Judge Virginia Keeny, Case 21VECV01072 2022-09-19 Tentative Ruling

Judge: Virginia Keeny, Case: 21VECV01072, Date: 2022-09-19 Tentative Ruling

Case Number: 21VECV01072 Hearing Date: September 19, 2022 Dept: W

ALEJANDRA MORENO, et al. v. MARIA ARROYO, ET AL.

(1) DEMURRER TO FIRST AMENDED COMPLAINT

(2) MOTION TO STRIKE

Date of Hearing: September 19, 2022 Trial Date: None set

Department: W Case No.: 21VECV01072

Moving Party: Defendant Maria Arroyo

Responding Party: None

BACKGROUND

Plaintiffs Alejandra Moreno (“Moreno”) and Daniel Reyes (“Reyes”) (collectively “Plaintiffs”) allege that, on June 28, 2021, Defendant Maria Arroyo contacted her uncle, Martin Hernandez, and her cousin, Steven Hernandez, to show them “fake, made up, and false, [sic] fictitious information.” Plaintiffs allege Defendants falsely claimed Plaintiff Reyes had vandalized Defendant’s vehicle and that Defendant wanted money for damages to her vehicle. Plaintiffs further allege Defendant and her boyfriend caused a lot of fights between Plaintiffs and Martin and Steven.

On August 13, 2021, Plaintiff Moreno filed a complaint against Defendant for defamation.

On January 24, 2022, the Court sustained Defendant’s demurrer to the complaint with leave to amend.

On March 25, 2022, Plaintiffs Moreno and Reyes file an amended complaint against Defendant for (1) fraud, (2) civil harassment, and (3) defamation.

Defendant now demurs to each cause of action in Plaintiffs’ amended complaint. Defendant also moves to strike allegations pertaining to and the prayer for punitive damages. No oppositions have been filed.

[Tentative] Ruling

1. Defendant Maria Arroyo’s Demurrer to Amended Complaint is SUSTAINED IN PART.

2. Defendant Maria Arroyo’s Motion to Strike is GRANTED IN PART.

Demurrer to Complaint

Legal Standard

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. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Standing

Defendant argues Plaintiff Moreno lacks standing to assert the first cause of action for fraud and third cause of action for defamation. Defendant’s argument is well-taken.

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) Generally, the real party in interest is the person who has the right to sue under the substantive law. (Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.) A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action. (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758.)

Here, the fraud cause of action appears to be premised on Defendant making a false claim that Plaintiff Reyes had vandalized Defendant’s vehicle. (Amended Complaint, p. 3:27-28.) While a little unclear, it appears this false claim was made to Defendant’s uncle and her cousin. (Id., p. 3:25-27.) Given that the fraud claim is based on a purported false claim that was not made to Plaintiff Moreno nor referenced Moreno at all, it is unclear how Plaintiff Moreno can hold Defendant liable for fraud. To the extent the purported false claim caused any injury, it would appear the injury would have been suffered by Plaintiff Reyes, not Plaintiff Moreno, at least absent any allegations that Reyes is Plaintiff Moreno’s minor son. As it does not appear Plaintiff Moreno could have suffered any injury based on an alleged false claim that was neither communicated to her nor was she the subject of, Plaintiff Moreno is not the real party in interest as to the fraud claim. Plaintiff Moreno thus lacks standing to bring the fraud claim against Defendant.

As for the defamation cause of action, it appears this cause of action is also based on Defendant’s alleged false claim that Plaintiff Reyes had vandalized her vehicle. (Amended Complaint, p. 6: 3-10.) As was explained in the January 24, 2022 order, a plaintiff generally cannot support a claim of defamation by showing that a statement defamed third persons. (See Rose v. Indianapolis Newspapers, Inc. (7th Cir. 1954) 213 F.2d 227, 230; Gilbert Show Co. v. Rumpf Pub. Co. (D. Mass. 1953) 112 F.Supp. 228, 229; Davis v. Costa-Gavras (S.D.N.Y. 1985) 619 F.Supp. 1372, 1376.) The allegations show that Plaintiff Reyes, not Plaintiff Moreno, was the subject of the alleged defamatory claim. There are also no allegations that Reyes is Plaintiff Moreno’s minor son. Plaintiff is thus not the real party in interest as to the defamation claim and lacks standing to bring the defamation claim against Defendant.

