Judge: Joel R Wohlfeil, Case: 37-2023-00003107-CU-CR-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 10, 2023

10/13/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Civil Rights Demurrer / Motion to Strike 37-2023-00003107-CU-CR-CTL QASSIMYAR VS SAN DIEGO REGIONAL TASK FORCE ON HOMELESSNESS INC CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/23/2023

1. The special and general Demurrer (ROA # 48) of Defendants San Diego Regional Task Force on Homelessness, Tamera Kohler, Lahela Mattox, Ray Ellis and Sean Spear ('Defendants') to the First Amended Complaint ('FAC') by Plaintiff Akhtar Qassimyar, M.D. ('Plaintiff'), is SUSTAINED.

The Court will entertain argument as to whether Plaintiff should be permitted another opportunity to amend the pleading.

This ruling is based on the analysis set forth below.

Special Demurrer: Uncertainty A pleading is subject to special demurrer when it is 'uncertain, which 'includes ambiguous and unintelligible.' Code Civ. Proc. 430.10(f).

A Demurrer for uncertainty is disfavored, and is granted only if the pleading is so incomprehensible that Defendant cannot reasonably respond. A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal. App. 5th 677, 695.

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. Id. The FAC in this action is fatally uncertain because it is not ascertainable which causes of action are asserted against each Defendant. Plaintiff has named one organization and four individuals in this lawsuit. From the face of the FAC, it cannot be determined which claims are asserted as to each Defendant. The special Demurrer is sustained on this basis.

In addition, the third cause of action is fatally uncertain because it is entirely unclear to the Court. It cannot be determined what this claim consists of, who committed theft, who was damaged, etc.

General Demurrer: 1st COA -- DISCRIMINATION As alleged, this cause of action is premised on a violation of Civil Code section 51, the Unruh Civil Rights Act. However, this cause of action does not allege discrimination on the basis of any of the protected classifications set forth within the statute. In addition, the Unruh Act prohibits discrimination committed by 'business establishments.' The individual Defendants do not qualify as such an Calendar No.: Event ID:  TENTATIVE RULINGS

3011772 CASE NUMBER: CASE TITLE:  QASSIMYAR VS SAN DIEGO REGIONAL TASK FORCE ON  37-2023-00003107-CU-CR-CTL establishment, and it is not alleged how they were complicit in the discrimination by a business establishment.

General Demurrer: 2nd COA -- BREACH OF CONTRACT This cause of action fails to plead any facts establishing the creation and existence of an enforceable contract, and a subsequent breach. The vague discussions of a partnership to address homelessness are not sufficient to create an enforceable contractual relationship.

In addition, even if a contract was alleged as between Plaintiff and Defendant San Diego Regional Task Force On Homelessness, the individual Defendants would not be parties. Their employment with the corporate entity does not render them parties to a contract entered into with the corporate entity.

General Demurrer: 3rd COA: THEFT & ABUSE OF THE URGENTLY NEEDED HOMELESS PEOPLE'S FUNDS A cognizable and legally recognized cause of action cannot be ascertained from the allegations within this cause of action. This is not a claim for conversion because it is not alleged that the misappropriated funds belonged to Plaintiff. It does not appear that Plaintiff would have standing to assert a claim for the theft of funds intended for general use for homeless prevention programs.

_____ 2. The Motion (ROA # 51) of Defendants San Diego Regional Task Force on Homelessness, Inc., Tamera Kohler, Lahela Mattox, Ray Ellis and Sean Spear ('Defendants') for an order striking portions of Plaintiff's FAC, is GRANTED IN PART and DENIED IN PART.

The Court strikes page 15, prayer number 2 and page 15, prayer number 3.

The Court does not strike page 15, prayer number 4.

The Court will entertain argument as to whether Plaintiff should be permitted another opportunity to amend the pleading.

This ruling is based on the analysis set forth below.

The prayer for relief premised on Corporations Code section 5223 is improper. This code section pertains to a suit brought by the directors of a nonprofit corporation seeking to remove a director due to fraud or abuse.

A claim for punitive damages cannot be pled generally. It is not sufficient to allege merely that Defendant 'acted with oppression, fraud or malice.' Edmon & Karnow, Cal. Prac. Guide: Civ. Pro.

Before Trial (The Rutter Group 2023) at ¶ 6:158 (citing Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041–1042 and Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal. App. 4th 598, 643).

Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent or malicious (e.g., Defendant acted with the intent to inflict great bodily harm on Plaintiff or to destroy Plaintiff's property or reputation). Id. The only malice, contemplated by section 3294 is 'malice in fact': the motive and willingness to vex, harass, annoy, or injure. G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22, 29.

Malice is defined as intentional conduct causing injury, or Defendant's despicable conduct done with a Calendar No.: Event ID:  TENTATIVE RULINGS

3011772 CASE NUMBER: CASE TITLE:  QASSIMYAR VS SAN DIEGO REGIONAL TASK FORCE ON  37-2023-00003107-CU-CR-CTL willful and conscious disregard of the rights or safety of others. Civil Code 3294(c)(1).

The 'despicable conduct' standard is satisfied, and punitive damages are appropriate if Defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1051.

The claim for punitive damages within the prayer for relief is based on the first cause of action for 'Discrimination.' However, there are no factual allegations that the treatment of plaintiff constituted malice, oppression or fraud within the meaning of section 3294.

Finally, the request for an award of costs is potentially proper and will not be stricken. Even if the reference to 'code section 12597 and 12598' is improper, Plaintiff could still be entitled to ordinary costs as the prevailing party.

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