Judge: Curtis A. Kin, Case: 22STCV20991, Date: 2023-02-21 Tentative Ruling

Case Number: 22STCV20991    Hearing Date: February 21, 2023    Dept: 72

DEMURRER AND MOTION TO STRIKE

Date:         2/21/23 (9:30 AM)                                                           

Case:         Jaime Scherer et al. v. Zaki Mansour (22STCV20991)

TENTATIVE RULING:

Defendant Zaki Mansour’s Demurrer to First Amended Complaint is SUSTAINED IN PART.

Defendant Zaki Mansour’s Motion to Strike Portions of First Amended Complaint is DENIED.

I.                   DEMURRER TO FIRST AMENDED COMPLAINT

A.                Eighth Cause of Action - Intentional Infliction of Emotional Distress

“In order to state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.”  (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

Defendant Zaki Mansour contends that plaintiffs Jaime Scherer and Scott Potter have not alleged any extreme or outrageous conduct or their distress. However, plaintiffs allege that they complained about various substandard conditions at the subject property, but defendant refused to correct the conditions. (FAC ¶ 34.) Defendant also allegedly received multiple citations for health and safety violations. (FAC ¶ 33.)

The subject property allegedly has had a bedbug infestation since 2004, which caused plaintiffs to discard their furniture, clothing, and other belongings. (FAC ¶¶ 25, 58.) Plaintiffs and other tenants allegedly complain repeatedly to defendant about the bedbugs, but defendant denied the existence of bedbugs. (FAC ¶ 25.) The building where the subject property is located also floods with sewage, causing plaintiffs and their tenants to navigate through dirty water. (FAC ¶¶ 28, 64.) Defendant allegedly disregards the sewage problem by keeping the basement door locked and hiring unknowledgeable and unlicensed repair personnel. (FAC ¶¶ 28, 64.) Defendant also allegedly manipulates the meter for the hot water to save money, which results in an inconsistent water supply. (FAC ¶¶ 30, 61, 62.) Plaintiffs have repeatedly complained about a heater, which has been inoperable for years, but repairs have not been made. (FAC ¶¶ 32, 66.)

As another example, the elevator has allegedly been inoperable for two years. (FAC ¶¶ 32, 68.) Plaintiffs allegedly complain about the elevator, emphasizing that plaintiff Scherer is unable to walk and needs the elevator to reach the subject property. (FAC ¶ 32.) Even though defendant allegedly knows about the disability, defendant refuses to have the elevator fixed. (FAC ¶¶ 40, 75.) Defendant also allegedly sold Scherer’s parking spot for which she had already paid. (FAC ¶ 71.) Defendant also had plaintiffs’ cars towed after he untimely posted a notice to vacate the parking lot on all the tenants’ doors. (FAC ¶¶ 74, 75.) To avoid having to provide accommodations to Scherer, defendant allegedly charges her higher rent than legally allowed. (FAC ¶¶ 70, 72, 73.) Instead of providing accommodations, defendant told Scherer that she needed to move out. (FAC ¶ 71.)

The allegations described above are sufficient to state a cause of action for intentional infliction of emotional distress. Defendant was notified by plaintiffs, other tenants, and government agencies of the substandard conditions. However, defendant ignores or fails to adequately make repairs, thereby forcing plaintiffs to live in substandard and uninhabitable conditions. As a result, plaintiffs allegedly suffer from immense stress, anxiety, depression, fearfulness, worry, loss of appetite, loss of sleep, nightmares, disgust, shame, and embarrassment. (FAC ¶ 37.)

The demurrer to the eighth cause of action is OVERRULED.

B.                 Ninth Cause of Action - Fraud and Deceit in Violation of California Civil Code § 1709

Civil Code § 1709 states: “One who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.”

Defendant contends that plaintiffs do not allege how defendant intentionally acted to induce plaintiffs to alter their position and what position that was.

The ninth cause of action is based on defendant’s alleged misrepresentations to plaintiffs regarding the service of two timely notices to vacate the parking lot on or about February 18, 2022. (FAC ¶¶ 74, 156, 158.) Even if the notices were untimely or never served on plaintiffs, plaintiffs allege that they did not discover the notices until after their cars had been towed. (FAC ¶ 42.) Accordingly, the towing of plaintiffs’ cars was not the result of plaintiffs acting in reliance on any deception from defendant but rather defendant’s alleged failure to follow the proper procedure to notify the tenants, including plaintiffs, to vacate the parking lot. Falsity alone does not support a fraud cause of action under Civil Code § 1709. Plaintiff fails to allege a cause of action for fraud and deceit under Civil Code § 1709.

