Judge: Stephen P. Pfahler, Case: BC709434, Date: 2023-01-10 Tentative Ruling
Case Number: BC709434 Hearing Date: January 10, 2023 Dept: F49
Dept.
F-49
Date:
1-10-22
Case
#BC709434
Trial
Date: 2-21-23
JUDGMENT ON THE PLEADINGS
MOVING
PARTY: Defendants, Farouk and Mary Riad
RESPONDING
PARTY: Plaintiffs, Natasha Robinson and David Maxim, Pro Per
RELIEF
REQUESTED
Motion
for Judgment on the Pleadings to the First Amended Complaint:
·
2nd
Cause of Action: Negligence
·
7th
Cause of Action: Intentional Infliction of Emotional Distress
·
8th
Cause of Action: Negligent Infliction of Emotional Distress
·
11th
Cause of Action: Nuisance
SUMMARY
OF ACTION
Plaintiffs
Natasha Robinson and David Maxim are “residents” at Paseo Dorena Townhomes. The
property is governed by Defendant Paseo Dorena Owners Association. Defendants
Dina Marie Gordon, Louie Bryan Gonzalez and Monique Gordon are also residents
at the property. Defendants Warren Davidoff, Melissa Lopez and Mike Dukoff are
member of the Owners Association board
Plaintiffs
allege that defendants Gordon and Gonzalez acted in a verbally and physically
abusive manner to Plaintiffs. Plaintiffs allege that owner association rules
impose a duty of care for “protection and quiet enjoyment of [residents’]
property.” Plaintiff allege seeking assistance from the Owners Association
board members, but said members took no protective action.
Plaintiffs
also contend that Defendants made and repeated false accusations against
Plaintiff Maxim regarding his conduct toward Defendant Gordon.
On
June 8, 2018, Plaintiffs filed their complaint for Negligence (twice),
Defamation (twice), Defamation Per Se, Breach of Covenant for Quiet Enjoyment,
Intentional Infliction of Emotional Distress (twice), Intentional Infliction of
Emotional Distress, Negligent Infliction of Emotional Distress, Assault &
Battery (twice), Nuisance, Discrimination, Abuse of Process and Slander. The action
was reassigned to Department 49 on October 24, 2018.
On
February 11, 2019, the court sustained the demurrer to the complaint as to one
of the negligence causes of action, the intentional infliction of emotional
distress cause of action, one of the negligent infliction of emotional distress
causes of action, and the discrimination cause of action. The demurrer is sustained without leave to
amend as to the 6th cause of action with 20 days leave to amend. The
court sustained the demurrer to the breach of the covenant of quiet enjoyment
cause of action without leave to amend. The court overruled the demurrer to the
defamation, defamation per se, and slander causes of action.
The
court granted the motion to strike the punitive damage allegations in all
causes of action not rendered moot by the demurrer.
On
March 8, 2019, Plaintiffs filed their first amended complaint for Negligence
(twice), Defamation (twice), Defamation Per Se, Intentional Infliction of
Emotional Distress (twice), Intentional Infliction of Emotional Distress,
Negligent Infliction of Emotional Distress, Assault & Battery (twice),
Nuisance, Discrimination, Abuse of Process and Slander. On May 6, 2019, the
court sustained the demurrer to the first cause of action for negligence, the
sixth cause of action for intentional infliction of emotional distress, eighth
cause of action for negligent infliction of emotional distress, and Discrimination
cause of action without leave to amend. The court overruled the demurrer to the
nuisance cause of action. Defendants answered the first amended complaint on
May 15, 2019.
On
November 23, 2022, the court granted the motion of Plaintiffs’ counsel to be
relieved as attorney of record.
RULING: Granted.
Defendants
Farouk and Mary Riad move for judgment on the pleadings on the second, seventh,
eighth, and eleventh causes of action for negligence, intentional infliction of
emotional distress, negligent infliction of emotional distress, and nuisance in
the first amended complaint. Moving Defendants are named in the first amended
complaint as the “absentee owners” of the condo/townhouse unit occupied by
defendants Gordon and Gonzalez. The Riad defendants move for judgment on the pleadings on grounds that the
first amended complaint fails to allege a factual basis of liability against
them.
Plaintiffs, in pro per,
filed a 41 page “Amended Notice of Motion and Motion…” which appears to
constitute an opposition to the motion. To the extent the “amended notice…”
constitutes an opposition, it is both filed three (3) court days late, and well
exceeds the page limit for points and authorities. The opposition cites
extensively to the CC&Rs and reliance on the argument that moving
defendants insufficiently stopped the behavior of their tenants.
“A motion for judgment on the pleadings serves the
function of a demurrer, challenging only defects on the face of the complaint…
[¶] The grounds for a motion for judgment on the pleadings must appear on the
face of the complaint or from a matter of which the court may take judicial
notice.” (Richardson-Tunnell v. School
Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061.)
In considering a motion for judgment on the pleadings, courts consider whether
the factual allegations, assumed true, are sufficient to constitute a cause of
action. (Fire Insurance Exchange v.
Superior Court (2004) 116 Cal.App.4th 446, 452-453.)
