Judge Bruce G. Iwasaki, Case 22STCV22211 2022-10-14 Tentative Ruling

(2) Defendants Melissa Grace aka Melissa Grace Corriveau and Jag Financial Investments, Inc.

Tentative Ruling: (1) The demurrer is overruled and the motion to strike is denied.

(2) The motion to vacate default is granted. Plaintiff’s request for fees and costs is denied.

This is an action for declaratory relief as to a tenancy. Claire P. Shetz (Plaintiff) sues Tyrone L. Hudson, Christine Hudson, Melissa Grace, and Jag Financial Investments Inc. for violations of the Fair Employment and Housing Act, Disabled Persons Act, Elder Abuse and Dependent Adult Civil Protection Act, and the Los Angeles Tenant Harassment Ordinance.

Plaintiff is a tenant residing in a duplex owned by Tyrone L. Hudson and Christine Hudson (collectively, “Hudsons”). Plaintiff alleges that the Hudsons are trying to sell the duplex; however, because Plaintiff is elderly and immunocompromised, they agreed to limit access to the duplex for marketing purposes as a reasonable accommodation. The Complaint avers that all Defendants breached this accommodation and allowed numerous individuals into Plaintiff’s home.

Defendants Melissa Grace aka Melissa Grace Corriveau and Jag Financial Investments, Inc. (collectively “Realtors”) did not answer the Complaint, and, on September 2, 2022, default was entered.

The Hudsons demur to all causes of action for insufficient facts. They also seek to strike several paragraphs in the Complaint as to exemplary damages. Plaintiff opposes the demurrer and motion to strike, and the Hudsons filed a reply. The Hudsons’ counsel’s declaration satisfies the meet and confer requirement. (Voss Decl., ¶¶ 3-4.)

Separately, the Realtors move to vacate entry of default against them with an affidavit of fault from their counsel. Plaintiff opposes, arguing that the Realtor’s counsel is blaming Plaintiff for faulty service, rather than admitting fault. The Realtors filed a reply.

As to the Realtors, the Court grants the motion to vacate default. Plaintiff’s request for attorney’s fees and costs is denied.

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.)

The Hudsons argue that Plaintiff does not clearly define her disability and that she fails to allege any facts against them specifically.

Under the Fair Employment and Housing Act (FEHA), discrimination based on one’s disability is unlawful. (Gov. Code, § 12955(a).) Prohibited discriminatory activity in housing includes “refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” (§ 12927, subd. (c)(1).)

A disability for purposes of FEHA includes having a physiological disease or disorder that does both of the following: (1) affects a body system, including immunological, or respiratory, and (2) limits a major life activity. (Gov. Code, § 12926, subd. (m)(1)(A)-(B).) Major life activities are defined broadly and include “physical, mental, and social activities and working.” (§ 12926, subd. (m)(1)(B)(iii).)

The allegations are sufficient. Plaintiff alleges that she suffers from an “infectious disease similar to tuberculosis, and is immunocompromised.” (Complaint, ¶ 8.) This disability affects her social activities because she must limit her exposure to others. (Ibid.)

Plaintiff allegedly informed the Hudsons of her disability and requested a reasonable accommodation that they limit access to the unit. (Complaint, ¶ 12.) This resulted in a written document in which the parties agreed to “allow pictures/video to be taken on a day that everyone agrees on.” (Complaint, Ex. A.) The parties agreed to inspect the unit on January 29 and on February 5, photos and videos were taken. (Id. at ¶ 13.) After that, the Hudsons allegedly breached the agreement by attempting to enter the unit multiple times. (Id. at ¶ 15, 17, 18, 20, 23, 24, 25, 26, 28.) Eventually, Defendant Tyrone Hudson informed Plaintiff that he refused to accommodate the request. (Id. at ¶ 29, 30.)

The other defendants in this case are the real estate agent and the brokerage. Government Code section 12955, subdivision (g) prohibits any person to “aid, abet, incite, compel, or coerce” any discriminatory acts. Thus, the Hudsons’ argument that the allegations must be specifically directed towards them is not well-taken. Accordingly, the demurrer is overruled on the first cause of action.

The Hudsons again argue that this cause of action is not specifically directed to them and that it is unclear how the requested accommodation is necessary for Plaintiff’s use and enjoyment of the unit.

Under the Disabled Persons Act, a landlord “shall not refuse to make reasonable accommodation in rules, policies, practices, or services, when those accommodations may be necessary to afford individuals with a disability equal opportunity to use and enjoy the premises.” (Civ. Code, § 54.1, subd. (b)(3)(B).)

