Case Name: Christopher Bonhage, et al. v. Hiral Hansapriya Rawson, et al.
Case No.: 2014-1-CV-271558

I. Background

This is a housing discrimination action brought by plaintiffs Christopher Bonhage (“Bonhage”) and Brittany Collins (“Collins”) (collectively “Plaintiffs”) against defendant Hiral Hansapriya Rawson (“Rawson”), individually and as a trustee of The Hiral Hansapriya Rawson Living Trust, U/A Dated November 1, 2010, Murahari Amarnath (“Amarnath”), Eunice Foster (“Foster”), Stanford Real Estate Networks, LLC dba Amar Realtor, and Silicon Valley Real Estate Corporation dba Keller Williams Palo Alto (collectively “Defendants”).

According to the operative Fifth Amended Complaint (“5AC”), Plaintiffs are an unmarried couple who were looking for a home to rent. They observed an advertisement on Craigslist.com for a rental property owned by Rawson (the “Property”) that they, along with prospective housemates Jessica McCargar (“McCargar”) and Arielle Aspacio (“Aspacio”), desired to rent. Bonhage and McCargar each submitted a rental application to Foster, an assistant to Rawson’s broker, Amarnath. Bonhage’s rental application identified Collins as his domestic partner.

After Bonhage and McCrager submitted their applications, Collins noticed the Property had been re-listed on Craigslist.com. Bonhage called Rawson for an explanation. Although Rawson stated they were the strongest candidates, she indicated she preferred to rent to a family and would continue looking for more applicants. After that call, Bonhage continued to contact Rawson to follow up on the application status; each time he spoke with her, she stated they were great candidates. Nevertheless, Rawson and her agents engaged in tactics to discourage Plaintiffs and their potential housemates from renting the Property. Because of Rawson’s actions, McCargar and Aspacio decided they did not want to rent the Property anymore.

Subsequently, Plaintiffs sent Rawson a letter through their attorney asserting discrimination based on marital status. Rawson’s attorney responded with a proposed lease. Plaintiffs refused to consider the proposed lease because it contained many disagreeable terms. Further, it did not compensate them for the rent they lost from their prospective housemates due to Rawson’s discriminatory actions.

The 5AC asserts the following causes of action: (1) invasion of privacy under the California Constitution, article I, section 1; (2) housing discrimination in violation of Government Code section 12955, subdivision (a); (3) interference with fair housing rights in violation of Government Code section 12995.7; (4) retaliation in violation of Government Code section 12955, subdivision (f); (5) making discriminatory statements in violation of Government Code section 12955, subdivision (c); (6) discrimination by a person whose business involves real estate transactions in violation of Government Code section 12955, subdivision (i); (7) aiding and abetting discrimination in violation of Government Code section 12955, subdivision (g); (8) housing discrimination in violation of Civil Code section 51; (9) unlawful business practices in violation of Business and Professions Code section 17200; (10) negligence per se; (11) negligent supervision; and (12) vicarious liability.
Rawson presently demurs to the tenth, eleventh, and twelfth causes of action, and also moves to strike certain allegations and prayers for relief in the 5AC. Plaintiffs oppose both matters.

II. Meet and Confer Requirement

Prior to filing a demurrer or motion to strike, the moving party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41; 435.5.) If such efforts are unsuccessful and a demurrer and/or motion is filed, the moving party must file and serve a declaration describing the meet-and-confer process. (Code Civ. Proc., §§ 430.41, subd. (a)(3), 435.5, subd. (a)(3).)

Rawson did not file a meet-and-confer declaration with her demurrer and motion to strike. This is the second time she has failed to comply with this requirement. Rawson previously failed to file a declaration with her demurrer to the Fourth Amended Complaint, and the Court admonished her to comply with Code of Civil Procedure section 430.41 in the future.
In opposition, Plaintiffs observe these facts and state the Court can compel Rawson’s compliance with the meet and confer requirements by ordering a conference prior to ruling on the demurrer and motion to strike, and/or imposing sanctions under Code of Civil Procedure section 128.5. To be clear, they do not affirmatively request such relief; rather, they merely assert these remedies are available to the Court.

