Judge Ralph C. Hofer, Case 21BBCV00909 2022-10-21 Tentative Ruling

The SAC alleges that starting in September of 2019, when plaintiff moved into defendant’s rental unit, plaintiff became ill, resulting in inability to work, and in October of 2020, plaintiff found that she had been exposed to toxic black mold and asbestos due those substances being in a hidden abandoned entertainment room located underground in very close proximity to plaintiff’s bedroom, where she often slept with the window open.

The SAC alleges that throughout the other personal injury lawsuit, plaintiff has had numerous threats and has been severely harassed by defendant, including demands to pay defendant money or quit, and threatened Covid-19 restrictions.

Plaintiff alleges that on February 14, 2021, at around 10 pm, when plaintiff was taking out her trash and walking her dog, two men came up and threatened plaintiff with a gun, pressuring plaintiff to drop her lawsuit against defendant and the other defendant in the personal injury action, who is also named Armen.

The SAC alleges that plaintiff’s computer devices have been hacked and are missing many legal documents affiliated with all three lawsuits plaintiff is in, all involving the defendant, and that plaintiff has also been missing important legal court documents from her residence from the three lawsuits. It is alleged that someone has been intruding and stealing the documents, along with some of plaintiff’s custom jewelry, and that plaintiff and her son have been finding foreign articles in their food, and their dog has been let out on the street several times where there are dangerous coyotes. The SAC alleges that it is clear the intruders are affiliated with defendant because who other than defendant would need important documents from plaintiff’s three lawsuits with him.

The SAC alleges that plaintiff and her son have seen suspicious people near the car garage door watching them going in and out, and that the garage door was broken, trapping plaintiff’s car in, right before a demurrer hearing. It is also alleged that several other appliances have been somehow broken suddenly.

Plaintiff alleges that a plumber sent by defendant to fix the water heater created backflow of water from the toilet, with water pouring everywhere from the third floor on to the second and first, drenching the whole place with water, which plaintiff and her son had to struggle cleaning for weeks. Plaintiff alleges that the plumber did not fix the water heater, pretending it was not fixable, but plaintiff called another plumber, and the water heater was fixed in 30 minutes.

The SAC alleges that defendant has been repeatedly pressuring plaintiff to move out since plaintiff began her personal injury lawsuit in December of 2020, and to pay defendant large sums of money, even though defendant knew plaintiff was receiving governmental help due to defendant’s actions of poisoning plaintiff, resulting in a deadly illness, as defendant withheld information regarding a toxic room placed 10 feet from the unit plaintiff was renting, claiming that Covid-19 was the reason plaintiff needed to pay defendant or face eviction.

Plaintiff alleges that throughout being harassed, threatened and pressured to submit to extortion, she has gone through extreme emotional distress, including the resurfacing of post traumatic stress syndrome from the past, panic attacks, depression, bipolar tendencies, suicide attempts, inability to sleep and inability to work.

Defendant filed a demurrer in response to the original complaint, which was heard on March 11, 2022. The demurrer was sustained with leave to amend in a detailed minute order. Plaintiff was ordered on amendment to state each cause of action separately, specifying each fact supporting each cause of action, alleging all allegations supporting a particular cause of action in that cause of action, and alleging each element necessary to establish entitlement to relief in connection with that cause of action.

Defendant Arutyunyan argues that the SAC again fails to allege fact supporting each of the necessary elements of her causes of action, for a third time, and after the court analyzed plaintiff’s pleadings and ordered compliance. Defendant argues that plaintiff has again combined causes of action and fails to allege facts setting forth cogent factual allegations in support of each cause of action. Defendant also argues that it continues to appear that the dominant thrust of plaintiff’s pleading is conduct that is not actionable pursuant to the litigation privilege of Civil Code section 47.

A comparison of the current pleading with the FAC shows that plaintiff has again asserted general allegations, followed by four titled causes of action, two of which are combined. The allegations following the titled causes of action in the SAC appear identical to the allegations set forth in the FAC, which the court previously found insufficient. The allegations of paragraphs 1 through 15 of the SAC also appear unchanged from the allegations in the FAC.

It appears that in amending the pleading, plaintiff added three paragraphs, in which plaintiff alleges that the Administrator of the Glendale courthouse has admitted that the Glendale courthouse has been influenced by defendant to deny plaintiff services, that Judge Hofer is siding with defendant in his rulings, and that plaintiff did not agree with the rulings and tried to argue, but plaintiff’s words were dismissed, pressuring plaintiff to amend the FAC. [SAC, paras. 16-18]. These new allegations do not correct the deficiencies previously identified by the court.

“The Court again orders, as it previously ordered, that plaintiff on amendment must state each of the four causes of action alleged separately, specifying each fact which supports that cause of action, without incorporating by reference general allegations; all allegations which support a particular cause of action must be clearly stated in that cause of action.

