Judge: Elaine W. Mandel, Case: SC126806, Date: 2024-02-21 Tentative Ruling
Case Number: SC126806 Hearing Date: March 15, 2024 Dept: P
Tentative Ruling
Jane Doe v. Curtis
Olson et al., Case No. SC126806 (related case SC128027)
Hearing Date March
15, 2024
Plaintiff’s Motion
to Consolidate SC126806 with SC 128027 and 24SMCV0012
Demurrer and
Motion to Strike Second Amended Complaint in SC126806
Demurrer to First
Amended Complaint in SC128027
May Doe’s Motion
for Protective Order
Plaintiff Doe
alleges she entered into a real estate development agreement with defendant
Olson, under which units in Doe’s building would be converted from rentals to
condominiums. Olson would purchase units, and Doe would choose one unit as her
residence. Doe regularly used her condo for short term rentals through Airbnb,
which she claims was permitted under her agreement with Olson.
Doe alleges Olson
and his friends harassed her, spreading defamatory rumors, spying on her,
recording her without consent, tampering with her unit, intimidating her
friends, short-term tenants and business associates and insulting her. Doe
alleges Olson sexually assaulted her. Doe also alleges that in retaliation for refusing
his sexual advances, Olson used his position as president of the property’s HOA
board to pass policies targeting her.
Plaintiff Doe
moves to consolidate the three actions she filed arising out of these various allegations.
Defendants demur to the second amended complaint in Case No. SC126806 and the
First Amended Complaint in SC128027. This has been withdrawn, but the court,
sua sponte, finds it appropriate to address.
Jane Doe moves for an award of attorney’s fees arising
out of her successful anti-SLAPP motion in SC126806.
Plaintiff May Doe moves for a protective order preventing
disclosure of her name or address.
Motion to
Consolidate
Plaintiff Jane Doe
filed Doe v. Olson, Case no. SC126806 (“Doe I”), on December 9, 2016. On August
31, 2017, she filed Doe v. Olson, Case No. SC128027 (“Doe II”), and on January
2, 2024, she filed Doe v. Olson, Case No. 24SMCV0012 (“Doe III”). Jane Doe is
plaintiff in all three matters; Curtis Olson, Douglas Econn, Scott Burham,
Kelly Day, David Feder, Chateau Colline HOA, LB Property Management, Inc.
(LBPM), Elsa Monroy, Robert Kilian, David Silver and Kelley Hemmeter-O’Neil are
defendants in all three actions.
May Doe is a
plaintiff in Doe II and Doe III. Doe III includes new defendants and causes of
action. All three claims arise out of Olson’s alleged harassment of Jane Doe, with
the alleged purpose of driving Doe out of the condominium complex.
Under Cal. Code of
Civ. Proc. §1048, when actions involving a common question of law or fact are
pending before the court, it may order all the actions consolidated.
When multiple
actions are consolidated “for all purposes,” they are “merged into a single
proceeding under one case number and result in only one verdict or set of
findings[.]” Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127,
1148.
Consolidation is
appropriate. Doe I and Doe II have been deemed related. The demurrers in each
case address nearly identical issues. Separate trials for Doe I and Doe II
would result in unnecessary expenditure of judicial resources. Both cases
overlap much more than they diverge, sharing almost identical plaintiffs,
defendants, causes of action and allegations. Separate trials might involve
calling witnesses twice, empaneling two juries and the risk of inconsistent
rulings. Doe I and Doe II are consolidated for all purposes under case number
SC126806. As explained below, where the court rules on the pending demurrers,
the operative complaint in the consolidated matter will be the third amended
complaint in case no. SC126806.
Because Doe III
has not been served on all defendants, defendants in that action have not yet
had an opportunity to determine the basis of the third action, so cannot
meaningfully consent to or oppose the request for consolidation. In the
interest of due process, the court will not yet consolidate Doe III with Does I
and II. GRANTED as to Doe I (SC126806)
and Doe II (SC128027), which are ordered consolidated under Case No. SC126806.
DENIED as to Doe III without prejudice.
Demurrers
Doe I Demurrer
Defendants Curtis
Olson, Douglas Econn, Scott Burnham, David Feder, Kelly Day, Chateau Colline HOA,
and LBPM demur to the second amended complaint in case no SC126806 (Doe I).
