Judge: Mel Red Recana, Case: 23STCV23759, Date: 2024-11-08 Tentative Ruling
Case Number: 23STCV23759 Hearing Date: November 8, 2024 Dept: 45
Hearing date: November
8, 2024
Moving Party: Defendant
AJR Investment Group, LLC and AR Tarzana Properties
Responding
Party: Plaintiffs Elizabeth Robles and Demian Robles
Defendants’
Demurrer to Portions of First Amended Complaint and Motion to Strike
The Court
considered the moving papers, opposition, and reply.
Defendants AJR
Investment Group, LLC and AR Tarzana Properties’ Demurrer to Portions of Plaintiffs’
First Amended Complaint is SUSTAINED as to the eighth cause of action.
Defendants’ Motion
to Strike is MOOT to the extent it seeks punitive damages in connection
with the eighth cause of action.
Defendants’ Motion
to Strike is DENIED to the extent it seeks punitive damages in the
remaining causes of action.
Background
This action
arises out of uninhabitable living conditions at 18440 Hatteras Street, Unit
47, Tarzana, California 91356 (Subject Property). On October 2, 2023, Elizabeth
Robles (Elizabeth) and her son Demian Robles (collectively, Plaintiffs) filed a
complaint against AJR Investment Group, Joy Regula, and Does 1 through 20. On
November 20, 2023, Plaintiffs filed a first amended complaint (FAC) against AJR
Investment Group, LLC, AR Tarzana Properties, Joy Neal, Mario Cea, and Does 1
through 20. The FAC alleges eleven causes of action: (1) breach of contract,
(2) breach of implied covenant of good faith & fair dealing, (3) breach of
warranty of habitability (common law), (4) breach of warranty of quiet
enjoyment, (5) violation of Civil Code sections 1941.1 and 1942.2, (6)
negligence maintenance, (7) fraud – misrepresentation and deceit, (8) sexual
harassment, (9) extortion, (10) unfair business practices in violation of CA
Business & Professions Code section 17200, and (11) intentional infliction
of emotional distress.
Plaintiffs
occupied a unit in the Subject Property since 2013. Plaintiffs allege in May of
2021, Defendant Neal requested Plaintiffs find potential renters. (FAC ¶ 23.)
Elizabeth introduced a family to Defendant Neal and they began renting unit 64
in the Subject Property. (FAC ¶ 25.) Defendant Neal then told Elizabeth she was
responsible for the collection of rent from this family. (FAC ¶ 25.) Defendant
Neal threatened to evict Plaintiffs if Elizabeth did not collect this family’s
rent, resulting in Elizabeth paying her own money at times to cover the rent of
the family. (FAC ¶ 31.) Defendant Neal also applied this arrangement to units
103, 45, 48, 63, and 65 in the Subject Property, threatening Plaintiff’s
eviction if Elizabeth did not comply. (FAC ¶ 33.) Plaintiffs allege Elizabeth
had to act as Defendants’ agent and file an unlawful detainer action to evict
the family. (FAC ¶ 36.) Plaintiffs further allege that in November of 2022, Defendant
Cea made sexual advances towards Elizabeth through text message, personal
interactions, and phone calls. (FAC ¶ 41.)
On February 1,
2024, AJR Investment Group, LLC and AR Tarzana Properties (Defendants) filed a
demurrer against Plaintiffs’ eighth cause of action for sexual harassment for
failure to state facts sufficient to constitute a cause of action. Defendants
also seek to strike portions of the FAC seeking punitive damages. On October
23, 2024, Plaintiffs filed an opposition to Defendants’ demurrer and motion to
strike. On November 1, 2024, Defendants filed replies to Plaintiffs’
opposition.
Legal
Standard
Demurrer
Code of Civil
Procedure section 430.10(e) provides for a demurrer on the basis that a
complaint fails to state a cause of action. (Code Civ. Proc. 430.10 subd. (e).)
A demurrer tests the legal sufficiency of a complaint. (Donabedian v.
Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is
treated as “admitting all material facts properly pleaded,” but not the truth
of “contentions, deductions or conclusions of law.” (Aubry v. Tri-Defendants
Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The general rule on demurrer
is that the pleadings are “deemed to be true, however improbable they may be.”
(Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.4th
593, 604.)¿
Questions of plaintiff’s ability to prove
unlikely allegations are of no concern. (Committee on Children’s Television,
Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
213-214.) Allegations need not be accepted as true if they are
contradicted by judicially noticeable facts. (Cansino v. Bank of America
(2014) 224 Cal.App.4th 1462, 1474.)¿
“We treat the
demurrer as admitting all the properly pleaded material facts and consider
matters which may be judicially noticed, but we do not treat as admitted
contentions, deductions, or conclusions of fact or law. (Align Technology,
Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 [102 Cal.Rptr.3d 343].)
Further, “‘we give the complaint a reasonable interpretation, reading it as a
whole and its parts in their context.’” (Ibid.) Because a demurrer tests
only the legal sufficiency of the pleading, we accept as true even the most
improbable alleged facts, and we do not concern ourselves with the plaintiff's
ability to prove its factual allegations. (Ibid.) ‘“Facts appearing in
exhibits attached to the [] complaint also are accepted as true and are given
precedence, to the extent they contradict the allegations.”’ (Paul v. Patton
(2015) 235 Cal.App.4th 1088, 1091.)
Motion to Strike
Motions
to strike are used to reach defects or objections to pleadings that are not
challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (Code
Civ. Proc. §§ 435-437.) A party may file a motion to strike in whole or in part
within the time allowed to respond to a pleading, however, if a party serves
and files a motion to strike without demurring to the complaint, the time to
answer is extended. (Code Civ. Proc. §§ 435 subd. (b)(1), 435 subd. (c).)
A
motion to strike lies only where the pleading has irrelevant, false, or
improper matter, or has not been drawn or filed in conformity with laws. (Code
Civ. Proc. § 436.) The grounds for moving to strike must appear on the face of
the pleadings or by way of judicial notice. (Code Civ. Proc. § 437.)
In ruling on a motion to strike, the
allegations in the complaint are considered in context and presumed to be true:
“[J]udges read allegations of a pleading subject to a motion to strike as a
whole, all parts in their context, and assume their truth.” (Clauson v.
Sup.Ct. (Pedus Services, Inc. (1998) 67 Cal.App.4th 1253, 1255.)
In order to
state a prima facie claim for punitive damages, a complaint must set forth the
elements as stated in the general punitive damage statute, Civil Code section
3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.)
These statutory elements include allegations that the defendant has been guilty
of oppression, fraud or malice. (Civ. Code § 3294 (a).) “Malice is defined in
the statute as conduct 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." (Coll.
Hosp., Inc. 8 Cal. 4th at 725 (examining Civ. Code § 3294(c)(1)).
“‘Oppression’ means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” (Civ. Code. §
3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or
concealment of a material fact known to the defendant with the intentional on
the part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.” (Civ. Code. § 3294(c)(3).)
“Even
‘nonintentional torts’ may form the basis for punitive damages when the conduct
constitutes conscious disregard of the rights or safety of others….
‘Nonintentional conduct comes within the definition of malicious acts
punishable by the assessment of punitive damages when a party intentionally
performs an act from which he knows, or should know, it is highly probable harm
will result.…’” (SKF Farms v. Superior
Court (1984) 153 Cal.App.3d 902, 907).
Meet
and Confer
Before filing a demurrer,
the moving party must meet and confer in person, by telephone, or by video
conference with the party who filed the pleading to attempt to reach an
agreement that would resolve the objections to the pleading. (Code Civ. Proc.,
§ 430.41.) “Any determination by the court that the meet and confer process was
insufficient shall not be grounds to overrule or sustain a demurrer.” (Code
Civ. Proc., § 430.41, subd. (a)(4).)
Defendants have complied with the
meet and confer requirement. On January 3, 2024, Defendants’ counsel spoke with
Plaintiffs’ counsel via telephone call. (Bost Decl., ¶ 5.)
They were unable to reach an agreement. (Bost Decl., ¶ 5.)
Discussion
Demurrer
Defendants demur to the eighth cause
of action for sexual harassment in Plaintiffs’ FAC on the grounds that it does
not state facts sufficient to state a cause of action.
