Judge Michael P. Linfield, Case Number: 24STCV01464, Date: 2024-05-03 Tentative Ruling

Judge: Michael P. Linfield, Case: 24STCV01464, Date: 2024-05-03 Tentative Ruling

Case Number: 24STCV01464 Hearing Date: May 3, 2024 Dept: 34

SUBJECT: Demurrer to Plaintiffs’ Complaint

Moving Party: Defendants Vanessa Smith and Margaret Davis

Resp. Party: Plaintiffs Cybill Lui and Derrick Eppich

SUBJECT: Motion to Strike Portions of Plaintiffs’ Complaint

Moving Party: Defendants Vanessa Smith and Margaret Davis

Resp. Party: Plaintiffs Cybill Lui and Derrick Eppich

The Demurrer is SUSTAINED in part. The Demurrer is SUSTAINED solely as to the ninth cause of action for harassment and retaliation, with 10 days leave to amend the Complaint. The Demurrer is OVERRULED as to all else.

The Motion to Strike is DENIED.

BACKGROUND:

On January 18, 2024, Plaintiffs Cybill Lui and Derrick Eppich filed their Complaint against Defendants Vanessa Smith and Margaret Davis on causes of action arising from Plaintiffs’ tenancy in the rental unit owned and/or managed by Defendants.

On March 18, 2024, Defendants filed their Demurrer to Plaintiffs’ Complaint (“Demurrer”) and Motion to Strike Portions of Plaintiffs’ Complaint (“Motion to Strike”). In support of each of these filings, Defendants concurrently filed a Proposed Order.

On April 18, 2024, Plaintiffs filed their Oppositions to the Demurrer and the Motion to Strike.

On April 26, 2024, Defendants filed their Replies in support of the Demurrer and the Motion to Strike.

ANALYSIS:

I. Demurrer

A. Legal Standard

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

“A demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaint or to any of the causes of action stated therein.” (Code Civ. Proc., § 430.50, subd. (a).)

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, citations and internal quotation marks omitted.)

B. Discussion

Defendants demur to the following four causes of action:

· second cause of action (unlawful housing practices in violation of Government Code section 12955, subdivision (d) and Civil Code sections 51, et seq.);

· third cause of action (intentional infliction of emotional distress), fifth cause of action (negligence per se);

· sixth cause of action (violation of Civil Code sections 52, et seq.); and

· ninth cause of action (harassment and retaliation in violation of Code of Civil Procedure section 527.6, subdivision (b)(3)).

1. Second Cause of Action — Unlawful Housing Practices

a. Legal Standard

i. The California Fair Employment and Housing Act

“This part may be known and referred to as the ‘California Fair Employment and Housing Act.’” (Gov. Code, § 12900.)

“It shall be unlawful: . . . For any person subject to the provisions of Section 51 of the Civil Code, as that section applies to housing accommodations, to discriminate against any person on the basis of sex, gender, gender identity, gender expression, sexual orientation, color, race, religion, ancestry, national origin, familial status, marital status, disability, genetic information, source of income, veteran or military status, or on any other basis prohibited by that section. Selection preferences based on age, imposed in connection with a federally approved housing program, do not constitute age discrimination in housing.” (Gov. Code, § 12955, subd. (d).

ii. Unruh Civil Rights Act

“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, subd. (b).)

“A violation of the right of any individual under the federal Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).)

“Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51, 51.5, or 51.6, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51, 51.5, or 51.6.” (Civ. Code, § 52, subd. (a).)

“Actions brought pursuant to this section are independent of any other actions, remedies, or procedures that may be available to an aggrieved party pursuant to any other law.” (Civ. Code, § 52, subd. (e).)

b. Discussion

Defendants demur to the second cause of action for unlawful housing practices in violation of Government Code section 12955, subdivision (d) — otherwise known as the California Fair Housing and Employment Act (“FEHA”) — and Civil Code sections 51, et seq. — otherwise known as the Unruh Civil Right Act (UCRA). (Demurrer, pp. 8–10.) Defendants argue that the causes of action do not allege sufficient facts. (Ibid.)

The Court disagrees.

Among other things, Plaintiffs allege: (1) that Defendants engaged in disparate treatment against Plaintiff Lui on the bases of her race, national origin, and familial status; (2) that this treatment included threats, wrongful assertions, frivolous notices, illegal rent increases and threats thereof, and blocking her driveway and preventing her from using her parking area; and (3) that Plaintiffs suffered from Defendants acts.

For the purposes of a demurrer, the Court must assume the truth of the allegations. These allegations sufficiently allege the elements of unlawful housing practices in violation of both FEHA and UCRA. Thus, the second cause of action withstands demur.

The Court OVERRULES the Demurrer to the second cause of action for unlawful housing practices.

2. Third Cause of Action — Intentional Infliction of Emotional Distress

a. Legal Standard

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

b. Discussion

Defendants demur to the third cause of action for intentional infliction of emotional distress, arguing that it does not allege sufficient facts. (Demurrer, pp. 10:17–18.)

