Judge: Bruce G. Iwasaki, Case: 22STCV11954, Date: 2023-01-11 Tentative Ruling

Case Number: 22STCV11954    Hearing Date: January 11, 2023    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             January 11, 2023

Case Name:                Michael Laguerre et al. v. Manhattan Loft, LLC et al.

Case No.:                    22STCV11954

Motion:                       Demurrer and Motion to Strike

Moving Party:             Defendant Manhattan Loft

Opposing Party:          Plaintiffs Michael LaGuerre et al.

Background

            This is a habitability case in a multi-unit complex.  Michael Laguerre, Robert Alvin Johnson, Kerry-Ann Morrison, Joselyn Garcia, Alexander Mattera, Whitney Coss, Eric Bradley, Arman Musakhanyan, Damaris Cervantes, John Michael Triana, Jamar Hart, Natali Babiyans, Jamal Shakir, Alisa Garrett, Keith Thomas, Thomas Syrowski, Justin Goslee, Jasmyne Cannick, Giovanna Dagostino, Alex Onofre, Jennifer Bailey, Matthew Dutcher, Kevin Reeves, Jacqwel Brown, Jaida Kyi, Daniel Kirkland, Nathaniel Salgo, Devante Roper, D’Marques Riley, Mario Foster, Brandie Rossi, Boston Osborne, Samantha Bran, Paul Martignetti, Sherrtl Grant, Lam Vu, Jas Jeffress, and Jean Juste (Plaintiffs) sues Manhattan Loft, LLC, Erica Rivera, and Pam Pham-Le.  The Complaint alleges a total of 28 causes of action, which include breach of contract, breach of covenant of quiet enjoyment, breach of warranty of habitability, negligence, nuisance, tenant harassment, unfair business practices, intentional infliction of emotional distress, and retaliation/constructive eviction.

            Plaintiffs are or were tenants of the Property and allege that the Property is in violation of  numerous health and safety codes such as pest infestations, dangerous elevators, mold growth, offensive odors, and overall dilapidation.  The 314-page Complaint is comprised heavily of copy-and-paste from various ordinances and Municipal Codes for which the Property is alleged to be in violation, including the Building Code, Electrical Code, and Tenant Anti-Harassment Ordinance. These unnecessary quotations are inconsistent with the requirement that a complaint contain a statement of facts constituting the cause of action in “ordinary and concise language.” (Code. Civ. Proc., § 425.10, subd. (a)(1).)  The Complaint also contains an itemized list of violations in at least 27 different units or areas of the Property.  This includes an allegedly broken elevator that Defendants refused to fix, deficient building security, dysfunctional management, and general lack of maintenance.  

            Defendant Manhattan Loft, LLC (Manhattan or Defendant) demurs to the fourth (nuisance), fifth (violation of Civil Code section 1941.4), seventh (unfair business practices), ninth (tenant harassment), eleventh (violation of LA Tenant Anti-Harassment Ordinance), twelfth (intentional infliction of emotional distress), thirteenth (retaliatory eviction), fourteenth (failure to pay relocation assistance), sixteenth (actual fraud), twentieth (negligence per se), twenty-first (promissory fraud), twenty-second (libel/defamation), twenty-third (violation of Fair Employment and Housing Act), twenty-fourth (violation of Unruh Civil Rights Act), twenty-fifth (violation of Bane Act), twenty-sixth (strict liability), twenty-seventh (false imprisonment), and twenty-eighth (violation of Ralph Act) causes of action.

            Defendant also seeks to strike several paragraphs in the Complaint as to exemplary damages and attorney’s fees.

            Plaintiffs oppose the demurrer and motion to strike, asserting that the Complaint sufficiently pleads facts.  Defendant’s reply reiterates the moving paper’s arguments.