Plaintiffs allege sexual harassment
in violation of Civil Code section 1708.5 and under the California Fair
Employment and Housing Act (FEHA). (FAC ¶ 108.)
Under Civil Code
1708.5, in relevant part, a person commits a sexual battery if the person:
(1) Acts with
the intent to cause a harmful or offensive contact with an intimate part of
another, and a sexually offensive contact with that person directly or
indirectly results.
(2) Acts with
the intent to cause a harmful or offensive contact with another by use
of the person's intimate part, and a sexually offensive contact with
that person directly or indirectly results.
(3) Acts to
cause an imminent apprehension of the conduct described in paragraph (1) or
(2), and a sexually offensive contact with that person directly or indirectly
results.
An “offensive contact” is defined as “contact
that offends a reasonable sense of personal dignity.” (Civil Code 1708.5.)
Here,
Plaintiffs have not alleged facts constituting a sexual battery as part of
their sexual harassment cause of action. Plaintiffs cite to Civil Code section 1708.5 as part of their cause of
action. (FAC ¶ 108.) A sexual battery is a separate cause of action from
sexual harassment. Plaintiffs allege Defendant Cea made sexual advances towards
Elizabeth by making demands for sexually explicit pictures over text message,
personal interactions, and phone calls. (FAC
¶ 41.) Additionally, Defendant Cea told Elizabeth he loved her and demanded she
go on dates with him. (FAC ¶¶ 42-43.)
These allegations do not include facts describing a resulting sexually offensive
contact with an intimate part of Elizabeth or the use of an intimate body part
to cause a sexually offensive contact with Elizabeth. Additionally, in their
opposition, Plaintiffs do not address Civil Code section 1708.5 and instead reference sexual harassment in violation of
FEHA. Accordingly, the Court does not find facts alleging a sexual
battery.
Plaintiffs
also allege sexual harassment in violation of FEHA. (FAC ¶ 108.) FEHA forbids sexual discrimination in housing. (Gov.
Code section 12955.) However, sexual harassment is considered a form of sexual
discrimination and thus part of FEHA’s statutory scheme. (Brown v. Smith
(1997) 55 Cal.App.4th 767, 782.) “A statutory cause of action arising under [section
12955] thus includes (1) the basic allegation of sex discrimination in housing. Case law has defined the additional
elements of this cause of action as it applies to a hostile environment sexual
harassment claim: (2) That plaintiff was subjected to unwelcome sexual
harassment, defined as either unwelcome sexual advances or other unwelcome
verbal or physical conduct of a sexual nature. Plaintiff must allege (3) that
the offensive act would not have happened but for her or his gender, so that
gender was a substantial factor in the claimed harassment. It also must be
alleged (4) that the harassment complained of was sufficiently severe or
pervasive so as to alter or interfere unreasonably with the conditions of the
housing arrangement, that the conduct continued after a request by plaintiff
that it stop, and that the offensive conduct arose out of or was closely
related to the landlord-tenant relationship. Finally, (5) the plaintiff must
allege injury, damage, or harm caused by the sexual harassment.” (Id. at
783-84.)
Here,
Plaintiff has not met the first element required to bring this cause of action
under FEHA. The FAC alleges sexual harassment rather than sexual
discrimination. While sexual harassment is a form of sexual discrimination
under FEHA, there is no separate cause of action for sexual harassment in
housing. Plaintiff therefore lacks “the basic allegation of sex discrimination
in housing.” (See Brown v. Smith (1997) 55 Cal.App.4th 767, 782.) As for
the second element, Plaintiffs allege facts constituting unwanted sexual
advances through demands for sexually explicit photos. (FAC ¶ 41.) Additionally, Plaintiffs allege Defendant Rea took
advantage of the time spent doing repairs in Plaintiffs’ unit to make demands
for sexually explicit photos. (FAC
¶ 42.) However, Plaintiffs fail to provide facts alleging that gender was a
substantial factor in Defendant Rea’s conduct as required under FEHA.
