Case Number: BC688087 Hearing Date: June 27, 2018 Dept: 51

Background

Plaintiffs Deborah Ann Nicholas and Alfredo Nicholas sue defendants Zehnaly Ghazar, individually and as trustee for Zehnaly 2011 Family Trust and the Zenhaly Family Trust, and 130 Alexandria Apartments, LLC for damages based on allegations that the apartment defendants leased to plaintiffs was uninhabitable and that defendants discriminated against Deborah on the basis of her race and sexual orientation. (The Court refers to plaintiffs by their first names for clarity and consistency, not out of familiarity or disrespect.)

On December 22, 2017, plaintiffs filed a verified complaint and on April 26, 2018, a verified first amended complaint for:

Violation of Civil Code section 1942.5;

Breach of the implied warranty of habitability;

Breach of the covenant of quiet enjoyment;

Nuisance;

Breach of Business and Professions Code section 17200 et. seq.;

Negligence;

Retaliation in violation of Government Code section 1924.5;

Discrimination based on national origin; and

Discrimination based on sexual orientation.

On May 31, 2018, defendants filed this opposed demurrer to the seventh, eighth, and ninth causes of action for insufficient facts and uncertainty. Also on May 31, 2018, defendants filed this opposed motion to strike the prayer for punitive damages and related allegations. The Court considered the moving, opposition, and reply papers and rules as follows.

Failure to Tab Exhibits

The parties should note: “Each exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f).

All parties are ORDERED to strictly comply with this rule or else risk their exhibits being rejected, struck, and/or disregarded, and/or a monetary sanction. Fax filing does not obviate compliance because courtesy copies may be delivered.

Failure to Meet and Confer

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).

Here, defendants filed a compliant meet and confer declaration for the demurrer but did not file a similar declaration for the motion to strike. Kurasz Decl. ¶ 4 (demurrer). This will typically warrant a continuance. In the particular circumstances of these motions, where the Court’s view is that the demurrer and motion to strike raise interrelated issues, the Court will rule on the motion to strike.

Demurrer Standard

A demurrer tests the sufficiency of the pleading at issue as a matter of law. City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719. A demurrer may be sustained where the complaint fails to state facts sufficient to constitute a cause of action. CCP § 430.10(e). The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 112 (“On demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”) However, the Court does not assume the truth of allegations expressing conclusions of law or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.

Additionally, a special demurrer to a complaint may be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. CCP § 430.10(f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191. A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616. A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine to what he or she is required to respond. For example, when a plaintiff joins multiple causes of action as one, fails to properly identify each cause of action, or fails to state against which party each cause of action is asserted if there are multiple defendants, a complaint is uncertain. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.

If the demurrer is sustained, plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.

Demurrer Analysis

Seventh COA: Retaliation in Violation of Civil Code section 1942.5

Civil Code section 1942.5, subdivision (a) provides in part that “[i]f the lessor retaliates against the lessee because of the exercise by the lessee of his or her rights under this chapter or because of his complaint to an appropriate agency as to tenability of a dwelling . . . the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services” within 180 days of certain protected actions.

(Further unspecified statutory references are to the Civil Code. Also, although both parties cite to section 1942.5, subdivision (c), that subdivision does not appear to actually be at issue here. Section 1942.5, subdivision (c) provides that “[t]o report, or to threaten to report, the lessee or individuals known to the landlord to be associated with the lessee to immigration authorities is a form of retaliatory conduct prohibited under subdivision (a).” Nothing in the VFAC or the parties’ papers address immigration authorities.)

Defendants first argue that the cause of action fails because although defendants served a notice to vacate in February 2015, plaintiffs were still residing at the unit until at least November 2016. In opposition, plaintiffs argue that section 1942.5 is violated even if a lessee attempts to recover possession. No authority, however, is cited for this proposition, and the statute contains no language to this effect.

The VFAC alleges that “the actual reason [d]efendants evicted [p]laintiffs from the Rented Unit was to retaliate against them for reporting to lawful authorities about the uninhabitable condition of the Premises” and that “[i]n response to their opposition and complaints, [d]efendants terminated the tenancy of [p]laintiffs.” VFAC ¶¶ 31, 66. This is sufficient to allege a prima facie violation of the statute. Although the VFAC does not detail which of the statute’s protected actions were initiated by plaintiffs within 180 days of the eviction, which specific protected action plaintiffs engaged in (if any) is an evidentiary issue not appropriate for resolution by demurrer. That defendants were served a notice to vacate in February 2015 but stayed in the unit until at least November 2016 does not necessarily mean this cause of action fails. Rather, it means that the February 2015 notice to vacate could not be the retaliatory action. Plaintiffs’ references to eviction in the cited paragraphs above appear to refer to events occurring in November 2016, not February 2015.