The Court again disagrees with this argument.

Among other things, Plaintiffs allege: (1) that Defendants allowed a pest infestation in the premises, bullied Plaintiffs, blocked their driveway, prevents Plaintiffs from parking their car, illegally increased their rent, and yelled at Plaintiff Lui several times; (2) that Defendants engaged in this conduct with the intent to injure Plaintiffs or with a willful and conscious disregard of Plaintiffs’ rights; (3) that Plaintiffs suffered severe emotional distress and damages; and (4) that Defendants’ conduct is the direct and proximate result of Defendants’ conduct. (Complaint, ¶¶ 108–113.)

For the purposes of a demurrer, the Court must assume the truth of these allegations. A trier of fact could reasonably find that these allegations involve conduct so outrageous and extreme as to exceed all bounds of that usually tolerated in a civilized community. (Wilson, supra, 207 Cal.App.4th at p. 1009.)

The Court OVERRULES the Demurrer to the third cause of action for intentional infliction of emotional distress.

3. Fifth Cause of Action — Negligence Per Se

a. Legal Standard

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

b. Discussion

Defendants demur to the fifth cause of action for negligence per se, arguing: (1) that negligence per se is not an independent cause of action; (2) that it is redundant of the negligence cause of action; and (3) that it is based on the other statutory causes of action. (Demurrer, pp. 12–13.)

These arguments are irrelevant. Even if Defendants are correct, the existence or nonexistence of this cause of action would presumably have no effect on the substantial rights of the Parties because it has no effect on this litigation.

“The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties.” (Code Civ. Proc., § 475.) Further, “it is a waste of time and judicial resources to entertain a motion challenging part of a pleading on the sole ground of repetitiveness. (See Civ.Code, § 3537 [“Superfluity does not vitiate”].) This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.)

The Court OVERRULES the Demurrer to the fifth cause of action for negligence per se.

4. Sixth Cause of Action — Violation of Civil Code Sections 52, Et Seq.

a. Legal Standard

b. Discussion

Defendants demur to the sixth cause of action for violation of Civil Code sections 52, et seq., arguing that it is redundant and duplicative of prior causes of action. (Demurrer, pp. 13–14.)

Just like with the fifth cause of action, this argument is irrelevant. Even if Defendants are correct, the existence or nonexistence of this cause of action would presumably have no effect on the substantial rights of the Parties because it has no effect on this litigation.

The Court OVERRULES the Demurrer to the sixth cause of action for violation of Civil Code sections 52, et seq.

5. Ninth Cause of Action — Harassment and Retaliation

a. Legal Standard

“A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in this section.” (Code Civ. Proc., § 527.6, subd. (a)(1).)

“‘Harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Code Civ. Proc., § 527.6, subd. (b)(3).)

b. Discussion

Defendants demur to ninth cause of action, arguing that it is the improper grounds to support a cause of action for harassment and retaliation. (Demurrer, p. 14:5–12.)

Plaintiffs disagree, arguing that the pleading alleges sufficient facts to sustain their cause of action for harassment and retaliation “under CCP Section 1942.5 based on the acts as defined in CCP Section 527.6.” (Opposition, p. 10:9–12.)

The Court disagrees with Plaintiffs.

First, Defendants correctly note that Code of Civil Procedure section 527.6, subdivisions (a) and (b) do not contain a civil cause of action for damages for harassment and/or retaliation. Rather, that section only allows for a civil procedure in which one can obtain “a temporary restraining order and an order after hearing prohibiting harassment” — neither of which one would seek in Department 34. (Code Civ. Proc., § 527.6, subd. (a).)

Second, the Court presumes that Plaintiffs’ Counsel is actually referring to Civil Code section 1942.5 (which regards retaliation against lessee in certain circumstances), not Code of Civil Procedure section 1942.5 (which does not exist).

Finally, the Complaint does not mention Civil Code section 1942.5 (or, for that matter, Code of Civil Procedure section 1942.5) a single time in the pleading. Furthermore, the Court is unable to ascertain an implied reference to Civil Code section 1942.5. Thus, this is not a basis for a cause of action in the pleading.

However, this is an issue that can be easily remedied by amendment. There is no reason to deny leave to amend.

The Court SUSTAINS the Demurrer to the ninth cause of action for harassment and retaliation, with 10 days leave to amend the Complaint.

C. Conclusion

II. Motion to Strike

A. Legal Standard

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (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 inserted 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.”

(Code Civ. Proc., § 436.)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, rule 3.1322(a).)

B. Discussion

Defendants move the Court to strike various portions of Plaintiffs’ Complaint that relate to allegations of malice, oppression, and/or fraud and prayers for punitive damages based on such allegations.

Plaintiffs are entitled to plead their allegations and request relief, and they have done so. It will ultimately be Plaintiffs’ burden to prove that they are entitled to the relief that they seek.

C. Conclusion

The Motion to Strike is DENIED.