Defendants
argue that Plaintiffs only make vague references to FEHA but fail to cite to
any law or specific statute. The Court agrees that Plaintiffs have not alleged
a specific FEHA violation in their FAC. In their opposition, Plaintiffs put
forth elements for sexual harassment without any citation. (Opposition, p. 5.) It
appears these elements are derived from the Unruh Civil Rights Act (Civil Code section
51.9) which defines sexual harassment in a business, service, or professional
relationship. The Unruh Civil Rights Act was incorporated into FEHA through
Government Code section 12948. However, to assert a cause of action under Civil
Code section 51.9, there must be a cause of action brought under this section.
(Civ. Code § 51.9 subd. (d).) The FAC does not allege sexual harassment under
Civil Code section 51.9. Accordingly, the Court does not find facts
constituting a cause of action for sexual harassment under FEHA.
The
Court therefore SUSTAINS Defendants’ demurrer as to the eighth cause of
action with leave to amend.
Motion
to Strike
Defendants
seek to strike portions of the FAC seeking punitive damages on the grounds that
Plaintiffs fail to plead facts to show Defendants acted with fraud, malice, and
oppression. In opposition, Plaintiffs argue Defendant Cea’s alleged sexual
harassment conduct and Defendants’ alleged retaliation conduct give rise to a
claim for punitive damages.
In
light of the Court’s ruling sustaining Defendants’ demurrer as to the eighth
cause of action, to the extent the FAC seeks punitive damages as to the eighth
cause of action, the motion is moot. To the extent the FAC seeks punitive
damages for the other causes of action, the Court denies Defendants’ motion to
strike.
As
to the remaining causes of action, Plaintiffs’ FAC sufficiently pleads facts to
show Defendants acted with malice. For example, Defendants requested Plaintiffs
find potential tenants for vacant units. (FAC ¶ 23.) It was not until after
Elizabeth introduced potential tenants to Defendants that Defendants told
Elizabeth she was responsible for the tenants’ rent payments. (FAC ¶ 25.)
Defendants then threatened Elizabeth with eviction if she refused to comply
with the obligation. (FAC ¶ 27.) The leveraging of Plaintiffs’ housing to force
compliance with an arrangement she did not agree to demonstrates despicable
conduct and willful and conscious disregard of Plaintiffs’ rights and safety. Further,
Plaintiffs allege Defendants also threatened Plaintiffs’ eviction if and when the
other tenants did not pay their own rent. (FAC ¶ 32.) The threat of eviction
and use of pressure tactics was repeated for tenants in five other units in the
Subject Property. (FAC ¶ 33.)
Defendants argue
that Plaintiffs’ allegations of Defendants’ negligent failure to make repairs do
not give rise to a claim for punitive damages. However, this argument ignores
many facts. Allegations of nonintentional torts may form the basis of punitive
damages when “the conduct constitutes conscious disregard of the rights or
safety of others.” (SKF Farms v. Superior
Court (1984) 153 Cal.App.3d 902, 907; see Coll. Hosp., Inc. v. Superior
Court (1994) 8 Cal. 4th 704, 721.) Plaintiffs allege Defendants failed to
make repairs for months and ignored numerous complaints. (FAC ¶ 17.) These complaints
included visible roach infestations, leaks resulting in Plaintiffs’ lack of
access to running water between November of 2022 to April of 2023, defective
electrical wiring, and visible mold rendering the Subject Property unfit for
human occupancy. (FAC ¶ 19.) Defendants refused to make these repairs and
instead responded to complaints by telling Plaintiffs to vacate the Subject
Property. (FAC ¶ 76.) Plaintiffs therefore allege facts that Defendants’
failure to repair resulted in the Subject Property being unfit for human
occupancy and that Defendants were aware of this deficiency.
Plaintiffs have
presented the Court with allegations of threats and leveraging eviction to
force Plaintiffs to do acts on behalf of Defendants. Plaintiffs have also presented
facts alleging Defendants awareness and subsequent refusal to properly repair
uninhabitable living conditions at the Subject Property. Accordingly, to the
extent Defendants seek to strike punitive damages in connection with the eighth
cause of action, the motion is MOOT. To the extent Defendants seek to
strike punitive damages from the remaining causes of action, the motion is DENIED.
It
is so ordered.
Dated: November 8, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court