            The parties did not meaningfully meet and confer as Plaintiffs’ counsel failed to respond to Defendant’s counsel’s e-mail.  (Aghakhani Decl., ¶ 4.)  Nevertheless, insufficient meet-and-confer efforts are not a basis to overrule or sustain the demurrer and so the Court considers the merits of the demurrer.  (Code Civ. Proc., § 430.41, subd. (a)(4).) Plaintiffs’ counsel is cautioned against making such behavior habitual.

Defendant’s demurrer exceeds the 15-page limit under California Rules of Court, rule 3.1113(d) and it did not request permission to do so.  While the Court will consider the demurrer in its entirety given the expansive Complaint, Defendant is reminded to comply with the rules.

The Court sustains the demurrer in part and overrules it in part; it grants the motion to strike in part and denies it in part.

Demurrer

            A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452.)  The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) 

Uncertainty

            Defendant argues that various causes of action are uncertain.  A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  The Complaint is not uncertain as the allegations are meaningfully and intelligibly discussed.

Fourth cause of action – nuisance

“The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160.) Plaintiff must therefore allege injury specific to the use and enjoyment of his land. (See Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302.)

Defendant argues that the Complaint only contains habitability claims and “no allegation of intentional interference with the use and enjoyment of any property.”  Thus, it requests that the Court construe the nuisance claim “as a negligent tort, not intentional.”  Complaint paragraph 337 discusses the conditions which caused injury to the Plaintiffs, and which interfere with their “comfortable enjoyment of the premises.”  Plaintiffs further allege that “Defendants actions in ignoring complaints, promising repairs with no intent of remediating such violations, and in performing inadequate and insufficient repairs were intentional, and performed with an abhorrent level of disregard for the rights of tenants, including Plaintiffs.”  (See also Complaint, ¶¶ 225, 256.)  This is sufficient; the demurrer to the fourth cause of action is overruled.

Fifth cause of action – violation of Civil Code section 1941.1

            This cause of action is essentially a breach of habitability claim, in which the elements are: “[1] the existence of a material defective condition affecting the premises’ habitability, [2] notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition; [3] the landlord was given a reasonable time to correct the deficiency, and [4] resulting damages.”  (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.) 

            Defendant failed to provide any argument on the insufficiency of this claim.  Moreover, Defendant did not demur to the breach of habitability cause of action and Plaintiffs may plead alternate theories of recovery.  (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565 [“A plaintiff may plead cumulative or inconsistent causes of action”].)  Here, Plaintiffs allege numerous defects in the complex (See, e.g., Complaint, ¶¶ 8, 208-222, 283-288), notice to the landlord (¶¶ 290-291) who was given reasonable time to correct (¶ 291), and damages (¶¶ 292-923).  The demurrer on the fifth cause of action is overruled.

Seventh cause of action – unfair business practices

California Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.)  “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.  [Citations.]”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)

An unlawful business practice can be based on violations of other laws. The unfair competition law treats such violations as unlawful practices and makes them independently actionable.  (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone, Co. (1999) 20 Cal.4th 163, 180.)

Plaintiffs’ seventh cause of action is based on their claims of the breach of the warranty of habitability, to which Defendant did not demur.  (Complaint, ¶¶ 367-375.)  Therefore, it implicitly concedes that the habitability claim is viable.  As Plaintiffs have tethered this cause of action to that breach, this claim is sufficient.  (Gutierrez v. Carmax Auto Superstores Cal. (2018) 19 Cal.App.5th 1234, 1265 [“Virtually any statute or regulation (federal or state) can serve as a predicate for a UCL unlawful practice cause of action”].)  The demurrer is overruled on the seventh cause of action.

Ninth cause of action – violation of Civil Code section 1940.2

            Civil Code section 1940.2, subdivision (a) prohibits the following actions by a landlord to influence a tenant to vacate the property, including the following: 

(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code. 

(2) Engage in conduct that violates Section 518 of the Penal Code. 

(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. 

(4) Commit a significant and intentional violation of Section 1954. 

(5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief. 