2nd
Cause of Action, Negligence: Granted.
Defendants
move for judgment on the pleadings on grounds that Plaintiffs fail to sufficiently
articulate the basis of duty, and any incident thereby constituting a breach of
duty, arising from the prevention of any alleged violence, trespass, or nuisance.
Plaintiffs in opposition rely on the plain language of the codes, covenants and
regulations governing the owner association. The first amended complaint quotes
portions of the operative sections. Article III, Section 5 states in part: “No
noxious or offensive activities shall be cared on…not shall anything be done
thereon which may become an annoyance or nuisance…” The section bars any the
service of food and beverages out of the owners unit, unless the board approved
said activities in common areas. Plaintiff also cites to Article III, Section
10, which renders any and all pet owners liable for the actions of their pets.
Nothing in the citations in the first amended
complaint or any additional sections in the extensive opposition, including the
section regarding the leasing and renting of homeowners units, sufficiently
articulates a basis of duty or facts demonstrating an alleged breach of any
duty, due to the alleged omissions of moving defendants, in their capacity as
absentee homeowners/landlords, to prevent Gordon and Gonzalez from engaging in
their alleged conduct. [First Amend. Comp., ¶¶ 24-27.] The cited CC&Rs lack
sufficient support for the imposition of a duty on moving defendants to stop
the neighbors from insulting Plaintiff, preventing the dog from escaping and
visiting their premises, playing music in their household, and allegedly
engaging in a physical altercation. The allegations regarding the alleged conduct
of Gordon and Gonzalez and citation to the criminal Penal Code will not render
moving defendants vicariously liable for their individual actions. The
operative complaint otherwise lacks a general basis for establishing a basis of
duty.
The motion for judgment on the pleadings is
granted with prejudice. Plaintiffs present no argument that further discovery
will support a finding of a legal duty as a matter of law given the last two
iterations of the complaint. (Banerian v.
O'Malley (1974) 42 Cal.App.3d 604, 613.)
7th
Cause of Action, Intentional Infliction of Emotional Distress: Granted
Defendants
argue that the conduct described in the operative complaint lacks support of
intentional conduct. Plaintiffs reiterate the CC&Rs, the allegedly defamatory
statements, music lyrics, and reference to the dog tunneling under the backyard
in order to escape, as the basis of the claim.
“‘[T]o
state a cause of action for intentional infliction of emotional distress a
plaintiff must show: (1) outrageous conduct by the defendant; (2) the
defendant's intention of causing or reckless disregard of the probability of
causing emotional distress; (3) the plaintiff's suffering severe or extreme
emotional distress; and (4) actual and proximate causation of the emotional
distress by the defendant's outrageous conduct.’ [Citation.] ‘Conduct, to be
“‘outrageous’” must be so extreme as to exceed all bounds of that usually
tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer,
the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she
believes are so extreme as to exceed all bounds of that usually tolerated in a
civilized community. [Citation.]’” (Yau
v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)
Nothing in the failure to respond by the
landlords supports a finding of outrageous, intentional conduct, with the
intent to cause suffering. The motion for judgment on the pleadings is granted
with prejudice. Plaintiffs present no argument that further discovery will
support a finding of a legal duty as a matter of law given the last two
iterations of the complaint. (Banerian v.
O'Malley (1974) 42 Cal.App.3d 604, 613.)
8th
Cause of Action, Negligent Infliction of Emotional Distress: Granted.
Without a
negligence claim, the emotional distress claim also falls. “[U]nless the defendant has
assumed a duty to plaintiff in which the emotional condition of the plaintiff
is an object, recovery is available only if the emotional distress arises out
of the defendant's breach of some other legal duty and the emotional distress
is proximately caused by that breach of duty. Even then, with rare exceptions,
a breach of the duty must threaten physical injury, not simply damage to
property or financial interests.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985.) Nothing in the
failure to act supports an independent basis for relief through moving
defendants’ alleged failure to act. Moving Defendants otherwise in no way
participated in any manner to the alleged to the alleged course and conduct of
the parties alleged interactions. Plaintiffs present no argument that further
discovery will support a finding of a legal duty as a matter of law given the
last two iterations of the complaint. (Banerian
v. O'Malley (1974) 42 Cal.App.3d 604, 613.)
11th
Cause of Action, Nuisance: Granted.
Defendants
challenge the subject cause of action on grounds they in no way participated in
the creation of the nuisance. The court cannot discern the basis of any
opposition to the motion on this particular cause of action.
The nuisance arises from a series of alleged
activities, including barking dogs, loud music, trespassing, vandalism, and
ultimately assault and battery. [First Amend. Comp., ¶ 67.] The conduct constitutes third party the
tenant defendants, rather than any direct action of moving defendants. Again,
the court otherwise finds the alleged failure to act establishes a direct nexus
with the subject claim. (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th
1540, 1552.) Plaintiffs present no argument that further discovery will support
a finding of a legal duty as a matter of law given the last two iterations of
the complaint. (Banerian v. O'Malley (1974)
42 Cal.App.3d 604, 613.)
Moving
defendants Farouk and Mary Riad are dismissed from the action.
Moving
Defendants are also ordered to give notice.