Judge: Jon R. Takasugi, Case: 23STCV09942, Date: 2023-09-15 Tentative Ruling

Case Number: 23STCV09942    Hearing Date: September 15, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is OVERRULED.

Defendant’s motion to strike is GRANTED as to the request for declaratory and injunctive relief, and is DENIED in all other respects.

            On 5/4/2023, Plaintiff Toni Occhiello (Plaintiff) filed suit against John Semerz and 1254 Detroit LLC, alleging: (1) tenant harassment; (2) violation of FEHA; (3) violation of the California Disabled Persons Act; (4) wrongful/retaliatory eviction; and (5) breach of contract. 

            Now, Defendants demur to Plaintiff’s Complaint.

Discussion

            Defendant argues that Plaintiff’s Complaint is uncertain and fails to allege causes of action with particularity.

            After review, the Court disagrees.

            As to the first cause of action, Plaintiff’s Complaint contains a long list of alleged harassment by his landlord. For example, Plaintiff alleges that on 12/14/2017, despite witnessing Plaintiff’s mobility issues and the need for his friend to assist him up and down the stairs, Defendant posted a three-day notice to quit on the door of the Apartment stating that the presence of Plaintiff’s friend was a breach of the lease. (Id. at ¶25.) In January 2018, Plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH) and DFEH performed an investigation and interviewed Defendant. (Id. at ¶26.) Initially, Defendant protested and argued that Plaintiff should be able to climb the stairs with a walker, which would have no practical use on stairs, but Defendant eventually relented and installed one handrail near the stairs. (Ibid.) Thereafter, in February, March and April of 2018, Defendant allegedly stopped cashing Plaintiff’s rent checks without explanation, and despite Plaintiff’s repeated requests for Defendant to cash the checks, Defendant refused. (Id. at ¶27.) Plaintiff is informed and believes Defendant was planning to cash the checks all at once in an attempt to force an overdraft and manufacture a dispute over rent as retaliation for Plaintiff’s accommodation requests. (Ibid.) After that, Plaintiff requested Defendant to provide bank account information so he could pay rent directly via electronic transfer in the future. (Ibid.)

At the end of February 2019, Plaintiff attempted to pay his rent electronically as he had been doing for months, but discovered that Defendants’ account had been closed, so Plaintiff emailed Defendant to request whether there was a different account he could pay rent to. (Id. at ¶43.) In the meantime, Plaintiff attempted to pay his rent in cash, and although Defendants had accepted cash for rent before, they refused to accept cash and demanded Plaintiff come in person and deliver a cashier’s check for rent despite Defendants’ office not having a railing for the stairs and thus preventing Plaintiff from entering the office. (Ibid.)

At the pleading stage, these allegations are more than sufficient to state a claim for tenant harassment. While Defendant argues that Plaintiff has not alleged facts which could show that the exception afforded by WHMC § 17.52.090(10) does not apply, that provision states that it shall not apply to threats of eviction made in good faith contemplation of eviction when the threat is made. Here, clearly, Plaintiff alleges that the threats are not made in good faith but are designed to harass Plaintiff into vacating his unit so that it can be rented out at a higher price. Moreover, Plaintiff’s harassment claim is not limited to the use of litigation but extends to additional inter-personal conduct. For this same reason, it is not clear on its face that Plaintiff’s claim is barred by the litigation privilege.