The demurrer to the ninth cause of action is SUSTAINED as to plaintiffs Scherer and Potter. 

C.                Tenth Cause of Action - California Fair Employment and Housing Act, Government Code § 12955 et seq.

Government Code § 12955(a) states that it is unlawful “[f]or the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, veteran or military status, or genetic information of that person.”

Defendant contends that plaintiff Potter does not allege how he was discriminated against and how he is protected under Government Code § 12955. However, the tenth cause of action is asserted by plaintiff Scherer only. (FAC ¶ 161 [“By Plaintiff Jaime Scherer against all Defendants”].) Accordingly, there is no basis for defendant to demur to the tenth cause of action based on any insufficiency as to Potter.

The demurrer to the tenth cause of action is OVERRULED.

D.                Thirteenth Cause of Action - Violation of California Unruh Civil Rights Act

Civil Code § 51(b) states: “All 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, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

Defendant contends that plaintiff Potter does not allege how he was discriminated against and how he is protected under Civil Code § 51(b). Plaintiffs do not address defendant’s argument. Instead, plaintiffs contend that the thirteenth cause of action is sufficiently alleged as to Scherer. (Opposition at 7:17-27.) 

Unlike the tenth cause of action, plaintiff Potter is asserting the thirteenth cause of action. (FAC at 70:19 [“By All Plaintiffs Against All Defendants”]; cf. Rule of Court 2.112(4) [each cause of action must state the party or parties to whom it is directed].) The allegations speak to how defendant deprives Scherer of full and equal treatment in the operation of the subject property. (FAC ¶¶ 187-198.) Potter is not mentioned in the thirteenth cause of action.

The demurrer to the thirteenth cause of action is SUSTAINED as to Potter.

E.                 Fourteenth Cause of Action - Bane Act, California Civil Code § 52.1

Civil Code § 52.1 allows any individual whose enjoyment of rights secured by the laws of California has been interfered with by threat, intimidation, or coercion to initiate a civil action. (Civ. Code § 52.1(b), (c).) Defendant contends that plaintiff Potter does not allege how he is protected under the Bane Act or how defendant interfered with his rights.

Plaintiff Potter is asserting the fourteenth cause of action. (FAC at 75:6 [“By All Plaintiffs Against All Defendants”].) Potter is allegedly a tenant with a “respective lease.” (FAC ¶ 1.) Further, plaintiff Scherer pays extra money so that defendant would allow Potter to provide her with in-home assistance. (FAC ¶ 73.) Defendant allegedly interferes with Potter’s rights as a purported tenant by towing his car pursuant to untimely served notices to vacate the parking lot. (FAC ¶¶ 74, 75 [Defendant has towed their cars…despite knowing their difficult financial situation has meant they cannot pay to get their cars back”].)

The demurrer to the fourteenth cause of action is OVERRULED.

F.                 Eighteenth Cause of Action - Violation of City of Los Angeles Civil and Human Rights Ordinance

Los Angeles Municipal Code (“LAMC”) § 51.03 states: “No person shall discriminate against another person in private employment, housing, education or commerce, because of that person's actual or perceived race, color, ethnicity, creed, age, national origin, religion, citizenship status, gender, gender identity or expression, sexual orientation, disability, medical condition, genetic information, marital status, partnership status, employment status, source of income, military status, veteran status, or primary language.”

Defendant contends that Scherer fails to allege how his actions were discriminatory against her. Scherer alleges that defendant refuses to fix the elevator, sold her parking spot, and towed her car, even though he knows that she is unable to walk and needs an accommodation. (FAC ¶¶ 32, 40, 68, 71, 74, 75.) Defendant also allegedly threatened Scherer with eviction if she continues to request accommodation. (FAC ¶ 76.) The eighteenth cause of action is adequately alleged as to Scherer.

Defendant also contends that Potter fails to allege how he was discriminated against and how he is protected under LAMC § 51.03. Plaintiffs concede that Potter is not protected under LAMC § 51.03. (Opp. at 9:3-4 [“Plaintiffs do not intend to imply that Plaintiff Scott Potter qualifies for protection under the statute”].)

The demurrer to the eighteenth cause of action is OVERRULED as to Scherer and SUSTAINED as to Potter.