            Defendant contends that there are no allegations of intentional interference through menacing or forceful conduct, with Plaintiffs’ use of the Property, or that Defendant threatened to disclose immigration status.  Plaintiffs’ opposition conflates this cause of action with the breach of the covenant of quiet enjoyment.  The acts under this statute extend beyond failure to repair habitability issues and includes conduct that violates Penal Code sections 484 (petty theft) and 518 (extortion), force/threats/menacing conduct, intentional violence, and threatening to disclose immigration/citizenship status. 

Nevertheless, the allegations are sufficient at the demurrer stage.  Plaintiffs allege that “Defendants threatened to evict more than 100 tenants” and that despite being informed that such efforts “were in violation of the Los Angeles Eviction Moratorium, Defendants dismissed such notifications and threatened immediate eviction if tenants did not comply with the eviction notice.”  (Complaint, ¶ 397.)  This satisfies section 1940.2, subdivision (a)(3).The demurrer on this claim is overruled.

Eleventh cause of action – violation of Los Angeles Tenant Anti-Harassment Ordinance

As relevant, Los Angeles Municipal Code section 45.33 defines tenant harassment as “a landlord’s knowing and willful course of conduct directed at a specific tenant or tenants that causes detriment and harm, and that serves no lawful purpose, including, but not limited to, the following actions:

2.   Failing to perform and timely complete necessary repairs and maintenance required by Federal, State, County, or local housing, health, or safety laws; or failure to follow applicable industry standards to minimize exposure to noise, dust, lead paint, asbestos, or other building materials with potentially harmful health impacts.

…

7.   Threatening or taking action to terminate any tenancy including service of any notice to quit or other eviction notice or bringing action to recover possession of a rental unit based on facts which the landlord has no reasonable cause to believe to be true. No landlord shall be liable under this subsection for bringing an action to recover possession of a rental unit unless and until the tenant has obtained a favorable termination of that action.

(L.A. Mun. Code, § 45.33(2), (7).)

            Defendant argues that the code section is not stated in the caption page and does not identify a cognizable threat.  The argument is unavailing.  Plaintiffs allege that Defendants failed to perform necessary repairs in violation of numerous statutes and ordinances.  (Complaint, ¶¶ 225, 226.)  In addition, they allege that Defendants served unlawful eviction notices for which they had no reasonable basis.  (Id. at ¶¶ 371, 397, 424, 433, 529, 548.)  These allegations are incorporated into the eleventh cause of action.  For those reasons, the demurrer on this claim is overruled.

Twelfth cause of action – intentional infliction of emotional distress

            Intentional infliction of emotional distress requires “(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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.”  (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

            Whether the alleged conduct is outrageous is usually a question of fact to be determined beyond the pleading stage.  (So v. Shin (2013) 212 Cal.App.4th 652, 672.)  Nevertheless, “many cases have dismissed intentional infliction of emotional distress claims on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.”  (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356.)  For example, in Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 912 (Stoiber), the plaintiff tenant alleged numerous defects, including leaking sewage, cockroach infestation, broken walls, defective wiring, and lack of plumbing.  The plaintiff alleged that defendant landlord failed to correct the conditions, except for one occasion when they sent a plumber in response to a complaint about the toilet.  (Id. at p. 913.)  Thus, the plaintiff alleged that defendant’s failure to remedy the defects were “knowing, intentional and willful,” and caused her extreme emotional distress.  (Id. at p. 913.)  The Court of Appeal held that alleging breach of the implied warranty of habitability “does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord’s acts are extreme and outrageous and result in severe mental distress. Whether this is so under the present allegations, presents a factual question it cannot be said as a matter of law that appellant has not stated a cause of action.”  (Id. at p. 922.)