Scott Burnham
Since Burnham is
not named in this complaint, the demurrer is SUSTAINED as to all claims against
him. For reasons stated in the court’s analysis of the Demurrer to “Doe II”
(Case No. SC128027), Burnham may be restored as a defendant in the third
amended complaint. SUSTAINED with ten days leave to amend.
Tortious
Interference
The elements of
intentional interference with prospective economic advantage are (1) an
economic relationship between plaintiff and a third party, with the probability
of future economic benefit to the plaintiff, (2) defendant’s knowledge of the
relationship, (3) intentional wrongful acts by defendant designed to disrupt
the relationship, (4) actual disruption of the relationship, and (5) damages. Korea
Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134.
Doe alleges
defendants “engaged in stalking, peeping, removing rental rights, harassment,
defamation, and stealing Plaintiff’s keys” to prevent her from using her unit
for short-term Airbnb rentals. SAC ¶¶128, 130. Defendants argue allegations
elsewhere in the complaint contradict this claim, such as allegations in the
SAC that Doe did not acquire an ownership interest in her unit until 2012. The
SAC alleges Doe and Olson agreed there would be no time restriction on renting
her unit, allowing for short-term rentals. SAC ¶51. For purposes of pleading,
this must be treated as true.
Defendants argue
after the CC&Rs were amended to prohibit short-term rentals, Doe was not
“grandfathered in” to old rules allowing short-term rentals. Doe alleges she is
grandfathered in, per her agreement with Olson. SAC ¶53. On demurrer, Doe’s
allegations must be treated as true.
Finally,
defendants argue judicially noticeable evidence shows short term rentals at
Doe’s units are prohibited under the Los Angeles Municipal Code, giving
defendants a complete affirmative defense of illegality. Under City Ordinance
No. 185931, short-term rentals are not permitted at a property subject to the
Los Angeles Rent Stabilization Ordinance (LARSO). LARSO applies to buildings
built before 1978, and the SAC admits the property was built in 1936. SAC ¶16.
Under the
Municipal Code, short-term rentals of the unit are currently illegal.
Defendants have not shown how the rental’s present illegality defeats Doe’s
tortious interference claim. The court takes judicial notice that ordinance No.
185931 took effect on July 1, 2019. Doe alleges acts of wrongful interference,
including Olson stripping her of her right to have short-term rentals at her
unit, throughout 2015 and earlier. E.g., SAC ¶¶50, 59. Doe alleged defendants
interfered with short term rentals at her property while that use was still
legal. OVERRULED.
Implied Covenant
of Quiet Enjoyment
The implied
covenant of quiet enjoyment provides a civil claim against any landlord who
interferes with “a tenant’s right to use and enjoy the premises for the
purposes contemplated by the tenancy.” Green v. Superior Court (1974) 10
Cal.3d 616, 625 fn. 10.
This cause of
action is based on Doe’s alleged 99-year lease for a basement storage unit at
the property. SAC ¶136. Defendants argue under the statute of frauds a lease
for a term of over one year must be in writing, and Doe does not allege
existence of a written lease. Doe need not specifically allege the lease was
written to survive demurrer.
Defendants argue
this claim fails because Doe has not specifically alleged any conduct that
“interrupted the use of her storage closet.” The SAC specifically alleges Olson
used his HOA president position to “evict plaintiff from her basement storage
closet,” and hired Feder to break into her storage and steal Doe’s personal
belongings. SAC ¶¶83, 84. These allegations are sufficient to plead
interference with Doe’s right to quiet enjoyment of her storage closet.
Defendants argue the
SAC improperly “bunches all defendants together” without clarifying which did
what, and “the HOA and LBPM are corporate entities that could not have
undertaken any of the alleged act.” SAC ¶13. A corporation acts through its
officers and employees when their acts are within the scope of their authority.
E.g., Persson v. Smart Inventions (2005) 125 Cal.App. 4th 1141,
1167; 5 Witkin, Summary of California Law (11th ed. 2017), Torts
§36.
