Judge Stephen P. Pfahler, Case 22CHCV00734 2023-01-26 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 22CHCV00734, Date: 2023-01-26 Tentative Ruling

Case Number: 22CHCV00734 Hearing Date: January 26, 2023 Dept: F49

Dept. F-49

Date: 1-26-23

Case # 22CHCV00734

Trial Date: Not Set

DISMISSAL

MOVING PARTY: Defendants, Nasch Properties, et al.

RESPONDING PARTY: Plaintiff, Michael Perry

RELIEF REQUESTED

Motion to Dismiss Plaintiff Michael Perry

SUMMARY OF ACTION

Plaintiffs Michael Perry and Ashley Anderson reside in an apartment building owned and/or managed by Defendant Nasch Properties, LLC. The assigned property manager on the premises is identified as defendant Charly Taylor.

On May 7, 2022, Anderson alleges a co-tenant in the building, defendant Stanley Nathanson, committed a sexual assault and attempted within the apartment building laundry room common area. Plaintiffs submitted a complaint with property manager Taylor, but allege defendant landlords refused to conduct any independent investigation and/or seek eviction of Nathanson. Instead, on August 17, 2022, Plaintiffs were served with a three day notice to quit. Plaintiffs additionally allege the interruption of “essential services,” such as hot water.

On September 7, 2022, Plaintiffs, in pro per, filed their complaint for “stay of unlawful detainer, restitution, civil penalties, preliminary and permanent injunction, and other equitable relief Business & Professions Code [section] 17200.” The 18 individual causes of action are listed as Sexual Harassment in Violation of California Civil Code section 51.9; Sexual Assault and Harassment … in Violation of California Civil Code section 51.9; Color, Race and Sex-Based Discrimination Based on Status as Sexual Assault Victim; Violation of RALPH Act California Civil Code section 51.7; Interference with Exercise of Civil Rights in Violation of Bane Act, California Civil Code section 52.1, Retaliation; Discrimination prohibited by the 14^th Amendment; Breach of Duty to Protect Tenants from Foreseeable Crimes; Strict Liability under Special Relationship Doctrine; Gender Violence; Negligent Infliction of Emotional Distress; Negligence and Failure to Disclose Tenants Criminal Propensities; Negligent Refusal of Landlord to Investigate and Screen Prospective Tenants; Intentional Infliction of Emotional Distress; Unfair Competition under Business and Professions Code section 17200; Defamation; Breach of Contract; and, Claim for Declaratory and Injunctive Relief.

On October 24, 2022, the court denied the ex parte application to stay the pending unlawful detainer case in Department 44. The court also denied the ex parte order for a restraining order.

RULING: Granted.

Defendants Nasch Properties, LLC and Charly Taylor move to dismiss Plaintiff Michael Perry, due to the filing of a complaint as a vexatious litigation without prior leave of court. On April 27, 2010, Moshe Perry aka Michael Perry was deemed a vexatious litigant (PC044679). (Moving parties also allege that Michael Perry has been deemed a vexatious litigating by the Second Appellate District (B2157857) though said order is not dispositive on the instant motion.)

Perry in opposition submits 24 pages of points and authorities regarding purported standards for vexatious litigants; opinions as to the conduct and integrity of defense counsel; accusations of racial discrimination by landlord; challenges to the conduct of unlawful detainer counsel; and, an argument for the right to proceed with the subject case combined with a denial that Perry did not actually “file” the subject action, as it was actually presented to the clerk’s office for filing by Ashlie Anderson. The 24 pages of points and authorities exceeds the 15 page limit. (Cal. Rules of Court, rule 3.1113(d).) The court in its discretion considers the arguments.

Defendants in reply deny any waiver of the right to seek dismissal based on vexatious litigant status. Defendants reiterate the basis of the motion based on the prior conduct of Perry, and the lack of leave to file the subject action. Finally, Defendants note the motion only applies to Perry and in no way addresses Anderson.

“(a) In addition to any other relief provided in this title, the court may, on its own motion or the motion of any party, enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court.

“(b) The presiding justice or presiding judge shall permit the filing of that litigation only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding justice or presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.

