Case Number: EC064228 Hearing Date: May 09, 2016 Dept: A

Reveles v Gatmaitan

DEMURRER & MOTION TO STRIKE

Calendar: 11
Case No: EC064228
Date: 5/9/16

MP: Defendants, Mark Gatmaitan and Maria Gatmaitan
RP: Plaintiffs, Alfredo Reveles, Michele Reveles, and Evelyn Scott

RELIEF REQUESTED:
1. Demurrer to first, second, third, fourth, fifth, sixth, seventh, and eighth causes of action.
2. Strike each cause of action and all documents attached to Second Amended Complaint.

DISCUSSION:
This case arises from the Plaintiffs’ claim that their neighbors, the Defendants, have engaged in nuisances by allowing their dogs to bark, by using a noisy electric gate, and by bringing out trash cans at midnight and have assaulted, battered, and made criminal threats to the Plaintiffs.
Trial is set for August 29, 2016.

This hearing concerns the Defendants’ demurrer to the Second Amended Complaint. A review of the Court file reveals that it does not include a copy of the Second Amended Complaint. Accordingly, the Court will continue the hearing and order the Plaintiffs to file a copy of the Second Amended Complaint so the Court can analyze the pleadings and determine whether the Defendants have identified grounds for their demurrers.
Further, the Defendants filed their papers on March 22, 2016, which was after CCP section 430.41 became effective. Under section 430.41, a demurring party shall file and serve with the demurrer a declaration stating either of the following:

A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.
B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.

A review of the Defendants’ demurrer reveals that it does not include the required declaration. Further, in their opposition, the Plaintiffs object that the Defendants did not comply with CCP section 430.41 by making an attempt to meet and confer before filing their demurrer. This is further grounds to continue the hearing.

Therefore, the Court continue the hearing and order 1) the Plaintiffs to file a Second Amended Complaint no later than 10 days before the hearing and 2) the Defendants to comply with CCP section 430.41(a) by attempting to meet and confer and then by filing the required declaration no later than 10 days before the hearing.

RULING:
Continue hearing.

LATER:
Copy of Second Amended Complaint is lodged with the court:

UPDATE:
Reveles v Gatmaitan

DEMURRER

Calendar: 11
Case No: EC064228
Date: 5/9/16

MP: Defendants, Mark Gatmaitan and Maria Gatmaitan
RP: Plaintiffs, Alfredo Reveles, Michele Reveles, and Evelyn Scott

ALLEGATIONS IN SECOND AMENDED COMPLAINT:
The Plaintiffs and the Defendants are neighbors. The Defendants have engaged in noise nuisances by allowing dogs to bark, by using a noisy electric gate, and by bringing out trash cans at midnight. Further, the Defendants receive shipments of drugs and have assaulted, battered, and made criminal threats to the Plaintiffs. The Plaintiffs seek damages for the torts and the violation of their civil rights.

CAUSES OF ACTION IN SECOND AMENDED COMPLAINT:
1) Private Nuisance
2) RICO
3) Quiet Title
4) Assault and Battery
5) Section 52.1 Civil Code
6) Sections 51.7 and 52 Civil Code
7) Intentional Infliction of Emotional Distress
8) Trespass

RELIEF REQUESTED:
1. Demurrer to each cause of action in Complaint.
2. Strike each cause of action and exhibits.

DISCUSSION:
Trial is set for August 29, 2016.

This hearing concerns the Defendants’ demurrer and motion to strike directed at the Second Amended Complaint. The Defendants’ papers lack solid arguments that identify valid grounds for the remedies they seek. For example, in their demurrer to the fourth cause of action for assault and battery, they offer the argument “Furthermore, the term ‘slugged’ is unknown and vague to Defendants”. Consulting a dictionary of the English language would be helpful because “slugged”, i.e., to strike someone with a hard blow, is standard English and not vague, especially in the context of allegations regarding a battery claim.
Further, the Defendants offer irrelevant statements that this case is an attempt to harass the Defendants “who are good people trying to live normal lives” or their opinions on whether the Plaintiffs can prove claims that the Defendants were using drugs. In addition, the Defendants offer a number of arguments that some facts are not pleaded. But there is no known no case law requiring such facts. For example, in the demurrer to the trespass claim, the Defendants offer the idle argument that the allegation that the Defendants crossed onto the Plaintiffs’ property is insufficient because the Plaintiffs never “established the rules of entry between the two neighbors”. Since there is no legal requirement for such pleadings in a trespass claim, this offers no grounds for a demurrer.