The causes of action must each be based on recognized legal authority with respect to the specific cause of action and must state each element necessary to establish entitlement to relief in connection with that cause of action, as more specifically discussed above.”

The first cause of action for harassment again improperly states that the foregoing allegations are incorporated, “as if fully set forth herein.” [SAC, para. 16 (second para. 16)]. The other causes of action do not incorporate by reference previous allegations.

The court accordingly has considered in connection with the demurrer and the sufficiency of the causes of action only the allegations set forth in full in each of the causes of action, as the court has twice previously ordered that plaintiff not rely on the incorporation by reference of general allegations.

“Demurrer to the first cause of action for harassment is sustained on the further grounds that the cause of action improperly states that foregoing allegations are incorporated, contrary to this court’s previous order. In addition, to the extent plaintiff relies on the statutory authority pertaining to stalking, all elements of such a claim are not alleged. Specifically, the cause of action fails to allege a pattern of conduct, a demand that defendant cease his pattern of conduct, or that plaintiff suffered substantial emotional distress. The cause of action is also not characterized as a stalking cause of action but as a harassment claim. It is also not clearly alleged how defendant is responsible for the conduct of the two men which allegedly harassed or stalked plaintiff. To the extent the cause of action is based on the statute concerning theft, the cause of action states it is for harassment, not theft or some type of conversion.”

Defendant argues that the SAC is not clear as to what harassment plaintiff is alleging plaintiff should be liable for, so that defendant has no notice as to what claims defendant must respond to, and that the allegations do not meet the minimal threshold to plead a claim for harassment. Defendant points out that one of the Penal Code sections plaintiff cites in the SAC, Penal Code section 653.2, references placing someone in fear by means of an electronic communications device, but nothing to support this claim is alleged in the SAC.

“(a) Every person who, with intent to place another person in reasonable fear for his or her safety, or the safety of the other person's immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.”

The SAC continues to allege the wrongful conduct of two men threatening plaintiff in person with a gun and pressuring plaintiff to drop her lawsuit, the hacking of computer devices, someone stealing documents and jewelry from plaintiff’s residence, plaintiff and her son finding foreign articles in their food, plaintiff’s dog being let out on the street, the trapping of plaintiff in her car by a broken garage door, the existence of broken appliances, and a plumber failing to fix a water heater, but pretending it was unfixable. [SAC, paras. 19-23].

Plaintiff has not attempted to amend to allege each element of any of the referenced statutes, such as stalking, and the pleading continues to fail to allege a pattern of conduct, a demand that defendant cease his pattern of conduct, or that plaintiff suffered substantial emotional distress. The pleading also continues to fail to clearly allege how defendant is responsible for the conduct of the two men which allegedly harassed or stalked plaintiff.

Plaintiff has also failed to sufficiently allege all elements of a claim for conversion, despite the court’s previous observation that the cause of action to the extent based on alleged theft, failed to sufficiently allege such a claim. Generally, to state a cause of action for conversion, plaintiff must allege the following elements: Ownership, or right to possession of property; wrongful disposition of property right; and damages. Imperial Valley Land Co. v. Globe Grain & Milling Co. (1921) 187 Cal. 352, 354-355. The pleading here does not allege that plaintiff has suffered damages caused by any alleged “stealing.” [SAC, para. 21]. It is also not alleged how defendant is responsible for the wrongful disposition of any property, as the pleading does not allege who engaged in any alleged stealing, does not allege it was defendant, and does not allege how defendant would be responsible for the acts of another wrongdoer.

Plaintiff has failed to file timely opposition to this demurrer. Plaintiff had previously argued in connection with the FAC that this case is not for personal injury due to living at defendant’s property, but for threats, extortion, and emotional distress and that in her complaint plaintiff shows how all of her causes of action are supported, suggesting that plaintiff did intend to rely on the general allegations to support her specific claims. Plaintiff nevertheless has failed to allege each fact upon which she relies for each cause of action into that cause of action and has failed to show by the pleading or by written opposition how this cause of action has been cured of its deficiencies. The demurrer accordingly is again sustained.

“Demurrer to the second cause of action for threats of illegal eviction is sustained on the further grounds that the cause of action is not separately stated, but combined with the third cause of action for extortion. In addition, the only legal authority cited in the cause of action does not pertain to eviction or actionable wrongdoing in connection with an eviction, so it is not clear under what legal authority plaintiff is seeking relief. It is also not clear what many of the allegations, such as alleged toxins in the premises, would have to do with the claimed illegal eviction attempts. Moreover, to the extent the factual allegation relied upon is the leaving on the front door of a notice threatening to evict plaintiff and her son if they did not pay defendant, it appears that such a claim, even if the notice stated a false reason for the notice, is based on conduct subject to the litigation privilege.”

