Case Number: BC670086 Hearing Date: March 23, 2018 Dept: 74

KRISTIN DIAS GYIMAH, ET AL.,

Plaintiffs,

vs.

HARRY BARSEGHIAN, ET AL.,

Defendants

Case No.: BC670086

[TENTATIVE] ORDER SUSTANING DEMURRER WITH LEAVE TO AMEND

TENTATIVE RULING: Defendants Harry Barseghian; Alvard Barseghian; Harry’s Auto Collision Group; Harry’s Auto Body, Inc.; Vic Soghomonian’s demurrer to the third cause of action is SUSTAINED with leave to amend. Plaintiffs’ request for attorneys’ fees is DENIED.

DISCUSSION

Request for Judicial Notice

Plaintiffs’ request judicial notice of the SAC filed on January 12, 2018 is GRANTED.

Demurrer

Timeliness of Opposition

Defendants argue the Court should not consider the opposition as it was untimely served. The Court notes that although Plaintiffs’ opposition was timely filed, it appears the opposition was not timely served pursuant to CCP section 1005(c) as it was not served in a manner that is “reasonably calculated to ensure delivery to [Defendants] not later than the close of the next business day after the time the opposing papers . . . are filed.” (Code Civ. Proc., § 1005(c).) However, given Defendants have filed a reply addressing Plaintiffs’ opposition on the merits, there has been no prejudice to Defendants and the Court will consider the opposition.

Defendant Soghomonian’s Demurrer

Plaintiffs assert Soghomonian’s demurrer was improperly filed as he was still represented by counsel Monique Rad-Stein at the time this demurrer was filed. Plaintiffs rely on CCP section 285, which provides that notice of the substitution of attorney must be given when an attorney is changed. (See Code Civ. Proc., § 285.) Section 285 further provides that until a party is notified of the change, he or she must recognize the former attorney. (See id.) Plaintiffs are correct that a substitution of counsel for Soghomonian was not filed until March 1, 2018, after the instant demurrer was filed. However, Plaintiffs have failed to show that this necessarily means that the demurrer as brought by Soghomonian was improperly filed. Section 285 does not provide such support. Furthermore, the Court finds there is no prejudice. Therefore, the Court will consider the merits of Soghomonian’s demurrer.

Meet and Confer

Plaintiffs contend Defendants have failed to properly meet and confer with them prior to filing this demurrer. It is undisputed that the parties met and conferred over the grounds for this demurrer prior to the demurrer being filed. The issue is whether Defense counsel’s purported failure to provide legal authority supporting Defendants’ grounds for demurrer means that Defendants have failed to properly meet and confer. CCP section 430.41(a) provides that “[a]s part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.” (Code Civ. Proc., § 430.41(a)(1).) Defendants were required to provide legal support for their position. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (See Code Civ. Proc., § 430.41(a)(4).) Therefore, the Court will consider the demurrer on the merits.

Third Cause of Action for Housing Discrimination

Defendants assert this cause of action fails to state sufficient facts. The Court agrees.

Government Code section 12955 provides that it shall be unlawful “[f]or 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.” (Govt. Code, § 12955(a).) Section 12955 also provides that it shall be unlawful “[f]or 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.” (Id., § 12955(f).)

Plaintiffs have failed to allege sufficient facts to state a cause of action for housing discrimination against Defendants. Plaintiffs have failed to allege sufficient facts to impute the City Wide Towing employee’s racial epithet on Defendants. Although Plaintiffs allege Harry’s Auto Body and Harry’s Auto Group use the services of City Wide Towing for its business operations and continued to do so after the incident (see SAC, ¶¶ 76, 81), there are no allegations that City Wide Towing and its employees are agents of Defendants. However, Plaintiffs have alleged sufficient facts with respect to Defendants’ employee. Plaintiffs allege that Defendants’ employee joined in with the City Wide Towing employee’s confrontation by telling Edward to leave and never come back and that it was Edward’s race that caused and provoked the conflict. (See id., ¶¶ 52, 75, 78, 87.) Plaintiffs allege that Defendants knew of the incident as they responded to the conflict, but Defendants’ employee was not disciplined. (See id., ¶¶ 79, 81.) This is sufficient to show ratification. Despite the sufficiency of the allegations with respect to Defendants’ employee’s misconduct, Plaintiffs have still failed to allege sufficient facts to show a causal nexus between the incident and Defendants’ service of the Notices to Quit. Plaintiffs’ allegation that Harry suggested during the meeting between Kristin, her sister, Harry, Soghomonian, and Mike the manager for Harry’s Auto Body and Harry’s Auto Group that Kristin “find another location” (see id., ¶ 80) is insufficient to show that the subsequent service of the Notices to Quit about five months after the incident was due to Plaintiffs’ race. Plaintiffs’ allegations that Harry told Kristin that Edward should stay calm and that Harry expressed his concern that Edward should stay calm to avoid physical violence without having any reasonable cause to believe so (see id., ¶¶ 80, 87) are also insufficient to show that the Notices to Quit were served because of Plaintiffs’ race. There are also no allegations showing Plaintiffs were retaliated against for opposing any unlawful practices pursuant to Government Code section 12955.

In opposition, Plaintiffs assert that Harry’s comments with respect to concerns that Edward could start physical violence if Edward does not stay calm “touch on the unfair misconception that black people are violent.” (See Opposition, p. 7, lines 7-8.) Plaintiffs’ factual allegations in the SAC are insufficient to suggest Harry’s comments were made based on this misconception.

Accordingly, Defendants’ demurrer to the third cause of action is sustained with leave to amend.

Plaintiffs’ Request for Attorneys’ Fees

Plaintiffs request attorneys’ fees in the amount of $2,171.00 pursuant to Civil Code sections 1717 and 1942.5(g) and Government Code section 12980(h). Given these sections pertain to award of attorney’s fees to a prevailing party, they are inapplicable at this stage of the action. Even if they were applicable, as the demurrer is sustained, Plaintiffs are not the prevailing party. Accordingly, Plaintiffs’ request is denied.