1. Demurrer to First Cause of Action for Nuisance
The Defendants argue that this cause of action lacks sufficient facts. In order to bring a nuisance claim, there must be allegations that the invasion of the plaintiff’s interest in the use and enjoyment of the land was substantial, i.e., that it caused the plaintiff to suffer substantial actual damage. San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal. 4th 893, 938. Further, the interference with the protected interest must not only be substantial, but it must also be unreasonable. Id.
A review of the first cause of action reveals that it is not a statement of the facts constituting the cause of action, in ordinary and concise language, as required by CCP section 425.10. Instead, it includes three paragraphs:

1) paragraph 25 which incorporates all prior facts;
2) paragraph 26, which is four pages of allegations such as “Prior to 2013 the incidents were logged as: 5-29-2011-0530 barking, 5-30-2011-2145 barking, 6-04-2011-2130 barking, 6-05-2011-2130 barking, …”; and
3) paragraph 27, which alleges that the Plaintiffs have suffering damages and seek punitive damages.

These do not plead a cause of action because they do not plead, in ordinary and concise language, that the Plaintiffs had a right to the quiet enjoyment of their property, that the Defendants engaged in specified conduct that interfered with their right to quiet enjoyment, that the interference was substantial and unreasonable, and that as a result, the Plaintiffs suffered actual damages.

Accordingly, the Court will sustain the demurrer to the first cause of action. It appears reasonably possible that the Plaintiffs might be able to correct these defects by pleading that the Defendants have engaged in noisy conduct that was a substantial and unreasonable interference with the Plaintiffs’ right to the quiet enjoyment of their property. Therefore, the Court will grant the Plaintiffs leave to amend.

2. Demurrer to Second Cause of Action for “RICO”
The Defendants argue that this cause of action lacks sufficient facts. The Plaintiffs seek to bring a claim in their second cause of action for the violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), which is enacted at 18 U.S.C. § 1961 et seq. The elements of a RICO claim are the following:

1) conduct
2) of an enterprise
3) through a pattern
4) of racketeering activity.
Cianci v. Superior Court (1985) 40 Cal. 3d 903, 914.

The object of RICO is to prevent and punish “racketeering activity” broadly defined. Id. at 909. Although the sources from which it sprang took aim against the infiltration of legitimate businesses by organized crime, the statute as enacted is intended to ensure integrity in the marketplace and to that end strikes against all who would threaten it, e.g., at one end of the spectrum “mobsters and organized criminals” and their “‘illegitimate’ enterprises,” and at the opposite pole otherwise law-abiding businessmen and their “‘respected and legitimate “enterprises.” Id. Private civil actions under the statute are brought almost solely against such “legitimate” defendants, rather than against the archetypal, intimidating mobster. Id.
Under the RICO statute, it is unlawful to use income derived from a pattern of “racketeering activity” to acquire an interest in or to establish or operate an enterprise engaged in or affecting interstate commerce. Id. “Racketeering activity” is defined as any act in violation of several classes of state criminal laws or of several specified federal criminal provisions. Id. Consonant with the statute’s underlying purpose, the effective scope of the term is broad: it includes not only the actions of mobsters but also the conduct of “legitimate” businessmen who engage in “garden variety” commercial fraud. Id.

A review of the second cause of action in the Complaint reveals that it is not a proper claim for the violation of RICO. The Plaintiffs do not claim that the Defendants have engaged in racketeering activity to acquire an interest in or to establish or operate a business engaged in or affecting interstate commerce. Instead, the Plaintiffs allege that their neighbors may have used drugs, that police officers have been looking for one of the Defendants, that the Defendants hvae hired a security service, that one of the Defendants has a history of violence, that the Defendants have threatened, assaulted, and battered the Plaintiffs, and that the Defendants have vandalized the Plaintiffs’ property. This is a list of grievances about a neighbor and not a concise statement of facts that show that the Defendants are conducting an enterprise that affects interstate commerce that is based on racketeering activities.

Accordingly, the Court will sustain the demurrer to the second cause of action. It does not appear reasonably possible to correct this by amendment because this case arises from a dispute between neighbors and not an enterprise affecting interstate commerce. Therefore, the Court will not grant leave to amend.