As for the second and third causes of action, these claims are sufficiently pled. Plaintiff alleges that he “has a serious mobility impairment stemming from childhood polio, which resulted in one of his legs being rendered permanently immobile, and the other leg is weakened.” (Complaint ¶ 20.) As a result, he walks with a cane and leg braces, and cannot climb stairs without a railing or the assistance of another person. Plaintiff alleges that Defendant removed handrails which he relied upon to get to and from his unit, and thus was unable to get in and out of his apartment. As the Complaint further alleges:

Because of Mr. Occhiello’s mobility impairment, with the railings removed, the stairs became an insurmountable obstacle, both when coming and going. After a very lengthy flight from Italy, Mr. Occhiello returned to the Apartment to find it inaccessible, and was forced to ask a neighbor to help him up and down the stairs outside. Mr. Occhiello’s inability to traverse the stairs alone rendered him effectively a prisoner in his home, and he was forced to bring a friend over from Italy to assist him at his own expense, as Ms. Cianciaruso had to leave town on business. Mr. Occhiello requested that Mr. Semerc replace the handrails, and even demonstrated the problem in person with his friend’s assistance, but Mr. Semerc refused to take the matter seriously, stating he was ‘a very busy man’ and that it was ‘your problem, not mine.’

On December 14, 2018, despite witnessing Mr. Occhiello’s mobility problems and need for his friend to assist him up and down the front stairs, Mr. Semerc posted a three-day notice on Mr. Occhiello’s door, stating the presence of Mr. Occhiello’s friend was a breach of the lease. Mr. Occhiello immediately e-mailed Mr. Semerc disputing his claims.

(Complaint ¶¶ 24-25.)

            Accepted as true, these allegations could show that Plaintiff was disabled, that he was refused accommodations, and that he faced eviction in retaliation for his attempts to request accommodations. As such, these claims are sufficiently pled at this stage.

            As for the fourth cause of action for wrongful/retaliatory eviction, actual eviction or actually vacating the premises is not a requirement to bring an action under Civil Code section 1942.5. (See Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 257, (“[W]hile a common law cause of action [for retaliatory eviction] requires actual eviction, a claim under section 1942.5 does not.”) (citing, Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 328).) Plaintiff alleges that Defendants caused an eviction notice to be posted on Plaintiff’s premises in retaliation for having filed the 2020 Lawsuit and related settlement and motions and successfully defeating Detroit’s claim in the 2022 Lawsuit, in order to harass Plaintiff, and to otherwise cause Plaintiff to vacate the premises.” (Complaint at ¶90). The 2022 Lawsuit initiated by Defendants (LASC No. 22STCV26340), referenced in paragraph 62 of the Complaint was disposed of by demurrer on January 20, 2023, in which the Court ruled against Defendants on an issue relating to tenantability. (Complaint at ¶62.) As such, Defendants’ issuance of a three-day notice to quit on 5/1/2023, was within 180 days of the 22STCV26340 Court’s 1/20/2023 entry of judgment in which the issue of tenantability is determined adversely to the lessor, which falls within subsection (5) of Civil Code § 1942.5 (a).

            Finally, as for the fifth cause of action for breach of contract, Plaintiff alleges that Defendant breached the terms of a settlement agreement entered into by the parties by “among other things, failing to allow Mr. Occhiello to have a replacement co-tenant, failing to provide electronic rent payment information, and interfering with Plaintiff’s use of the RING camera system installed on the premises of the Apartment. “ (Complaint ¶ 96.) The Court finds this sufficient at the pleading stage, given that it clearly puts Defendant on notice of the agreement that was allegedly breached, and the specific breaches being alleged.

            Based on the foregoing, Defendant’s demurrer as to all causes of action.

Motion to Strike

            Defendant argues that the attorney fees request and punitive damages prayer are insufficiently pled. Defendant also argues that the requests for injunctive/declaratory relief are not properly asserted because they are not associated with any underlying cause of action.

            As set forth above, the Court overruled Defendant’s demurrer. Accordingly, each cause of action is sufficiently pled, and is sufficient at the pleading stage to show an entitlement to attorney fees. Plaintiff has also alleged facts which could show 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).)

            As for the request for injunctive relief, the Court agrees that this issue is already being raised in the related pending unlawful detainer action, 23SMUD01174, and thus is not appropriate pled here.

            Based on the foregoing, Defendant’s motion to strike is granted as to the request for declaratory and injunctive relief, and is denied in all other respects.

It is so ordered.

Dated:  September    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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