“(c) The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order as set forth in subdivision (a). The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation as set forth in subdivision (b). If the presiding justice or presiding judge issues an order permitting the filing, the stay of the litigation shall remain in effect, and the defendants need not plead, until 10 days after the defendants are served with a copy of the order.”

(Code Civ. Proc., § 391.7, subd. (a-c).)

Notwithstanding the vexatious litigant order, and arguments in opposition, MICHAEL PERRY, IN PRO PER, IS A NAMED PARTY ON THE COMLAINT AND THEREFORE CO-FILED THE SUBJECT ACTION ON SEPTEMBER 7, 20222 WITHOUT PRIOR LEAVE OF THE COURT. On November 18, 2022, the court DENIED the request of Michael Perry to file the subject new action. The request for leave was untimely filed, and denied either way. The motion to DISMISS Perry is therefore GRANTED WITH PREJUDICE. Michael Perry is dismissed from the entire subject case. Only plaintiff Ashley Anderson may proceed.

Continued violation of the vexatious litigation statutes may subject Perry to a future contempt hearing.

Defendants to provide notice.

Dept.
F-49

Date: 1-26-23

Case
# 22CHCV00734

Trial
Date: Not Set

DEMURRER

MOVING
PARTY: Defendant, Nasch Properties

RESPONDING
PARTY: Plaintiff, Ashley Anderson

RELIEF
REQUESTED

Demurrer
to the Complaint

Motion
to Strike

SUMMARY
OF ACTION

Plaintiffs Michael
Perry and Ashley Anderson reside in an apartment building owned and/or managed
by Defendant Nasch Properties, LLC. The assigned property manager on the
premises is identified as defendant Charly Taylor.

On May 7, 2022,
Anderson alleges a co-tenant in the building, defendant Stanley Nathanson,
committed a sexual assault and attempted within the apartment building laundry
room common area. Plaintiffs submitted a complaint with property manager Taylor,
but allege defendant landlords refused to conduct any independent investigation
and/or seek eviction of Nathanson. Instead, on August 17, 2022, Plaintiffs were
served with a three day notice to quit. Plaintiffs additionally allege the
interruption of “essential services,” such as hot water.

On September 7,
2022, Plaintiffs, in pro per, filed their complaint for “stay of unlawful
detainer, restitution, civil penalties, preliminary and permanent injunction,
and other equitable relief Business & Professions Code [section] 17200.”
The 18 individual causes of action are listed as Sexual Harassment in Violation
of California Civil Code section 51.9; Sexual Assault and Harassment … in
Violation of California Civil Code section 51.9; Color, Race and Sex-Based
Discrimination Based on Status as Sexual Assault Victim; Violation of RALPH Act
California Civil Code section 51.7; Interference with Exercise of Civil Rights
in Violation of Bane Act, California Civil Code section 52.1, Retaliation;
Discrimination prohibited by the 14^th Amendment; Breach of Duty to
Protect Tenants from Foreseeable Crimes; Strict Liability under Special
Relationship Doctrine; Gender Violence; Negligent Infliction of Emotional
Distress; Negligence and Failure to Disclose Tenants Criminal Propensities; Negligent
Refusal of Landlord to Investigate and Screen Prospective Tenants; Intentional
Infliction of Emotional Distress; Unfair Competition under Business and
Professions Code section 17200; Defamation; Breach of Contract; and, Claim for
Declaratory and Injunctive Relief.

On October 24,
2022, the court denied the ex parte application to stay the pending unlawful
detainer case in Department 44. The court also denied the ex parte order for a
restraining order.

RULING

Demurrer: Sustained with Leave to Amend

Defendant
Nasch Properties, LLC submits a demurrer to the entire complaint on grounds of
failure to state any causes of action. Plaintiff
in opposition submit 32 pages of points and authorities challenging the actual
propriety of the filing of the demurrer, and contends each and every of the 18
causes of action properly states a claim. Defendant in reply argues the late
filed opposition should be disregarded by the court. Defendant reiterates the
factual insufficiency basis of the demurrer. Defendant raises a new argument
regarding the improper service of Nasch, and contends the demurrer is timely.