It is remarkable to the Court that Rawson failed to file a declaration after previously being admonished to do so. With that said, the Court will not order a conference because Plaintiffs affirmatively state in their opposition that the parties did in fact meet and confer (Opp., p. 6:12-14). Also, Rawson ultimately filed a meet and confer declaration with her reply brief, wherein her counsel acknowledges the oversight and apologizes for the same. (Decl. Bernstein, p. 2:3-4.) And the Court finds it would not be appropriate to pursue sanctions against Rawson under the circumstances.

Rawson is once again admonished to comply with the statutory meet and confer requirements in the future.

III. Demurrer

Rawson demurs to the tenth, eleventh, and twelfth causes of action on the grounds of failure to state facts sufficient to constitute a cause of action and uncertainty. (See Code Civ. Proc., 430.10, subd. (e), (f).)

A. Failure to State Sufficient Facts to Constitute a Cause of Action

1. Tenth Cause of Action

The tenth cause of action for negligence per se alleges Defendants, including Rawson, violated statutory duties imposed under the California Constitution, the Fair Employment and Housing Act (the “FEHA”), the Unruh Act, and Business and Professions Code section 17200, causing Plaintiffs to suffer various damages. The negligence per se doctrine is codified in Evidence Code section 669, “pursuant to which statutes and regulations may be used to establish duties and standards of care in negligence actions.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 927.)

Preliminarily, Plaintiffs acknowledge in their opposition that “negligence per se may not be a cause of action.” (Opp., p. 2:17-18.) They note the doctrine of negligence per se creates an evidentiary presumption in negligence cases but is not an independent cause of action. (See Johnson v. Honeywell Internat., Inc. (2009) 179 Cal.App.4th 549, 555-556.) Plaintiffs contend that while they incorrectly labeled their cause of action, they still state a viable claim for negligence. (See Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.”].) Rawson does not take issue with the label of Plaintiffs’ claim in the first instance, and understands it to be a negligence cause of action.

In support of its demurrer, Rawson first points out she successfully demurred to this cause of action in the Fourth Amended Complaint on the basis Plaintiffs failed to allege she owed them any duty of care. In amending the pleading, Plaintiffs invoked the negligence per se doctrine to establish duties that were allegedly breached. The subject statutory and constitutional violations are the bases for preceding causes of action alleged in the 5AC.

Rawson argues all of the alleged statutory and constitutional prohibitions at issue are prohibitions against intentional conduct. To that point, Rawson asserts Plaintiffs “cannot convert these intentional torts into a negligence claim” since “[n]one of them involve the element of want of ordinary care” and instead “involve intentional conduct.” (Opp. p. 4:13-16.)

Rawson fails to cite any legal authority whatsoever in support of her position. It should go without saying that she should have done so, and is admonished for this glaring omission. (See, e.g., Cal. Rules of Court, rule 3.1113(b) [memorandum must contain statement of law, arguments relied on, and discussion of law supporting position advanced].) With that said, her position is nevertheless legitimate.

There can be no debate that negligence cause of action must be predicated on unintentional conduct. “Negligence is an unintentional tort, a failure to exercise the degree of care in a given situation that a reasonable man under similar circumstances would exercise to protect others from harm.” (Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869; see also Solv–All v. Superior Court (2005) 131 Cal.App.4th 1003, 1010 [“ ‘negligence’ implies a careless, but unintentional, failure to act with due care”].)

Here, the gravamen of the alleged statutory and constitutional violations is that Rawson engaged in housing discrimination on a disparate treatment theory. There is no apparent legal authority recognizing a negligent discrimination claim. By its very nature, discrimination based on disparate treatment is an intentional act. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1418.) In fact, Plaintiffs explicitly characterize the discrimination in this case as intentional. (See 5AC, ¶¶ 67, 97, 110, 183, 206.) As such, Plaintiffs have not alleged any duty of care that form the basis for a negligence claim.

Plaintiffs’ argument in opposition does not support a contrary conclusion. Plaintiffs insist the “intentional torts are not being used to create a negligence cause of action.” (Opp., p. 6:1.) They contend they are only alleging the duty element of negligence by pleading statutory and constitutional violations. They rely on Stevenson v. Superior Court (1997) 16 Cal.4th 880 (“Stevenson”) in support, stating the case stands for the proposition that violations of the FEHA can be used to establish duty for a negligence claim.

