Case Number: BC545697 Hearing Date: April 04, 2018 Dept: 47

David Penilla, et al. v. Westmont Corporation d/b/a Wildwood Mobile Home Country Club, et al.

(1) DEMURRER TO FIFTH AMENDED COMPLAINT;

(2) MOTION TO STRIKE

MOVING PARTY: Defendant Star Pro International Security and Training Inc.

RESPONDING PARTY(S): Plaintiffs David Penilla, et al.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs are residents of a mobile home park. Plaintiffs alleges that Defendants have failed to maintain the common areas. Plaintiffs also allege a series of unrelated acts of rudeness and intimidation by various Defendants as well as refusal to approve buyers of Plaintiffs’ mobile homes.

Defendant Star Pro International Security and Training Inc. demurs to the fifth amended complaint and moves to strike portions thereof.

TENTATIVE RULING:

Defendant Star Pro International Security and Training Inc.’s demurrer to the third and sixteenth causes of action is OVERRULED.

The hearing on the motion to strike is CONTINUED to May 4, 2018. Defendant is to meet and confer regarding the motion to strike, taking into account the Court’s ruling on the demurrer. Defendant is to file a meet and confer declaration by April 23, 2018. No further briefing absent court order.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of James Burns reflects that the meet and confer requirement pertaining to demurrers set forth in CCP § 430.41 was satisfied.

1. Third Cause of Action (Private Nuisance).

¶¶ 332 – 342 contain the following allegations: Acting at the direction of Defendant Westmont and as Westmont’s agent, Defendant Star Pro took over as Westmont’s security provider on May 15, 2014 and immediately told the Hispanic residents at the property that starting May 19, 2014, no one would be allowed in the park without a park sticker (and at least one Plaintiff, Beatrice Perez, was not permitted to have her parking sticker on a hanger, as opposed to her bumper–¶ 337). However, some residents have been unable to obtain stickers from Davenport and/or Westmont. This policy effectively prevents the Hispanic Plaintiffs from having visitors at their homes, and deprives the Hispanic Plaintiffs of privileges and facilities at the park. On May 15, 2014, numerous residents, particularly those of Hispanic descent, were denied entry to the mobile harm park because they did not have a valid California ID. This policy is allegedly discriminatory against residents of other states and undocumented residents who cannot obtain California IDs. However, the sticker and California ID policies are not set forth in the Lease Agreement and the park rules regarding parking and entry were unilaterally changed. Moreover, Star Prop began to drive by Chris and Linda Abeyta’s home and taking pictures of their home, including through the windows of the house. ¶ 338. Star Pro allegedly only enforces the above rules arbitrarily without providing actual security services. ¶ 341.

The foregoing allegations are sufficient to state a cause of action for private nuisance. It is for a jury to decide whether Plaintiffs suffered an invasion of their use and enjoyment of property which was substantial and that such the interference was unreasonable:

In Covalt, the Supreme Court discussed the unique nature of a private nuisance cause of action. The court compared nuisance to trespass, and noted that unlike trespass, a nuisance claim requires proof “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 [*161] damage’” and that “‘[t]he interference with the protected interest [was] unreasonable’ [citation], i.e., it must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’” (Covalt, supra, 13 Cal.4th at p. 938.) The court observed that “[t]his requirement flows from the law’s recognition that ‘Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together. The very existence of organized society depends upon the principle of “give and take, live and let live,” and therefore the law of torts does not attempt to impose liability or shift the loss in every case in which one person’s conduct has some detrimental effect on another. Liability for damages is imposed in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.’ (Rest.2d Torts, § 822, com. g, p. 112.)” (Covalt, supra, 13 Cal.4th at pp. 937–938.)

The court explained that “[t]he primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant’s conduct, taking a number of factors into account.” (Covalt, supra, 13 Cal.4th at p. 938, italics added.) The court did not discuss those factors—because it found in that case that the nuisance claim was under the exclusive jurisdiction of the PUC—but instead cited to the Restatement Second of Torts, sections 826 through 831.

Section 826 of the Restatement Second of Torts provides that an invasion is unreasonable if “(a) the gravity of the harm outweighs the utility of the actor’s conduct, or [¶] (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.” (Rest.2d Torts, § 826.)

