Jane Doe v. Margaret Cafarelli, et al.
Case No: 18CV04974
Hearing Date: Tue Jun 25, 2019 9:30

Nature of Proceedings: Demurrer to Second Amended Complaint (2); Motion to Strike Second Amended Complaint

(1) Demurrer of Defendants Margaret Cafarelli, Jan Hill, Thomas Bonomi, and Urban Developments, LLC, to Second Amended Complaint

(2) Motion of Defendants Margaret Cafarelli, Jan Hill, Thomas Bonomi, and Urban Developments, LLC, to Strike Portions of Second Amended Complaint

(3) Demurrer of Defendants Alma del Pueblo Owners Association and The Management Association, Inc., to Second Amended Complaint

ATTORNEYS:

For Plaintiff Jane Doe: James F. Scafide, Tyler J. Sprague, Scafide Law Firm, PC

For Defendants Margaret Cafarelli, Jan Hill, Thomas Bonomi, and Urban Developments, LLC: Cary L. Wood, Rand D. Carstens, Lewis Brisbois Bisgaard & Smith LLP

For Defendants Santa Barbara Public Market, LLC, and Victoria Street Partners, LLC: Thomas P. Gmelich, Lena J. Marderosian, Dawn Cushman, Bradley & Gmelich LLP

For Defendants Alma Del Pueblo Owners Association and The Management Association Inc. dba The Management Trust: Jeff Hsu, Patrick A. Gillispie, Murphy, Pearson, Bradley & Feeney

For Defendants Samuel Hedgpeth and Sonia Rosenbaum: Michele L. Gamble, Rebecca J. Chmura, Collins Collins Muir + Stewart LLP

RULINGS:

(1) For the reasons set forth herein, the general and special demurrers of defendants Margaret Cafarelli, Jan Hill, Thomas Bonomi, and Urban Developments, LLC, are sustained, with leave to amend, as to the seventh, eighth, fourteenth through seventeenth, and twenty-first through twenty-third causes of action of plaintiff’s second amended complaint as to all of these demurring defendants. The general and special demurrers are also sustained, with leave to amend, as to the ninth through twelfth causes of action as to all demurring defendants except for defendant Cafarelli. The general and special demurrers are overruled as to the first, second, twenty-fourth, and twenty-fifth causes of action as to all demurring defendants, and are overruled as to the ninth through twelfth causes of action as to defendant Cafarelli.

(2) For the reasons set forth herein, the motion of defendants Margaret Cafarelli, Jan Hill, Thomas Bonomi, and Urban Developments, LLC, to strike portions of plaintiff’s second amended complaint is granted, with leave to amend, to strike as to defendants Hill, Bonomi, and Urban Developments, LLC, paragraph g of the prayer of the second amended complaint, and is in all other respects denied.

(3) Plaintiff Jane Doe shall file and serve her third amended complaint on or before July 18, 2019.

(4) The hearing on the demurrer of defendants Alma del Pueblo Owners Association and The Management Association, Inc., is continued to July 16, 2019, to be heard concurrently with those parties’ special motion to strike (Code Civ. Proc., § 425.16).

Background:

(1) Allegations of Second Amended Complaint

Plaintiff Jane Doe (suing here under a pseudonym) is the owner of a residential unit in the condominium project known as Alma del Pueblo (AP) and is a member of defendant Alma del Pueblo Owners Association (APOA.) (Second Amended Complaint [SAC], ¶ 1.) AP comprises 40 condominium units, consisting of 37 residential units (of which five are designated as “affordable” units, sold at below-market rates) and three commercial units. (SAC, ¶ 16.) The AP and the APOA are governed by a Declaration of Covenants, Conditions and Restrictions (CC&Rs). (SAC, ¶ 6 & exhibit A.)

Defendant Margaret Cafarelli owns or controls defendants Urban Developments, LLC (UD LLC), Victoria Street Partners, LLC (VSP), and Santa Barbara Public Market, LLC (SBPM). (SAC, ¶ 12.) The SAC refers to UD LLC, VSP, and SBPM collectively as the “Cafarelli Entities.” (Ibid.)

