Judge: Stephen P. Pfahler, Case: 21CHCV00095, Date: 2022-09-21 Tentative Ruling

Case Number: 21CHCV00095    Hearing Date: September 21, 2022    Dept: F49

Dept. F-49

Date: 9-21-22

Case #21CHCV00095

DEMURRER

MOVING PARTY: Plaintiff/Cross-Defendant, Pacific Grove Association

RESPONDING PARTY: Defendants/Cross-Complainants, Henry and Veronica Martinez

RELIEF REQUESTED

Demurrer to the Cross-Complaint

·         1^st Cause of Action: Violation of the Fair Housing Act

·         2^nd Cause of Action: Negligence

·         3^rd Cause of Action: Breach of Governing Documents

SUMMARY OF ACTION

Plaintiff Pacific Grove Association governs a condominium association in Santa Clarita. Defendants Henry and Veronica Martinez own a unit within the association. Plaintiff alleges Defendants installed a nonconforming storage shed on their property in violation of the Covenants Codes and Restrictions, and refuse to remove it.

On February 9, 2021, Plaintiff filed its complaint for Breach of Written Contract, Violation of Restrictions, Nuisance, and Declaratory Relief. On March 30, 2021, the clerk entered a default. On September 15, 2021, the court granted Defendants’ motion to set aside the default. On October 8, 2021, Defendants answered. On October 12, 2021, Defendants filed a cross-complaint against Pacific Grove Association for Violation of the Fair Housing Act, Negligence, and Breach of Governing Documents.

On May 10, 2022, following a second consecutive non-appearance by Pacific Grove Association, the court ordered the complaint dismissed, the dismissal of Henry and Veronica Martinez, and an entry of default on the cross-complaint. On June 29, 2022, the court granted the ex parte order to vacate the dismissal, reinstate the complaint, and vacate the default on the cross-complaint.

RULING: Sustained with Leave to Amend.

Plaintiff/Cross-Defendant Pacific Grove Association (Pacific Grove) submits a demurrer to the Martinez cross-complaint for Violation of the Fair Housing Act, Negligence, and Breach of Governing Documents. Pacific Grove challenges the cross-complaint on grounds that the entire pleading is barred by the litigation privilege and the individual causes of action lacks facts in support.  No opposition has been filed.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.

Litigation Privilege

“The litigation privilege in section 47 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.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4^th 350, 375.) Paragraph 12 the cross-complaint alleges: “The suit filed in this case to which this cross-complaint is directed, was initiated based on discriminatory practices or establishes a de fact discriminatory pattern.”

The plain language of the cross-complaint indicates the filing of the subject pleading in direct response to the filing of the underlying complaint. Said allegation directly indicates an action based on an underlying privileged activity. The demurrer is therefore sustained.

1^st Cause of Action: Violation of the Fair Housing Act

Pacific Grove challenges the cross-complaint on grounds that the complaint fails to allege a basis of protected status, and conduct directed towards cross-complainants on this basis. The Fair Housing Act bars discriminatory treatment 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…” (See Gov. Code, § 12955.)

Other than a general statement of the law, nothing in the cross-complaint alleges a basis of protected status and conduct specifically occurring as a result of this basis. The demurrer is sustained.

2^nd Cause of Action: Negligence

Pacific Grove challenges the cross-complaint on grounds that the complaint lacks a basis of negligence arising from alleged discriminatory conduct. The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) Other than recitation of the elements, and incorporation of the defective discrimination claim, the court finds no basis of negligence. The demurrer is sustained.

3^rd Cause of Action: Breach of Governing Documents

Pacific Grove challenges the subject claim on grounds that given it relies on a governing set of documents, said agreement should be treated as a contract. The cross-complaint insufficiently articulates the terms.

“To state a cause of action for breach of contract, [a plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage. (Citation.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Citation.)” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458–59.) In examining a breach of contract claim, the court is required to examine the terms, or at least the legal effect of the contract. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [“we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context”]; Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198–199 [“In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language”].)

The cross-complaint lacks a summary of any terms, and a specific basis for any violation. Cross-Complainants also incorporate the defective discrimination claim. The demurrer is sustained.

In summary, the demurrer is sustained with 30 days leave to amend. If cross-complainants fail to timely file the amended pleading, Pacific Grove may appear ex parte for dismissal of the cross-complaint.

Moving party to give notice.