Judge: Randy Rhodes, Case: 21STCV38711, Date: 2023-03-06 Tentative Ruling
Case Number: 21STCV38711 Hearing Date: March 6, 2023 Dept: F51
Dept. F-51¿
Date: 3/6/23
Case #21STCV38711
¿
DEMURRER
Demurrer without Motion
to Strike Filed: 9/16/22
MOVING PARTY: Defendants
Tri Pointe Homs IE-SD, Inc., fka Pardee Homes; Craig Schwartz; Gary Chrakian,
and Kathy Magner (collectively, “Defendants”)
RESPONDING PARTY: Plaintiffs
Jane Doe and Jean Doe (collectively, “Plaintiffs”)
NOTICE: OK
RELIEF REQUESTED: An
order sustaining Defendants’ demurrer to Plaintiffs’ entire first amended
complaint (“FAC”) without leave to amend.
RECOMMENDED RULING: The
demurrer is sustained without leave to amend.
BACKGROUND
Plaintiffs
are members of the LGBTQ community who are registered under the California
“Safe at Home” program, as set forth in Government Code section 6205 et seq.,
which, inter alia, provides survivors of domestic violence with confidentiality
in their names and addresses. (FAC ¶¶ 4, 6.)
On or about
9/9/20, Plaintiff Jane Doe allegedly entered into a real estate purchase and
sale agreement for a single family home. (Id., ¶ 5.) Following the
purchase, Plaintiffs notified Defendants twice, in writing, that they were
registrants under the Safe at Home program, and “specifically requested that
Plaintiffs’ name and address not be recorded, and instead that Defendants comply
with the requirements of the Program.” (Id., ¶ 6.) Thereafter,
Defendants allegedly “proceeded to file public records reflecting Plaintiff’s
personal name and associating her name with the address of the Property.” (Id.,
¶ 7.)
On
10/20/21, Plaintiffs filed their original complaint, alleging against 11 named
defendants the following causes of action: (1) Violation of Business and
Professions Code section 17200; (2) Negligence; and (3) Violation of Government
Code section 6208.1.
On 7/13/22,
the Court sustained a demurrer to Plaintiffs’ complaint sustained with leave to
amend. On 8/17/22, Plaintiffs filed their FAC, alleging against the same 11
named defendants the same causes of action, with an additional cause of action
for (4) Violation of Unruh Civil Rights Act.
On 9/16/22,
Defendants filed the instant demurrer. No opposition has been filed to date.
ANALYSIS
Meet-and-Confer
Before filing its demurrer, “the demurring party shall meet
and confer in person or by telephone with the party who filed the pleading that
is subject to demurrer for the purpose of determining whether an agreement can
be reached that would resolve the objections to be raised in the demurrer.”
(Code Civ. Proc. § 430.41, subd. (a).) If the parties are unable to meet and
confer at least five days before the responsive pleading is due, that deadline
may be extended by 30 days if “a declaration stating under penalty of perjury
that a good faith attempt to meet and confer was made and explaining the
reasons why the parties could not meet and confer” is filed and served. (Ibid.)
Defendants’ counsel declares that on 9/1/22, he wrote to
Plaintiffs’ counsel asking to speak via telephone regarding the issues raised
in the demurrer. (Decl. of Terry Kent, ¶ 3.) The Court notes that Defendants’
counsel does not specify the number of calls made to Plaintiffs’ counsel, nor
the dates he made those calls. Nevertheless, the Court finds that Defendants’
counsel has satisfied the preliminary meet and confer requirements of
Code of Civil Procedure section 430.41, subdivision (a).
Legal Standard
As a general matter, a party may respond to a pleading
against it by demurrer on the basis of any single or combination of eight
enumerated grounds, including that “the pleading does not state facts
sufficient to constitute a cause of action” and is uncertain, meaning
“ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and
(f)). A demurrer for uncertainty may be sustained when a defendant cannot
reasonably determine what it is required to respond to; for example, when a
plaintiff … fails to state against which party each cause of action is asserted
if there are multiple defendants. (Williams v. Beechnut Nutrition Corp.,
185 Cal.App.3d 135, 139 fn.2.)
In a demurrer proceeding, the defects must be apparent on
the face of the pleading or via proper judicial notice.¿(Donabedian v.
Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the
pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes
the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.)