Accordingly, the demurrer to the first and third causes of action is sustained without leave to amend as to Plaintiff Moreno, unless Moreno proffers proof at the hearing that she has standing to assert the fraud and defamation causes of action against Defendant and thus can successfully amend those causes of action.

First Cause of Action for Fraud

Defendant argues this cause of action is insufficiently pled. The Court agrees.

As a preliminary matter, the Court notes that the demurrer to this fraud cause of action has already been sustained without leave to amend as to Plaintiff Moreno based on lack of standing. To this extent, any discussion based on a failure to allege sufficient facts would be moot as to Plaintiff Moreno. The Court will thus address Defendant’s argument regarding failure to plead sufficient facts only as to Plaintiff Reyes.

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)

As discussed, Plaintiffs’ fraud cause of action appears to be based on Defendant making a false claim that Plaintiff Reyes had vandalized Defendant’s vehicle. (Amended Complaint, p. 3:27-28.) While a little unclear, it appears this false claim was made to Defendant’s uncle and her cousin. (Id., p. 3:25-27.)

Plaintiff Reyes has failed to allege sufficient facts to plead a cause of action for fraud against Defendant. Plaintiff Reyes’ fraud claim appears to be based on an intentional misrepresentation. Intentional misrepresentation requires the defendant to represent a material fact as true when it is actually false and the defendant knew the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth. (Manderville v. PCG & S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498.)

There are no factual allegations showing that Defendant knew her claim that Reyes had vandalized her vehicle was false when she made it or that she made the claim recklessly and without regard for its truth. Additionally, there are no factual allegations demonstrating Defendant’s intent to defraud, Plaintiff Reyes’ justifiable reliance on Defendant’s claim, and Plaintiff Reyes’ damages resulting from any reliance on Defendant’s alleged false claim.

The Court notes that to the extent the alleged false claim was made to Defendant’s uncle and cousin and not Plaintiff Reyes himself, it is unclear how Plaintiff Reyes relied on Defendant’s alleged false claim, much less that such reliance by Reyes was justifiable and that Reyes was damaged as a result of such reliance.

Accordingly, the demurrer to the first cause of action for fraud is sustained with leave to amend as to Plaintiff Reyes.

Second Cause of Action for Civil Harassment

While Plaintiffs’ second cause of action is captioned as civil harassment, this claim is actually based on a violation of the Ralph Civil Rights Act (Civil Code section 51.7). The Court will thus discuss whether Plaintiffs have sufficiently pled a violation of the Ralph Civil Rights Act.

Civil Code section 51.7 states “[a]ll 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 or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.” (Civ. Code, § 51.7(b)(1).) For purposes of section 51.7, “‘intimidation by threat of violence’ includes, but is not limited to, making or threatening to make a claim or report to a peace officer or law enforcement agency that falsely alleges that another person has engaged in unlawful activity or in an activity that requires law enforcement intervention, knowing that the claim or report is false, or with reckless disregard for the truth or falsity of the claim or report.” (Id., § 51.7(b)(2).) Section 51 characteristics include sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status. (Id., § 51(b).)

To plead a claim for violation of section 51.7, a plaintiff must allege (1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff’s protected characteristic; (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 880-81.)

Plaintiffs allege that Defendant subjected them to intimidation by threats of violence and violated their civil rights. (Amended Complaint, ¶¶ 13-14.) Plaintiffs allege Defendant would constantly and purposefully create tension and chaos at 16159 Chase Street, North Hills, CA 91343 (“Property”) and that Defendant and her boyfriend caused a lot of fights between Plaintiffs and Defendant’s uncle and cousin, who are both owners of the Property. (Id., ¶ 17.) Plaintiffs allege that when Defendant was asked to stop annoying other tenants at the Property, Defendant would say she did not care and she could do whatever she wanted. (Id.) Plaintiffs allege Defendant would purposefully make them feel uncomfortable, humiliated and retaliated due to Defendant’s false accusations. (Id.) Plaintiffs allege Defendant’s dogs, loud noises, and music playing would go on for hours at all times of the day and night. (Id.) Plaintiffs allege Defendant created a hostile, humiliating and uncomfortable place to live for about one year and that Defendant harassed, bullied, and intimidated both Plaintiffs. (Id.) Defendant’s actions allegedly subjected both Plaintiffs to “undergo threats of violence to self and property.” (Id.)