G.                Nineteenth Cause of Action - California Welfare and Institutions Code § 5600 et seq.

To state a cause of action under the Elder Abuse and Dependent Adult Civil Protection Act, plaintiffs must plead that they are 65 years of age or older or a dependent adult. (CACI 3103.)

Defendant contends that Potter does not allege how he qualifies as an elder or dependent adult. Potter is asserting the nineteenth cause of action. (FAC at 90:21 [“By All Plaintiffs Against All Defendants”], ¶ 240 [“By all Plaintiffs against all Defendants”].) Plaintiffs concede that Potter is not an elder or dependent adult. (Opp. at 9:13-14 [“Plaintiffs do not intend to imply that Plaintiff Scott Potter qualifies for protection under the statute….”].)

The demurrer to the nineteenth cause of actions is SUSTAINED as to Potter.

H.                Twentieth Cause of Action - Violation of Los Angeles Municipal Code § 151.00 et seq. (Rent Stabilization Ordinance)

LAMC § 151.10(A) states: “Any person who demands, accepts or retains any payment of rent in excess of the maximum rent or maximum adjusted rent in violation of the provisions of this chapter, or any regulations or orders promulgated hereunder, shall be liable in a civil action to the person from whom such payment is demanded, accepted or retained for damages of three times the amount by which the payment or payments demanded, accepted or retained exceed the maximum rent or maximum adjusted rent which could be lawfully demanded, accepted or retained together with reasonable attorneys’ fees and costs as determined by the court.”

Defendant contends that plaintiffs fail to allege when he increased rent and by how much. Plaintiffs allege that, in October 2020, defendant attempted to increase the monthly rent from $940 to $1,500, which was allegedly beyond legal limits. (FAC ¶ 72.) This allegation is sufficient. Defendant can obtain plaintiffs’ reasoning as to why the demanded amount of $1,500 is not legal in discovery.

The demurrer to the twentieth cause of action is OVERRULED.

I.                   Twenty-Second Cause of Action - Invasion of Privacy

The elements of invasion of privacy based on intrusion are (1) intentional intrusion into a private place, conversation or matter, (2) in a manner “highly offensive to a reasonable person.” (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 421.)

Defendant contends that plaintiffs do not allege how he was spying on them or how he intruded into a private place, conversation, or matter. Plaintiffs allege that defendant imposed an 8:00 p.m. curfew on Scherer, stating that Potter had to leave the subject property at that time. (FAC ¶ 269.) Because Scherer needed Potter to provide in-home caregiving (FAC ¶ 73), the alleged curfew amounts to a highly offensive intrusion to plaintiffs’ activities at home, for pleading purposes. Potter was also allegedly a tenant of the subject property. (FAC ¶ 1.) Whether defendant was entitled to attempt to restrict Potter’s access to the subject property based on a responsibility to provide security is a question of fact that is not resolved on demurrer.

The demurrer to the twenty-second cause of action is OVERRULED.

J.                  Conclusion

The demurrers to the eighth, tenth, fourteenth, twentieth, and twenty-second causes of action are OVERRULED.

The demurrer to the ninth cause of action is SUSTAINED as to plaintiffs Scherer and Potter. 

The demurrers to the thirteenth and nineteenth cause of action are SUSTAINED as to Potter.

The demurrer to the eighteenth cause of action is OVERRULED as to Scherer and SUSTAINED as to Potter.

Before deciding whether to grant leave to amend the causes of action for which defendant’s demurrers were sustained as to the respective plaintiffs, the Court will hear from plaintiffs as to how the First Amended Complaint can be amended to address the defects set forth above.

II.                MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

Defendant Zaki Mansour moves to strike allegations supporting and the prayer for punitive damages. As discussed with respect to the demurrer to the eighth cause of action for intentional infliction of emotional distress, plaintiffs sufficiently allege that defendant is aware of the unhabitable conditions at the property based on complaints and citations from government agencies and that plaintiff Scherer is disabled and needs the elevator. Nevertheless, defendant fails to make repairs and otherwise comply with his statutory duty to maintain habitable premises. As a result, plaintiffs suffered from severe emotional distress.

Plaintiffs’ allegations rise to the level of malice or oppression. (Civ. Code § 3294(a); 3294(c)(1) [“malice” defined as “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”]; 3294(c)(2) [“oppression” defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights”].) Based on the allegations discussed with respect to the intentional infliction of emotional distress cause of action, plaintiffs may proceed with their claims for punitive damages.

The motion to strike is DENIED.