The only issue a demurrer is concerned with is whether the complaint, as it
stands, states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.)
Here,
Defendants demur to each cause of action alleged in Plaintiffs’ FAC on the
grounds that (1) Plaintiffs fail to allege facts sufficient to state any of
their alleged causes of action, and (2) each cause of action alleged is
uncertain, pursuant to Code of Civil Procedure section 430.10, subdivisions (e)
and (f).
1.
Unfair Business Practices
Plaintiffs’ first cause of action alleges
that Defendants violated Business and Professions Code section 17200 et seq.
(the “UCL”). To set forth a claim for unfair business practices in violation of
the UCL, a plaintiff must establish that the defendant was engaged in an
“unlawful, unfair or fraudulent business act or practice and unfair, deceptive,
untrue or misleading advertising” and certain specific acts. (Bus. & Prof.
Code, § 17200.)
“In essence, an action based on Business
and Professions Code section 17200 to redress an unlawful business practice
‘borrows’ violations of other laws and treats these violations, when committed
pursuant to business activity, as unlawful practices independently actionable
under section 17200 et seq. and subject to the distinct remedies provided
thereunder.” (People ex rel. Bill Lockyer v. Fremont Life Ins. Co.
(2002) 104 Cal.App.4th 508, 515.) “The test of whether a business practice is
‘unfair’ for purposes of the Act involves an examination of [that practice's]
impact on its alleged victim, balanced against the reasons, justifications and
motives of the alleged wrongdoer. In brief, the court must weigh the utility of
the defendant's conduct against the gravity of the harm to the alleged victim.”
(People v. Duz-Mor Diagnostic Lab. (1998) 68 Cal.App.4th 654, 662.)
“‘Fraudulent,’ as used in the statute, does not refer to the common law tort of
fraud but only requires a showing members of the public ‘are likely to be
deceived.’” (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.)
Here, Plaintiffs allege that Defendants’ “failure
to comply with Plaintiffs’ written notice to comply with the requirements of
the [Safe at Home] Program constituted unlawful, unfair, misleading and
fraudulent conduct prohibited by Section 17200 et seq.” (FAC ¶ 8.)
To the extent that Plaintiffs intend to
“borrow” a violation of the Safe at Home program (Gov. Code § 6205 et seq.) to
show an unlawful business practice under the UCL, this cause of action fails.
As set forth below, Plaintiffs have not sufficiently alleged facts to support a
cause of action against Defendants for a violation of Government Code section
6208.1, subdivision (b)(1) because they have not articulated factual
allegations to support their claim, such as what the alleged violative posting
was or where it was posted.
To the extent that Plaintiffs intend to
allege a violation of the Unruh Civil Rights Act (Civil Code section 51) as an
unlawful business practice under the UCL, this argument similarly fails for
reasons set forth below in the Court’s discussion regarding Plaintiff’s fourth
cause of action.
Accordingly,
Plaintiffs have failed to assert facts sufficient to state a viable cause of
action for unlawful business practices under the UCL.
2.
Negligence
Plaintiffs allege in their second cause of
action that Defendants acted negligently when they violated their statutory
duty under the Safe at Home program and Unruh Civil Rights Act by filing public
records containing Plaintiffs’ name and address. (FAC ¶¶ 12–13.) To state a
claim for negligence, a 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.) “Statutes may be borrowed in the
negligence context for one of two purposes: (1) to establish a duty of care, or
(2) to establish a standard of care.” (Elsner v. Uveges (2004) 34
Cal.4th 915, 927, fn. 8.) Breach occurs when defendant's conduct falls below
the standard of care established by law for the protection of others, which
includes the violation of a statute. (Rest.2d Torts § 282; Evid. Code § 669,
subd. (a)(1).)
The Safe at Home program prohibits any
person and/or entity from knowingly and intentionally disclosing protected
information about a participant’s name and home address. (Gov. Code § 6205 et
seq.) As the Court previously found, Plaintiffs have sufficiently alleged a
basis of duty based on the statute’s general imposition on all
persons/entities. (7/13/22 Minute Order, p. 6.) Plaintiffs allege that
Defendants breached this statutory duty of care by “proceeding to publicly
display, record, and disseminate Plaintiffs’ address names and telephone
numbers in violation of the Program.” (FAC ¶ 15.) However, as set forth below,
Plaintiffs fail to articulate the facts detailing the specific violation of the
statute.