Plaintiffs’ allegations are insufficient to plead a cause of action for violation of Civil Code section 51.7 against Defendant. Plaintiffs have failed to allege any facts showing what threats or violent acts Defendant allegedly committed against them. Plaintiffs have also failed to allege facts identifying the protected characteristic upon which their claim is based and facts showing that Defendant’s alleged acts were motivated by her perception of Plaintiffs’ protected characteristic. The attached California Department of Fair Employment and Housing Ralph Civil Rights Act Intake Form appears to indicate this claim, at least as to Plaintiff Moreno, is based on actual or perceived genetic information or characteristic. (Amended Complaint, Ex. E.) However, this alone is insufficient to demonstrate any specific threats that were allegedly made by Defendant was motivated by Moreno’s actual or perceived genetic information in making those threats.

Accordingly, the demurrer to the second cause of action is sustained with leave to amend.

Third Cause of Action for Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.)

As with the first cause of action for fraud, the Court notes that the demurrer to this cause of action for defamation has already been sustained without leave to amend as to Plaintiff Moreno based on lack of standing. To this extent, any discussion based on a failure to allege sufficient facts would be moot as to Plaintiff Moreno. The Court will thus address Defendant’s argument regarding failure to plead sufficient facts only as to Plaintiff Reyes.

As discussed above, it appears this cause of action is based on Defendant’s alleged false claim that Plaintiff Reyes had vandalized her vehicle. (Amended Complaint, p. 6: 3-10.) As Defendant’s claim appears to have been orally made to her uncle and cousin, it appears this defamation claim is based on slander. “‘Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [¶] 4. Imputes to him impotence or a want of chastity; or [¶] 5. Which, by natural consequence, causes actual damage.’” (Regalia v. Nethercutt Collection (2009) 172 Cal.App.4th 361, 367 (quoting Civil Code section 46).) “A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and require no proof of actual damages.” (Id.) “A [s]lander that does not fit into those four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander.” (Id.)

The alleged false claim Defendant made was that Plaintiff Reyes had vandalized her vehicle. (Amended Complaint, p. 3:27-28.) Given vandalism is a crime, Defendant’s alleged false claim tends to charge Plaintiff Reyes with a crime, meaning Defendant’s purportedly false claim constitutes slander per se under Civil Code section 46. To this extent, no actual damages have to be proved, much less pled, in order to recover damages. Plaintiff Reyes’ allegations that Defendant falsely claimed to her uncle and cousin that Reyes had vandalized her vehicle; that Defendant’s uncle and cousin believed that Plaintiff Reyes caused the altercation involving Defendant’s vehicle; that Plaintiff Reyes has been disowned by his family; and that this caused harm to Reyes are sufficient to plead defamation based on slander against Defendant.

Defendant argues that the alleged statement is a non-actionable opinion. The Court is unpersuaded by Defendant’s argument at this stage of the action.

Statements of facts are actionable, while statements of opinion are not. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.) However, “where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation.” (Id. at 1370.) “The critical question is not whether a statement is fact or opinion, but ‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Id. (quoting McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113).) “‘To determine whether the statement is actional fact or nonactionable opinion, courts use a totality of circumstances test of whether the statement in question communicated or implies a provably false statement of fact.’” (Id. (quoting McGarry, supra, 154 Cal.App.4th at 113).)

Here, as pled, the false claim is that Plaintiff Reyes had vandalized Defendant’s vehicle. Whether Reyes had in fact vandalized Defendant’s vehicle tends to be an assertion that can be proven false. To this extent, it would appear the purported false claim is actionable.

