not an independent tort or a recognized cause of action under California law. In response, plaintiffs effectively contend that the seventh cause of action is proper to the extent plaintiffs are able to establish a negligence claim and resulting emotional distress damages.

“Negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. [Citation.] ‘Damages for severe emotional distress ... are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ [Citation.] ‘If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of....’ [Citations.]” (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297-1298, fn. omitted.)

Sierra offers no reasoned legal or factual argument to show why plaintiffs have failed to allege facts sufficient to state a cause of action for negligence. Moreover, as the seventh cause of action, notwithstanding its title, effectively alleges damages for emotional distress or mental suffering caused by the purported negligence of Sierra as alleged in the fifth cause of action, the demurrer to the seventh cause of action is without merit. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“a demurrer cannot rightfully be sustained … to a particular type of damage or remedy”].)

Absent any reasoned argument showing that plaintiffs have failed to allege facts sufficient to state a cause of action for which the emotional distress damages may be recovered, the Court will, for all reasons discussed above, overrule the demurrer of Sierra to the seventh cause of action alleged in the FAC.

(2) Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., § 436(a) & (b).) Grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

As grounds for its motion to strike, Sierra contends that plaintiffs have failed to plead facts sufficient to support an award of punitive damages, and have failed to allege that an officer, director, or managing agent of Sierra had knowledge of the unfitness of any employee or ratified any wrongful conduct.

Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the defendant acted with malice, oppression, or fraud. Ultimate facts showing an entitlement to punitive damages must be pleaded. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Further, the facts and circumstances constituting the claim for punitive damages must be set forth “with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].” (Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944.)

A reasonable interpretation of the FAC shows, and plaintiffs do not appear to dispute, that plaintiffs’ claim for punitive damages does not arise from any purported fraud by Sierra, or from a cause of action for fraud. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [setting forth the elements of fraud]; see also Pl. Opp. at pp. 4-5 [arguing that the cause of action for intentional infliction of emotional distress is sufficient to support an award of punitive damages based on willful and deliberate conduct by Sierra].) Plaintiffs also fail to offer sufficient reasoned argument showing why the allegations of the FAC are sufficient to give rise to or state a fraud cause of action.

Relevant here, the term “malice” as used in the statute means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) While the term “despicable” is not defined in Civil Code section 3294, subdivision (c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (College Hospital).)

Whether plaintiffs seek to recover punitive damages based on malice or oppression, plaintiffs must allege facts which, if proven, would be sufficient to show that the conduct of Sierra was despicable. (College Hospital, supra, 8 Cal.4th at p. 725 [also noting that, absent intent, “malice” requires more than a willful or conscious disregard of the plaintiff’s rights].)

“Despicable conduct” for purposes of an award of punitive damages means “conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ … [Citation.]” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872 [also noting that such conduct has the character of outrage associated with a crime].) “ ‘The wrongdoer “must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff’s rights [citations].” Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ ” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287, citations omitted.)

In cases involving unintentional torts, “the courts have had to consider various factors in determining whether the defendant’s conduct was despicable. Thus, punitive damage awards have been reversed where the defendant’s conduct was merely in bad faith and overzealous [citations], or the defendant took action to protect or minimize the injury to the plaintiff. [Citations.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212 (Lackner).)

To the extent plaintiffs’ claim for punitive damages arises from any purportedly outrageous conduct by Sierra, the same reasoning and analysis discussed above apply here. The allegations of the FAC do not show, as a matter of law, that Sierra or any of its employees acted in an outrageous, evil, vile, base, or contemptible manner. The allegations also do not establish a violation of any law or policy by Sierra.

Instead, the allegations further described above demonstrate, at most, a negligent or reckless failure by Sierra to prevent, inspect for, or remediate mold at the premises, or to acknowledge the presence of toxic mold. These allegations state nothing more than a claim for ordinary negligence resting on, at most, arguably reckless or careless conduct by Sierra in allegedly failing to sufficiently investigate, acknowledge, or remediate the condition of the premises alleged in the FAC. For these reasons, plaintiffs have failed to allege facts sufficient to support an award of punitive damages. (Lackner, supra, 135 Cal.App.4th at pp. 1210-1211 [defendant’s carelessness, recklessness, or ignorance is insufficient to justify imposition of punitive damages].)

