Judge: Maurice A. Leiter, Case: 22STCV14712, Date: 2023-03-03 Tentative Ruling

Case Number: 22STCV14712    Hearing Date: March 3, 2023    Dept: 54

Hearing Date: March 3, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint and Motion to Strike

Moving Party: Defendant Zaki Mansour

Responding Party: Plaintiff Ahmed Zaki Mansour

T/R:    DEFENDANT’S DEMURRER TO THE NINTH, THIRTEENTH AND EIGHTEENTH CAUSES OF ACTION IS SUSTAINED WITH LEAVE TO AMEND. THE DEMURRER TO THE TENTH CAUSE OF ACTION IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

            DEFENDANT to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers, opposition, and reply

BACKGROUND

            On October 7, 2022, Plaintiff filed the operative first amended complaint against Defendant, asserting 18 causes of action arising from Plaintiff’s tenancy of a unit owned by Defendant. Plaintiff’s is Defendant’s son.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant demurs to the ninth, tenth, thirteenth and eighteenth causes of action.

A. Ninth Cause of Action for Defamation

Defendant demurs to the ninth cause of action for defamation on the ground that it is barred by the statute of limitations. Plaintiff alleges Defendant defamed him by telling the FBI in 2018 that Plaintiff is a terrorist. (FAC ¶ 41.) The statute of limitations for defamation is one year. (CCP § 340(c).) This action was filed on May 3, 2022. As pleaded, the ninth cause of action is barred by the statute of limitations.

Defendant’s demurrer to the ninth cause of action is SUSTAINED with leave to amend.

B. Tenth Cause of Action for Violation of FEHA

Government Code section 12955 makes it unlawful for the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person. (Gov. Code § 12955(a).)  

Defendant asserts the tenth cause of action fails because both Plaintiff and Defendant are of Middle Eastern descent as father and son. Defendant argues that this precludes any claims for racial harassment or discrimination. Defendant does not provide authority to support this argument. Plaintiff alleges he is of Middle Eastern descent and that Defendant harassed him in various ways, including falsely claiming to the FBI he was a terrorist. This is sufficient to state a cause of action for violation of FEHA.

            Defendant’s demurrer to the tenth cause of action is OVERRULED.

C. Thirteenth Cause of Action for Violation of Unruh

“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(b).) “No business establishment of any kind whatsoever shall discriminate against . . . any person in this state on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51 . . . because the person is perceived to have one or more of those characteristics, or because the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Civ. Code, § 51.5(a).)

Plaintiff alleges that Defendant discriminated against him based on his “genetic information” and “familial status” as Defendant’s son. Defendant asserts that Plaintiff’s status as Defendant’s son does not place him in a protected class. The Court agrees. Unruh does not preclude “discrimination” based on the biological relationship between the subject of discrimination and the alleged perpetrator. 

Defendant’s demurrer to the thirteenth cause of action is SUSTAINED with leave to amend.

D. Eighteenth Cause of Action for Breach of Contract

            Defendant demurs to the eighteenth cause of action on the ground that it is barred by the statute of limitations. Plaintiff alleges Defendant breached a contract to pay Plaintiff wages from 2000 to 2002. Plaintiff filed this action in 2022. Plaintiff alleges that the parties had conversations about the contract up through 2020. Plaintiff does not allege that Defendant continued to promise payment. As pleaded, the cause of action is barred.

            Defendant’s demurrer to the eighteenth cause of action is SUSTAINED with leave to amend.

E. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) 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." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.) 

Punitive damages are available in noncontract cases where the defendant is guilty of “oppression, fraud, or malice.”  (Civil Code § 3294(a).)  Conclusory allegations are insufficient to support a claim for punitive damages.  (See, e.g., Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal. App. 3d 590, 620.)  However, “the stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint.”  (Perkins v. Superior Court (1981) 117 Cal. App. 3d 1, 6.)

            Defendant moves to strike Plaintiff’s claim for punitive damages on the ground that Plaintiff has failed allege specific facts showing malice, oppression, or fraud. Plaintiff alleges Defendant physically assaulted him, stole his food, clothing, and cash, and threatened to kill Plaintiff. This is sufficient to support punitive damages.

            Defendant’s motion to strike is DENIED.