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.)

“A demurrer for uncertainty is strictly
construed, even where a complaint is in some respects uncertain, because
ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139 [“[U]nder our liberal
pleading rules, where the complaint contains substantive factual allegations
sufficiently apprising defendant of the issues it is being asked to meet, a
demurrer for uncertainty should be overruled or plaintiff given leave to
amend.]

The requested default(s)
submitted by Plaintiffs were not entered by the clerk, and the demurrer was
subsequently accepted for filing. The court therefore finds the demurrer timely
and considers the merits. The demurrer itself offers tersely supported arguments,
with limited legal citation, if any. The 32
pages of points and authorities in oppositions exceed the 15 page limit by 17
pages. (Cal.
Rules of Court, rule 3.1113(d).) The court in its discretion may decline to
consider any and all argument in the excessive pages. Given the court finds the
demurrer proper, the court only considers the substantive arguments on the
individual causes of action only, which is less than 15 pages of authority.

The court declines to consider
the improper service arguments raised in reply. The argument is neither proper
in a demurrer, and constitutes a new argument, thereby depriving Plaintiff
Anderson of an opportunity to respond.

1^st Cause of Action:
Sexual
Harassment in Violation of California Civil Code section 51.9

2^nd
Cause
of Action: Sexual Assault and Harassment … in Violation of
California Civil Code section 51.9

Nasch
challenges the subject cause of action on grounds that Plaintiff fails to
allege a claim within the statute. Plaintiff counters that the operative complaint
states a claim, due to the existence of the landlord tenant relationship and
the alleged sexual assault.

(a) A
person is liable in a cause of action for sexual harassment under this section
when the plaintiff proves all of the following elements:

(1) There
is a business, service, or professional relationship between the plaintiff and
defendant or the defendant holds himself or herself out as being able to help
the plaintiff establish a business, service, or professional relationship with the
defendant or a third party. Such a relationship may exist between a plaintiff
and a person, including, but not limited to, any of the following persons:,,,

(D) Landlord or property
manager.

(2) The
defendant has made sexual advances, solicitations, sexual requests, demands for
sexual compliance by the plaintiff, or engaged in other verbal, visual, or
physical conduct of a sexual nature or of a hostile nature based on gender,
that were unwelcome and pervasive or severe.

(Civ. Code, § 51.9.)

Other than the existence of the landlord tenant relationship,
nothing in the complaint alleges any actual wrongful conduct by the Nasch
entity. The demurrer is sustained with leave to amend.

3^rd
Cause
of Action: Color, Race and Sex-Based Discrimination Based on Status
as Sexual Assault Victim

Nasch
challenges the subject cause of action on grounds that Plaintiff fails to
allege a claim. Plaintiff counters that the operative complaint states a claim,
due to the existence of the landlord tenant relationship and the alleged sexual
assault. The claim relies on the Unruh Act. The Unruh Act protects certain
classes of people from discrimination, (Civ. Code, § 51) though Plaintiff depends on a claim as a “sexual
assault victim.” The court finds no specific category for sexual assault
victims within the plain language of the statute or support in the opposition.
The demurrer is sustained.

4^th
Cause
of Action: Violation of RALPH Act California Civil Code section
51.7

Nasch
challenges the subject cause of action on grounds that Plaintiff fails to
allege a claim within the statute. The statute provides in relevant part:

“(b)(1) All persons
within the jurisdiction of this state have the right to be free from any violence,
or intimidation by threat of violence, committed against their persons …

(c) (1) A
person shall not require another person to waive any legal right, penalty,
remedy, forum, or procedure for a violation of this section, as a condition of
entering into a contract for goods or services, including the right to file and
pursue a civil action or complaint with, or otherwise notify, the Attorney
General or any other public prosecutor, or law enforcement agency, the Civil
Rights Department, or any court or other governmental entity.

(2) A person shall not refuse to enter into a contract
with, or refuse to provide goods or services to, another person on the basis
that the other person refuses to waive any legal right, penalty, remedy, forum,
or procedure for a violation of this section, including the right to file and
pursue a civil action or complaint with, or otherwise notify, the Attorney
General or any other public prosecutor, or law enforcement agency, the Civil
Rights Department, or any other governmental entity.

