Judge: Yolanda Orozco, Case: 21STCV46349, Date: 2022-10-20 Tentative Ruling
Case Number: 21STCV46349 Hearing Date: October 20, 2022 Dept: 31
DEMURRER IS SUSTAINED IN PART; MOTION TO STRIKE IS DENIED
Background
On December 20, 2021, Plaintiff Yvonne Salas (“Plaintiff”) filed a Complaint against Defendant Maribel Ordorica (“Defendant”) and Does 1-100.
The operative First Amended Complaint (FAC) asserts causes of action for:
1) Violation of California Civil Code § 1942.4;
2) Tortious Breach of the Warranty of Habitability;
3) Private Nuisance;
4) Business and Professions Code § 17200, et seq.;
5) Negligence;
6) Breach of Covenant of Quiet Enjoyment;
7) Intentional Infliction of Emotional Distress;
8) California Fair Employment and Housing Act, Cal. Gov. C. § 12955, et seq.;
9) Negligence Per Se; and
10) Violation of California Unruh Civil Rights Act.
On May 27, 2022, Defendant filed a demurrer and a motion to strike Plaintiff’s FAC.
On September 29, 2022, Plaintiff filed opposing papers. Defendant filed a reply on October 4, 2022.
MEET AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)
Defense counsel asserts she tried to meet with Plaintiff’s counsel regarding the demurrer by telephone and by mailing a letter but never received a reply. (Mantovani Decl. ¶¶ 3-4, Ex. 1.) Thus, the meet and confer requirement is met
I. demurrer
Legal Standard -demurrer
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)
“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)
Discussion
Defendant demurs to the eighth, ninth, and tenth causes of action on grounds that they fail to state facts sufficient. (See Code of Civ. Proc., § 430.10(e).)
a. 8th COA: Violation of the FEHA
Section 12955 states that it is unlawful:¿
“ (f) For 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, informed law enforcement agencies of practices believed unlawful under this section, has testified or assisted in any proceeding under this part, or has aided or encouraged a person to exercise or enjoy the rights secured by this part. Nothing herein is intended to cause or permit the delay of an unlawful detainer action. […]¿
(k) To otherwise make unavailable or deny a dwelling based on discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, familial status, source of income, disability, genetic information, or national origin.”¿
(Gov. Code, § 12955.)
Plaintiff asserts she is disabled under the California Government Code section 12926 because her extensive back problems amount to a disability because they affect her musculoskeletal body system and limit her major life functions. (FAC ¶¶ 126, 127.) Plaintiff asserts that Defendant and/or their agents discriminated against Plaintiff by “presenting to Plaintiff a housing accommodation that was not available, denying and withholding housing accommodations from Plaintiff, whose disability required such accommodation.” (Id. ¶ 129.) Plaintiff asserts she requested reasonable housing accommodations due to the water leaks and subsequent repairs but despite Defendant’s awareness of her disability, they forced Plaintiff into improper sleeping arrangements. (Id. 130) “Defendants have injured Plaintiffs by otherwise making a housing accommodation unavailable based on Plaintiffs’ disability in violation of the” FEHA. (Id. ¶ 132.)
Defendant asserts that Plaintiff’s conclusory allegations that she has a disability due to back problems are insufficient to state a cause of action because she provides no specific fact to show how her injury or physical condition makes it difficult for the achievement of major life activity. Moreover, Plaintiff does not state how the Defendants knew she had a disability/back problems.
Plaintiff sufficiently pled facts that she has a physical disability that limits major life functions such as performing manual tasks, sleeping, standing, and walking. Thus, Plaintiff has pled sufficient facts to show she is a disabled individual under the FEHA. (Gov. Code, § 12926, subd. (m)(1).) However, Plaintiff’s conclusory statement that Defendant knew of her disability is insufficient. Plaintiff must state when and how Defendant became aware of her disability so that Defendants can have sufficient notice at to when her claims for harassment and discrimination arose.
Based on the foregoing, the demurrer to the eighth cause of action is SUSTAINED WITH LEAVE TO AMEND
b. 9th COA: Negligence Per Se
Negligence per se is not a separate tort cause of action; rather, it is an evidentiary doctrine whereby negligence may be presumed if the evidentiary requirements are met. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) “Accordingly, to apply negligence per se is not to state an independent cause of action.¿The doctrine does not provide a private right of action for violation of a statute.¿[Citation.]¿Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.”¿(Id.)¿
Negligence per se is not a separate cause of action but Plaintiff can rely on the doctrine to prove the underlying negligence claim. In the opposing papers, Plaintiff acknowledges that negligence per se will be used to prove the negligence cause of action.
Accordingly, the demurrer to the ninth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND to the extent it is plead as a separate cause of action.
c. 10th COA: Violation of the Unruh Civil Rights Act
The Unruh Civil Rights Act provides that “[a]ll persons within the jurisdiction of this state are free and equal . . . and no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51 subd. (b).)