Plaintiffs’ reliance on Stevenson is misplaced. There, the court stated that, by alleging a violation of FEHA’s age discrimination statute, the plaintiff adequately pled one of the elements of a common law wrongful discharge in violation of public policy claim, specifically that the violated policy is articulated in constitutional or statutory provisions. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 879-890, 898.) The court recognized that this is similar to the negligence per se doctrine, where by alleging a violation of a statute, the plaintiff establishes either the duty or standard of care element for a negligence cause of action. (Id., at 898, fn. 7.) However, the court did not affirmatively state that by alleging a violation of the FEHA, a plaintiff has pled the duty element for a negligence cause of action; Stevenson is therefore inapposite in the present circumstances.
In sum, Plaintiffs failed to adequately allege any duty of care to support their negligence claim.

Rawson additionally argues that Plaintiffs’ allegation of proximate causation is a “mere conclusion and does not plead ultimate facts explaining how any want of care on Rawson’s part proximately caused damages to [them].” (Dem. & Mtn., p. 4:20-22.) Rawson cites specifically to paragraph 238 in the 5AC, asserting the allegation is deficient. There, Plaintiffs allege “[t]he negligence per se of each Defendant was a proximate cause of Bonhage and Collins’ damages.” (5AC, ¶238.)

A plaintiff must allege causation to state a claim for negligence. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640; Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at 673.) “A plaintiff ‘must allege a causal connection between the negligence…and the injury he suffered.’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528 [internal citations omitted].) To do so, plaintiff must allege facts, not mere conclusions, explaining how the conduct caused the injury. (Ibid.)

In opposition, Plaintiffs argue that Rawson ignores that the tenth cause of action incorporates all allegations from previous causes of action, which provide ultimate facts demonstrating Rawson proximately caused their damages. Plaintiffs point to the damages section in the second cause of action that lists how the Defendants’ actions, including Rawson’s, caused those damages. For example, Plaintiffs state that they allege in the second cause of action that Rawson’s discriminatory conduct caused them to lose rental contributions from McCargar and Aspacio. (5AC, ¶106.)
Plaintiffs’ argument is not persuasive. Even in the incorporated portions of the 5AC, they do not allege any ultimate facts regarding how Rawson’s want of care caused their damages. All the cited language alleges that Rawson’s intentional acts caused the damage. But that is not the pleading standard here; Plaintiffs must allege facts supporting Rawson’s negligence causing damages.
Accordingly, Rawson’s demurrer to the tenth cause of action is SUSTAINED with 10 days leave to amend.

2. Eleventh Cause of Action

Plaintiffs’ eleventh cause of action is for negligent supervision. “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [Citation.]” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

Rawson correctly observes there are no charging allegations against her to form a basis for direct liability. The pleading is devoid of direct liability allegations against Rawson; Plaintiffs only plead that the entity defendants breached their duty to adequately supervise Amarnath and Foster, and Amarnath breached his duty to adequately supervise Foster. Rawson therefore assumes Plaintiffs are proceeding against her based on the theory of vicarious liability. Plaintiffs essentially concede that point, stating in opposition that they adequately plead that Rawson is vicariously liable as the principal for the acts of her agents, Amarnath and Foster.

Rawson contends she cannot be held vicariously liable for negligent supervision because such claim is a direct liability claim. In support, she points out the legal principle that “[l]iability for negligent supervision and/or retention of an employee is one of direct liability for negligence, not vicarious liability.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.)
The question, then, is whether a defendant can be vicariously liable for another person’s negligent supervision.

Multiple cases discuss whether an employer can be vicariously liable for an employee’s negligent supervision of another employee. (See, e.g., C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 875; de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 251.) These cases, however, discuss the vicarious liability of public entities under Government Code section 815.2 for its employees’ negligent supervision of other employees and acknowledge that negligent supervision claims are usually direct liability. The cases are clearly inapplicable here because Rawson is an individual and not a public entity. Moreover, there are no cases supporting Plaintiffs’ position that they may proceed with a negligent supervision claim under a theory of vicarious liability of Rawson as a private individual. Thus, Plaintiffs’ position is unsubstantiated.