(3) Any waiver of any legal right, penalty, remedy, forum,
or procedure for a violation of this section, including the right to file and
pursue a civil action or complaint with, or otherwise notify, the Attorney
General or any other public prosecutor, or law enforcement agency, the Civil
Rights Department, or any other governmental entity shall be knowing and
voluntary, in writing, and expressly not made as a condition of entering into a
contract for goods or services or as a condition of providing or receiving
goods and services.

(4) Any waiver of any legal right, penalty, remedy, forum,
or procedure for a violation of this section that is required as a condition of
entering into a contract for goods or services shall be deemed involuntary, unconscionable,
against public policy, and unenforceable. This subdivision does not affect the
enforceability or validity of any other provision of the contract.

(5) A person who seeks to enforce a waiver of any legal
right, penalty, remedy, forum, or procedure for a violation of this section has
the burden of proving that the waiver was knowing and voluntary and not made as
a condition of the contract or of providing or receiving the goods or services.

(6) The exercise of
a person’s right to refuse to waive any legal right, penalty, remedy, forum, or
procedure for a violation of this section, including a rejection of a contract
requiring a waiver, does not affect any otherwise legal terms of a contract or
an agreement.”

(Civ. Code, § 51.7.)

Other than the existence of the landlord tenant relationship,
nothing in the complaint alleges any actual wrongful conduct by the Nasch
entity. The demurrer is sustained with leave to amend.

5^th
Cause
of Action: Interference with Exercise of Civil Rights in
Violation of Bane Act, California Civil Code section 52.1

Nasch
challenges the subject cause of action on grounds that Plaintiff fails to
allege a claim within the statute. The statute provides in relevant part:

“(b) If a person or
persons, whether or not acting under color of law, interferes by threat,
intimidation, or coercion, or attempts to interfere by threat, intimidation, or
coercion, with the exercise or enjoyment by any individual or individuals of
rights secured by the Constitution or laws of the United States, or of the
rights secured by the Constitution or laws of this state …

(c) Any individual
whose exercise or enjoyment of rights secured by the Constitution or laws of
the United States, or of rights secured by the Constitution or laws of this
state, has been interfered with, or attempted to be interfered with, as
described in subdivision (b), may institute and prosecute in their own name and
on their own behalf a civil action for damages, including, but not limited to,
damages under Section 52, injunctive relief, and other appropriate equitable relief
to protect the peaceable exercise or enjoyment of the right or rights secured,
including appropriate equitable and declaratory relief to eliminate a pattern
or practice of conduct as described in subdivision (b).”

(Civ. Code, § 52.1.)

Other than the existence of the landlord tenant relationship,
nothing in the complaint alleges any actual wrongful conduct by the Nasch
entity. The demurrer is sustained with leave to amend.

6^th
Cause
of Action: Retaliation

The
complaint identifies the retaliation section under Code of Civil Procedure
section 1942.5. The section protects a tenant from retaliatory conduct by a
landlord for tenant complaints involving “tenantability.” (Code Civ. Proc., § 1942.5.) The complaint also
later incorporates Civil Code section 1161.3, which prohibits termination or
denial of renewal of a tenancy due to domestic violence. While Nasch
constitutes a proper entity for the subject cause of action the substantive
claims in the cause of action allege no actual retaliatory conduct, and instead
only rely on the failure to terminate the tenancy of the other tenant
responsible for the alleged attack and the theft of mail packages. The demurrer
is sustained with leave to amend.

7^th
Cause
of Action: Discrimination
prohibited by the 14^th Amendment

The
court cannot discern a specific basis of 14^th Amendment protection
or deprivation of rights. To the extent the complaint incorporates Civil Code section 1161.3, which
prohibits termination or denial of renewal of a tenancy due to domestic
violence, again, the complaint lacks specific articulation of any such basis or
a nexus with said section. The demurrer is sustained with leave to amend.