Defendants next argue that the VFAC concedes that defendants had a valid reason for evicting plaintiffs: namely, to “prevent further future unpleasant confrontation[s]” with another tenant. VFAC ¶ 28; MOT (Demurrer) 5:13-18. However, as plaintiffs observe, this reason is labeled as the “purported” reason in the VFAC with the real reason being retaliatory in nature. OPP (Demurrer) 3:14-15. Contrary to defendants’ assertions otherwise, plaintiffs have not “conceded” that they were evicted for legitimate reasons. MOT (Demurrer) 5:13-14.

Finally, defendants argue that the cause of action fails because plaintiffs do not allege “how Zehnaly was aware that [p]laintiffs were the individuals who made the complaints, which specific complaints resulted in the retaliatory eviction, and to whom specifically the complaints were made.” MOT (Demurrer) 5:22-25. Defendants do not cite, however, why a heightened pleading standard would be required here. Unless such a heightened standard requires otherwise, “each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. The facts that defendants argue are absent do not render this cause of action uncertain or otherwise defective.

The demurrer is OVERRULED.

Eighth COA: Discrimination Based on Race and/or National Origin

Defendants argue that this cause of action fails largely because it is unclear whether plaintiffs allege discrimination based on national origin or race. Although the VFAC’s caption page only says national origin and the body of the VFAC labels the eighth cause of action as discrimination based on race and national origin, the allegations only go toward race. There are no allegations, for instance, regarding plaintiffs’ national origin; the allegation that “[p]laintiffs are of African American origin” is an allegation regarding race. VFAC ¶ 73. The cause of action is therefore one regarding race and is not uncertain.

Defendants’ argument that the cause of action fails because there is only one allegation of discrimination is conclusory. Defendants cite no authority as to why multiple allegations are necessary or otherwise argue for a heightened pleading standard.

Regarding defendants’ argument that “[t]here could be numerous non-discriminatory reasons” for plaintiffs’ eviction, MOT (Demurrer) 7:7-8, while there certainly may be such reasons, whether or not one exists is not an appropriate question for resolution on demurrer.

The demurrer is OVERRULED.

Ninth COA: Discrimination Based on Sexual Orientation

Defendants raise essentially the same arguments as under the eighth cause of action: that although defendants chastised Deborah for wearing clothes expressing her sexual preference, the VFAC does not “provide any facts specifying the type of clothes” she wore; that the VFAC does not allege how defendants were aware of Deborah’s sexual orientation; and that there are “non-discriminatory” reasons why her attire could have offended defendants. MOT (Demurrer) 7:27-8. These either demand unnecessary factual allegations or require a fact-finder to weigh the evidence. Accordingly, they fail for the same reasons discussed above.

Defendants’ argument that the VFAC fails to allege any sexual orientation discrimination against Alfredo (Deborah’s son) is well taken. MOT (Demurrer) 8:18-19. However, as the VFAC only alleges that Deborah suffered harm under this cause of action, VFAC ¶¶ 82-83, no amendment to the VFAC is necessary.

The demurrer is OVERRULED.

Motion to Strike Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP § 436(b). It may be an abuse of discretion to deny leave to amend after granting a motion to strike a complaint if the defect is curable. CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.

Borrowing from the law governing demurrers, if a motion to strike is granted, the plaintiff “has the burden of proving the possibility of cure by amendment.” Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173 (quoting Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79 (internal quotations omitted)).

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229. Civil Code section 3294 provides punitive damages are available in non-contract actions where defendant is guilty of malice, oppression, or fraud, defined as follows:

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

A demand for punitive damages for the commission of any tort requires more than the mere allegation of the “wrongfully and intentionally,” “oppression, fraud, and malice” sort of language found in Civil Code section 3294. Perkins v Superior Court (1981) 117 Cal.App.3d 1, 6-7. The allegations of fact must, in their totality, describe a state of mind and a motive that would sustain an award of punitive damages. Ibid. The mere allegation that an intentional tort is committed is insufficient to warrant an award of punitive damages. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim. Ibid.

Motion to Strike Analysis

Defendants move to strike punitive damages allegations from the seventh, eighth, and ninth causes of action.

These causes of action each contain the same paragraph regarding punitive damages: “In committing the acts herein mentioned, [d]efendants, and each of them, acted despicably, maliciously and oppressively; from an improper and evil motive amounting to malice, and in conscious disregard of [p]laintiffs’ rights and safety. Plaintiffs are thus entitled to recover punitive damages from [d]efendants in an amount according to proof.” VFAC ¶¶ 69, 71, 84.

These allegations are nothing more than generic boilerplate. The VFAC does not allege facts, for instance, supporting that defendants intended to cause injury to plaintiffs or acted with a willful and conscious disregard of their rights. The VFAC accordingly fails to adequately allege facts supporting punitive damages.

Plaintiffs do not request leave to amend.

The motion is GRANTED WITHOUT LEAVE TO AMEND.

Conclusion

The demurrer is OVERRULED. The motion to strike is GRANTED WITHOUT LEAVE TO AMEND. Defendants to give notice.