Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a fair housing case.  Plaintiff Emmanuel Gali sues Defendant Douglas Emmett Management LLC (“DEM”) because it purportedly denied Plaintiff’s rental application for an apartment listed as available, due to insufficient income.  Plaintiff claims DEM failed to take into consideration Plaintiff’s supplemental income provided by a federal Veterans Affairs Supportive Housing (“VASH”) voucher, in violation of the Fair Housing Act (“FHA”) and California Senate Bill §222.  (First Amended Complaint (“FAC”) ¶1.)   

Plaintiff also alleges discrimination on the basis of his disability.  Plaintiff alleges DEM’s leasing agent notified Plaintiff of an available apartment with a view “facing North to Malibu,” that Defendant was aware of Plaintiff’s interest in an ocean view apartment that would accommodate his spatial awareness disability, that the view led him to vacate his current apartment and submit a rental application in Santa Monica, and that he inquired about the status of his application and was notified of a qualification to have an income of two and a half times the rent.  (FAC ¶7.)  

In addition to DEM, Plaintiff sues Defendant the City of Santa Monica (the “City”) for failing to provide unspecified “reasonable accommodations” for disabled veterans which he claims violates “Federal and California law.”  (Id. ¶8.)  Defendant makes only a single specific reference to the City, alleging “Plaintiff inquired about the procedure in place . . . for providing ‘reasonable accommodation’ for veterans . . . and was informed by Mr. Nicholas Sundback, an employee of Santa Monica Housing Authority that ‘the City of Santa Monica does not co-sign leases with tenants.’” (Id.)   

On these facts, the FAC alleges claims for (1) violations of the FHA; (2) violations of the Americans with Disabilities Act (“ADA”); and (3) violations of California Senate Bill §222. 

This hearing is on the City’s demurrer.  The City argues that (1) Plaintiff has alleged no conduct that, if true, would constitute unlawful discrimination, unlawful denial of reasonable accommodation, or otherwise violate fair housing law, and (2) in failing to distinguish between defendants and in providing only threadbare and vague allegations, the FAC is uncertain.  There was no opposition filed as of the posting of this tentative ruling.   

MEET AND CONFER 

Code Civ. Proc. § 430.41 requires that before the filing of a demurrer, the moving party “shall meet and confer in person or by telephone” with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer or motion to strike.  (Code Civ. Proc. § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 430.41(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc. § 430.41(a)(3).)  The City submits the Declaration of Jonathan Frank which shows the parties met and conferred by telephone on July 22, 2024, more than five days before the City filed its demurrer on July 31, 2024.  This satisfies the meet and confer requirements of Code Civ. Proc. § 430.41. 

LEGAL STANDARD 

A demurrer to a complaint may be general or special. A general demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)  A special demurrer challenges other defects in the complaint, including whether a pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).)¿ The term “uncertain” means the pleading is “ambiguous and unintelligible.” (Id.)  A demurrer for uncertainty should be sustained if the complaint is drafted in such a manner that the defendant cannot reasonably respond, i.e., the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable.  (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 (in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents).)  For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)  

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   

DISCUSSION 

Liberally construed, the FAC is based on an (1) alleged failure to grant a reasonable accommodation in violation of the FHA and ADA, and (2) alleged discrimination based on Plaintiff’s use of a VASH voucher in violation of California’s Fair Employment and Housing Act (“FEHA”).  The City argues that the FAC fails to allege facts sufficient to support either claim against the City.  The Court agrees.   

Federal law prohibits discrimination in housing based on disability and requires the Santa Monica Housing Authority to “make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” (42 U.S.C. § 3604(a)(3)(B) (FHA); see also 42 U.S.C. § 12182(b)(2)(A)(2) (ADA) and 28 CFR 35.130(b)(7)(i) (ADA regulations) (requiring public entities to “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability”).)  

“To make out a claim of discrimination based on failure to reasonably accommodate, a plaintiff must demonstrate that (1) he suffers from a handicap [as defined by law]; (2) defendants knew or reasonably should have known of the plaintiff's handicap; (3) accommodation of the handicap ‘may be necessary’ to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation.” (Giebeler v. M & B Associates (9th Cir. 2003) 343 F.3d 1143, 1147.)  

There is only one specific, non-conclusory factual allegation against the City of Santa Monica related to a failure to reasonably accommodate: “Plaintiff inquired about the procedure in place . . . for providing reasonable accommodation for veterans including the disabled in accordance with the Fair Housing Act and was informed by Nicholas Sundback, an employee of the Santa Monica Housing Authority that ‘the City of Santa Monica does not co-sign leases with tenants.’” (FAC ¶8.)  This is followed by the purely conclusory allegation that “Defendant’s failure to make reasonable accommodation violates Federal and California law.” (Id.)  

Plaintiff alleges no facts supporting any of the elements for a denial of an accommodation by the City.  He has not alleged that the City was aware of Plaintiff’s alleged spatial awareness disability, that an accommodation was requested of the City, that the requested accommodation was necessary to afford him equal access to the City’s programs or benefits, or that a request for accommodation was denied.  (See Giebler, 343 F.3d at 1147.)  Indeed, there is no allegation that Plaintiff ever requested an accommodation of the City, only that a general inquiry was made as to “the procedures in place” in the City for providing accommodations.   

As to Plaintiff’s claim he was discriminated against on the basis of his use of a VASH voucher, the Complaint again fails to state facts in support of such a claim against the City.  California law prohibits discrimination based on “source of income,” including use of a VASH voucher. (Gov. Code, § 12955, subds. (a), (p)(1).) Where an applicant is using a voucher, California law prohibits “use of a financial or income standard in assessing eligibility for the rental housing that is not based on the portion of the rent to be paid by the tenant.”  (Gov. Code, § 12955, subd. (o)(1)(A).)   

Here, Plaintiff alleges that “Defendants denied Plaintiff’s rental application for apartment 1205 listed as available in Santa Monica due to insufficient income without taking into consideration Plaintiff’s supplemental income provided by his voucher.”  (FAC ¶1.)  Plaintiff alleges that he “was notified of an additional residential screening process which raised additional flags because Plaintiffs income did not meet Defendant’s qualification income of 2.5x the rent.” (FAC ¶7.)   

Read in context, these allegations are clearly directed at DEM, which as the property management company for the apartment Plaintiff was applying to rent, set the requirements for Plaintiff’s rental application.  The City was not involved in setting the rental requirements.  There are no allegations that the City discriminated against Plaintiff in any way due to his use of a voucher.   

CONCLUSION 

For the foregoing reasons, the Court SUSTAINS Defendant the City of Santa Monica’s demurrer with 20 days’ leave to amend.  

 

 

IT IS SO ORDERED. 

 

DATED:  September 12, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court