Judge Craig Griffin, Case Agranovich vs. Lynn 2022-08-08 Tentative Ruling

Judge: Craig Griffin, Case: Agranovich vs. Lynn, Date: 2022-08-08 Tentative Ruling

The court must first note the causes of action (“COA”) have been misnumbered by Plaintiffs starting with their Supplemental Complaint (“SC”). Instead of starting the SC with COA No. 7 (as the original Complaint had six COA), Plaintiffs started with COA No. 6. (ROA Nos. 2, 308.) The error continued into the Second Supplemental Complaint (“SSC”), which incorrectly started with COA No. 10 instead of COA No. 11. The present pleadings are as to all of the COA in the SSC, which should be numbered as COA Nos. 11 through 14 (not COA Nos. 10 through 13). The court will proceed with the corrected numbers.

A) Demurrer

Defendants Maya Lynn and Brent Lynn’s (“Defendants” together) Demurrer to plaintiffs Felix Agranovich and Katherine Agranovich’s (“Katherine” individually; “Plaintiffs” together with Felix Agranovich) Second Supplemental Complaint (“SSC”) is SUSTAINED in part and OVERRULED in part.

A demurrer challenges the defects appearing on the face of the pleading or from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749.)

“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded. [Citations omitted.] However, it does not admit contentions, deductions or conclusions of fact or law alleged therein. [Citations omitted.]” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 666, 672.)

1) Civ. Code § 5950

Plaintiffs failed to meet the requirement of Civ. Code § 5950. That code section requires a Certificate of Compliance (“Certificate”) be filed at the time of commencement of this action. The SSC is an amendment to the original Complaint and generally a new Certificate would not need to have been filed if the requirements had been met with the filing of the original Complaint. However, Defendants are correct in that Plaintiffs failed to file such a Certificate back on 11/20/18 when the Complaint was filed. Although the Complaint itself states that a Certificate will be filed with the Complaint (Complaint ¶ 32), no such Certificate was filed with any of the pleadings on 11/20/18 or thereafter. As Civ. Code § 5950 is a mandatory requirement for code enforcement actions and as Plaintiffs have failed to meet that requirement, they are thus not permitted to pursue any claims to enforce the CC&Rs in the present action. (Civ. Code § 5950; Retzloff v. Moulton Parkway Residents' Assn., No. One (2017) 14 Cal. App. 5th 742, 753–54.)

The court notes that this matter is a hybrid of both tort causes of action (“COA”) and CC&R enforcement COA. Civ. Code § 5950 applies only to CC&R enforcement. Thus, while Plaintiffs do not have legal capacity to sue to enforce CC&R COA, they would have legal capacity to sue to enforce their non-CC&R general tort COA against Defendants. (Civ. Proc. Code § 430.10(b).)

As the only CC&R enforcement COA subject to this Demurrer is COA No. 13, the court SUSTAINS the Demurrer without leave to amend as to COA No. 13 alone. (Civ. Proc. Code § 430.10(b).)

2) COA No. 11 – Invasion of Privacy / Intrusion Upon Seclusion

“[T]he action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” (Shulman v. Grp. W Prods., Inc. (1998) 18 Cal. 4th 200, 231.) “It encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying.” (Id., at 230-32.) To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” (Id., at 232.)

Defendants demur to this COA on the bases that 1) it is uncertain (Civ. Proc. Code § 430.10(f); and 2) Plaintiffs do not have legal capacity to sue (Civ. Proc. Code § 430.10(b).) As noted, supra, this COA is not based on CC&Rs, and thus Civ. Proc. Code § 430.10(b) does not apply and Plaintiffs do have standing to bring this COA. The only issue remaining is if this COA is uncertain.

“Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Cmty. Servs. Dist. (1982) 135 Cal. App. 3d 797, 809, disapproved of on other matters by Katzberg v. Regents of Univ. of California (2002) 29 Cal. 4th 300.) It appears Defendants claim this COA (as well as the remaining COA) is uncertain on the basis that not enough facts have been claimed to support punitive damages.

Under Civ. Code § 3294:

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

. . .

(1) “Malice” 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.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. . .” (Civ. Code § 3294.)

It is not sufficient to allege merely that a defendant “acted with oppression, fraud or malice.” A plaintiff must allege specific facts showing that defendant’s conduct was oppressive. (Smith v. Sup.Ct. (Bucher) (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

Fraud, “must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made [citations].” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157 [“Tarmann”].) Fraud must be pled with particularity. (Comm. on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Particularity requires facts that, “show how, when, where, to whom, and by what means the representations were tendered.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) “[S]pecificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann, supra, 2 Cal.App.4th at 157-58.)

“Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court, 157 Cal. App. 3d 159, 166 (Ct. App. 1984).)

Plaintiffs have alleged Defendants have intruded upon their privacy by 1) installing security cameras pointed at Plaintiffs’ home, 2) almost daily videorecording or photographing Plaintiffs in their home, 3) Defendants driving or walking to Plaintiffs’ property and pointing handheld cameras (some with telescopic lenses) at Plaintiffs’ windows in order to record Plaintiffs. (SSC ¶ 17.) Defendants have also allegedly captured high-resolution video and photos of Plaintiffs in their home, enjoying their balcony, sitting in their backyard, or walking around their property. (SSC ¶18.) Taking unconsented to videos and photographs of Plaintiffs in their home would be highly offensive to a reasonably person. Plaintiffs have properly pled facts supporting this COA.

Plaintiffs have properly pled malice on the part of Defendants by way of Defendants intentionally photographing and videotaping into Plaintiffs’ windows and recording Plaintiffs on Plaintiffs’ property. The allegations indicate Defendants’ actions were done consciously and with disregard to Plaintiffs’ right to privacy. Plaintiffs have also pled facts to support the oppression prong for punitive damages by the above. Although there are no allegations to support fraud under this COA, a party seeking punitive damages does not need to plead each of the prongs to support a punitive damage claim and the “fraud” may be struck by way of the MTS.

The Demurrer is OVERRULED as to this COA.

3) COA No. 12 – Defamation

““ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.’ ” (Jackson v. Mayweather (2017) 10 Cal. App. 5th 1240, 1259.)

Defendants demur to this COA on the bases that 1) it is uncertain (Civ. Proc. Code § 430.10(f); and 2) Plaintiffs do not have legal capacity to sue (Civ. Proc. Code § 430.10(b). Again, this COA is not based on the CC&Rs, and thus Civ. Proc. Code § 430.10(b) does not apply. Plaintiffs do have standing to bring this COA.

As for uncertainty, Defendants argue that this COA does not support punitive damages and Katherine’s emotional distress claims are uncertain as she previously stipulated that she would make no claim for mental and emotional distress over and above that usually associated with the physical injuries claimed.” (ROA #233.)

Plaintiffs alleged Defendants published false, unprivileged, and defamatory statements on YouTube regarding Plaintiffs being “criminals” who committed “vandalism,” “trespassing,” and “unlawful intrusion,” as well as committing crimes, harassing their neighbors, and incessantly spying on others (SSC ¶¶ 25-26.) Plaintiffs allege these statements have subjected Plaintiffs to hatred, contempt, ridicule, and shame to discourage others from associating or dealing with Plaintiffs.

Plaintiffs have properly pled malice on the part of Defendants by way of Defendants by intentionally publishing false and defamatory statements. The allegations indicate Defendants’ actions were done consciously and with disregard to Plaintiffs’ right to privacy and reputation. Plaintiffs have also pled facts to support the oppression prong for punitive damages by the above. This COA also supports the fraud prong as Plaintiffs have alleged Defendants published intentional misrepresentations regarding Plaintiffs with the intent of causing injury to Plaintiffs.

As to the emotional distress claims, Defendants are correct that Plaintiffs stipulated that no claim for emotional distress over and above that associated with physical injuries claimed was entered. Defendants are also correct that the COA is uncertain as the emotional distress injuries as no physical injuries have been pled.

The Demurrer is SUSTAINED as to this COA solely on the basis of the uncertain emotional distress claims. The remainder of the COA has been properly pled.

4) COA No. 13 – Breach of Governing Documents

As discussed, supra, Plaintiffs do not have standing to bring this COA as they failed to file a Certificate at the time of the original complaint.

5) COA No. 14 – Nuisance

The elements of a private nuisance are 1) plaintiffs owning, leasing, occupying, or controlling real property; 2) Defendants obstructing the free use of the property so as to interfere with the comfortable enjoyment of life or property; 3) an ordinary person would be unreasonably annoyed or disturbed by the acts of Defendants; 4) the seriousness of the harm outweighed the social utility; 5) Plaintiffs did not consent to the obstruction; 6) Plaintiff suffered harm by Defendants’ actions; and 7) Defendants’ actions were a substantial factor in causing Plaintiffs’ harm. (Dep't of Fish & Game v. Superior Ct. (2011) 197 Cal. App. 4th 1323, 1352.)

