Judge Upinder S. Kalra, Case Number: 24STCV07266, Date: 2024-10-02 Tentative Ruling

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MOVING PARTY: Defendants Howard Herron, Longview Valley Road, LLC, Litchfield Management, Inc., Christine Dixon, and Matthew Webber

2. Motion to Strike portions of the Complaint concerning punitive damages, attorneys’ fees, and costs.

4. Plaintiffs to file an amended complaint within twenty (20) days of notice of this ruling.

On March 22, 2024, Plaintiffs James Scher and Sandra Scher (Plaintiffs) filed a Complaint against Defendants Howard Herron, Litchfield Management, Inc., Longview Valley Road, LLC, Christie Dixon, and Matthew Weber (Defendants) with four causes of action for: (1) Public Disclosure of Private Facts; (2) Violation of the Fair Employment and Housing Act; (3) Violation of the Los Angeles Tenant Anti-Harassment Ordinance; and (4) Negligence.

According to the Complaint, Plaintiffs reside in Apartment 2 of the subject property located at 14259 Dickens Street which Defendants own and/or operate. Plaintiffs allege they are protected by the Los Angeles Rent Stabilization Ordinance. Plaintiffs adopted various elderly small dogs that served as their emotional support animals. Plaintiffs allege that Defendants wrongfully used Plaintiffs’ health conditions to attempt to wrongfully evict them from the premises.

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, counsel sent one meet and confer email with an offer to discuss telephonically the next day. (Levine Decl. ¶ 2.) One email with a one day turnaround deadline is hardly sufficient meet and confer efforts. Still, insufficient meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).)

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.¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. …. 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,¿147 Cal.App.4th at 747.)

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court 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(b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id.¿§¿437.)¿“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman¿(1998) 63 Cal.App.4th 761, 768.)

Defendants contend that Plaintiffs failed to state sufficient facts supporting this claim and that, as alleged, the supposed private facts are not offensive or objectionable to a reasonable person.[1] Plaintiffs argue that Defendants improperly dispute the truth of Plaintiffs’ allegations.

The elements of a claim for public disclosure of private facts are: “(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214 (internal quotes omitted); Taus v. Loftus (2007) 40 Cal.4th 683, 717; Jackson v. Mayweather (2017) 10 Cal.App.5th 1420, 1256.) The communication must be to “a large number” of persons, as distringuished from a few. (Catsouras v. Dept. of Calif. Highway Patrol (2010) 181 Cal.App.4th 856, 904.) The facts disclosed must be matters as to which plaintiff had an objectively reasonable expectation of privacy. (See Ibid; Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1047-1048 [“no liability when the defendant merely gives further publicity to information about the plaintiff which is already public or when the further publicity relates to matters which the plaintiff leaves open to the public eye.”]) The publication must be offensive and objectionable to a reasonable person of ordinary sensibilities – e.g., something highly embarrassing to plaintiff. (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 809.)

Here, Plaintiffs have sufficiently alleged a claim for public disclosure of private facts. First, Plaintiffs alleged public disclosure because “Defendant Matthew Weber approached several residents of the building” and “persons who worked for the Building, including vendors such as plumbers” to discuss “Mr. Scher’s mental health condition and disability.” (Complaint ¶¶ 20, 28, 32.) Second, Plaintiffs alleged a private fact because they alleged Mr. Scher’s mental health condition and disability. (Complaint ¶¶ 30, 31.) Third, disclosure of Mr. Scher’s mental health condition would be objectionable to the reasonable person because it is personal health information. (Complaint ¶¶ 33, 35.) Finally, Plaintiffs allege that Mr. Scher’s mental health condition is not newsworthy but were made to evict Plaintiffs.[2] (Complaint ¶ 34.)

Accordingly, the court OVERRULES Defendants’ demurrer to the first cause of action.

Defendants contend that Plaintiffs misread Gov. Code § 12955(c) as it does not apply to the subject facts and that the remaining allegations are conclusory. Plaintiffs argue that Defendants improperly dispute the truth of Plaintiffs’ allegations.

Gov. Code § 12955(a) prohibits an owner of “any housing accommodation to discriminate against or harass any person because of . . . disability.” Gov. Code § 12955(c) prohibits “any person to make, print, or publish . . . any notice, statement, or advertisement, with respect to the sale or rental of a housing accommodation that indicates any preference, limitation, or discrimination based on . . disability . . . or an intention to make that preference, limitation, or discrimination.” Gov. Code § 12955(d) similarly prohibits preferences. Gov. Code § 12955(f) prohibits “any owner of housing accommodations to harass, evict, or otherwise discriminate against any person in the sale or rental of housing accommodations when the owner’s dominant purpose is retaliation against a person who has opposed practices unlawful under this section . . . .”