The implied
covenant cause of action is alleged against Olson, Chateau Colline HOA, and LB
PM. The SAC alleges Olson was acting in his capacity as an HOA officer when he sought
to deprive Doe of her right to use the storage closet, and Feder was working
for Olson. SAC ¶83. This is sufficient to establish the HOA’s potential liability
at the pleading stage. The SAC does not specify that Olson was acting on behalf
of LBPM when he committed alleged acts of interference. There is no basis for
the implied covenant cause of action to proceed against LBPM. OVERRULED as to
the HOA and Olson; SUSTAINED without leave to amend as to LBPM.
IIED (By Defendant
Day)
A cause of action
for intentional infliction of emotional distress must allege “extreme” or
“outrageous” conduct committed by defendant. The allegation must be made with
great specificity to avoid demurrer. Yau v. Santa Margarita Ford, Inc. (2014)
229 Cal.App.4th 144, 160-161.
Defendant Day, an
HOA board member and condo owner, argues Doe did not allege she engaged in
outrageous conduct. The SAC alleges Day “betrayed” Doe by joining Olson’s
campaign of harassment. SAC ¶69. The only specific allegations of wrongdoing
against Day are that she voted with the majority of the HOA board to remove and
replace windows at Doe’s unit, forwarded a private email from Doe to Olson,
rolled her eyes at Doe, used her own storage closet and had advance knowledge
of defendant Feder’s unfitness to serve as a property manager. SAC ¶¶68, 70,
71, 108. These allegations, as a matter of law, do not constitute outrageous
conduct. Since outrageous conduct is an essential element of an IIED claim,
this cause of action cannot proceed against Day. SUSTAINED without leave to
amend as to defendant Day only.
Fiduciary Duty (By
LBPM)
A defendant cannot
be liable for breach of a fiduciary duty unless they “Knowingly undertake to
act on behalf and for the benefit of another[.]” Committee on Children’s
Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 221. Directors
of an HOA owe their duty to the actual association, rather than individual
homeowners or members. Frances T. v. Village Green Owners Assoc. (1986)
42 Cal.3d 490, 513.
Defendant LBPM
argues it owes Doe no fiduciary duty. The SAC alleges LBPM undertook to act as
a fiduciary for all HOA members, and Doe is a member. SAC ¶163. For purposes of
pleading, this allegation must be treated as true. The SAC adequately sets
forth a cause of action for breach of fiduciary duty against LBPM. To the
extent this cause of action is alleged against the HOA, however, it fails under
Frances T. OVERRULED as to LBPM.
Aiding and
Abetting Breach of Fiduciary Duty
To the extent this
cause of action is based on an alleged breach of fiduciary duty by the HOA, it
fails under Frances T. To the extent it is based on the fiduciary duty
allegedly owed by LBPM, it is unclear which specific acts by each named
defendant constituted assistance in breaching LBPM’s fiduciary duty. SUSTAINED with
ten days leave to amend to clarify how individual defendants assisted LBPM in
breaching its fiduciary duty.
Discrimination
Plaintiffs’ ninth
through eleventh and twenty third causes of action allege discrimination on the
basis of ethnicity, marital status, perceived religion and gender. Though the
complaint alleges wrongful conduct by all defendants, it alleges no specific
facts indicating any conduct was motivated by a protected characteristic. Doe’s
allegation that defendants had discriminatory motives is conclusory and lacks
minimal factual support so cannot survive demurrer. SUSTAINED without leave to
amend as to the ninth, tenth, eleventh, and twenty third causes of action.
Intrusion into Private
Affair
The demurrer argues
no specific acts of intrusion are alleged against defendant Olson, and the SAC
does not allege HOA or LBPM authorized or ratified any intrusion into Doe’s
private affairs.
The FAC alleges
Olson hired Feder to film and photograph Doe in her bathroom and bedroom. SAC
at ¶¶73-75. It alleges Olson peered at Doe and her guests through bedroom and
bathroom windows. SAC ¶76, 88. These allegations are sufficient to set forth a
claim for intrusion into private affairs against Olson.
Additionally, the
SAC alleges Olson and Feder were acting on behalf of the HOA while they spied
on Doe, since Olson was running the HOA as an alter ego and wished to catch
plaintiff renting to third parties as a pretext for removing her from the
property. SAC ¶76. This allegation sets forth a basis for liability against the
HOA through Olson. The SAC does not include allegations that establish LBPM’s
liability, since it does not allege any defendant was acting on LBPM’s behalf. OVERRULED
as to Olson and the HOA; SUSTAINED without leave to amend as to LBPM.