Cafarelli, individually or through one of the Cafarelli Entities, as the developer of AP began selling units in 2014. (SAC, ¶ 17.) Doe was given the opportunity to purchase an affordable unit and met with an agent for Cafarelli and the Cafarelli Entities in October 2014. (SAC, ¶¶ 16-17.) As part of the purchase, Doe received a seller’s disclosure which identified that the building includes facilities reserved for the use of the residential units and that the Board of Directors of the APOA (Board) would adopt rules regulating access to and use of these facilities. (SAC, ¶¶ 18-19 & exhibit C.) Based upon her inspection of AP and the disclosure, Doe believed that she would have full access to these facilities and Doe was not informed that she would not have full access. (SAC, ¶¶ 20-21.)

All residential unit owners at AP pay the same homeowners association fee (HOA fees) rates, with no discount for affordable units. (SAC, ¶ 22.) The HOA fee rates consist of a flat rate paid equally by all members and a pro-rata rate that is based on the square footage of each unit. (SAC, ¶¶ 23-24.)

On September 7, 2012, Cafarelli, as the developer and initial incorporator, appointed herself and two others to serve on the Board. (SAC, ¶ 25.) Prior to the initial meeting of the Board, Cafarelli entered into a Management Agreement between APOA and UD LLC. (SAC, ¶ 27.) The management agreement was never approved by the Board or the members of APOA. (Ibid.) Under the management agreement, Cafarelli received $2,500 monthly. (SAC, ¶ 28.) Cafarelli hired a concierge, who was paid by APOA, to facilitate day-to-day operations of the facility. (Ibid.)

In late December 2017, Doe received an email from Cafarelli stating that, beginning on January 1, 2018, defendant The Management Association, Inc., dba The Management Trust (Management Trust) would take over as manager of APOA. (SAC, ¶¶ 13, 33.) According to Cafarelli, this action was approved by the Board in executive session on December 20, 2017. (SAC, ¶ 33.) The agreement between APOA and Management Trust was not approved in accordance with the terms of the CC&Rs or California law. (SAC, ¶ 34.)

According to the CC&Rs, Cafarelli, as developer, appoints three members of the Board, and two members of the Board are elected by all of the members of the APOA. (SAC, ¶¶ 36-38.) Cafarelli has three votes for each unit that she owned rather than the one vote per unit of other owners. (SAC, ¶ 37.) The first Board members appointed by Cafarelli were Cafarelli, and defendants Jan Hill and Thomas Bonomi. (SAC, ¶ 39.) In December 2017, without having adopted election rules, the member-elected Board members were defendants Sam Hedgpeth and Sonia Rosenbaum. (SAC, ¶ 40.)

The CC&Rs require the Board to review all commercial leases to ensure that the leases contain a provision binding the lessee to the terms of the CC&RS. (SAC, ¶ 44.) None of the commercial leases at AP contain such a provision, and the Board has not reviewed any of these leases. (SAC, ¶¶ 44-46.) There are numerous commercial operations at AP that violate the terms of the CC&RS for which no action has been taken by the APOA notwithstanding notice from Doe. (SAC, ¶ 47.) Cafarelli, in her capacity as manager, president, and director of the APOA, caused to be installed a satellite dish in common area reserved for the exclusive use of the residents, which satellite dish exclusive serves commercial operations owned and operated by Cafarelli. (SAC, ¶¶ 48-55.)

Among the facilities of common area of the AP is an area designated as the “wine room.” (SAC, ¶ 56.) Maintenance and repair of the wine room is paid from HOA fees. (SAC, ¶¶ 58-59.) Doe has been excluded from the wine room. (SAC, ¶¶ 57, 60.) According to Cafarelli, at the time Doe purchased her unit, Doe was told in the seller’s disclosure that she would not have access to the wine room. (SAC, ¶ 62.) The seller’s disclosure is actually silent as to access and use of the wine room. (Ibid.) Denying Doe access and use of the wine room violates the CC&Rs and constituted a misrepresentation when Doe purchased her unit. (SAC, ¶¶ 65-73.)

In August 2017, the Board notified the members that an election would be held for a two-year term on the Board. (SAC, ¶ 89.) The notice did not reference election rules, which had not been adopted notwithstanding legal requirements to do so. (SAC, ¶¶ 87-91.) Doe ran as a candidate for a Board position, but it was announced that Hedgpeth and Rosenbaum were elected. (SAC, ¶ 95.) The election failed to comply with California law and is invalid. (SAC, ¶¶ 91-104.)