Here, Plaintiffs sufficiently alleged a claim for violation of FEHA. Notably, Plaintiffs allege that Defendants threatened to terminate the lease because of Mr. Scher’s disability. (Complaint ¶¶ 21, 22, 23, 24, 43; see also Exhibits B, C, and D.) Plaintiffs also allege that Defendants are retaliating against Plaintiffs for having emotional support animals. (Complaint ¶ 46.) Again, Defendants’ arguments that this conduct shows “investigating” behavior is inappropriate at the demurrer stage.

Accordingly, the court OVERRULES Defendants’ demurrer to the second cause of action.

Third Cause of Action – Violation of the Los Angeles Tenant Anti-Harassment Ordinance

Defendants contend that Plaintiffs failed to allege facts that Defendants’ actions served no lawful purpose and that the remaining allegations are speculative and conclusory. Plaintiffs argue Defendants provide no authority supporting their position and that Plaintiffs sufficiently alleged violations.

Los Angeles Municipal Code § 45.33 (TAHO) defines tenant harassment as “a landlord’s knowing and willful course of conduct directed at a specific tenant that seriously alarms or annoys the tenant, and that serves no legitimate purpose. . . .” This includes: “Threatening or taking action to terminate any tenancy including service of any notice to quit or other eviction notice or bringing action to recover possession of a rental unit based on facts which the landlord has no reasonable cause to believe to be true.” (L.A. Municipal Code § 45.33(6).) It also includes “Engaging in any activity prohibited by federal, state, or local housing anti-discrimination laws.” (Id. at subd. (11).)

Here, Plaintiffs sufficiently alleged a claim for violation of TAHO. Specifically, Plaintiffs allege Defendants’ violated federal law, FEHA, by discriminating against them based on disability. (See, e.g., Complaint ¶¶ 43, 46.) Plaintiffs also allege that Defendants repeatedly threatened to terminate their lease because of Mr. Scher’s disability. (Complaint ¶¶ 21, 22, 23, 24.) Defendants’ arguments, once again, are inappropriate for the demurrer stage.

Accordingly, the court OVERRULES Defendants’ demurrer to the third cause of action.

Defendants contend Plaintiffs allege conscious intent by the Defendants so this claim fails. Plaintiffs argue they are allowed to plead inconsistent theories at this stage and that intentional conduct by the agents and still lead to a negligent supervision claim against the entity defendants.

The elements for negligent hiring are: (1) employer’s hiring an employee, (2) who is incompetent or unfit, (3) employer had reason to believe undue risk of harm would exist because of the employment, and (4) the harm occurs. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1213; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054, 1055 (“the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way. Plaintiff has failed to allege those necessary facts.”); Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.)

Here, Plaintiffs insufficiently alleged a claim for negligence against Defendants Litchfield Management, Inc. and Longview Valley Road, LLC. Notably, Plaintiffs did not allege facts that these entity defendants had reason to believe undue risk of harm would exist because they employed the individual defendants or that the individual defendants were incompetent or unfit. Plaintiffs similarly dids not allege facts demonstrating their damages. Indeed, Plaintiffs allege they remain in possession of the leased property. (Complaint ¶ 26.)

Accordingly, the court SUSTAINS Defendants’ demurrer to the fourth cause of action with leave to amend.

1. Paragraph 38, 7:21-28: “Moreover, among the reasons Defendants disclosed private facts about Mr. Scher to third parties was that Defendants Herron, Litchfield Management, Inc. and Longview Valley Road, LLC had a profit motive to do so. If they could bully Plaintiffs to move out, Defendants Herron, Litchfield Management, Inc. and Longview Valley Road, LLC would be able to raise the rent when they rented the Apartment to new tenants. Defendants Dixon and Webber had similar motives – to please their bosses. For these reasons, Mr. Scher is entitled to punitive damages to punish Defendants, and each of them, and to dissuade them from continuing to publicly disclose his sensitive medical information to others and to deter such conduct in the future.