Distribution of
Obscene Materials
Cal. Civ. Code
§1708.85(b) creates a private cause of action against a person who
“intentionally distributes” material that “exposes an intimate body part” of
another person without that person’s consent.
This cause of
action is based on allegations that defendants, without consent, took pictures
of Doe while she was partially clothed. Defendants argue the SAC does not
allege “distribution” of these photos or facts showing liability for Olson, the
HOA or LBPM. The SAC alleges defendant Feder took the pictures and gave images
to “other defendants and the HOA attorneys.” SAC ¶301. This is sufficient to
allege photos were “distributed.” Additionally, the SAC alleges Feder was
acting on behalf of Olson and the HOA when he took the photos. The claim is
sufficient as alleged against Olson, the HOA and Feder. There are no
allegations setting forth the basis for LBPM’s liability. OVERRULED as to
Olson, Feder and the HOA; SUSTAINED without leave to amend as to LBPM.
Stalking
Defendants demur
on the grounds that it does not comply with the elements of Cal. Civ. Code
§1708.7. While Doe’s complaint does not reference the statute, the tort of
stalking is created by Civ. Code §1708.7. Stalking is not a common law cause of
action; it is a creature of statute. The court can apply the statutory
elements, even if the SAC does not cite §1708.7. A claim under §1708.7 requires
that defendant either “made a credible threat” against plaintiff or violated a
restraining order. Neither is alleged in the SAC. SUSTAINED without leave to
amend.
Negligent
Infliction of Emotional Distress
There is no
independent cause of action for negligent infliction of emotional distress; all
NIED claims are treated as negligence claims, which require a showing that
defendant owed plaintiff a duty of care. GU v. BMW of North America, LLC
(2005) 132 Cal.App.4th (2005) 132 Cal.App.4th 195, 205. Generally, there is no
duty of care to avoid negligently causing emotional distress to another unless
defendant assumed a duty to plaintiff in which plaintiff’s emotional condition
is an object. Id. Absent such duty, liability for NIED is proper when
defendant breaches an independent duty, if a breach of that duty
threatens physical injury. Potter v.
Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.
Doe does not
allege a special relationship related to her emotional condition that would
give rise to a duty of care to avoid negligently causing emotional distress.
Additionally, she does not allege defendants HOA, Econn, Day, Burnahm, Feder or
LBPM violated a separate duty that threatened physical injury.
She does, however,
allege sexual battery against Olson, which constitutes breach of an independent
legal duty. Sexual battery also threatens physical injury, so can serve as a
basis for a NIED claim under Potter. SUSTAINED without leave to amend
against all defendants except Olson; OVERRULED as to Olson.
Negligent Failure
to Prevent Retaliation
This cause of
action is derivative of Doe’s discrimination claims. The derivative claims are
insufficiently alleged, since Doe does not allege facts showing any of
defendants’ alleged wrongdoing was motivated by discriminatory intent. SAC
¶¶326-328. The claim for negligent failure to prevent retaliation fails for the
same reason. SUSTAINED without leave to amend.
Breach of Contract
This cause of
action arises from Olson’s alleged breach of the basement storage lease. A
cause of action for breach of lease is subject to demurrer if it is unclear
whether the contract was in writing or oral. Cal. Code of Civ. Proc.
§430.10(g). The SAC does not allege the contract was in writing or oral. Doe
requests leave to allege that the contract was in writing. SUSTAINED with ten days’
leave to amend to allege the contract was written.
Nineteenth Cause
of Action for Running a Corporation as an Alter Ego Defendant
The alter ego
doctrine is “not itself a claim for substantive relief,” but rather a means by
which to hold individuals liable for the obligations of a corporation. Hennessey’s
Tavern, Inc. v. American Air Filter Co. (1988) 204 Cal. App. 3d 1351,
1358-1359.
Doe alleges a
separate cause of action for “running a corporation as an alter ego defendant.”
As stated above, alter ego is not a cause of action. This claim is subject to
demurrer. SUSTAINED without leave to amend.