Doe suffers from a documented intellectual disability which causes her to suffer from crippling anxiety and an inability to process information when she is confronted with a stressful situation. (SAC, ¶ 105.) When appearing in a public space or speaking before a group of people, Doe is best served when she has the benefit of an interpreter/ facilitator who can help her process the information. (SAC, ¶ 106.) Doe has brought her employed counsel, James Scafide, to assist her at meetings. (SAC, ¶ 107.) At a meeting on October 9, 2017, APOA violated Doe’s rights by refusing her reasonable accommodation to be assisted. (SAC, ¶ 108-109.) The Board thereafter held one meeting with a call-in number which allowed Doe to participate remotely. (SAC, ¶ 110.) When Doe asked that until the issue of a facilitator was resolved that a call-in number be continued to be provided, Cafarelli announced that there would be no further call-in numbers for meetings, an action taken in spite for Doe based solely on her disability. (Ibid.) APOA has since stated that Doe could have an interpreter at meetings but that the interpreter must be approved by APOA and could not be Scafide or any member of his law firm. (SAC, ¶¶ 111-115.) APOA also refused Doe use of the “club room” to meet with supporters for her campaign for a seat on the Board when Doe would not agree to submit a $500 deposit. (SAC, ¶ 117.) This refusal violated Civil Code section 4515 and was part of a pattern of harassment based on her disability. (SAC, ¶¶ 118-120.)

The CC&Rs prohibit any activity in the commercial operation that constitutes a nuisance. (SAC, ¶ 122.) Beginning in 2017, Cafarelli, by and through the Cafarelli Entities, began adding tenants to the Santa Barbara Public Market food establishments that creates plumes of grease and smoke to be emitted from vents located nearby windows of Doe’s units and constituting a nuisance. (SAC, ¶¶ 121-123.)

On July 12, 2017, a tenant of the Santa Barbara Public Market applied for a license to sell alcohol in violation of the CC&Rs. (SAC, ¶ 133.) The application was opposed by Doe. (Ibid.) As part of the discovery process, counsel for the applicant sought various documents by subpoena regarding Doe from APOA and VSP. (SAC, ¶ 134.) Doe was never advised that this information was being sought either by the counsel for the license applicant, by Cafarelli or any of the Cafarelli Entities, or by APOA. (SAC, ¶ 135.) As a result, confidential information of Doe was disclosed in violation of Doe’s right to privacy. (SAC, ¶¶ 136-141.)

(2) Procedural History

On October 10, 2018, Doe filed her initial complaint in this action asserting 27 causes of action.

On December 19, 2018, without any defendant having responded, Doe filed her first amended complaint (FAC), also asserting 27 causes of action.

On February 28, 2019, defendants Jasmine Hale and Adams Stirling PLC filed their special motion to strike as to all causes of action in the FAC against them.

On April 2, 2019, the Court granted the special motion of Hale and Adams Stirling, striking causes of action 21 through 26 against them. The Court also awarded them their attorney fees and costs, which amount was to be fixed by later motion. (The attorney fee motion was filed and originally set for this hearing on June 17, but was continued by the Court to July 16.)

On April 10, 2019, Doe filed her SAC. The SAC asserts 26 causes of action: (1) declaratory relief; (2) preliminary injunction; (3) preliminary injunction; (4) breach of covenant; (5) nuisance; (6) conspiracy to commit nuisance; (7) trespass; (8) conspiracy to commit trespass; (9) fraud; (10) intentional misrepresentation; (11) negligent misrepresentation; (12) concealment; (13) conspiracy to commit fraud; (14) conversion; (15) conspiracy to commit conversion; (16) intentional infliction of emotional distress; (17) negligent infliction of emotional distress; (18) breach of fiduciary duty; (19) breach of fiduciary duty; (20) breach of fiduciary duty; (21) defamation; (22) public disclosure of private facts; (23) conspiracy to disclose private facts; (24) discrimination in violation of federal law; (25) discrimination in violation of California law; and, (26) violation of Civil Code section 4515.

On April 18, 2019, APOA filed its motion to quash plaintiff’s subpoena to Pacific Western Bank. This motion to quash is now before the Court.