The Court is also unpersuaded by Defendant’s argument that this is a sham pleading because references to a surveillance video being presented to Defendant’s uncle and cousin to review were omitted from the amended complaint. “Under the sham pleading doctrine, allegations in an original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 751.) “The purpose of the doctrine is to enable the courts to prevent an abuse of process.” (Id.) “The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts.” (Id.)

Here, while the body of the amended complaint makes no references to a surveillance video, Plaintiff has generally alleged that Defendant showed her uncle and cousin “fake, made up, and false, [sic] fictitious information” and referenced Exhibit G attaching the original complaint. It is unclear whether this was Plaintiff’s attempt to incorporate the allegations from the original complaint, including the references to the surveillance video, into the amended complaint. If it was such an attempt, then Plaintiff cannot be said to have omitted any allegations. In any case, even if this was a failed attempt to incorporate such allegations from the original complaint, an omission of allegations referencing the surveillance video has not changed the basis for this defamation claim. As pled, this defamation claim is still based on Defendant’s purported false claim that Plaintiff Reyes vandalized her vehicle. The amended complaint is thus not a sham pleading.

The Court notes that, as discussed, it is unclear whether the allegations that Defendant showed her uncle and cousin “fake, made up, and false, [sic] fictitious information” and the general reference to Exhibit G attaching the original complaint was meant to be Plaintiff’s attempt to incorporate allegations from the original complaint pertaining to the video Defendant allegedly showed her uncle and cousin. Given that Plaintiff Reyes has sufficiently pled a cause of action for defamation based on slander against Defendant, the Court need not determine whether Plaintiff is attempting to assert a claim for defamation based on the video in finding the demurrer should be overruled. (See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (stating that the sustaining of a demurrer may only be upheld if the complaint fails to state a cause of action under any possible legal theory).) However, the Court notes that, to the extent Plaintiff is attempting to assert defamation based on the video, this would constitute defamation based on libel. (Civ. Code, § 45 (“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”).) If Plaintiff would like to bring a defamation claim based on the video, Plaintiff must seek leave of court to assert a separate cause of action for defamation/libel.

Accordingly, the demurrer to the third cause of action is overruled as to Plaintiff Reyes.

Motion to Strike

Legal Standard

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. (Code Civ. Proc., § 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 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.) “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.)

Punitive and Exemplary Damages

Defendant moves to strike allegations pertaining to punitive damages in paragraphs 8, 9, 16, and 17 and the prayer for punitive damages.

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code § 3294(a).) “‘Malice’ means 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.” (Id. § 3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id.,§ 3294(c)(2).) A plaintiff must establish the defendant was aware of the probable dangerous consequences of his conduct and that he willfully and deliberately failed to avoid those consequences to support an award of punitive damages based on conscious disregard of the safety of others. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) Punitive damages thus require more than the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pleaded in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Paragraphs 16 and 17 are asserted under the second cause of action for civil harassment. As the demurrer to the second cause of action is sustained, the motion to strike these paragraphs is moot.

As for paragraphs 8 and 9 and the prayer for punitive damages, these allegations are generally made and thus pertain to each cause of action. As the demurrer is overruled as to the third cause of action with respect to Plaintiff Reyes, the Court will determine whether there are sufficient facts to support punitive damages against Plaintiff Reyes based on the defamation claim.

The Court finds Plaintiff has failed to allege specific facts showing that Defendant’s misconduct was malicious, oppressive, or fraudulent.

Accordingly, the motion to strike punitive damages in paragraphs 8, 9, and the prayer for punitive damages is granted with leave to amend.

Conclusion

Defendant Maria Arroyo’s Demurrer to Amended Complaint is SUSTAINED IN PART. The demurrer to the first cause of action is sustained without leave to amend as to Plaintiff Alejandra Moreno and sustained with leave to amend as to Plaintiff Daniel Reyes. The demurrer to the second cause of action is sustained with leave to amend as to both plaintiffs. The demurrer to the third cause of action is sustained without leave to amend as to Plaintiff Alejandra Moreno and overruled as to Plaintiff Daniel Reyes.

Defendant’s Motion to Strike is GRANTED WITH LEAVE TO AMEND as to paragraphs 8, 9, and the prayer for punitive damages. The motion to strike is MOOT as to paragraphs 16 and 17.