            Defendant argues that the allegations of outrageous conduct are conclusory. This case is analogous to Stoiber, supra, 101 Cal.App.3d at p. 922.  Plaintiffs in this case allege a series of defects, including inadequate sanitation, vermin/rodent infestation, and chronic mold.  (Complaint, ¶ 8.)  They complained about these issues to Defendants, who failed to respond to the concerns.  (Id. at ¶ 9.)  Accordingly, the demurrer to the twelfth cause of action is overruled.

Thirteenth cause of action – retaliatory eviction under Civil Code section 1942.5

            Civil Code section 1942.5, subdivision (d) prohibits a lessor for threatening to “increase rent, decrease services, cause a lessee to quit involuntarily, [or] bring an action to recover possession” because the lessee “lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law.”

            Here, Plaintiffs allege that they exercised their rights to complain to various government agencies after Defendant failed to make any repairs to the Property.  (Complaint, ¶ 431.)  Defendant narrowly views the Complaint as only alleging that Defendant merely served a notice to quit.  However, Plaintiffs also allege that Defendant threatened Plaintiff Daniel Kirkland “by telling him that they would make sure he had nowhere to live.”  (Id. at ¶ 432.)  After Plaintiffs informed Defendant that it violated the eviction moratorium, Defendants retaliated by threatening immediate eviction.  (Id. at ¶ 434.)  This is sufficient at the demurrer stage.  Defendant argues that the notice alone is not enough to show harassment, but it ignores the retaliatory element under section 1942.5, subdivision (d).  Thus, the demurrer to the thirteenth cause of action is overruled.  

Fourteenth cause of action – failure to pay relocation assistance under Los Angeles Municipal Code section 151.09, subdivision (G).

            As relevant, Los Angeles Municipal Code section 151.09, subdivision (G) provides that “if the termination of tenancy is based on the grounds set forth in Subdivisions 8., 10., 11., 12., 13. or 14. of Subsection A. of this section, then the landlord shall pay a relocation fee.”

            Defendant argues there are no basic facts requiring relocation assistance such as the amount, when and why the funds were required.  Plaintiffs point to Paragraphs 443 and 444 that they make the allegations of ultimate facts.  They then confusingly argue that Defendant’s acts constitute retaliatory eviction.

As a prerequisite to providing a relocation fee, the Municipal Code requires that there be a “termination of tenancy” on certain grounds, such as the landlord’s good faith recovery of possession for use as a primary residence, demolition of the property, or conversion of the property to an affordable housing accommodation.  (See generally, L.A. Mun. Code, § 151.09(A)(8.), (10.), (11.), (12.), (13.), (14).)  Paragraph 443 merely states that the landlord failed to provide relocation assistance.  Plaintiffs provide an example of Joselyn Garcia, a tenant who was forced to rent an Airbnb because her unit was being repaired for “flying debris and hazardous construction dust.”  This Paragraph suggests that the relocation was temporary, and not a termination of the tenancy.  Therefore, Plaintiffs do not allege how they are entitled to relocation assistance. The demurrer to the fourteenth cause of action is sustained.

Sixteenth and twenty-first cause of action – actual fraud and promissory fraud

The elements of intentional misrepresentation are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.”  (Lazar v. Superior Court (1996) 12 Cal.4th 631.)  If the alleged misrepresentation is concealment, the element of “scienter” is replaced by the defendant’s duty to disclose the concealed fact to the plaintiff.  (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.) 

            Fraud must be pled specifically, not with “general and conclusory allegations.”  (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [“This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.”)  Less specificity is required to plead fraud by concealment. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199; but see Goodman v. Kennedy (1976) 18 Cal.3d 335, 347 [“mere conclusionary allegations that the omissions were intentional and for the purpose of defrauding and deceiving plaintiffs and bringing about the purchase . . . are insufficient [to show fraud by concealment”].)  However, “[i]f a fraud claim is based upon failure to disclose, and ‘the duty to disclose arises from the making of representations that were misleading or false, then those allegations should be described.’” (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1262.) 

