Judge: Stephen I. Goorvitch, Case: 21STCV28966, Date: 2022-08-31 Tentative Ruling

Case Number: 21STCV28966    Hearing Date: August 31, 2022    Dept: 39

Scott Erickson, et al. v. Bartlett Loft

Case No. 21STCV28966

Demurrer and Motion to Strike

INTRODUCTION

            Plaintiffs Scott Erickson and Ryan Erickson (collectively, “Plaintiffs”) filed this action against Bartlett Loft (“Defendant”) asserting the following causes of action in the first amended complaint:

            1.         Breach of governing documents

            2.         Breach of fiduciary duties

            3.         Breach of covenant of good faith and fair dealing

            4.         Breach of covenant of quiet enjoyment

            5.         Negligence

            6.         Harassment

            7.         Intentional infliction of emotional distress

            8.         Negligent infliction of emotional distress

            9.         Discrimination under federal law

            10.       Discrimination under the Unruh Civil Rights Act

            11.       Discrimination under FEHA

Now, Defendant demurs to the second, fourth, seventh, eighth, ninth, tenth, and eleventh causes of action.  Defendant also moves to strike the prayer for punitive damages and related allegations, as well as the prayers for injunctive relief and sanctions. 

PLAINTIFFS’ ALLEGATIONS

            Plaintiffs are spouses and own a residential unit governed by Defendant, a homeowners’  association.  (First Amended Complaint, ¶¶ 3-4.)  Plaintiff Ryan Erickson resides at the unit, but Plaintiff Scott Erickson does not.  (Id., ¶ 3.)  Plaintiffs allege that Defendant “has targeted the Plaintiffs and engaged in selective enforcement of the Governing Documents to Plaintiffs’ financial and emotional detriment most notable since the beginning of 2019.”  (Id., ¶ 14.)  Plaintiffs allege that the building manager, Peter Ong, failed to address at least 26 written incident reports, including “harassing, disturbing, threatening, intimidating, slandering, and racially discriminating behavior” by another tenant, Christopher Tripp.  (Id., ¶ 15.)  Plaintiffs allege that Tripp made a series of racist and obscene comments to Plaintiff Ryan Erickson.  (Ibid.)  Plaintiffs also allege that Ong failed to address Tripp’s illegal activities, including suspected drug use and/or drug trafficking.  (Ibid.)  Plaintiffs allege that Ong failed to address Plaintiffs’ reasonable repair requests that led to overcharges and verbal harassment by Defendant’s repairman, Mr. Stivers, in addition to failing to repair holes from cameras Tripp installed, which subjected Plaintiff Ryan Erickson to exposure to toxic fumes.  (Ibid.)  Plaintiffs allege that they were denied use and enjoyment of the unit.  (Id., ¶ 15.)  Plaintiffs allege that “Plaintiff Ryan Erickson is a gay African-American male and femme, and as a result of Plaintiff Ryan Erickson’s race and gender identity, Defendants discriminated against Plaintiffs and failed to reasonably act on Plaintiffs’ repeated complaints and concerns.”  (Id., ¶ 20.) 

LEGAL STANDARD

A.        Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)  However, courts do not accept as true deductions, contentions, or conclusions of law or fact.  (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)  The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  

            B.        Motion to Strike

Courts may, upon a motion, or at any time in their discretion, and upon terms they deem proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) Courts may also strike 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. (Id., § 436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., §¿437.)  

DISCUSSION      

            A.        Timeliness

            Plaintiffs argue that the first amended complaint was served on April 7, 2022, and represent that the deadline for responsive pleadings was May 16, 2022.  (See Declaration of Blake S. Slater, Exh. A.)  But after this deadline, the parties were discussing a potential second amended complaint, and the record suggests the deadline was extended.  (See ibid.; see also Declaration of Kumar S. Raja, ¶¶ 4-11.)  Putting that aside, Plaintiffs oppose the demurrer on the merits, waiving any procedural objection.  (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 826.)  Finally, even if the Court overruled the demurrer, the order would be without prejudice to Defendant filing a motion for judgment on the pleadings, which would raise the same issues.  Therefore, the Court decides the demurrer on the merits. 

            B.        Second Cause of Action

Plaintiff’s second cause of action is for breach of fiduciary duty.  To state a claim for breach of fiduciary duties, Plaintiff must allege facts showing that the parties had a confidential, fiduciary relationship.  (Zumbrun v. Univ. of So. Cal. (1972) 25 Cal.App.3d 1, 13.)  Here, Plaintiffs allege that they were members of Defendant’s association.  (First Amended Complaint, ¶ 30.)  A homeowners’ association owes a fiduciary duty to its members over the matters for which they are responsible, e.g., “public-service functions” such as “maintenance and repair of public areas and utilities, street and common area lighting [and] sanitation and the regulation and enforcement of zoning ordinances.”  (Cohen v. Kite Hill Community Association (1983) 142 Cal.App.3d 642, 650-651, citation omitted.)  Plaintiffs cite no factual or legal authority suggesting that Defendant has a fiduciary duty concerning conflicts amongst neighbors or the other issues raised.  Therefore, the Court sustains the demurrer to the second cause of action with leave to amend.

