Judge: Stephen I. Goorvitch, Case: 22STCV15212, Date: 2022-09-27 Tentative Ruling

Case Number: 22STCV15212    Hearing Date: September 27, 2022    Dept: 39

Trevor Hayward v. Manhattan Construction, LLC, et al.

Case No. 22STCV15212

Demurrer and Motion to Strike

INTRODUCTION

            Plaintiff Trevor Hayward (“Plaintiff”) filed this action against Manhattan Construction, LLC and Reza Irani (collectively, “Defendants”), asserting five causes of action: (1) Violation of the Unruh Civil Rights Act, (2) Violation of the California Disabled Persons Act, (3) Violation of the Fair Employment and Housing Act (“FEHA”) based upon a disability, (4) Retaliation in violation of FEHA, and (5) Breach of Contract.  Defendants demur to the first amended complaint and move to strike the prayers for attorney’s fees, prejudgment interest, and punitive damages. 

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

            The first, second, and third causes of action seem to allege that Defendants attempted to evict Plaintiff because of his “symptoms of long Covid,” which include “memory loss, brain fog, chronic fatigue, exhaustion, loss of taste and smell, nausea, depression, ringing ears and hair loss.”  (First Amended Complaint, ¶ 21.)  Plaintiff alleges that he contracted COVID-19 on or about January 19, 2021, but he concedes that Defendants were attempting to evict him long before that date based upon alleged non-payment of rent and their desire to develop the property into condominiums.  (First Amended Complaint, ¶¶ 15-20.)  Therefore, the demurrer is sustained to these causes of action with leave to amend.

            The fourth cause of action asserts a claim for retaliation under FEHA.  Plaintiff alleges that he filed a complaint for discrimination and retaliation with the Department of Fair Employment and Housing on April 27, 2022.  (First Amended Complaint, ¶ 28.)  Plaintiff alleges that Defendants served a three-day notice to vacate two days later in retaliation for this compliant.  (Ibid.)  These allegations are sufficient for pleading purposes, and the demurrer to the fourth cause of action is overruled.

            The fifth cause of action asserts a claim for breach of contract.  Plaintiff alleges that Defendants breached the lease by failing to resolve a rodent infestation and mold in the laundry room, and by removing the washer and dryer.  (First Amended Complaint, ¶ 67.)  Plaintiff alleges that he fully performed under the lease except with respect to those obligations that were excused by virtue of the pandemic or Defendants’ breaches.  (First Amended Complaint, ¶ 66.)  These alleges are sufficient for pleading purposes, and the demurrer to the fifth cause of action is overruled. 

            Defendants also move to strike the prayer for attorney’s fees, prejudgment interest, and punitive damages.  The motion to strike is denied with respect to attorney’s fees and punitive damages.  Plaintiff is not entitled to attorney’s fees under Code of Civil Procedure section 1021.5 because he seeks enforcement of a private right and not one that will benefit the public at large.  Nor is Plaintiff entitled to attorney’s fees under Government Code section 3260, which applies to firefighters.  Nevertheless, he may be entitled to attorney’s fees under FEHA.  (Gov. Code, § 12965(c)(6).) 

Similarly, Plaintiff pleads sufficient facts to seek 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.)  Plaintiff alleges that Defendants retaliated against Plaintiff for filing a complaint with the Department of Fair Employment and Housing, and the first amended complaint alleges related harassment.  This is sufficient for pleading purposes. 

However, the motion to strike is granted with respect to the prayers for prejudgment interest and punitive damages.  Per Civil Code section 3287, “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt.”  (Civ. Code § 3287, subd. (a).)  “Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.”  (Esgro Central, Inc. v. General Ins. Co. (1971) 20 Cal.App.3d 1054, 1060.)  In the complaint, Plaintiff seeks damages according to proof at trial.  Plaintiff thus concedes that the damages he seeks are not certain or capable of being made certain such that prejudgment interest is warranted.  

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

            1.         Defendants’ demurrer is sustained with respect to the first, second, and third causes of action.

            2.         Defendants’ demurrer is overruled with respect to the fourth and fifth causes of action.

            3.         Defendants’ motion to strike is granted with respect to the prayer for prejudgment interest.

            4.         Defendants’ motion to strike is denied with respect to the prayers for attorney’s fees and punitive damages.

            5.         Plaintiff may file a second amended complaint within thirty (30) days.

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