Section 827 of the Restatement Second of Torts lists the factors to be considered in determining the gravity of the harm from an intentional invasion of another’s interest in the use and enjoyment of land: “(a) The extent of the harm involved; [¶] (b) the character of the harm involved; [¶] (c) the social value that the law attaches to the type of use or enjoyment invaded; [¶] (d) the suitability of the particular use or enjoyment invaded to the character of the locality; and [¶] (e) the burden on the person harmed of avoiding the harm.” (Rest.2d Torts, § 827.) [*162]

The factors to be considered in determining the social utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of property are found in section 828 of the Restatement Second of Torts: “(a) the social value that the law attaches to the primary purpose of the conduct; [¶] (b) the suitability of the conduct to the character of the locality; and [¶] (c) the impracticability of preventing or avoiding the invasion.” (Rest.2d Torts, § 828.)

Restatement Second of Torts, sections 829 through 831 provide alternate tests to determine when an intentional invasion is unreasonable: when the harm caused by the invasion is “significant” and the actor’s conduct is “for the sole purpose of causing harm to the other” or “contrary to common standards of decency” (Rest.2d Torts, § 829); when “the harm resulting from the invasion is severe and greater than the other should be required to bear without compensation” (Rest.2d Torts, § 829A); when “the harm is significant and it would be practicable for the actor to avoid the harm in whole or in part without undue hardship” (Rest.2d Torts, § 830); or when the harm is “significant” and “the particular use or enjoyment interfered with is well suited to the character of the locality …” and “the actor’s conduct is unsuited to the character of that locality” (Rest.2d Torts, § 831).

The CACI instruction given to the jury in this case (CACI No. 2021) did not address any of these factors or alternate tests. The absence of any instruction on these factors or tests not only left the jury without any guidance as to the proper focus of their deliberations,n34 it also rendered CACI No. 2021 an incorrect statement of the law because it allowed the jury to find liability for nuisance even if the jury did not find that the harm to Wilson was substantial. The instruction merely stated, as the fifth element that Wilson must prove, “that Simona Wilson was harmed.” (See CACI No. 2021, element 6 [“6. That [name of plaintiff] was harmed”].) Moreover, the fourth element set forth in the instruction seemed to suggest that the harm need not be substantial because it stated that Edison’s conduct needed only be enough to “reasonably” annoy or disturb an ordinary person. (CACI No. 2021, element 5 [“5. That an ordinary person would be reasonably annoyed or disturbed by [name of defendant]’s conduct”].)

. . .

Had the jury been instructed on the proper factors to consider when weighing the gravity of the harm against the social utility of Edison’s conduct and found Edison liable, the statement of these elements would be sufficient because in finding in favor of Wilson the jury necessarily would have concluded that the harm was substantial. Without such instruction, it is not. Therefore, on retrial the jury must be given an additional instruction to supplement CACI No. 2021. The additional instruction, which for clarity should immediately follow CACI No. 2021, is as follows:

. . .

In determining whether the seriousness of the harm Wilson suffered outweighed the public benefit of Edison’s conduct you should consider the following factors.

To determine the seriousness of the harm Wilson suffered, you should weigh:

a. The extent of the harm, meaning how much the condition Edison caused (that is, stray voltage) interfered with Wilson’s use or enjoyment of her property, and how long that interference lasted.

b. The character of the harm, that is, whether the harm involved a loss from the destruction or impairment of physical things she was using, or personal discomfort or annoyance.

c. The value society places on the type of use or enjoyment invaded; in this case the property was used as a residence. The greater the social value of the particular type of use or enjoyment of land that is invaded, the greater the gravity of harm from the invasion.

d. The suitability of the type of use or enjoyment invaded to the character of the locality. The character of a locality is based upon the primary kind of activity at that location, such as residential, industrial, or other activity.

e. The extent of the burden (such as expense and inconvenience) on Wilson to avoid the harm.

To determine the social utility of Edison’s conduct, you should weigh:

a. The value society places on the primary purpose of the conduct that caused the interference. The primary purpose of the conduct means Edison’s main objective for engaging in the conduct. How much social value a [*164] particular purpose has depends upon how much its achievement generally advances or protects the public good.

b. The suitability of the conduct that caused the interference to the character of the locality. The suitability of the conduct depends upon its compatibility to the primary activities carried on in the locality.

c. The practicability or impracticality of preventing or avoiding the invasion.

Wilson v. Southern California Edison Co. (2015) 234 Cal. App. 4th 123, 160-64 (bold emphasis added).