The Act entitles all persons within the
jurisdiction of the state “the full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments of every
kind whatsoever.” (Civ. Code § 51, subd. (b).) Here,
as Defendants observe, “the FAC does not allege what specific business service
provided by Defendants was allegedly sought by the Plaintiffs and denied to the
Plaintiffs by Defendants.” (Dem. 5:17–19.)
Therefore,
Plaintiffs have not sufficiently alleged that Defendants breached their
statutory duties of care under the Safe at Home program and the Unruh Civil
Rights Act. Accordingly, Plaintiffs have failed to sufficiently state facts to
allege a cause of action against Defendants for negligence.
3.
Violation
of Gov. Code 6208.1
Plaintiffs’ third cause of action alleges
that Defendants violated Government Code section 6208.1 by “proceeding to
publicly post, display, record, and disseminate Plaintiffs’ address names and
telephone numbers.” (FAC ¶ 15.) Under the statute, “no person, business, or
association shall knowingly and intentionally publicly post or publicly display
on the Internet the home address or home telephone number of a participant if
that individual has made a written demand of that person, business, or
association to not disclose his or her home address or home telephone number. A
demand made under this paragraph shall include a sworn statement declaring that
the person is subject to the protection of this section and describing a
reasonable fear for the safety of that individual or of any person residing at
the individual’s home address.” (Gov. Code § 6208.1, subd. (b)(1).)
Here, as Defendants observe, “the FAC makes no
allegation that any of the Defendants publicly posted or publicly displayed any
information on the Internet that section 6208.1 includes.” (Dem. 6:5–7.) Because the pleading contains no
factual allegations regarding what the alleged violative posting was, nor when
it occurred, nor who posted it, the Court cannot ascertain whether the alleged
post was made “knowingly and intentionally.” (Gov. Code § 6208.1, subd.
(b)(1).) It
is therefore unclear whether Plaintiffs may bring a cause of action under
Government Code section 6208.1, subdivision (b)(1).
Accordingly, Plaintiffs’ third cause of
action for violation of Government Code section 6208.1, subdivision (b)(1)
fails for lack of certainty.
4.
Violation
of Unruh Civil Rights Act
Plaintiffs allege in their fourth cause of
action that Defendants violated the Unruh Civil Rights Act when Defendants
“violated the provisions of the Safe at Home Program due in substantial part
because Defendants and each of them were acting with intent to discriminate
against Plaintiffs due to their LGBTQ status.” (FAC ¶ 18.)
As discussed above, Defendants argue that
Plaintiffs’ cause of action fails because Plaintiffs have failed to state facts
asserting what business services they were denied by Defendants. As to the
individual demurring Defendants, “the FAC is uncertain as to exactly which
business establishment is supposedly connected to these three individuals. It
is impossible to connect the individuals to the specific denial of service if
the FAC does not contain an allegation connecting the individuals to a business
establishment.” (Dem. 4:6–9.) As to the institutional demurring Defendant, “the
FAC remains defective because, as above, the FAC lacks any allegation of what
business accommodation or service Tri Pointe Homes IESD, Inc. performed which
was denied to Plaintiffs.” (Id. at 4:18–19.)
Accordingly, Plaintiffs have failed to
state facts sufficient to support a cause of action against Defendants for a
violation of the Unruh Rights Act (Civil Code section 51).
5.
Leave
to Amend
Where a demurrer is sustained, leave to
amend must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) “It is proper
to sustain a demurrer without leave to amend if it is probable from the nature
of the defects and previous unsuccessful attempts to plead that plaintiff
cannot state a cause of action.” (Cal. Civ. Courtroom Handbook § 11:27.) The
burden is on the plaintiff to show the court that a pleading can be amended
successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th
118, 226.) However, “[i]f there is any reasonable possibility that the
plaintiff can state a good cause of action, it is error to sustain a demurrer
without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70
Cal.2d 240, 245). “
Here, Plaintiffs have not filed any opposition
to the demurrer. Plaintiffs failed to amend their original complaint to
allege additional facts to support their causes of action as previously ordered
by the Court. Because Plaintiffs
have failed to make any showing that their FAC may be amended successfully, the
Court denies leave to amend.
CONCLUSION
The demurrer is sustained
without leave to amend.