Here, the Complaint avers that Plaintiff’s daughter requested a reasonable accommodation that the Hudsons limit access to the unit. Given Plaintiff’s weakened immune system, the request was to reduce her exposure to “multiple entries by strangers.” (Complaint, ¶ 12.) The Hudsons appeared to agree to this request, resulting in a “Tenant Permission to Access Property” form that was signed by both parties. (Complaint, Ex. A.) This request was reiterated in an e-mail dated April 2022 and attached as Exhibit F to the Complaint. (Id. at ¶ 27.) Defendant Tyrone Hudson acknowledged this e-mail and denied the request. (Id. at ¶¶ 28-29.)

This cause of action is sufficiently pled. Plaintiff names the Hudsons as the owners of the unit. Defendants’ contention that the requested accommodation is not “necessary” to allow Plaintiff equal opportunity for the use and enjoyment of the property is a factual issue. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)

The Hudsons contend that they did not owe a duty to Plaintiff, there was no physical abuse alleged, and no allegations that they failed to provide for Plaintiff’s basic needs.

Elder abuse is “(1) physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering; (2) the deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering; and/or (3) financial abuse, as defined in Section 15610.30. (Welf. & Inst. Code § 15610.07(a).)

The Complaint alleges that Plaintiff “experienced mental suffering . . . due to threats that she may have to leave her Apartment.” (Complaint, ¶ 52.) The Hudsons allegedly and constantly demanded Plaintiff to allow others into her home. (Id. at ¶ 50.) Plaintiff’s refusal and resistance eventually resulted in the termination of her tenancy. (Id. at ¶¶ 50-51.) This is sufficient under the “other treatment” aspect of Welfare and Institutions Code section 15610.07, subdivision (a). (Darrin v. Miller (2019) 32 Cal.App.5th 450, 456 [“‘treatment’ that is neither physical abuse, neglect, abandonment, isolation nor abduction, can constitute elder abuse if the treatment results in ‘physical harm or pain or mental suffering’ even if the alleged abuser has no responsibility to care for the elder and no control of the elder's property”].)

The Hudsons’ citation to Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 404 is inapposite because that case analyzed elder abuse under the neglect prong, which is not being alleged here. Thus, the demurrer to the fourth cause of action is overruled.

The Hudsons argue that the tenant harassment allegations are insufficient because the Complaint “lumps all defendants into one category.”

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:

3. Abuse of the right of access into a rental unit as established and limited by California Civil Code Section 1954, including entering or photographing portions of a rental unit that are beyond the scope of a lawful entry or inspection.

6. Misrepresenting to a tenant that the tenant is required to vacate a rental unit or enticing a tenant to vacate a rental unit through an intentional misrepresentation or the concealment or omission of a material fact.”

This cause of action is sufficiently pled. A landlord is defined as any person have a legal or equitable right of ownership, including any “agent or representative” of the owner. (Id. at § 45.32.) Thus, all the defendants mentioned in Paragraphs, including the Hudsons, “abused the right of access” by having prospective purchasers and agents enter the unit. (Complaint, ¶ 20, 23, 24, 28.) Moreover, the Complaint does identify the Hudsons – for example, Paragraph 13 references the agreement between Plaintiff and Tyrone Hudson in Exhibit A.

Plaintiff also alleges that the Hudsons and their agent, Melissa Grace, misrepresented to her that she was required to vacate the premises, satisfying Los Angeles Municipal Code section 45.33(6). (Id. at ¶ 22, 25, 29.) Accordingly, the demurrer to the fifth cause of action is overruled.

The Hudsons argue that Plaintiff fails to “allege any specific facts . . . demonstrating what specific rights and duties” for which she seeks judicial declaration and how such facts would be the proper subject of declaratory relief.

Code of Civil Procedure section 1060 authorizes a person to sue for declaratory relief if he or she “desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property.” (Code Civ. Proc., § 1060.) A request for declaratory relief may be brought alone or with other relief. (Ibid.)

A declaratory relief claim requires that the Plaintiff allege (1) a proper subject of declaratory relief and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

Here, the Complaint alleges that Plaintiff is seeking a judicial declaration as to her right to continue living in the unit “notwithstanding that Defendants have terminated her tenancy in retaliation for exercising her rights as a disabled, elder adult.” (Complaint, ¶ 34.) Since Plaintiff has sufficiently pled violations of the Fair Employment and Housing Act (FEHA) and Disabled Persons Act, she has sufficiently demonstrated that a controversy exists. In addition, declaratory relief under FEHA is appropriate. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234 [“upon a finding of unlawful discrimination, a court may grant injunctive relief where appropriate to stop discriminatory practices”].) Therefore, the demurrer to this cause of action is overruled.