8^th
Cause
of Action: Breach of Duty to Protect Tenants from Foreseeable
Crimes

The
subject cause of action relies on Civil Code section 1941.3. The section
requires the installation of dead bolt locks, locking windows, exterior doors,
etc. The complaint insufficiently articulates a breach of duty based on the
alleged assault in the common area laundry room by a fellow resident of the
apartment building. The opposition lacks address of this specific cause of
action as well. The demurrer is
sustained with leave to amend.

9^th
Cause
of Action: Strict Liability under Special Relationship Doctrine

The
subject cause of action lacks facts regarding the basis of any special
relationship and prior incidents thereby constituting a basis of foreseeable
danger to tenants. The
demurrer is sustained with leave to amend.

10^th
Cause
of Action: Gender Violence

The
section relies on Civil Code section 52.4, which provides in relevant part:

(a) Any
person who has been subjected to gender violence may bring a civil action for
damages against any responsible party. …

(1) One or more acts that would constitute a criminal
offense under state law that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another,
committed at least in part based on the gender of the victim, whether or not
those acts have resulted in criminal complaints, charges, prosecution, or
conviction.

(2) A physical intrusion or physical invasion of a sexual
nature under coercive conditions, whether or not those acts have resulted in
criminal complaints, charges, prosecution, or conviction.

(d) For purposes of this section, “gender” has the meaning
set forth in Section 51 .

…

As with the prior
causes of action, the complaint lacks any facts regarding the commission of any
actual acts by the corporate entity thereby providing a basis of liability. The demurrer is sustained with leave to amend.

11^th
Cause
of Action: Negligent Infliction of Emotional Distress

The
complaint insufficiently articulates a basis of duty thereby protecting
Plaintiff from emotional distress based on the failure of the corporate
defendant to evict the co-tenant based on the allegations of Plaintiff. The demurrer is sustained with leave to amend.

12^th
Cause
of Action: Negligence and
Failure to Disclose Tenants Criminal Propensities

The
complaint insufficiently articulates a basis of duty thereby protecting
Plaintiff from the alleged criminal propensities of the co-tenant or failure to
evict the tenant after the alleged incident. The demurrer is sustained with leave to amend.

13^th
Cause
of Action: Negligent
Refusal of Landlord to Investigate and Screen Prospective Tenants

14^th
Cause
of Action: Intentional Infliction of Emotional Distress

The
complaint insufficiently articulates any outrageous action by the corporate
entity, as a result of the conduct of the co-tenant within the building. The demurrer is sustained with leave to amend.

15^th
Cause
of Action: Unfair
Competition under Business and Professions Code section 17200

The
complaint fails to allege any basis of deceptive business practice based on the
previously alleged statutory violation under Civil Code section 51.9. The demurrer is sustained with leave to amend.

16^th
Cause
of Action: Defamation

The complaint fails to allege a defamatory
statement subject to liability. The demurrer is sustained with leave to amend.

17^th
Cause
of Action: Breach of
Contract

The complaint fails to allege the basis for any
breach of contract, due to the initiation of the unlawful detainer. The
demurrer is sustained with leave to amend.

18^th
Cause
of Action: Claim for Declaratory and Injunctive Relief

The complaint fails to allege an actual
controversy between the parties. The demurrer is sustained with leave to amend.

Motion to Strike: MOOT

Plaintiff
ASHLEY ANDERSON is granted 30 days leave to amend. Plaintiff
may NOT add any new claims or causes of action. “Following an order sustaining a demurrer or a motion for
judgment on the pleadings with leave to amend, the plaintiff may amend his or
her complaint only as authorized by the court's order. (Citation.) The
plaintiff may not amend the complaint to add a new cause of action without
having obtained permission to do so, unless the new cause of action is within
the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185
Cal.App.4th 1018, 1023.) Any new causes of action are subject to a motion to
strike by any defendant. Defendant(s) may file a motion to dismiss if
Plaintiff fails to timely file an amended pleading.

Any contribution from Perry will be subject to a motion to strike,
and may lead to the setting of a separate contempt hearing should Perry
continue to violate the vexatious litigant order.

The demurrers set for February 28, and March 9, 2023, 2023
are OFF-CALENDAR as MOOT. Case Management Conference set for March 7, 2023.

Defendant to
provide notice.