            Defendant argues that the Complaint lacks specificity.  The argument has merit.  Plaintiffs’ opposition merely points out the Paragraphs which support each element but does not directly address the lack of details.  For example, Plaintiffs allege that “Defendants concealed or suppressed material facts by telling Plaintiffs’ that the property did not have any history of cockroach infestation, in an effort to mislead Plaintiffs.”  (Complaint, ¶ 458.)  But it does not name the individual who allegedly induced Plaintiffs to sign their lease in reliance on the concealment.  Paragraph 459 makes further allegations, but these are all vague and general – Plaintiffs cite that “prior to the inception of each Plaintiffs’ tenancy, Defendants knew that the Properties had a history of cockroaches, leaks, and moisture instruction,” but this is alleged generally across all Plaintiffs and against all Defendants.  Given the number of parties in this case, Plaintiffs must be more specific in their allegations as to who said (or did not say) what, to whom, and when the concealment was made.

            As to promissory fraud, a plaintiff must allege a promise “that the promisor did not intend to perform at the time the promise was made, that the promise was intended to deceive and induce reliance, that it did induce reliance, and that this reliance resulted in damages.”  (Fleet v. Bank of America N.A. (2014) 229 Cal.App.4th 1403, 1411.)   

            Plaintiffs allege promissory fraud on the theory that Defendants promised to fix and make repairs to numerous defects.  Again, Plaintiffs do not mention the name of the individual who allegedly made the promise.  (Complaint, ¶ 512.)  Further, the damages allegation is insufficient.  Paragraph 513 suggests that Plaintiffs were “influenced to sign lease agreements,” but the promises to make repairs happened after those agreements were already signed.  Otherwise, Paragraph 513 merely alleges that Plaintiffs were “forced to reside in their units without the abatement of the horrendous conditions that they were promised.”  This does not allege additional damages based upon the reliance of the promise itself: such harm already existed because Plaintiffs complained about it to Defendants. 

            Accordingly, the demurrer to the sixteenth and twenty-first causes of action are sustained.   

Twentieth cause of action – negligence per se

Negligence per se is not a separate tort cause of action and Plaintiff cannot obtain damages for both negligence and negligence per se arising out of the same accident. Rather, it is an evidentiary doctrine whereby negligence may be presumed if the evidentiary requirements are met.  (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286.)  “Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. [Citation.] Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.”  (Id. at p. 1286.)

To the extent that Plaintiffs allege negligence per se as a separate cause of action, the demurrer is sustained without leave to amend because they already allege negligence as the third cause of action to which Defendant did not demur. This order does not preclude Plaintiffs’ reliance on the doctrine of negligence per se to prove her underlying negligence cause of action at trial.

Twenty-second cause of action – libel/defamation

The demurrer to the twenty-second cause of action for libel/defamation, which is pleaded by Plaintiff Daniel Kirkland against Defendant Erica Rivera.  A demurrer may be brought by “[a] person against whom a complaint or cross-complaint has been filed.”  (Code Civ. Proc., §§ 430.10, 430.40.)  Defendant Manhattan lacks standing to demur to this cause of action and the demurrer is overruled.

Twenty-third cause of action – violation of Government Code section 12927 (Fair Employment and Housing Act)

“In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation.”  (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592.)

Despite listing this cause of action in their notice, Defendant makes no legal argument in their memorandum of points and authorities.  The allegations are sufficient here.  Plaintiffs allege that they suffer various disabilities such as post-traumatic stress disorder, trauma, and anxiety and informed Defendant, who refused any accommodations.  (See generally Complaint, ¶¶ 271(a), 524-531.)  The demurrer to the twenty-third cause of action is overruled.