Sexual Harassment
This cause of
action is based on the allegation that defendants “engag[ed] in a severe and
pervasive scheme to harass plaintiff on the basis “of her gender, perceived
religion, race and ethnicity[.]” SAC ¶343. As stated, Doe failed to allege a
discriminatory motive for any of the wrongdoing alleged. Since the SAC grounds
this claim in the same allegations of discrimination, it is subject to
demurrer. SUSTAINED without leave to amend.
Twenty-Second
Cause of Action for Civil Conspiracy
Defendants argue
this cause of action fails under the agent immunity rule, which states an agent
or employee cannot be liable for conspiracy with their principal or employer
when they act on its behalf. Doctors’ Co. v. Superior Court (1989 4
Cal.3d 39, 44. Doe admits this cause of action is deficient and requests leave
to amend. She does not state how this cause of action can be cured. Therefore,
the court will not grant leave to amend. SUSTAINED without leave to amend.
Motion to Strike
Doe Pseudonym
Defendants move to
strike Doe’s use of a pseudonym on the grounds she has not filed a confidential
information form under Cal. Code of Civ. Proc. §1708.85(f)(3). Defendants argue
she waived her right to proceed under a fictional name by revealing her real name
in related cases.
In opposition, Doe
provides a proof of service indicating she filed a required confidential
information form in this case. Doe decl. ¶3, Exhibit A. Defendants do not
provide authority for the argument that the statutory right to proceed as a Doe
under Cal. Civ. Code §1708.85 can be waived in one case if a plaintiff reveals
her name in other cases, even if they are related. DENIED.
Punitive Damages
Defendants argue
the request for punitive damages should be struck because allegations of
malice, oppression or fraud in the SAC are conclusory. This is true as to some
defendants only.
Doe alleges
defendant Econn made vulgar remarks toward her and defamed her in 2005 and made
false reports about her conduct to LBPM from 2005-2007. SAC ¶35. These
allegations fall outside the statute of limitations, so cannot support a claim
for punitive damages. Id. Doe has not alleged conduct by Econn rising to the
level of fraud, malice, or oppression that falls within the statute of
limitations.
The conduct
alleged against defendant Day detailed above are insufficient to support an
award of punitive damages.
Doe does allege
that in 2015 defendants Olson and Feder – with Olson acting in his capacity as
president of the HOA as part of a campaign to remove her from the property – spied
on her, harassed her, and – in Olson’s case—sexually assaulted her. E.g., SAC
¶¶58, 59, 66, 73-76. These allegations are sufficiently severe to support
punitive damages against Feder, Olson and the HOA.
Since Doe has not
adequately alleged these defendants were acting on behalf of LBPM, punitive
damages are not appropriate as to LBPM. GRANTED without leave to amend as to
Day, Econn, and LBPM; DENIED as to Feder, Olson and the HOA.
Allegations
Outside the Statute of Limitations
Defendants argue
any allegations occurring outside the statute of limitations are irrelevant and
should be struck. Doe’s opposition does not address these arguments. Since the
allegations are not directly relevant to Doe’s claims, they will be stricken. GRANTED.
Request for
Attorney’s Fees
Defendants move to
strike Doe’s Request for attorneys’ fees on the grounds that Doe has not
provided a basis for recovering them. Doe does not address this argument. GRANTED.
Doe II Demurrer (Case
No.SC128027)
Doe et. al. v.
Olson et al., Case No.SC128027 (“Doe II”) is based on essentially the same
nucleus of facts as SC126806 (“Doe I”). Both are based Olson and his friends/employees/allies’
alleged harassment. Doe II includes plaintiff May Doe and several additional
defendants.
Defendants demur
to the first amended complaint in Doe II on the grounds that it is duplicative
of Doe I and, to the extent it is not duplicative, fails to adequately state a
cause of action.
A plaintiff may
not split a cause of action by filing multiple lawsuits based on the violation
of the same primary right. Crowley v. Katleman (1994) 8 Cal.4th 666,
681-682. A demurrer is proper on the grounds that “[t]here is another action
pending between the same parties on the same cause of action.” If two actions
involve the same injury to the plaintiff and the same wrong by the defendant,
the same primary right is at stake even if the plaintiff pleads different
theories of recovery in the second suit. Cal Sierra Dev., Inc. v. George
Reed, Inc. (2017) 14 Cal.App.5th 663, 675-676.