On May 14, 2019, SBPM and VSP filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike were heard by the Court on June 18.

On May 21, 2019, Hedgpeth and Rosenbaum filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike were heard by the court on June 18. Also on May 21, 2019, Cafarelli, Hill, Bonomi, and UD LLC filed their demurrer and motion to strike portions of the SAC. This demurrer and motion to strike are now before the Court.

On May 24, 2019, APOA and Management Trust filed their demurrer and motion to strike portions of the SAC. This demurrer is now before the Court. These parties subsequently withdrew their ordinary motion to strike.

On May 28, 2019, Doe filed her notice of appeal of the Court’s ruling of April 2 on the special motion to strike.

On June 7, 2019, APOA and Management Trust filed their special motion to strike portions of plaintiff’s SAC. This motion is set for hearing on July 16.

Doe opposes all pending motions and demurrers.

Analysis:

(1) Demurrer of Cafarelli, Hill, Bonomi, and UD LLC

“ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

“A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (People v. Lim (1941) 18 Cal.2d 872, 883.) “As against special demurrers, the facts must be alleged with sufficient clarity to inform defendants of the issues to be met.” (Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.)

In the analysis of this demurrer, Cafarelli, Hill, Bonomi, and UD LLC are collectively referred to as the “demurring defendants” or “demurring parties.”

(A) Trespass Claims

Doe’s seventh cause of action is for trespass. “Trespass is an invasion of the plaintiff’s interest in the exclusive possession of land. [Citations.] ‘ “The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of another.” [Citation.]’ [Citation.] Thus, in order to state a cause of action for trespass a plaintiff must allege an unauthorized and tangible entry on the land of another, which interfered with the plaintiff’s exclusive possessory rights.” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173-1174.) Demurring defendants argue that Doe has not alleged facts sufficient to state this cause of action.

Doe alleges as the interferences: (1) preventing Doe from having access to the Wine Storage Room; (2) taking possession of the residential condominium roof facilities and designating those facilities as off limits to residents and members; (3) installing a satellite dish in the residential condominium roof facilities; and (4) causing smoke or fumes to enter Doe’s property. (SAC, ¶¶ 191, 197a.) The allegations in the SAC are insufficient and uncertain that entry is unauthorized for purposes of this trespass claim because it is also alleged that permission to use the common area was allegedly given by another co-tenant, Cafarelli. (See SAC, ¶¶ 49-50; Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal.2d 585, 602 [“a single cotenant may confer occupancy rights upon a third person”]; cf. Civ. Code, § 843.) With respect to interference 4, smoke, fumes, and odor are insufficient by themselves to state a claim for trespass. “Succinctly stated, the rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion ….” (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233.) The general and special demurrers to the seventh cause of action will be sustained.

Doe’s eighth cause of action is conspiracy to commit trespass. “Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] … [¶] Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Thus, civil conspiracy as a basis for liability must allege both the underlying tort and the fact of conspiracy.

As discussed above, the Court sustains the demurrer to the seventh cause of action in part because the underlying action regarding smoke and odor does not sufficiently allege a trespass and in part because the claim of trespass is uncertain given allegations that the trespass defendants entered the property under authority of a co-tenant. Because the underlying tort is either insufficiently pleaded or uncertain and subject to demurrer on that ground, the conspiracy claim is insufficiently pleaded or uncertain to the same extent. The demurrer to the eighth cause of action will be sustained.

(B) Fraud

Doe’s ninth cause of action is for fraud, tenth cause of action is for intentional misrepresentation, eleventh cause of action is for negligent misrepresentation, and twelfth cause of action is for concealment.

“The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] … [¶] This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.] A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.]” (Id. at p. 645, internal quotation marks and italics omitted.)

Each of these causes of action is based upon alternative characterizations of the same communications by Cafarelli. (See SAC, ¶¶ 204-206, 211-214, 220-223, 230-233.) The first alleged basis for this cause of action consists of the false statements that Doe would have access to certain facilities that were exclusively for the use of residents of the AP. (SAC, ¶ 204a.) These misrepresentations are alleged specifically as arising from a combination of the seller’s disclosure, the walk-through, the fact that the facilities are paid out of HOA fees to have been paid by Doe, and the absence of disclosures that would correct misrepresentations regarding use of the facilities by Doe. (SAC, ¶¶ 17-24.) The misrepresentations are sufficiently alleged as being made by or on behalf of Cafarelli as the developer. (SAC, ¶¶ 17-20.) Doe has sufficiently alleged a fraud claim as against Cafarelli, however alternatively characterized. The demurrer to the fraud claims is overruled as to Cafarelli.