Defendant argues that the SAC pleads that defendant violated Penal Code section 518, claiming that defendant is threatening to evict plaintiff if she does not pay, but that rather than lay the foundation for these causes of action, plaintiff makes unrelated claims against defendant. Defendant also argues that plaintiff has failed to allege that plaintiff has performed under the lease by paying rent.

As noted above, the allegations of this cause of action have not in fact been amended, so the cause of action continues to suffer from the deficiencies previously noted by the court, including that the cause of action is not stated separately from the extortion claim.

Specifically, the cause of action again refers to Penal Code section 518 and Penal Code section 422. [SAC, para. 25]. These sections do not pertain to evictions. Penal Code section 518 defines the crime of extortion, as set forth below. Penal Code section 422 sets forth the elements of the crime of criminal threats. These statutes do not involve eviction, so it is again not clear what plaintiff is claiming is the legal basis for the illegal eviction claim. Again, it does not appear that pressuring plaintiff to move out as alleged here was “illegal,” or wrongful.

To the extent the factual allegation relied upon is the leaving on the front door of a notice threatening to evict plaintiff and her son if they did not pay defendant, as the court previously noted in connection with the FAC, it appears that such a claim, even if the notice stated a false reason for the notice, is based on conduct subject to the litigation privilege. Civil Code § 47 provides that “a privileged publication or broadcast is one made:..(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law...” This privilege extends to all communications made by the litigants or their attorneys in furtherance of the objects of the litigation which have some logical relation to the action. Silberg v. Anderson (1990) 50 Cal. 3d 205, 214.

The California Supreme Court in Rusheen v. Cohen (2006) 37 Cal.4th 1048 took up several issues involving the litigation privilege and broadly held that the privilege extends not just to traditionally recognized “communications” but to communicative conduct such as the recording or filing of pleadings in pursuit of litigation:

“The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal. Rptr. 638, 786 P.2d 365] (Silberg).) Thus, "communications with 'some relation' to judicial proceedings" are "absolutely immune from tort liability" by the litigation privilege (Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [17 Cal. Rptr. 2d 828, 847 P.2d 1044] (Rubin)). It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (5 Witkin, Summary of Cal. Law, supra, Torts, §§ 470, 505, pp. 554, 591.)”

“Demurrer to the third cause of action for extortion is sustained on the further grounds that the cause of action is not separately stated but combined with the third cause of action for threats of illegal eviction. The cause of action also fails to sufficiently allege each element of an extortion claim, including that a threat was made by defendant that would have been extortionate. Moreover, to the extent the factual allegation relied upon is the leaving on the front door of a notice threatening to evict plaintiff and her son if they did not pay defendant, it appears that such a claim is based on conduct subject to the litigation privilege.”

“(a) Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”

“Extortion is the obtaining of property from another, with his consent … induced by a wrongful use of force or fear … .” (Pen. Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶] … [¶] 2. To accuse the individual threatened … of any crime; or, [¶] 3. To expose, or impute to him … any deformity, disgrace or crime[.]” (Pen. Code, § 519.) “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen. Code, § 523.)

Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal. App. 3d 1058, 1079 [267 Cal. Rptr. 457].)”

“(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.”

The SAC again fails to separately state the cause of action and it is not clearly alleged what threat was made that would have been extortionate, or which was not made during the course of giving required notice to commence an eviction proceeding, and so protected by the litigation privilege.

“Demurrer to the fourth cause of action for IIED is sustained on the further grounds that the cause of action states only conclusory statements that plaintiff suffered emotional distress “throughout being Harassed, Threatened, and pressured to submit to Extortion…,” and does not include in that cause of action facts supporting the characterization of the alleged conduct. [FAC, para. 28]. The cause of action fails to include facts supporting the essential element of such a cause of action that defendant engaged in extreme and outrageous conduct.”

Specifically, the cause of action continues to allege in conclusory fashion that plaintiff suffered emotional distress, “throughout being Harassed, Threatened, and pressured to submit to Extortion…” [SAC, para. 28]. There are no facts alleged supporting the characterization of the alleged conduct, and the cause of action does not even include a paragraph incorporating previous allegations by reference.

No facts are alleged in this cause of action to establish what was done to harass, threaten or extort plaintiff, and no facts are alleged in the cause of action which would implicate defendant in such conduct. The cause of action accordingly continues to fail to allege facts supporting the essential element of extreme and outrageous conduct engaged in by defendant to establish the essential element of an IIED cause of action.