2. Paragraph 46, 9:10-17: “Alternatively, or in addition to the profit motive, Defendant Howard Herron is motivated to discriminate against and harass the Plaintiffs because he is retaliating against the Plaintiffs for adopting two emotional support animals. Because of this, Plaintiffs are entitled to punitive damages under Civil Code § 3294. Defendants’ actions against Plaintiffs are malicious in that they are willful and evidence a conscious disregard for their rights to privacy and their rights not to be discriminated against or ousted from their home because of James Scher’s medical condition. Therefore, Defendants should be liable for punitive damages to make an example out of them and to prevent them from discriminating against their disabled tenants in the future.”

3. Prayer for Relief, 11:8: “2. For punitive damages as authorized by Civil Code section 3294;”

4. Prayer for Relief, 11:12: “4. For punitive damages as authorized by Civil Code section 3294;” and

5. Prayer for Relief, 11:13-14: “5. For reasonable attorney fees, expert witness fees and costs of suit, as permitted by the Fair Employment and Housing Act.”

Defendants contend that Plaintiffs are barred from recovering attorneys’ fees because their lease agreement provides a condition to mediate before filing suit and clearly states failure to do so waives recovery of attorneys’ fees. Plaintiffs argue that the mediation provision bars contractual fee recovery, not recovery of statutory fees that they seek.

Unless a contract or “specifically provided for by statute,” each party to a lawsuit must pay its own attorney fees. (CCP § 1021; Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 818.)¿

According to the Complaint, Plaintiffs seek reasonable attorney’s fees and costs pursuant to FEHA and TAHO. (Complaint ¶ 49, Prayer ¶¶ 5, 6.) TAHO provides that a prevailing tenant may recover reasonable attorney’s fees and costs. (TAHO § 45.35(B).) In FEHA cases, a court may award reasonable attorney fees and costs, including expert witness fees, to the prevailing party. (Gov. Code § 12965(b).) As such, these are discretionary.

Here, Plaintiffs have sufficiently alleged facts supporting a prayer request for attorney’s fees. Notably, Defendants’ argument that all of Plaintiffs’ claims “arise from” the lease was recently rejected by the Court of Appeal. (See Cook v. University of Southern California (2024) 102 Cal.App.5th 312, 321-325.) Defendants provide no authority supporting this contention either. Additionally, the parties cannot agree to waive an unwaivable right, such as the right to attorney’s fees under FEHA.[3] (See, e.g., Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 709.)

Accordingly, the court DENIES Defendants’ motion to strike pertaining to attorney’s fees.

Defendants contend that Plaintiffs insufficiently alleged actual malice warranting punitive damages. Defendants further contend that Plaintiffs allege speculative and conclusory “facts” that do not support punitive damages. Plaintiffs argue that they alleged willful and malicious course of conduct designed to induce disabled persons to vacate their home.

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages.¿ (See¿Hilliard v. A.H. Robins Co.¿(1983) 148 Cal.App.3d 374, 391-92.)¿ In addition,¿punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”¿ (Civ. Code, § 3294,¿subd. (a).)¿ Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.)¿¿¿¿

Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “conduct which is 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.” Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Fraud is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”¿¿¿

Here, Plaintiffs sufficiently alleged a claim warranting punitive damages. First, Plaintiffs allege that Defendants asked tenants to monitor Mr. Scher’s behavior to build a case to evict Plaintiffs. (Complaint ¶ 20.) That Defendants’ falsely claimed in letters to Plaintiffs that they received reports from other tenants about Mr. Scher’s behavior. (Complaint ¶¶ 21, 22, 23, 24.) And that Defendant Herron is retaliating against Plaintiffs for adopting two emotional support animals. (Complaint ¶ 46.) Inciting neighbors to monitor and report on a co-tenant as well as retaliating against tenants for disability accommodations is “loathsome [conduct] that . . . would be looked down upon and despised by ordinary decent people.” (Scott, supra, 175 Cal.App.4th at p. 715.) Defendants’ argument that the facts alleged are false is unpersuasive. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The court is not otherwise persuaded by Defendants’ arguments, yet again, that these facts are not true or lack evidence.

Accordingly, the court DENIES Defendants’ motion to strike as to the punitive damages claims.

A prevailing party is entitled to costs. (CCP § 1021.) Therefore, the court will not strike the portion of the Prayer that seeks costs of suit.¿

4.Plaintiffs to file an amended complaint within twenty (20) days of notice of this ruling.

[1] Defendants also note the lease has a mediation condition which bars attorneys’ fees if it is not met.

[2] Defendants’ arguments challenging this are not appropriate at the pleading stage.

[3] The court declines to develop this argument further.