The Hudsons move to strike Paragraphs 41, 54, and 56 of the body of the Complaint, and Paragraphs 5 and 9 in the Prayer for Relief as to exemplary damages.

“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.)

The complaint need only allege ultimate facts supporting oppression, fraud, or malice. (See Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055; Clauson v. Superior Court, supra, 67 Cal.App.4th at p. 1255. Thus, “a general allegation of [wrongful] intent is sufficient to support a claim for exemplary damages. (Unruh v. Truck Ins. Exch. (1972) 7 Cal.3d 616, 632, superseded by statute on other grounds as stated in Hendy v. Losse (1991) 54 Cal.3d 723, 732, n. 6.)

Plaintiff has alleged that all Defendants acted with the intent to defraud her of the use of the property. (Complaint, ¶ 51.) This is enough. (Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963 [“ultimate facts which give rise to liability” is sufficient for allegation of punitive damages].) Additionally, the demurrer is overruled in its entirety, so Plaintiff has sufficiently pled those claims. Accordingly, the Court denies the motion to strike.

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)

“‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.”’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

The party seeking such relief must do so “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

The Realtors’ motion is timely filed within six months of the default. The motion is supported by a declaration by their counsel, Michael Saldana.

Mr. Saldana has established mistake, inadvertence, or neglect. He avers that Melissa Grace informed him that she “received actual notice” of the Complaint on August 9, 2022. (Saldana Decl., ¶ 5.) The Proof of Service indicates that service occurred on July 15, 2022 for both Realtor Defendants. However, Mr. Saldana reportedly and repeatedly checked the Court’s docket between August 9 and September 1, 2022, and did not see any of the Proofs of Service filed. (Id. at ¶¶ 5-6)

Mr. Saldana then drafted an e-mail to Plaintiff’s counsel to request proofs of service; however, he inadvertently failed to send the e-mail because of what he believed was “computer error in our remote desktop platform.” (Id. at ¶ 6.) Mr. Saldana eventually sent the e-mail to Plaintiff on September 9 and discovered the Proofs of Service that same day. (Id. at ¶ 7.) This is sufficient to constitute mistake, inadvertence, or neglect. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 928-929 [finding that if both client and attorney are at fault, mandatory relief is still appropriate].)

Contrary to Plaintiff’s opposition that the Realtors’ counsel is casting blame on Plaintiff’s counsel and that this is not a “‘straightforward admission of fault,’” Mr. Saldana assumed “full responsibility for neglecting to file a timely responsive pleading.” (Saldana Decl., ¶ 15.)

Plaintiff also seeks sanctions in the amount of $3,848.52, which includes time and costs for preparation of the opposition to the motion to vacate the entry of default and the corresponding ex parte application to advance the hearing date.

The Court will not award fees and costs because much of the work was unnecessary. After Mr. Saldana e-mailed Plaintiff’s counsel for the Proofs of Service, counsel agreed to set aside the defaults if Mr. Saldana would stipulate to not objecting to Plaintiff’s motion for trial preference. (Saldana Decl., ¶ 8.) Mr. Saldana requested a copy of that motion, but Plaintiff’s counsel did not respond. (Id. at ¶ 9.) Mr. Saldana sent a follow-up e-mail and attached a draft stipulation. (Id. at ¶ 10.) This time, Plaintiff’s counsel replied, requesting that Mr. Saldana “file Answers to the Complaint, and no other responsive pleadings, within 7 days” of September 13, 2022. (Id. at ¶ 11.) Melissa Daugherty, lead counsel for the Realtors, replied that the terms were “untenable.”[1] (Id. at ¶ 12.)

Given that Plaintiff’s counsel originally offered to stipulate to the request to set aside default, the Court does not find that work expended in opposition was reasonable. Plaintiff’s request for fees and costs is denied.

Accordingly, the motion to vacate entry of default is granted and the Court declines to award any fees. Defendant Realtors are ordered to file and serve their Answer within 20 days of entry of this order.

[1] It appears that Defendant Realtors’ counsel’s rejection of Plaintiff’s offer as untenable was because of the short turnaround time for response (by 5:00 P.M. that same day when the offer was sent at 2:21 P.M.) and the Realtors’ intent to file a Cross-Complaint. (Saldana Decl., ¶¶ 12-13.)

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