C.        Fourth Cause of Action  

Plaintiff’s fourth cause of action is for breach of the covenant of quiet enjoyment.  To state a claim for breach of the covenant of quiet enjoyment, Plaintiffs must allege that Defendant leased property to Plaintiffs and that there was a wrongful eviction.  (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-591; see also Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 897-898.)  Plaintiffs concede that Defendant did not lease property to Plaintiffs.  (First Amended Complaint, ¶ 45.)  Therefore, the Court sustains the demurrer to the fourth cause of action without leave to amend.

D.        Seventh Cause of Action

Plaintiff’s seventh cause of action is for intentional infliction of emotional distress.  “The elements of 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.  The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001, internal quotations and citations omitted.)  Plaintiffs allege that Defendant failed to address their complaints and Tripp’s alleged misconduct.  This does not suggest intentional conduct that satisfies the pleading standard.  Therefore, the Court sustains the demurrer to the seventh cause of action with leave to amend.

E.         Eighth Cause of Action

Plaintiff’s eighth cause of action is for negligent infliction of emotional distress.  There is no independent claim for negligent infliction of emotional distress, as it is part of a claim for negligence (which is Plaintiff’s fifth cause of action).  (See Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377.)  Therefore, the Court sustains the demurrer to the eighth cause of action without leave to amend.

F.         Ninth, Tenth, and Eleventh Causes of Action

Plaintiff’s ninth, tenth, and eleventh causes of action alleges discrimination under the Federal Fair Housing Act, the Unruh Civil Rights Act, and the Fair Employment and Housing Act, respectively.  Plaintiffs’ allegations are sufficient.  Plaintiffs allege that Defendant “discriminate[d] against [Plaintiffs] . . .  in the provision of services or facilities in connection” with their residence “because of race, color, religion, sex, familial status, or national origin.”  (42 U.S.C.A. § 3604, subd. (b).)  This is sufficient under federal law.  Plaintiffs allege that Defendant is a business establishment that intentionally denied Plaintiffs full and equal accommodations, advantages, facilities, privileges, or services based on Cross-Complainant’s sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation.  (Civ. Code, § 51, subd. (b).)  This is sufficient under the Unruh Civil Rights Act, as well as FEHA.  Therefore, the demurrer is overruled with respect to the ninth, tenth, and eleventh causes of action. 

G.        Indispensable Parties

Defendant argues that Plaintiff has failed to name Tripp and his landlord, Lauren and Amit Tidhar, which necessitates dismissal.  Defendant contends these are indispensable parties.  Code of Civil Procedure section 389, subdivision (a) defines a necessary party as a person in whose “absence complete relief cannot be accorded among those already parties . . . ,” or a person who “claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”  (Code Civ. Proc., § 389, subd. (a).)  “Joinder is required only when the absentee's nonjoinder precludes the court from rendering complete justice among those already joined . . . ,” and any effects upon future litigation or the absent party are immaterial.  (Countrywide Home Loans v. Superior Court (1999) 69 Cal. App. 4th 785, 794.)  Defendant does not explain why the Court cannot afford relief between Plaintiffs and Defendant without joining additional parties.  As such, this is not a proper basis for the Court to sustain a demurrer.  Defendant may seek leave to file a cross-complaint against these parties if necessary and appropriate.

H.        Motion to Strike

Defendant also moves to strike Plaintiffs’ prayer for punitive damages.  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud or malice.  (Civ. Code, § 3294, subd. (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. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”  (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted.)

In this case, Plaintiffs allege facts suggesting that Tripp acted with malice.  But Plaintiffs allege no such facts against Defendant.  Therefore, the Court grants Defendant’s motion to strike with respect to the prayer for punitive damages,  The Court also grants the motion to strike Plaintiffs’ requests for sanctions, declaratory, injunctive, and specific relief, because these prayers are not supported by Plaintiffs’ allegations.

CONCLUSION AND ORDER

            The Court orders as follows:

            1.         The Court sustains Defendant’s demurrer to the fourth and eighth causes of action without leave to amend.

            2.         The Court sustains Defendant’s demurrer to the second and seventh causes of action with leave to amend.

            3.         The Court overrules Defendant’s demurrer with respect to the ninth, tenth, and eleventh causes of action.

            4.         The Court grants Defendant’s motion to strike with leave to amend.

            5.         Plaintiffs shall file an amended complaint within thirty (30) days.

            6.         Defendant’s counsel shall provide notice and file proof of such with the Court.