Case Name: Pirouzkar v. G&K Management Company, Inc., et al.
Case No.: 1-13-CV-258075

Defendant G&K Management Company, Inc. (“Defendant”) demurs to the first amended complaint (“FAC”) filed by plaintiff Peter Pirouzkhar (“Plaintiff”).

Plaintiff is a resident in an apartment complex known as San Jose Gardens, located at 4668 Albany Drive in San Jose. (FAC at ¶¶ 12, 13.) At all relevant times, San Jose Gardens has been managed by Defendant and Plaintiff has been provided with Section 8 housing assistance from the United States Department of Housing and Urban Development. (Id. at ¶ 14.) Plaintiff alleges that his rent has been miscalculated for years due to a failure to include various medical costs and charges that he incurs each year, resulting in him having to pay more rent than legally obligated. (Id. at ¶ 21.) Plaintiff further alleges that he has not been provided with adequate accommodations for his disability; this allegation is predicated on Defendant’s purported failure to take into account how his disabilities created communication difficulties and failure to accommodate Plaintiff’s request not to post notices on his door. (Id. at ¶ 28.)

On February 6, 2014, Plaintiff filed the FAC asserting claims for: (1) Breach of Contract; (2) Retaliation (Civil Code § 1942.5); (3) Intentional Infliction of Emotional Distress; (4) Violation of Unruh Civil Rights Act (Civil Code § 51 et seq.; (5) Violation of Civil Code § 54.1; (6) Breach of the Covenant of Quiet Enjoyment; (7) Breach of the Covenant of Good Faith and Fair Dealing; and (8) Negligence.

On March 24, 2014, Defendant filed the instant demurrer to the first, fourth and fifth causes of action on the ground of failure to state facts sufficient to constitute a cause of action and to the first on the additional ground that it cannot be ascertained from the pleadings whether the contract sued upon is written, oral or implied by conduct. (Code Civ. Proc., § 430.10, subds. (e) and (g).)

Plaintiff’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (c).)

The first cause of action is predicated on allegations that Defendant has breached the landlord-tenant agreement between the parties by failing to properly calculate his rent, resulting in him having to pay an excessive amount of rent that he could ill-afford. (FAC at ¶¶ 61-65.) Defendant asserts that this cause of action is insufficiently pleaded because Plaintiff does not plead whether the subject agreement is written, oral or implied by conduct and, to the extent it is written, attach a copy or set the terms out verbatim in the FAC. This argument is well-taken. A complaint which asserts a claim for breach of contract must indicate on its face whether the contract is written, oral or implied by conduct, and if the action is based on a written contract, the terms “must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. [Citation.]” (Otoworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.) Plaintiff’s FAC fails to comply with the foregoing standard and therefore Defendant’s demurrer to the first cause of action on the grounds of failure to state facts sufficient to constitute a cause of action and that it cannot be ascertained whether the contract at issue is written, oral or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

Defendant next argues that Plaintiff’s fourth cause of action for violation of the Unruh Civil Rights Act (Civil Code § 51 et seq) is deficient because Plaintiff fails to identify his alleged disability.

The Unruh Civil Rights Act prohibits discrimination based on certain protected categories and guarantees full and equal accommodations, advantages, facilities, privileges, and services in all business establishments. (Civ. Code, § 51, subd. (b).) This prohibition includes discrimination based on an individual’s disability. Plaintiff alleges that Defendant violated the Unruh Civil Rights Act by failing to provide him with a reasonable accommodation for an unspecified disability. (Id.)

The general rule is that statutory claims must be pleaded with particularity. (See Covenant Case, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Further, California law requires that a plaintiff’s complaint contain “statement of the facts constituting the cause of action, in ordinary and concise language”- i.e., the complaint must allege “ultimate facts” rather than mere conclusions of law. Here, without identifying the specific disability from which he suffers or suffered, Plaintiff has not established the applicability of the Unruh Civil Rights Act to his circumstances in the first place. Not all claimed disabilities are covered by the Act; a person is “physically disabled” under the Unruh Civil Rights Act when he or she has a physiological condition that limits a major life activity. (Gov. Code, § 12926, subd. (m).) A qualifying disease or condition limits a major life activity if is makes the achievement of the activity difficult. “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. (Gov. Code, § 12926, subd. (m)(1)(B)(i).) Plaintiff cannot properly state a claim for failure to accommodate without identifying the impairment and/or disability that he suffered from when he requested an accommodation from Defendant. Consequently, Defendant’s demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

Defendant’s demurrer to the fifth cause of action, Violation of Civil Code section 54.1, on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. As with the fourth cause of action, without pleading a specific disability which is covered by Civil Code section 54.1, Plaintiff cannot state a claim for its violation.