Moreover, even if the allegations of the FAC, if proven, are sufficient to show gross negligence by Sierra, “proof of … even gross negligence ... is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) The remaining allegations of the complaint which appear to relate to the punitive damages claim are conclusory and also do not, by themselves, support a claim for punitive damages.

A reasonable interpretation of the FAC also shows that Sierra is alleged to be a corporation, or corporate employer to the extent the FAC alleges conduct by any of Sierra’s employees. (FAC, ¶ 3.) “With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).) The additional requirements imposed under section 3294 requires the employer to “have ‘had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or [been] personally guilty of oppression, fraud, or malice.’ [Citation.] Subdivision (b) also states that, ‘[w]ith respect to a corporate employer,’ the offending conduct ‘must be on the part of an officer, director, or managing agent of the corporation.’ [Citation.]” (College Hospital, supra, 8 Cal.4th at p. 721.)

Even if the Court were to find that plaintiffs have alleged conduct by an employee of Sierra which would be sufficient to support an award of punitive damages, plaintiffs have failed to allege facts showing the requisite advanced knowledge, conscious disregard, authorization, or ratification of any conduct by Sierra. Also absent from the FAC are any allegations showing that an officer, director, or managing agent of Sierra engaged in any act of oppression, fraud, or malice.

For all reasons discussed above, the allegations of the FAC are insufficient to demonstrate that Sierra engaged in despicable conduct even if plaintiffs were to prove these allegations at trial. Therefore, the Court will grant the motion of Sierra to strike plaintiffs’ claim for punitive damages.

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).) Though Sierra has sufficiently identified an express claim for punitive damages appearing in paragraph 4 of plaintiffs’ prayer for relief, Sierra has failed, in the notice of the motion and in the opening memorandum, to quote in full all remaining portions of the FAC sought to be stricken with respect to “all references” to punitive damages. Sierra’s failure to quote each portion of the FAC to which the motion is directed also prevents the Court from determining whether any portion is essential to the claims or matters alleged in the FAC. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

The Court is not required to independently search the allegations of the FAC to identify “all references” to an entitlement of punitive damages. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) Further, the Court may deny the motion to strike to the extent the supporting memorandum is insufficient to show where these references appear. (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52.) Therefore, and for all reasons discussed above, the Court will deny the motion to the extent it seeks to strike “all references” to punitive damages appearing in the FAC apart from the punitive damages requested in paragraph 4 of the prayer for relief.

Sierra also contends that plaintiffs have failed to allege an entitlement to attorney’s fees.

California follows the “American rule” regarding recovery of attorney’s fees in litigation, “which provides that each party to a lawsuit must ordinarily pay his own attorney fees.” (Trope v. Katz (1995) 11 Cal.4th 274, 278.) Code of Civil Procedure section 1021, codifies this rule and states that “[e]xcept as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties[.]” (Code Civ. Proc., § 1021.) For these reasons, plaintiffs must demonstrate that any attorney’s fees claimed in the FAC are authorized by statute or by an express or implied agreement of the parties.

In their opposition, plaintiffs assert that the lease agreement attached to the FAC as exhibit 1 includes a provision permitting a prevailing party in “any dispute in a court of law” to recover attorney’s fees in the amount of $500. (FAC, Exh. 1 at ¶ 12.) In its reply, Sierra offers no reasoned argument showing why this provision does not authorize the recovery of attorney’s fees to the party who prevails in this action. For this reason, the Court will deny the motion to strike as to the attorney’s fees claimed by plaintiffs in the FAC.

(3) Leave to Amend

In their oppositions to the demurrer and motion to strike, plaintiffs request leave to amend the FAC. The standards for granting leave to amend on a motion to strike are analogous to an order sustaining a demurrer. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) Plaintiffs bear the burden to show a reasonable possibility that the defects addressed herein can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Plaintiffs offer no information to demonstrate how they can amend the FAC to cure the deficiencies discussed herein or how the amendment will change its legal effect. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) For this reason, there exists sufficient grounds to deny plaintiffs leave to amend. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.) Though the Court may, under the circumstances present here, deny plaintiffs leave to amend, as a matter of fairness and as the FAC does not necessarily show on its face that it is incapable of amendment, the Court will, at this stage of the proceedings, grant plaintiffs leave to amend. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)