Judge: Elaine W. Mandel, Case: 22SMCV00660, Date: 2022-09-28 Tentative Ruling

Case Number: 22SMCV00660    Hearing Date: September 28, 2022    Dept: P

Tentative Ruling  

Gandy v. Bardinet, Case No. 22SMCV00660

Hearing date September 28, 2022

Defendant’s Demurrer to Complaint 

Plaintiff pro per tenant Rahsaan sues defendant landlord Bardinet. Plaintiff used a Judicial Council Form PLD-C-001 form complaint, attaching a typed letter. Defendant demurs, alleging failure to state a claim. Defendant’s attorney attempted to contact plaintiff to inform him of the deficiencies in the complaint before filing the demur. Oh Decl. ¶ 3-5.  

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. The defects must be apparent on the face of the pleading or via proper judicial notice. Code Civ. Proc., §§ 430.30, 430.70; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. At the pleading stage, plaintiff need only allege ultimate facts sufficient to apprise defendant of the factual basis for the claim. Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721. Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.

Plaintiff’s attached letter alleges a cause of action based on: “personal injury to my body, discrimination, landlord harassment, hiddenness manipulation, emotional and bodily distress, elder abuse, and profiting off of illegal inhabited dwelling…”. The Civil Case Cover sheet checks off the following causes of action: eminent domain/inverse condemnation; intentional bodily injury/property damage/wrongful death; intentional infliction of emotional distress; other personal injury/property damage/wrongful death; contractual fraud; tortious interference; and other contract dispute.

Plaintiff’s complaint does not allege specific facts relating to any of the claims. Plaintiff does not point to a contract between the parties, nor does the complaint allege facts about harassment, infliction of distress or elder abuse. Plaintiff does not allege specific damages or harm resulting from defendant’s action. Plaintiff offers no facts that would allow defendant to be apprised of the factual basis of the claims.

Government Code section 12955, subdivision (a), makes it 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.” To have standing, one must claim to have been “injured by a discriminatory housing practice.” Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1392.

Plaintiff states he was living “[n]ot rent free like your brother, not discounted like other ‘Peruvians,’ not discounted on my security deposit.” Plaintiff does not allege facts showing intent or damages. Violations of FEHA need to show an action or inaction demonstrating intent to discriminate. Gov. Code § 12955.8(a). Plaintiff does not put forward such facts, nor does plaintiff allege injury. SUSTAINED WITH 10 DAYS LEAVE TO AMEND.