Judge: Gregory Keosian, Case: 21STCV45798, Date: 2024-01-25 Tentative Ruling

Case Number: 21STCV45798    Hearing Date: January 25, 2024    Dept: 61

Defendants Main 66^th LLC, Mayer Bassirat, and Payman Bassirat’s Demurrer and Motions to Strike Portions of the Complaint is SUSTAINED with leave to amend as to the third, ninth, tenth, twelfth, and fourteenth causes of action for nuisance, fraud, FEHA violations, negligence per se, and Bane Act violations, and OVERRULED as to the eighth cause of action for intentional infliction of emotional distress. The motion to strike is DENIED.

I.                   DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

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. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants Main 66^th LLC, Mayer Bassirat, and Payman Bassirat (Defendants) demurrer to the third, eighth, ninth, tenth, twelfth, and fourteenth causes of action alleged in Plaintiff Marquise Bailey’s (Plaintiff) Complaint. Defendants argue that the third cause of action for nuisance is duplicative of the cause of action for negligence. (Demurrer at pp. 6–7.) They argue that the eighth cause of action for intentional infliction of emotional distress does not plead facts constituting outrageous conduct. (Demurrer at pp. 7–8.) They argue that the ninth cause of action for fraud and deceit is not alleged with the requisite particularity. (Demurrer at pp. 8–10.) Defendants argue that the FEHA cause of action fails because Plaintiff never pleads what disability he had, what accommodations it required, or Defendant’s knowledge thereof. (Demurrer at pp. 10–11.) Defendants argue that the twelfth cause of action for negligence per se is not a separate cause of action from the negligence claim. (Demurrer at pp. 11–12.) Finally, Defendants argue that the fourteenth cause of action requires allegations of violence or threats of violence, which are not pleaded in the Complaint. (Demurrer at pp. 12–13.) Plaintiff has filed no opposition to the demurrer.

Defendants’ arguments are largely persuasive. Both the third cause of action for nuisance and the twelfth cause of action for negligence per se are essentially duplicative of the fifth cause of action for negligence. (See El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 [“Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”]; Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737–738 [“negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence”].) As such, the demurrer is SUSTAINED with leave to amend as to the third and twelfth causes of action.

Defendant is also correct that the housing discrimination claim under FEHA is not adequately pleaded. “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.) Plaintiff here alleges that he has a “disability” and is “handicapped,” without stating what Plaintiff’s disability is. (FAC ¶ 24.) The demurrer is SUSTAINED with leave to amend to the tenth cause of action for FEHA violations.

The fraud claim is also deficiently pleaded. The elements of fraud are: (1) misrepresentation or concealment, (2) knowledge of its falsity, (3) intent to defraud, (4) justifiable reliance and (5) resulting damage. (Gil v. Bank of America, Nat. Ass'n (2006) 138 Cal. App. 4th 1371, 1381; Barbara A. v. John G. (1983) 145 C.A.3d 369, 376.)  Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Against a corporate employer, a plaintiff must plead “the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Id. at p. 645.) Here, Plaintiff states that “Defendants” made representations to Plaintiff at unspecified times and by unspecified means and speakers “that certain repairs and accommodations would be made.” (Complaint ¶¶ 61,  139.) This is insufficient particularity for a fraud claim, and the demurrer is SUSTAINED as to the ninth cause of action for fraud, with leave to amend.

Defendants’ argument as to the fourteenth cause of action under the Bane Act is also persuasive. “T]o state a cause of action under section 52.1 there must first be violence or intimidation by threat of violence. Second, the violence or threatened violence must be due to plaintiff's membership in one of the specified classifications set forth in Civil Code section 51.7 or a group similarly protected by constitution or statute from hate crimes.” (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1290.) Here, the Complaint alleges no violence or threats of violence, as opposed to threats to evict Plaintiff. (FAC ¶ 51.) The demurrer is therefore SUSTAINED as to the fourteenth cause of action.

Plaintiff’s claim for intentional infliction of emotional distress, however, is well-pleaded. The elements of an IIED claim are: (1) extreme and outrageous conduct by defendant; (2) made with intent to cause, or with reckless disregard of the probability of causing, emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Bogard v. Employers Casualty Company (1985) 164 Cal.App.3d 602, 616.) The level of distress required to state a claim for IIED is distress of “such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

The Complaint here alleges that Plaintiff repeatedly complained to Defendant of habitability defects — including defects in the electrical system, heating system, weatherproofing, floor tiling, fire protection, and water heating — as well as the absence of accommodations, necessary to accommodate his unspecified disability. (Complaint ¶¶ 23–29, 61.) Plaintiff alleges that these defects remain unremedied, and indeed that Defendants respond to Plaintiff’s complaints with threats of eviction. (Complaint ¶¶ 45, 51.) Allegations of similar magnitude have been upheld in the habitability context. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 922 [holding that whether these facts constitute outrageous conduct “presents a factual question” and “it cannot be said as a matter of law that appellant has not stated a cause of action”].) The demurrer is therefore OVERRULED as to the eighth cause of action for intentional infliction of emotional distress.

II.                MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike the prayer for punitive damages contained in the FAC, on the grounds that it fails to state facts constituting malice, oppression, or fraud, and further fails to allege corporate ratification. (Motion at pp. 6–12.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294, subd. (a).) The terms are defined as:

“Malice” means 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.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code § 3294, subd. (c).)

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The allegations here support a prayer for punitive damages. Specifically, Plaintiff alleges the existence of defective conditions on the premises, coupled with Defendants’ failure to remedy them. Plaintiff alleges that he is disabled, and requested accommodations for his disability. The Complaint states that Defendant did not provide these accommodations, and further retaliated against Plaintiff with threats of eviction when he complained. These facts are sufficient to state a prayer for punitive damages by malicious or oppressive conduct.

Defendants also argue that Plaintiff fails to plead corporate ratification under Civil Code § 3294, subd. (b). (Motion at p. 12.) Yet the Complaint pleads corporate ratification by an officer or managing agent, as the statute requires. (Complaint ¶¶ 15–16.) Although Plaintiff does not name the officers responsible, ““[t]he rule of particular pleadings, even where applicable to certain claims, does not pertain with the same force when the facts lie more in the knowledge of the opposite party.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4^th 821, 838, internal quotation marks omitted.)

The motion to strike is therefore DENIED.