Judge: Daniel S. Murphy, Case: 21STCV17282, Date: 2022-08-22 Tentative Ruling

Case Number: 21STCV17282    Hearing Date: August 22, 2022    Dept: 32

BACKGROUND

            On May 7, 2021, Plaintiffs Jessica Caruso and Patrick Caruso filed this action against Defendants Lucy Rosedale, Harry Rosedale, JMK Real Estate Services, Inc., and Josh Keimach. Plaintiffs allege that Defendants violated certain provisions of the Ellis Act as enumerated in the Los Angeles Municipal Code (“LAMC”). Plaintiff Jessica Caruso alleges that Defendants wrongfully evicted her under the guise of withdrawal from business under the Ellis Act, when in fact Defendants intended to get rid of lower-paying tenants and did not go out of business. Plaintiff Patrick Caruso asserts negligence and premises liability based on injuries he sustained in a stairway accident, which are not at issue in this motion.

            On May 2, 2022, the Court sustained Defendants’ demurrer to the FAC with leave to amend as to FEHA, IIED, and fraud. Defendants presently demur to those same causes of action in the SAC.   

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at p. 747.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court finds that Defendants have satisfied the meet and confer requirement. (See Louro Decl. ¶¶ 3-4.)

DISCUSSION

I. FEHA

            FEHA prohibits discrimination in housing, which includes the refusal to allow reasonable accommodations or modifications to an existing premises to allow a disabled person full enjoyment of the premises. (Gov. Code, § 12927, subd. (c)(1).) “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.)

            In the SAC, Plaintiff specifies that she suffers from endometriosis and was denied an accommodation in the form of a tenancy extension. (SAC ¶¶ 65-66.) Plaintiff further alleges that Defendants were aware that such denial of accommodation would have a “disparate impact” on Plaintiff and similarly-situated members of the protected class. (Id., ¶ 66.) However, it is unclear how Plaintiff’s condition relates to the requested accommodation or how Plaintiff suffered a “disparate impact.” (See Auburn, supra, 121 Cal.App.4th at p. 1592 [essential element of housing discrimination is that a requested accommodation is “necessary to afford an equal opportunity to use and enjoy the dwelling”].)

Plaintiff does not specify how extending her lease would have accommodated her endometriosis. Being removed from the premises due to Defendants’ alleged fraud under the Ellis Act does not amount to disability discrimination merely because Plaintiff happens to suffer from a disability at the same time. Therefore, the demurrer is SUSTAINED without leave to amend as to the fifth cause of action.

II. Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, a plaintiff must establish: (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. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)

“For conduct to be outrageous, it must be so extreme as to exceed all bounds of that usually tolerated by a civilized community.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 172.) It is not enough that a defendant acts with tortious or even criminal intent, or that he intends on inflicting emotional distress. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1517.) “Severe emotional distress [is] emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Fletcher v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

Plaintiff alleges that “Plaintiff suffered and continues to suffer severe emotional distress, mental suffering, and other personal injuries.” (SAC ¶ 80.) This conclusory allegation does not demonstrate that Plaintiff suffered “emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (See Fletcher, supra, 10 Cal.App.3d at p. 397.) Nor is Plaintiff able to articulate with “great specificity” the acts which she believes are so extreme as to exceed the bounds of civilized society. (See Vazquez, supra, 222 Cal.App.4th at pp. 832-33.) Therefore, the demurrer is SUSTAINED without leave to amend as to the seventh cause of action.

III. Fraud

“The elements of fraud that will give rise to a tort action for deceit 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.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (Lazar, supra, 12 Cal.4th at p. 645.)

Here, the SAC alleges that “[o]n or about April 23, 2019, Defendants served Plaintiff Jessica Caruso with a notice to tenant of pending withdrawal on the grounds that Defendants intended to withdraw the Property from the rental market pursuant to the provisions of the Ellis Act.” (SAC ¶ 23.) The SAC alleges that “Defendants had no intention of withdrawing the Property or the Premises from the rental market.” (SAC ¶ 24.) Defendants allegedly intended for Plaintiff to rely, and Plaintiff allegedly did rely, on this misrepresentation by relinquishing possession of the property. (SAC ¶ 106.)

This adequately pleads the elements of fraud with the requisite specificity. Plaintiff cannot be expected to know at this time exactly which Defendant posted the fraudulent notice. (See Tenet HealthSystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 840 [“less specificity is required in pleading fraud when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy”].) Therefore, the demurrer is OVERRULED as to the eleventh cause of action.

CONCLUSION

            Defendants’ demurrer is SUSTAINED without leave to amend as to the fifth and seventh causes of action and OVERRULED as to the eleventh cause of action.