3. Third Cause of Action to Quiet Title
The Defendants argue that this cause of action lacks sufficient facts. Under California law, a cause of action to quiet title is pleaded sufficiently when the plaintiff alleges, in simple language, that the plaintiff is the owner and in possession, and that the defendant claims an adverse interest without right. Thornton v. Stevenson (1960) 185 Cal. App. 2d 708, 713.
The Plaintiffs allege that they are the owners and in possession of 3121 Olive Avenue and that the Defendant, Mark Gatmaitan, built a fence in June of 2015 on land within the boundary lines of the Plaintiffs’ property without their permission. This is sufficient to plead a quiet title claim with regards to whether the Defendants’ fence should be removed for encroaching on the Plaintiffs’ property.

Accordingly, the Court will overrule the demurrer to the third cause of action.

4. Fourth Cause of Action for Assault and Battery
The Defendants argue that this cause of action does not plead sufficient facts. A review of the pleadings reveal that, amidst a number of necessary details, this cause of action pleads sufficient facts to constitute a battery cause of action, which is any intentional, unlawful, and harmful contact by one person with the person of another. Ashcraft v. King (1991) 228 Cal.App.3d 604, 611.
The Plaintiff alleges in paragraph 41 that the Defendant, Mark Gatmaitan, came onto the Plaintiff’s property and “slugged Alfredo in the chest”, attacked Alfredo Reveles and threw him down, and grabbed Michele Reveles by her hair and knocked her to the ground. These allegations identify the intentional, unlawful, and harmful conduct of the Defendant, Mark Gatmaitan, that constituted a battery on the persons of the Plaintiffs, Alfredo Reveles and Michele Reveles.
However, in their opposition papers, the Plaintiffs argue that they have pleaded sufficient facts to constitute an assault, a battery, and a trespass. If this was their intent, then the Plaintiffs were required to plead three, separate causes of action. Further, the Plaintiffs have also directed this claim against Maria Gatmaitan, but have not alleged facts showing that she engaged in any tortious conduct.
Accordingly, the Court will sustain the demurrer and grant the Plaintiffs leave to amend the claim so that it pleads a single cause of action for battery directed at the Defendant, Mark Gatmaitan.

5. Demurrer to Fifth Cause of Action for “Section 52.1 Civil Code”
The Defendants argue that this cause of action lacks sufficient facts. The Plaintiffs’ claim is brought under Civil Code section 52.1, which states that 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 (a), may institute and prosecute in his or her own name and on his or her 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. Section 52.1(a) defines a party as interfering with the rights when the party engages in threats, intimidation, coercion, or attempts to interfere by threats, 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.
Accordingly, Civil Code section 52.1 provides a remedy when a defendant interferes with the plaintiff’s constitutional or statutory right by threats, intimidation, or coercion. Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820, 843. The plaintiff need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion. Id. However, section 52.1 does not extend to all ordinary tort actions because its provisions are limited to threats, intimidation, or coercion that interferes with a constitutional or statutory right. Id.
The Plaintiffs do not allege facts that identify their constitutional or statutory right. Further, the Plaintiffs do not identify the Defendants’ threats, intimidation, or coercion that interfered with the Plaintiffs’ specified right. This is insufficient.

Accordingly, the Court will sustain the demurrer to the fifth cause of action. It does not appear reasonably possible to correct this by amendment because the facts in this case identify a dispute between neighbors and not threats, intimidation, or coercion that violates constitutional or statutory rights. Therefore, the Court will not grant leave to amend.

6. Demurrer to Sixth Cause of Action for “Sections 51.7 and 52 Civil Code”
The Defendants argue that this cause of action lacks sufficient facts.

Under Civil Code section 51.7, all persons have the right to be free from any violence committed against their persons because of any characteristic identified in Civil Code section 51, which includes the characteristics sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation. Civil Code sections 52 and 52.1 permit a plaintiff to bring a private claim for the violation of Civil Code section 51.7 and request damages, an injunction, punitive damages, and attorney fees. Stamps v. Superior Court (2006) 136 Cal. App. 4th 1441, 1457. Thus, to state a cause of action for violation of Civil Code section 51.7, there must be allegations of violence and allegations that the violence was due to the Plaintiffs possessing one of the characteristics set forth in Civil Code section 51.
A review of the Plaintiffs’ cause of action reveals that they plead in paragraph 48 that their ancestry is Mexican. This specifies a characteristic identified in Civil Code section 51, i.e., ancestry. Further, the Plaintiffs allege that the Defendants expressed hatred against the Plaintiffs by calling them “wetbacks”, disabled, and leeches. These allegations identify verbal statements, but no violent conduct directed against the Plaintiffs due to their ancestry. Since the Plaintiffs have not alleged particular facts showing that the Defendants engaged in violence due to Plaintiffs’ possession of a characteristic identified in Civil Code section 51, the Plaintiffs have failed to plead sufficient facts.
Accordingly, the Court will sustain the demurrer to the sixth cause of action. It appears reasonably possible for the Plaintiffs to correct the defects by amendment by adding allegations that identify the violent conduct directed against them due to their Mexican ancestry. Therefore, the Court will grant leave to amend.