Twenty-fourth cause of action – violation of Unruh Civil Rights Act

Civil Code section 51, subdivision (b), provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

            Defendant argues there are no allegations of discrimination.  Plaintiffs point to Paragraph 533.  This paragraph is conclusory and does not provide any factual basis for discriminatory intent.  In Paragraph 539, Plaintiffs allege that Defendant refused to fix the elevator, which was a “reasonable and necessary accommodation for disabled tenants.”  But this paragraph is insufficient to show that Defendants specifically targeted disabled tenants because the elevator was allegedly broken for all tenants.  Because Plaintiffs have not alleged sufficient facts to show discriminatory intent as a substantial motivating reason for Defendant’s conduct, the demurrer to the twenty-fourth cause of action is sustained.

Twenty-fifth cause of action – violation of Bane Act

            Civil Code, section 52.1 (the “Bane Act”) allows an individual to sue for damages if a person or persons “interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state….”¿ (Civ. Code, § 52.1, subds. (a), (b).)¿¿“The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e.,¿‘threat[ ], intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.”¿ (King v. State of Cal.¿(2015) 242 Cal.App.4th 265, 294; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.)

“The statute requires¿a showing of threatening conduct independent from the alleged interference or violation of a civil right.¿[Citations.]” (Doe v. State of California¿(2017) 8 Cal.App.5th 832, 842–843.) In addition, the Bane Act was passed primarily as hate crime legislation (Jones v. Kmart Corp (1998) 17 Cal.4th 329, 338) and was meant to narrowly supplement the Ralph Act to deter violence.  (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1447.) “These statutes were designed to stem the number of hate crimes which the Legislature recognized had grown to an alarming proportion. [Citations.] (Stamps, supra, 136 Cal.App.4th at p. 1457.)

The elements of a Bane Act claim are: (1) defendant interfered with or attempted to interfere with plaintiffs’ constitutional or statutory right by threatening or committing violent acts; (2) plaintiffs reasonably believed that if they exercised their constitutional right the defendant would commit violence against them or their property; (3) defendant injured plaintiffs or their property to prevent them from exercising their constitutional right or retaliate against plaintiffs for having exercised their constitutional right; (4) plaintiffs were harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiffs' harm. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882.)

            In context, the statutory framework of section 52.1 “indicates that the Legislature meant the statute to address interference with constitutional rights involving more egregious conduct than mere negligence.”  (Shoyoye v. County of Los Angeles) (2012) 203 Cal.App.4th 947, 958.  “[T]he statute was intended to address only egregious interferences with constitutional rights, not just any tort.”  (Id. at p. 959.) “The act of interference with a constitutional right must itself be deliberate or spiteful.”  (Ibid.)

Defendant argues there are no allegations of any violence or physical damage.  Plaintiffs point to various paragraphs in their Complaint that describe Defendants’ threats and intimidations in interfering with Plaintiffs’ rights under the Fair Employment and Housing Act.

The Court finds that Plaintiff has not alleged the type of threat, intimidation, or coercion for which the Bane Act contemplates.  First, there are no allegations of acts or threats of violence.  Second, Plaintiffs do not allege any threatening conduct “independent from the alleged interference” itself.  Their Bane Act claim is based on the very threats and harassment that is the alleged interference itself.  (Complaint, ¶ 548.)  Therefore, the demurrer to the Bane Act claim is sustained.

Twenty-sixth cause of action – strict liability

            Defendant contends that strict liability does not apply because it is a landlord, not a manufacturer or seller of any product.  In their opposition, Plaintiffs argue that they are proceeding on an “ultrahazardous” theory of liability through the allegations of a defective elevator.

“The doctrine of ultrahazardous activity provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses.” (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85.)

            Here, Plaintiffs allege that Defendants allowed the defective elevator to continue operating.  (Complaint, ¶ 557.)  This is insufficient.  Plaintiffs offer no legal authority that a failure to act constitutes an “activity” for strict liability purposes.  Thus, the demurrer to the twenty-sixth cause of action is sustained.

Twenty-seventh cause of action – false imprisonment

“The elements of a tortious claim of false imprisonment are: (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief.”  (Easton v. Stutter Coast Hospital (2000) 80 Cal.App.4th 485, 496.)

