Judge: Melissa R. Mccormick, Case: Rojo v. Hunter, Date: 2023-05-18 Tentative Ruling

Defendant Patricia Hunter’s Demurrer to Complaint

Defendant Patricia Hunter demurs to the second and third causes of action in plaintiff Nancy L. Rojo’s complaint.  Plaintiff did not file an opposition.  For the following reasons, the demurrer is sustained.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.

The second cause of action alleges “elder financial abuse.”  The elements of a cause of action for elder abuse are:  (i) the defendant took, hid, appropriated, obtained or retained the plaintiff’s property or assisted in doing so; (ii) the plaintiff was 65 years of age or older at the time of the conduct; (iii) the defendant took, hid, appropriated, obtained or retained the property, or assisted in doing so, for a wrongful use, with the intent to defraud, or by undue influence; (iv) the plaintiff was harmed; and (v) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.  CACI 3100.  Because it is a statutory claim, financial elder abuse must be pleaded with particularity.  Covenant Care, Inc. v. Superior Ct. (2004) 32 Cal.4th 771, 790; see also Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407, 410; Cal. Welf. & Inst. Code § 15610.30 (elements of financial elder abuse).  The complaint does not allege with particularity facts supporting each of these elements.  Defendant’s demurrer to the second cause of action is sustained with leave to amend.

The third cause of action alleges “CA Fair Housing Law Violation; Unruh Act.”  Plaintiff alleges defendant violated the Fair Employment and Housing Act (FEHA) by allegedly bullying and discriminating against plaintiff based on plaintiff’s age, race, and medical condition.  The elements of a cause of action for violation of the Unruh Civil Rights Act (Civ. Code §§ 51, 52) are:  (i) the defendant denied, aided, or incited a denial of, discriminated, or made a distinction that denied full and equal accommodations, advantages, facilities, privileges or service to plaintiff; (ii) a substantial motivating reason for the defendant’s conduct was the plaintiff’s gender, race, color, religion, ancestry, national origin, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status; (iii) the plaintiff was harmed; and (iv) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.  CACI 3060.  As noted above, where, as here, statutory remedies are invoked, the facts must be pleaded with particularity.  Carter, 198 Cal.App.4th at 410.  The complaint does not allege with particularity facts supporting each of these elements.  Defendant’s demurrer to the third cause of action is sustained with leave to amend.

Should plaintiff desire to file an amended complaint addressing the issues in this ruling, plaintiff must file and serve it by May 30, 2023.

Defendant to give notice.

Case Management Conference

The trial is scheduled for October 28, 2024 at 9:00 a.m. in Department C13.

Clerk to give notice.