Even if Plaintiffs were only subjected to Star Pro’s conduct once, a single act may constitute a nuisance; here it is a question for the jury:

There is also no merit in defendant’s contention that a single act is not a nuisance. Prosser states, “. . . the duration or recurrence of the interference is merely one — and not necessarily a conclusive — factor in determining whether the damage is so substantial as to amount to a nuisance,” op. cit., page 397, note 90. Recovery for the unlawful destruction of crops was allowed in Dick v. City of Los Angeles, 34 Cal.App. 724 [168 P. 703]. In Vater v. County of Glenn, (Cal.App.) 309 P.2d 844, relied upon by the defendant, a hearing was granted by the Supreme Court and nothing said in that case may be regarded as a binding precedent. (Ponce v. Marr, 47 Cal.2d 159 [301 P.2d 837].)

Ambrosini v. Alisal Sanitary Dist. (1957) 154 Cal.App.2d 720, 727.

Accordingly, the private nuisance cause of action is sufficiently pled. The demurrer to the third cause of action is OVERRULED.

2. Sixteenth Cause of Action (Racial Discrimination In Housing—Gov. Code § 12955).

Defendant Star Pro argues that Gov. Code § 12955 does not apply because the Mobilehome Residency Law regulates the landlord-tenant relationship between mobilehome park owners and its residents. SC Manufactured Homes, Inc. v. Canyon (2007) 148 Cal.App.4th 63, 673. Defendant argues that, because it does not own the mobilehome park or any mobilehomes, nor has it entered into any lease agreements with Plaintiffs, as Plaintiffs allege that they lease spaces from the park owner, Westmont.

However, Defendant does not cite any case law which holds that the Mobilehome Residency Law governs to the exclusion of FEHA. Thus, this argument is not persuasive.

It shall be unlawful:

(a) For the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person.

. . .

(g) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts or practices declared unlawful in this section, or to attempt to do so.

Gov. Code, § 12955(a) & (g)(bold emphasis and underling added).

Defendant argues that the aiding and abetting allegations are insufficiently pled. However, the following paragraphs allege, with supporting facts, that Defendant Star Pro, acting at the direction of Westmont, the owner of the mobilehome park, engaged in the following conduct: Enforcing an automobile park sticker policy which effectively prevents the Hispanic Plaintiffs from having visitors at their homes; preventing Hispanic residents from entering the park without a valid California ID; such policies were allegedly not enforced against Caucasian residents. Moreover, Star Pro would drive like policemen by the homes of Hispanic residents and take pictures of many of the Hispanic residents’ homes, sometimes through the windows of the homes. See 5AC, ¶¶ 532 – 542, 576, 577, 584 – 586, 594 – 597, 604 – 606, 612 – 614, 622 – 624, 637 – 639, 646, 647, 650 – 651, 660 – 662, 673 – 676, 686, 687, 691, 697 – 699, 705 – 707, 714 – 716, 725 – 727, 733 – 735, 741 – 743, 749 – 751, 758 – 760, 768 – 770, 775 – 777, 792, 793, 799 – 801, 809 – 812, 825 – 827, 834 – 836, 838, 846 – 848, 854 – 857, 871 – 873, 879 – 881, 901 – 903, 909 – 911, 924 – 926, 932 – 934, 943 – 945, 955 – 957, 965 – 967, 982 – 984, 990 – 993, 1000 – 1002, 1008 – 1010, 1016 – 1018, 1024 – 1026, 1032 – 1034, 1040 – 1042, 1050 – 1052, 1059 – 1061, 1067 – 1069, 1075 – 1077, 1083 – 1085, 1091 – 1093, 1100 – 1101, 1106 – 1108, 1114 – 1116, 1122 – 1124, 1132 – 1134, 1145 – 1147, 1152 – 1155.

These allegations are sufficient to plead intentional conduct on the part of Star Pro to aid and abet Westmont, as owner of the mobilehome park, to harass Hispanic residents on account of their race and/or national origin. It is for a jury to decide whether these allegations of aiding abetting are true and whether such conduct constitutes harassment in violation of Gov. Code § 12955.

The demurrer to the sixteenth cause of action is OVERRULED.

Motion To Strike

Meet and Confer

The motion to strike was filed on February 14, 2018. Defendant did not submit a meet and confer declaration regarding the motion to strike as required by CCP § 435.5 (effective January 1, 2018). The Burns Declaration submitted in support of the demurrer does not mention CCP § 435.5.

Accordingly, the hearing on the motion to strike is CONTINUED to May 4, 2018. Defendant is to meet and confer regarding the motion to strike, taking into account the Court’s ruling on the demurrer. Defendant is to file a meet and confer declaration by April 23, 2018. No further briefing, absent court order.

Plaintiffs to give notice, unless waived.

IT IS SO ORDERED.

Dated: April 4, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court