            Here, Plaintiffs’ theory is that the broken elevator and Defendant’s failure to fix the elevator constitute false imprisonment.  (Complaint, ¶ 563.)  This is insufficient because there are no allegations that the elevator was stopped intentionally for the purpose of trapping its occupants.  Defendant did not knowingly set up the elevator with the intent to confine the Plaintiffs.  The demurrer to the claim of false imprisonment is sustained.

Twenty-eighth cause of action – violation of Ralph Act

The Ralph Civil Rights Act provides that “All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics." (Civ. Code, § 51.7, subd. (b)(1).)

To plead a claim for violation of the Ralph Act, a plaintiff must allege (1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff’s protected characteristic; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Austin B. v. Escondido Union School Dist., supra, 149 Cal.App.4th at pp. 880-81.)

Defendant argues there was no threat, act of violence, or discriminatory intent alleged.  Under Civil Code 51.7, subdivision (b)(2), “intimidation by threat of violence” includes making a false police report.  Plaintiff’s opposition cites to the building manager, Erica Rivera, making a false police report against one of the tenants for making complaints about the building.  (Complaint, ¶ 276(a).) 

However, Defendant is correct in that there are no allegations about discriminatory intent based on a protected characteristic such as sex, race, disability, national origin, or sexual orientation.  The allegations regarding the police report do not discuss Plaintiff Daniel Kirkland’s protected characteristic; rather, it seems Defendant was allegedly retaliating against him merely because he made complaints, not because of his race, sex, national origin, or other characteristic.  Paragraph 570 alleges that Defendants engaged in this behavior with prejudice “against sex, race, disability, and other such protected status.”  This is conclusory and there are no supporting facts.  Thus, the demurrer to the twenty-eighth cause of action is sustained.

Motion to Strike

            “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿ (Code Civ. Proc., § 436.)

            Defendants move to strike “All Paragraphs” related to punitive/exemplary damages, attorney’s fees, and special or statutory damages, and Paragraphs 1, 5, 7, 8, 9, 10, 11, and 13 in the Prayer for Relief.  The request to strike “all paragraphs” is improper under California Rules of Court, rule 3.1322(a) because counsel fails to identify which paragraphs that they seek to strike.  In any event, the motion to strike is denied as to the paragraphs in the fourth, fifth, seventh, ninth, eleventh, twelfth, thirteenth, twenty-second, and twenty-third causes of action because the demurrer is overruled on those causes of action.  The motion to strike is moot as to the paragraphs in the fourteenth, sixteenth, twentieth, twenty-first, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth causes of action because the demurrer is sustained on those claims.

            As to the Prayer for Relief, the motion is denied as to Paragraphs 1, 5, 10, 11, and 13 for the above reasons, but granted as to Paragraphs 7, 8 and 9.  Paragraph 7 requests statutory damages under Code of Civil Procedure section 1174, subdivision (b).  That statute is for unlawful detainer procedures.  This is not an unlawful detainer action. Paragraph 8 requests damages for failure to provide relocation assistance, on which the demurrer is sustained.  Paragraph 9 seeks damages for failure to provide temporary relocation and replacement housing under Los Angeles Municipal Code section 152.06.  No such allegations were made in the Complaint.  Thus, the Court strikes Paragraphs 7, 8, and 9 in the Prayer for Relief.

Conclusion

            The demurrer is overruled as to the fourth, fifth, seventh, ninth, eleventh, twelfth, thirteenth, twenty-second, and twenty-third causes of action.  The demurrer is sustained as to the fourteenth, sixteenth, twentieth, twenty-first, twenty-fourth, twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth causes of action with leave to amend, except as to the twentieth cause of action for negligence per se, to which the demurrer is sustained without leave to amend. 

The motion to strike is granted as to Paragraphs 7, 8, and 9 of the Prayer, but is otherwise either moot or denied as to the paragraphs in the body of the Complaint.