Consequently, Rawson’s demurrer to the eleventh cause of action is SUSTAINED with 10 days leave to amend.

3. Twelfth Cause of Action

Plaintiffs’ twelfth cause of action is for vicarious liability and alleges Rawson is vicariously liable for Amarnath’s and Foster’s wrongful acts.

Rawson argues that vicarious liability is not a cause of action but rather a theory of recovery. Rawson neglects to cite any legal authority to substantiate her position. As such, her presentation is again deficient. (See Cal. Rules of Court, rule 3.1113(b).) With that said, her position is incontrovertible.

Vicarious liability is not a cause of action in and of itself; instead, it is a theory upon which a defendant may be liable for wrongful conduct committed by another. “Vicarious liability ‘means that the act or omission of one person … is imputed by operation of law to another[.]’ [Citation.] Thus, vicarious liability is a departure from the general tort principle that liability is based on fault. [Citation.] [¶] As an illustration, under the doctrine of respondeat superior, the employee’s fault is imputed to the employer. [Citation.] The employer is held vicariously liable for the employee’s torts committed within the scope of employment.” (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726-727.) “[W]here no underlying cause of action exists, no vicarious liability can exist either.” (Dyer v. Northbrook Property & Casualty Ins. Co. (1989) 210 Cal.App.3d 1540, 1553.)

In opposition, Plaintiffs do not directly respond to the issue raised here. Rather, they merely state that all elements for vicarious liability have been alleged. This is nonresponsive. The eleventh cause of action is styled as an independent cause of action for vicarious liability despite the fact it is not a distinct cause of action. If any given cause of action is predicated upon that theory, the allegations should appear within the cause of action directly or by incorporation if averred in the background facts. Here, the preceding causes of action are already directed against Rawson and there are vicarious liability allegations in other parts of the pleading. (See, e.g., 5AC, ¶¶ 13, 39.) The eleventh cause of action simply does not assert a recognizable, independent cause of action.

Accordingly, the demurrer to the twelfth cause of action is SUSTAINED without leave to amend.

B. Uncertainty

A pleading is subject to a demurrer if it “is uncertain…ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subd. (f).) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.)

Here, although Rawson specifies uncertainty as a ground for a demurrer to the tenth, eleventh, and twelfth causes of action, she only discusses this ground relative to the twelfth cause of action. As such, the demurrer to the tenth and eleventh causes of action are unsubstantiated. Moreover, the demurrers on the ground of failure to state sufficient facts were sustained with leave to amend for both causes of action. As for the twelfth cause of action, the demurrer for failure to state sufficient facts has been sustained without leave to amend. Thus, the demurrers on the ground of uncertainty are moot.

Accordingly, the demurrer on the ground of uncertainty to the tenth, eleventh, and twelfth causes of action are MOOT.

IV. Motion to Strike

Rawson moves to strike portions of the 5AC, specifically paragraphs 233 to 246, which comprise the entirety of the tenth and eleventh causes of action; paragraphs 250 to 251, which consist of allegations of vicarious liability found in the twelfth cause of action; and prayers for relief for the tenth, eleventh, and twelfth causes of action.

Rawson moves to strike the allegations and prayers for relief “on the ground that neither a duty of due care nor a breach of such duty nor proximate causation of Plaintiffs’ damages by such breach has been properly alleged against Defendant Rawson; and that Plaintiffs’ omnibus cause of action for ‘vicarious liability’…fails to specify the basis for the alleged vicarious liability of Rawson and fails to state a cause of action and is fatally uncertain.” (Notice of Mtn. to Strike, p. 2:5-10.)

Preliminarily, Rawson fails to identify any statutory ground for her motion. (See Code Civ. Proc., § 1010 [notice of motion “must state…the grounds upon which it will be made”].) Instead, she merely recites arguments without connecting them to the grounds enumerated in Code of Civil Procedure section 436.

In any event, the Court sustained the demurrers to the tenth and eleventh causes of action with leave to amend, and the twelfth cause of action without leave to amend; consequently, the motion as to paragraphs 233 through 246 and 250 to 251 and the prayers for relief for the tenth, eleventh, and twelfth causes of action is MOOT.