Defendants demur to this COA on the bases that 1) it is uncertain (Civ. Proc. Code § 430.10(f); and 2) Plaintiffs do not have legal capacity to sue (Civ. Proc. Code § 430.10(b). This COA is not based on the CC&Rs, and thus Civ. Proc. Code § 430.10(b) does not apply and Plaintiffs do have standing to bring this COA.

The same analysis that applies to the invasion of privacy COA can be applied here. Again Plaintiffs have alleged Defendants have intruded upon their privacy by 1) installing security cameras pointed at Plaintiffs’ home, 2) almost daily videorecording or photographing Plaintiffs in their home, 3) Defendants driving or walking to Plaintiffs’ property and pointing handheld cameras (some with telescopic lenses) at Plaintiffs’ windows in order to record Plaintiffs. (SSC ¶¶ 17, 36, 38.) Defendants have also allegedly captured high-resolution video and photos of Plaintiffs in their home, enjoying their balcony, sitting in their backyard, or walking around their property. (SSC ¶ 18.) Plaintiffs own their home and allege they cannot enjoy the use of their home with Defendants regularly videotaping and photographing them. An ordinary person would be unreasonably annoyed or disturbed by someone taking unconsented to videos and photographs of them in their home and on their property. Defendants actions are a substantial factor in causing Plaintiffs’ harm.

This COA does have the uncertainty issue with Plaintiffs alleging emotional distress and mental anguish similar to COA No. 12 for defamation, supra.

The Demurrer is SUSTAINED as to this COA solely on the basis of the uncertain emotional distress claims and mental anguish claims. The remainder of the COA has been properly pled.

B) Motion to Strike

Defendants’ Motion to Strike (“MTS”) is GRANTED in part, DENIED in part, and MOOT in part.

“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. . .” (Civ. Proc. Code § 435(b)(1). “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.” (Civ. Proc. Code § 436.)

Defendants request the court strike punitive damage claims, emotional distress/mental anguish claims, and prayer for attorney fees in the SCC.

Punitive damages:

- “The Agranoviches are entitled to punitive damages against the Lynns, and each of them, to punish them and deter such conduct in the future.” (SCC ¶¶ 33, 39.);

- “For punitive and statutory damages to the tenth, eleventh, twelfth, and thirteenth causes of action;” (SCC ¶ 43.);

- “oppression, fraud, and malice” (SCC ¶¶ 33, 39.)

As noted in the Demurrer, supra, COA No. 13 was properly demurred to without leave to amend as Plaintiffs failed to file a Certificate. The MTS as to SCC ¶ 33 is MOOT.

As to COA No. 14 for Nuisance, Plaintiffs have properly pled the malice and oppression prongs supporting punitive damages, but not the fraud prong. The MTS is GRANTED as to the word “fraud” since no claims of fraud under this COA have been made, but DENIED as to the remainder. (SCC ¶ 39.)

As there is a proper basis pled for punitive damage the MTS the Prayer for such damages is DENIED.

Emotional distress/mental anguish:

- The words “emotional distress” metal anguish” “shame (sic)” and “mortification” and “hurt feelings” (SCC ¶ 27.);

- “emotional distress, mental anguish” (SCC ¶ 39.);

These items are MOOT as the demurrer was already sustained as to these COA on the basis the emotional distress issues are uncertain.

Attorney fees:

- “For attorneys’ fees and costs pursuant to Civil Code Sections 5975 and 1717, and Article XVI, Section 9, of the CC&Rs; and” (SCC ¶ 44.)

Plaintiffs seek attorney fees under the CC&Rs, Civ. Code § 5975, and Civ. Code § 1717. As Plaintiffs failed to comply with the requirements of Civ. Code § 5950, they are barred from COA seeking enforcement of the CC&Rs, but also from any attorney fees based on enforcing the CC&Rs. Interestingly, despite Plaintiffs contending CC&Rs are not contracts, they request attorney fees pursuant to Civ. Code § 1717, which permits attorney fees on contract actions, yet Plaintiffs have identified no contracts in the SCC that would permit recovery of attorney fees. It is unclear how attorney fees would be permitted under the remaining COA and under Civ. Code § 1717 if CC&Rs are not contracts and no contracts have been identified.

The MTS is GRANTED as to the attorney fee issue.

Plaintiffs are given leave to file an amended supplemental complaint within 15-days written notice of the court’s ruling.

Defendants to give notice.