To the extent any
causes of action in Doe II are alleged by Jane Doe against Olson, Econn, Day,
Feder, HOA and LBPM, they duplicate the Doe I allegations, detailed above in
the analysis of the first demurrer. SUSTAINED as to the causes of action
between Jane Doe and those six defendants, without leave to amend.
To the extent new allegations
not detailed in Doe I are brought by May Doe against any defendant, or by Jane
Doe against any of the defendants named only in Doe II, the claims emerge out
of the same nexus of facts as Doe I. Doe I and Doe II have been consolidated.
The court will not issue a separate ruling in Doe II, since it has essentially
been extinguished as a separate action by the consolidation order.
Considering this
consolidation, the remnants of defendants’ demurrer to Doe II is MOOT. Jane and
May Doe have ten days leave to amend to file a third amended complaint in Doe
I, incorporating the Doe II allegations and parties. Defendants sued by May Doe
or Defendants not named in Doe I may revive their demurrer to Doe II in the
form of a demurrer to the third amended complaint once it is filed.
Motion for
Protective Order (Doe II)
Plaintiff May Doe asks
the court to issue a revised version of a court approved model protective
order. The proposed order uses the model’s language allowing parties to
designate discovery material as confidential, preventing its disclosure outside
the litigation. The new language added to the model order by plaintiff
designates as “Confidential – For Counsel Only” any unredacted materials
disclosing May Doe’s name, address, and other personal identifying information.
Under Cal. Code of
Civ. Proc. §2030.090(b), a court may issue any order that justice requires to
protect a party from “unwanted annoyance, embarrassment, or oppression, or
undue burden and expense.”
May Doe claims
disclosing her identity would expose her to harassment, stalking and
intimidation, citing alleged attacks and/or death threats defendant Olson and
his associates – including attorneys -- allegedly directed at May’s
co-plaintiff Jane Doe and her witnesses. May Doe presents declarations from
Jane Doe, Adamo Moreno and Loren Marken, detailing alleged threats, harassment,
and violence from Olson and his associates. May Doe argues defendants and
attorneys are likely to subject her to the same treatment if they discover her
identity.
In opposition,
defendants state the proposed order is overbroad, allowing plaintiffs to
unilaterally designate any material as “confidential,” while prejudicially
restricting access by defendants’ litigation staff to crucial information
needed to defend the case. Id. pg. 15. They also argue it is unsupported,
stating that there is no evidence May Doe has been or will be subject to
harassment from plaintiffs or their associates, and evidence of harassment
against Jane Doe is irrelevant and based on speculation or hearsay.
The declarations
alleging harassment and threats from Olson and his associates are severe and worthy
of attention. Defendants are correct that some portions of the declarations are
based on hearsay and/or speculation. The Harrison declaration fails to
establish declarant’s expertise regarding “firing positions,” and none of his
observations suggest a connection between Olson and/or his attorneys and Deputy
Koo’s allegedly intimidating behavior toward Doe.
Portions of the
Moreno declaration are admissible and uncontroverted, for example his claim
that Curtis Olson and associates repeatedly came to the café where he worked
and asked after Jane Doe. Moreno decl. ¶¶4-5. This evidence is sufficient to
justify an order protecting May Doe’s anonymity.
The issuance of a
protective order under Cal. Code of Civ. Proc. §2030.090(b) is warranted considered
this evidence. The court’s model protective order is narrowly tailored, but
defendants note some modifications Doe proposes are vague and overreaching. For
example, it would unfairly inhibit defendants’ ability to litigate this action
if May Doe’s identity can only be disclosed to attorneys Reagan and Partida. The
proposed order, as drafted, is unworkable, unfairly restricting defendants’
counsel’s ability to defend this case. The “attorney’s eyes only” language,
therefore will be modified and expanded. May Doe’s name and address are to be
treated as confidential and are not to be disclosed outside the litigation.
They may be disclosed to attorneys, paralegals, and staff at Slaughter, Regan
& Cole. Additionally, May Doe’s name and identifying information can be
included in third-party discovery subpoenas.
Beyond these
necessary parties, May Doe’s name and address are to be treated as confidential
and omitted from any documents produced in the litigation to non-necessary
parties. DENIED in part and GRANTED in part.