Case Number: EC061189    Hearing Date: July 18, 2014    Dept: A

Rashid v Burbank Temporary Aid Center

DEMURRER & MOTION TO STRIKE &
DISCOVERY MOTIONS (2)

Calendar: 6
Case No: EC061189
Date: 7/18/14

MP: Defendant, Burbank Temporary Aid Center
RP: Plaintiff, Hakim Rashid

ALLEGATIONS IN COMPLAINT:
The Defendant provides services to homeless individuals, such as the Plaintiff. violated the Plaintiff’s civil rights by refusing to give the Plaintiff bus tokens that he needed to make a medical appointment. Also, the Defendant gave the Plainiff a T-shirt that was too small and refused to give him a backpack. These acts were based on the Plaintiff’s race and religion.

CAUSES OF ACTION IN COMPLAINT:
1) Civil Rights Violation

RELIEF REQUESTED:
1. Demurrer to Complaint
2. Strike request for punitive damages.
3. Order compelling Plaintiff to serve responses to Defendant’s form and special interrogatories; order imposing monetary sanctions of $935.
4. Order compelling Plaintiff to serve responses to Defendant’s requests for production; order imposing monetary sanctions of $235.

DISCUSSION:

Previously, another court (which had been disqualified) had sustained the Defendant’s demurrer to the Complaint without leave to amend and entered a judgment. Since the Plaintiff had filed his affidavit of prejudice prior to the Court’s ruling on the demurrer, the Court vacated the judgment before the case was re-assigned to this department.

This hearing concerns the following motions:

1) the Defendant’s demurrer and motion to strike directed at the Complaint;
2) the Defendant’s discovery motions regarding its form interrogatories, special interrogatories, and requests for production.

Defendant filed a notice on October 4, 2013 that this case is related to EC060731 because both are based on claims that the Defendant engaged in discrimination against the Plaintiff when it refused to provide him with bus tokens. The Plaintiff dismissed the complaint in EC060731 without prejudice on September 4, 2013.

1. Demurrer
The Defendants argue that each cause of action is uncertain because the nature of the Plaintiff’s claim cannot be ascertained from the pleadings. A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Khoury v. Maly’s of California Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id.
A review of the pleadings reveals that the Plaintiff filed a form complaint in which he alleged in paragraph 10 that he was bringing causes of action for intentional tort and for “civil rights”. However, the Plaintiff did not use a form for his causes of action. Instead, the Plaintiff filed an attachment in which he states that he is bringing a count for civil rights violation. The attachment does not identify the statutory right or constitutional right that was violated. Further, it does not identify the statutory procedure under which he is seeking relief from the alleged civil rights violation.
This review of the pleadings reveals that the Defendants cannot reasonably respond because they cannot determine which claims are directed against them. The caption “civil rights violation” is insufficient because the nature of the civil right and the applicable remedy for the violation cannot be determined from the pleadings. The Defendants cannot determine what issues to admit or deny because they cannot reasonably respond to the generic claim that they engaged in a civil rights violation.

Further, the Plaintiff did not plead the essential facts regarding a claim based on a civil rights violation. As noted above, the Plaintiff did not identify the statutory or constitutional right that was violated and the Plaintiff did not identify the statute under which he is seeking relief. California provides a statutory scheme for claims based on discrimination in public accommodations in Civil Code section 51, which is the Unruh Civil Rights Act. The Plaintiff does not identify the statute and does not plead the essential facts necessary to plead the statutory claims. This is insufficient to state a cause of action.

Therefore, the Court will sustain the demurrer to the Complaint because the pleadings are uncertain and because the Plaintiff did not plead sufficient facts to constitute a cause of action.
This is the original complaint. The Court will grant the Plaintiff the opportunity to amend so that the Plaintiff may plead the facts regarding the essential elements of his cause of action.

2. Motion to Strike
In light of the sustaining of the demurrer to the Complaint, the Court will take the motion to strike off calendar as moot.

3. Discovery Motions
The Defendant seeks discovery orders regarding the discovery served on the Plaintiff. The Defendant’s attorney, Daniel Padova, provides facts in paragraph 7 of the declaration accompanying these two motions to demonstrate that the Plaintiff, Hakim Rashid, did not serve any responses to the Defendant’s form interrogatories, special interrogatories, and requests for production.
Under CCP sections 2030.290 and 2031.300, the Court may order a party to serve responses when the party has failed to serve any responses to interrogatories and requests for production. In addition, under CCP sections 2030.290 and 2031.300, when a party fails to serve timely responses, the party waives all objections to the interrogatories and requests for production. Since the Plaintiff failed to serve any responses to the Defendant’s form interrogatories, special interrogatories, and requests for production, the Court will order the Plaintiff to serve responses without objections.

In addition, the Defendant requests that the Court impose monetary sanctions for the fees and costs incurred on these two motions. Under CCP sections 2030.290 and 2031.300 the Court may impose monetary sanctions upon the Plaintiff for his failure to comply with discovery.
The Defendant’s attorney, Daniel Padova, provides facts in his declaration to demonstrate that he spent 2 hours preparing the motion regarding the interrogatories, 1 hour regarding the requests for production, and that his hourly rate is $175. In addition, Mr. Padova states that the filing fees were $60 for each motion. This results in $410 in monetary sanctions for the motion regarding the interrogatories and $235 for the motion regarding the requests for production.
The notice of motion for the motion regarding the interrogatories seeks $935 in monetary sanctions. There are no facts in Mr. Padova’s declaration that support this amount. Instead, as discussed above, the facts in Mr. Padova’s declaration support an award of $410 (2 hours at $175 per hour + $60 filing fee).

RULING:
1. Sustain demurrer to Complaint with leave to amend.
2. Take off calendar the motion to strike.
3. Order the Plaintiff to serve responses to the Defendant’s form and special interrogatories within twenty days; Impose monetary sanctions of $410.00 on Plaintiff to be paid within thirty days to the office of counsel for defendant .
4. Order the Plaintiff to serve responses to the Defendant’s requests for production within twenty days; Impose monetary sanctions of $235.00 on Plaintiff to be paid within thirty days to the office of counsel for defendant .