To establish a violation of the Unruh Act that is independent of a claim under the Americans with Disabilities Act (ADA), the plaintiff must “plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 668 [internal quotation marks omitted].) The California Supreme Court has clarified that the Unruh Act contemplates “willful, affirmative misconduct on the part of those who violate the Act” and that a plaintiff must therefore allege, and show, more than the disparate impact of a facially neutral policy. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 853.)
The FAC alleges that Defendant violated the Unruh Act by denying Plaintiff full and equal accommodations, advantages, facilities, privileges or services because of Plaintiff’s disability. (FAC ¶ 153.) During the repairs to the subject property, Defendant asked Plaintiff to crash on friends or family’s couches, and refused to pay for housing accommodations, forcing Plaintiff and her family to sleep on couches in their cars for weeks at a time. (Id. ¶ 151.)
The Court disagrees with Defendant’s contention that Plaintiff failed to allege she had a physical disability covered by the Unruh Act because Plaintiff has sufficiently plead she had a disability that impacts major life functions such as manual tasks, sleeping, standing, and walking under Government Code section 12926. (FAC ¶ 148.) However, since Plaintiff does not assert a cause of action for violation of the Americans with Disability Acts, Plaintiff is required to plead that Defendant’s discriminatory conduct was intentional. (Munson, supra, 46 Cal.4th at 668 [“we concluded that ‘a plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.’ (Citation).” Moreover, Plaintiff does not state when or how Defendant became aware of Plaintiff’s disability.
The demurrer to the tenth cause of action is SUSTAINED with leave to amend.
II. Motion to strike
Legal Standard -motion to strike
Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿
discussion
Defendant moves to strike portions of Plaintiff FAC and prayer for punitive damages.
Defendant moves to strike certain portions of the FAC on the basis that Plaintiff fails to provide any supporting details that she is disabled with back problems. “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 grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
Since Defendant’s demurrer was SUSTAINED WITH LEAVE TO AMEND as to the eighth and tenth cause of action, the motion to strike is moot as to the following:
· Paragraph 13 in its entirety;
· Paragraphs 15 to 16 in their entirety.
· Paragraphs 26 in its entirety;
· Paragraphs 65 in its entirety;
· Paragraph 91 in its entirety;
· Paragraphs 127 to 131 in their entirety;
· Paragraphs 134-143 in their entirety relating to the Ninth Cause of Action;
· Paragraph 145 in its entirety;
· Paragraphs 147 to 149 in their entirety;
· Paragraph 151 in its entirety; and
· Paragraph 153 in its entirety.
A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)
“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” 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 defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)
In support of her claim for punitive damages, Plaintiff alleges the Defendants knew the substandard and dangerous condition of the property but refused to take action and ignored Plaintiff’s request for repairs. (FAC ¶¶ 32.) In fact, since January of 2021 Plaintiff repeatedly complained to Defendant for seven months regarding the mold growth, offensive odors, and plumbing leaks. (FAC ¶ 24.) When repairs were finally started in August of 2021, when the two unlicensed handymen touched the ceiling in the downstairs bathroom where the plumbing leaks occurred, the entire ceiling collapsed. (Id.) This exacerbated the offensive odor in the property and revealed the extent of the mold growth and rendered the subject property uninhabitable. (Id.)
Plaintiff asserts that Defendant had actual and constructive knowledge of the unsafe and unhealthy conditions of the subject property because Defendant received government notices informing Defendant of violations of numerous health and safety codes. (Id. ¶ 30.) Yet despite this knowledge, Defendants failed to take reasonable corrective action for seven months. (Id. ¶¶ 24, 32.)
Plaintiff was forced to vacate the subject property so that repairs could be done. (FAC ¶ 25.) A week later Plaintiff was forced to check out of the Motel and Plaintiff alleges that Defendant asked Plaintiff to crash on friends and family’s couches and refused to pay for housing accommodations despite the fact Plaintiff had already paid rent for the entire month of August. (Id.) This forced Plaintiff and her family to experience homelessness, sometimes sleeping on people’s couches or in their cars for weeks at a time. (Id.) Defendant’s conduct in ignoring Plaintiff’s request for repairs and housing accommodations caused Plaintiff to experience homelessness for three months and find new housing. (Id. ¶ 29.)
To justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”¿ (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) Therefore, the FAC alleges sufficient facts to show that Defendant acted with malice and/or oppression in ignoring Plaintiff’s complaints, in failing to make timely repairs, and in refusing to pay for housing accommodations causing Plaintiff and her family to experience homelessness.
Therefore, Defendant’s request to strike punitive damages is DENIED as is the request to strike the following paragraphs from Plaintiff’s FAC:
· Paragraph 35 to 37
· Paragraph 66
· Paragraph 108
· Paragraph 156
· Paragraph 158
Defendant’s Motion to Strike is DENIED.
III. Conclusion
Defendant’s demurrer is SUSTAINED WITH LEAVE TO AMEND as to the eighth and tenth causes of action. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the ninth cause of action.
Defendant’s Motion to Strike is DENIED.
Defendant to give notice.