7. Demurrer to Seventh Cause of Action for Intentional Infliction of Emotional Distress
The Defendants argue that the Plaintiffs have not identified extreme and outrageous conduct. The elements of the tort of intentional infliction of emotional distress are the following:

1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;
2) the plaintiff’s suffering severe or extreme emotional distress; and
3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903

Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. Id. In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Id.
In paragraph 53, the Plaintiffs allege that the Defendants engaged in “acts and omissions” for the purpose of inflicting emotional distress. There are no allegations that describe the “acts and omissions” such that it can be determined from the pleadings that the conduct is so extreme as to exceed all bounds of that usually tolerated in a civilized community.

Accordingly, the Court will sustain the demurrer to the seventh cause of action. It appears reasonably possible for the Plaintiffs to correct the defects by amendment by adding allegations that identify the Defendants’ conduct. Therefore, the Court will grant leave to amend.

8. Demurrer to Eighth Cause of Action for Trespass
The Defendants argue that this cause of action lacks sufficient facts. The Plaintiffs allege that in June of 2015, the Defendants, without the Plaintiffs’ consent, entered onto the Plaintiffs’ property and constructed a fence on the Plaintiffs’ property. In their papers, the Defendants do not offer any legal authority that identifies the essential elements for a trespass cause of action. Further, the Defendants do not identify an essential element of a trespass cause of action and then demonstrate that this essential element was not pleaded in the eighth cause of action. Since the Defendants do not support their demurrer by identifying a required, essential element that was not pleaded in the eighth cause of action, their demurrer will be overruled.

9. Motion to Strike
The Defendants request that the Court strike each cause of action in the Second Amended Complaint. Under California law, it is improper for a Court to strike a whole cause of action of a pleading under CCP section 436. Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1281. Where a whole cause of action is the proper subject of a pleading challenge, the Court should sustain a demurrer to the cause of action rather than grant a motion to strike. Id.
Accordingly, the Court will deny the Defendants’ motion because a motion to strike is not the correct procedure for removing entire causes of action.

The Defendants also request that the Court strike the documents in the five exhibits attached to the Second Amended Complaint on the ground that they lack exhibits tabs and that the Defendants cannot discern for what purpose the documents were attached. This argument is not persuasive because the Plaintiffs identify the exhibits in their pleadings and the Defendants discuss the exhibits in their demurrer. For example, the third cause of action pleads that ehxiibt 5 shows that boundaries of the Plaintiff’s property. A review of exhibit 5 reveals that it contains a readily legible and standard survey document that identifies the property lines for the Plaintiffs’ property. The Defendants argue that exhibit 5 is “nearly impossible to read” and does not identify the location for the alleged encroachment. This shows that the Defendants were able to discern for what purpose the exhibit was attached. Accordingly, there are no grounds to strike the documents attached as exhibits.
However, the documents do not include proper exhibit tabs, i.e., a hard paper or plastic tab that extends below the bottom of the page and bearing the exhibit designation. Instead, the Plaintiffs labeled each exhibit at the top of the first page of the exhibit. Accordingly, the Court may consider it appropriate to advise the Plaintiffs to attach exhibit tabs to each exhibit when they file an amended pleading.

Therefore, the Court will deny the Defendants’ motion to strike in its entirety.

RULING:
1. Sustain demurrers to first, sixth, and seventh causes of action with leave to amend.
2. Sustain demurrer to fourth cause of action with leave to amend so that it pleads a single cause of action for battery directed at the Defendant, Mark Gatmaitan.
3. Sustain demurrers to second and fifth causes of action without leave to amend.
4. Overrule demurrers to third and eighth causes of action.
5. Deny motion to strike.