Where a complaint is successfully challenged on demurrer, it is plaintiff’s burden to demonstrate how the complaint might by amended to cure it of the defect. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302:

“The law on this point is well settled. “If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742 [1 Cal.Rptr.2d 543, 819 P.2d 1]; accord, Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 [75 Cal.Rptr. 766, 451 P.2d 406] [appellant “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”]; Martin v. Thompson (1882) 62 Cal. 618, 622.)2 ACORN has not met this burden, saying nothing about how it would propose to amend the complaint to state a cause of action. No error is demonstrated.”

Plaintiff has failed to file timely opposition to the demurrer, so has failed to meet plaintiff’s burden of demonstrating how the complaint may be further amended to cure it of the numerous, previously identified defects. The court’s previous minute order expressly stated that plaintiff would be permitted “one final opportunity to amend the pleading to comply with this court’s orders…” Plaintiff has failed to sufficiently amend the complaint despite being given two previous opportunities to do so with the benefit of two demurrers and the detailed input of the court in two previous minute orders. Plaintiff in fact, appears to have affirmatively chosen not to amend the causes of action as permitted, and not to otherwise comply with this court’s orders.

Plaintiff has failed to comply with this Court’s orders of March 11, 2022 and June 17, 2022 to state each of the four causes of action separately, and to specify each fact supporting that cause of action in the cause of action itself, without incorporating by reference general allegations, rendering the causes of action uncertain and insufficient to state the causes of action relied upon.

Plaintiff has also failed to comply with this Court’s previous orders that each cause of action be based on recognized legal authority with respect to the specific cause of action and state each element necessary to establish entitlement to relief in connection with that cause of action. The deficiencies are more specifically discussed above.

Demurrer to the first cause of action for harassment is again sustained on the further grounds that the cause of action improperly states that foregoing allegations are incorporated, contrary to this court’s previous orders. In addition, to the extent plaintiff relies on the statutory authority pertaining to stalking, all elements of such a claim are again not alleged. Specifically, the cause of action fails to allege a pattern of conduct, a demand that defendant cease his pattern of conduct, or that plaintiff suffered substantial emotional distress. It is also not clearly alleged how defendant is responsible for the conduct of the two men which allegedly harassed or stalked plaintiff. To the extent the cause of action is based on the statute concerning theft, the cause of action fails to sufficiently state all elements of a civil conversion cause of action, including damages, and also fails to state facts showing that any alleged stealing was done by defendant, or how defendant could be otherwise liable for the conduct of others.

Demurrer to the second cause of action for threats of illegal eviction is sustained on the further grounds that the cause of action is not separately stated, but combined with the third cause of action for extortion. In addition, the only legal authorities cited in the cause of action do not pertain to eviction or actionable wrongdoing in connection with an eviction, so it is not clear under what legal authority plaintiff is seeking relief. It is also not clear what many of the allegations, such as alleged toxins in the premises, would have to do with the claimed illegal eviction attempts. It is in fact nowhere alleged that plaintiff was in fact evicted, let alone illegally. Moreover, to the extent the factual allegation relied upon is the leaving on the front door of a notice threatening to evict plaintiff and her son if they did not pay defendant, it appears that such a claim, even if the notice stated a false reason for the notice, is based on conduct subject to the litigation privilege.

Demurrer to the third cause of action for extortion is sustained on the further grounds that the cause of action again is not separately stated but combined with the third cause of action for threats of illegal eviction. The cause of action also fails to sufficiently allege each element of an extortion claim, including that a threat was made by defendant that would have been extortionate. Moreover, to the extent the factual allegation relied upon is the leaving on the front door of a notice threatening to evict plaintiff and her son if they did not pay defendant, it appears that such a claim is based on conduct subject to the litigation privilege.

Demurrer to the fourth cause of action for IIED is sustained on the further grounds that the cause of action states only conclusory statements that plaintiff suffered emotional distress “throughout being Harassed, Threatened, and pressured to submit to Extortion…,” and does not include in that cause of action facts supporting the characterization of the alleged conduct. [SAC, para. 28]. The cause of action fails to include or even incorporate facts supporting the essential element of such a cause of action that defendant engaged in extreme and outrageous conduct.

This is the third time plaintiff has failed to sufficiently allege these causes of action. Plaintiff has failed to correct the flaws in the pleading despite amending twice previously, and being permitted the opportunity to amend, with the guidance of two previous demurrers and this Court’s previous orders of March 11, 2022 and June 17, 2022. Plaintiff in the June 17, 2022 order was expressly cautioned that this would be the “final” opportunity to amend. Plaintiff has also failed to file timely opposition to the demurrer, so has failed to meet plaintiff’s burden of demonstrating how the pleading might be further amended to cure it of its defects. The demurrer is accordingly now sustained without further leave to amend.

Defendant to file a proper form of dismissal of this action with prejudice upon defendant’s oral motion to dismiss. The court will dismiss the entire action pursuant to CCP Section 581(f)(1) upon receipt of a written order from defendant’s counsel.

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