Judge Holly J. Fujie, Case 22STCV27147 2023-03-21 Tentative Ruling

This action arises out of a landlord/tenant relationship. The currently operative first amended complaint (the “FAC”) alleges: (1) violation of Civil Code sections 51 and 52; (2) violation of Civil Code section 789.3; (3) negligence; (4) violation of Fair Employment and Housing Act (“FEHA”); (5) breach of quiet enjoyment; (6) breach of implied warranty of habitability; (7) intentional infliction of emotional distress; (8) breach of contract; (9) breach of implied covenant of good faith and fair dealing; and (10) malicious prosecution.[1]

In relevant part, the FAC alleges: In May 2021, Plaintiff began leasing a unit in a residential building (the “Property”) for which Moving Defendant is the homeowner’s association. (See FAC ¶¶ 14, 16.) Moving Defendant implemented a mask mandate that required masks to be worn at all times in common areas of the Property. (FAC ¶ 16.) Plaintiff requested a waiver from the mask mandate on the basis that he had a medical condition. (FAC ¶ 23.) Although Plaintiff provided a doctor’s note to support his claim, Moving Defendant denied his request for an exemption. (FAC ¶¶ 23-24.) As a result of Plaintiff not wearing a mask in common areas of the Property, Moving Defendant suspended Plaintiff’s internet access. (FAC ¶ 29.)

Moving Defendant filed a demurrer (the “Demurrer”) to the first, second, and seventh causes of action on the grounds that the FAC fails to state facts sufficient to constitute a cause of action. Moving Defendant also filed a motion to strike (the “Motion”) portions of the FAC.

Moving Defendant’s Request for Judicial Notice is GRANTED as to the existence of the documents, but not to the truth of the matters stated therein. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113

A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts. (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

The Unruh Civil Rights Act (the “Unruh Act”) provides: all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civ. Code § 51, subd. (b).) A violation of any of any individual under the federal Americans with Disabilities Act (the “ADA”) constitutes a violation of the Unruh Act. (Civ. Code § 51, subd. (f).)

To establish a violation of the ADA, a plaintiff must show: (1) a covered disability; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of [the] disability. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1060 [264 Cal.Rptr.3d 600, 607-08.) Purely residential areas of a common interest development are not public accommodations. (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1099.) Conversely, commercial real estate open to the public qualifies as a public accommodation even though it is a part of a residence or residential development. (Id. at 1100.)

The FAC alleges that Moving Defendant violated the Unruh Act by failing to comply with the ADA. (See FAC ¶ 34.) Moving Defendant argues that the FAC fails to allege an Unruh Act cause of action because the Property does not constitute a public accommodation and Plaintiff has not demonstrated that he has a disability subject to the ADA. The Court agrees. The FAC alleges that Plaintiff was denied access to certain portions of the Property such as the gym but does not allege that any of these areas were open to the general public. In addition, while the FAC alleges that Plaintiff sought an exemption from the mask requirement based on a medical condition, the FAC does not allege that Plaintiff’s medical condition constituted a disability as defined by the ADA. The Court therefore SUSTAINS the Demurrer with 20 days leave to amend.

Under Civil Code section 789.3, subd. (a), a landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord. (Civ. Code § 789.3, subd. (a).)

Moving Defendant argues that internet is not a utility subject to Civil Code section 789.3 because it is not a public utility as defined by Public Utilities Code Section 216. The Court notes that Civil Code section 789.3 is not limited by the utilities listed in Public Utilities Code Section 216 and declines to sustain the Demurrer on this basis absent other legal authority. The FAC, however, does not allege that Moving Defendant suspended Plaintiff’s internet access with the intent to terminate his occupancy. The Court therefore SUSTAINS the Demurrer to the second cause of action with 20 days leave to amend.

To state a claim for intentional infliction of emotional distress, a plaintiff must allege: (1) the defendant’s extreme and outrageous behavior with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Conduct is considered extreme and outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id.) Behavior may be considered outrageous if a defendant: (1) abuses a position that gives him power over a plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through emotional distress; or (3) acts intentionally or unreasonably when the conduct is likely to result in mental distress and illness. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) Whether conduct is extreme or outrageous is generally a question of fact. (See Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356.)

The seventh cause of action is based on Moving Defendant’s alleged disability discrimination and subsequent suspension of privileges. The Court finds that, regardless of the sufficiency of the allegations that Moving Defendant discriminated against Plaintiff for his disability, a determination of whether its conduct in suspending certain privileges, particularly internet access, constitutes extreme and outrageous behavior requires a factual analysis inappropriate at the pleading stage. The Court therefore OVERRULES the Demurrer to the seventh cause of action.

Under California Code of Civil Procedure (“CCP”) section 436, a motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436, subds. (a)-(b).) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (CCP § 431.10, subd. (b).)

The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A motion to strike should not be a procedural “line item veto” for the civil defendant. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) Pleadings are to be construed liberally with a view to substantial justice. (CCP § 452.)

A plaintiff may recover punitive damages in an action for breach of an obligation not arising from contract when the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294, subd. (a).) Malice is 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. (Civ. Code § 3294, subd. (c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code § 3294, subd. (c)(2).) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Absent an intent to injure the plaintiff, malice requires more than a “willful and conscious” disregard of the plaintiff’s interests; the additional component of “despicable conduct” must be found. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

Moving Defendant seeks to strike allegations in the FAC that reference the unlawful detainer lawsuit (the “UD Action”) that forms the basis for Plaintiff’s malicious prosecution claim and allegations concerning Plaintiff’s entitlement to recover punitive damages.

Although the Court granted Moving Defendant’s anti-SLAPP Motion, the current references to the UD Action in FAC add context to the claims presently asserted against Moving Defendant. Further, in light of the Court’s ruling on the intentional infliction of emotional distress claim in the Demurrer, the FAC alleges a basis for Plaintiff to recover punitive damages. The Court therefore DENIES the Motion.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

[1] On November 22, 2022, the Court granted Moving Defendant’s special motion to strike (the “anti-SLAPP Motion”) the malicious prosecution and Civil Code section 46 claims asserted against Moving Defendant in the original complaint (the “Complaint”). The Court granted the anti-SLAPP Motion to the Complaint’s intentional infliction of emotional distress claim to the extent that it was based on protected activity. The Court granted Plaintiff leave to file an amended pleading alleging a Civil Code section 789.3 claim.