As to the other demurring defendants, the allegations are not sufficiently specific to state the fraud causes of action against them either as active participants in the alleged fraudulent misrepresentations or as principals of active participants. General allegations in the context of the other demurring defendants being aligned with Cafarelli are insufficient. To state a direct claim against the other demurring defendants Doe needs to allege agency in a manner that connects the agency to specific allegations of misrepresentation (or misleading concealment). Where, as here, the parties have multiple business connections, the existence of such connections is not sufficient to allege that every act by every party is on behalf of every other party. The demurrer will be sustained to the ninth, tenth, eleventh, and twelfth causes of action as to the demurring defendants other than Cafarelli.

(C) Conversion

Doe’s fourteenth cause of action is for conversion. Doe alleges conversion relating to the wine room, the residential condominium roof facilities, installation of a satellite dish, payment of invoices for the sole benefit of the commercial operation paid from the residential APOA account, and refund of money by APOA. (SAC, ¶ 243.)

Demurring defendants argue that these items are not proper subjects of a cause of action for conversion. “[C]onversion is a tort that may be committed only with relation to personal property and not real property.” (Munger v. Moore (1970) 11 Cal.App.3d 1, 7.) In opposition, Doe argues that by removing access to the wine room defendants converted the wine lockers.

“Under the common law of fixtures, property is either real or personal. [Citation.] Real property includes both land and things that are affixed to the land. [Citation.] … ‘A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs; or imbedded in it, as in the case of walls; or permanently resting upon it, as in the case of buildings; or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws; except that for the purposes of sale, emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale, shall be treated as goods and be governed by the provisions of the title of this code regulating the sales of goods.’ [Citation.] ‘ “The law relating to fixtures recognizes that under certain circumstances personal property becomes a part and parcel of real property and thereafter assumes the status of real property.” ’ [Citation.] (Vieira Enterprises, Inc. v. City of East Palo Alto (2012) 208 Cal.App.4th 584, 596-597.)

Fixtures remaining in the wine room are part of the real property and thus not subject to conversion. The allegations in the SAC that Doe was prevented from having access to the wine room demonstrates that Doe did not leave any of her personal property in the wine room. (See SAC, ¶ 243a.) Installation on real property and placing real property as off limits to Doe involve real, not personal property of Doe.

Doe has not alleged conversion of any specific personal property that may form the basis of a cause of action for conversion. The demurrer to the fourteenth cause of action will be sustained. For the same reasons discussed previously, in the absence of a properly-stated cause of action for conversion, no cause of action for conspiracy is stated based upon that cause of action for conversion. The demurrer to the fifteenth cause of action will be sustained.

(D) Infliction of Emotional Distress

Doe’s sixteenth cause of action is for intentional infliction of emotional distress. Doe bases this cause of action on the conduct of “[a]ll named defendants” in calling the police on Doe’s facilitator in front of the entire membership, disclosing Doe’s private information to a third party, and disclosing details about Doe’s disability to all members. (SAC, ¶ 252.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.] And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotation marks omitted.)

Demurring defendants argue that this cause of action fails because it does not identify the personal involvement of the demurring defendants and because the conduct is not outrageous within the meaning of this cause of action.

The cause of action is uncertain in its allegations of what particular defendants are alleged to have done. Doe does not explain or cite to incorporated paragraphs of the SAC to identify particular instances of this conduct and the persons engaging in the conduct. Cafarelli is alleged to have called the police, not any of the other demurring defendants. (SAC, ¶ 125.) The disclosure of confidential information to a third party is alleged to have been done by Cafarelli and APOA but there are no particular allegations of involvement by the other demurring defendants. (SAC, ¶¶ 133-141.) Doe does not identify in opposition what defendants, or what allegations, are involved in the conduct of disclosing details about Doe’s disability. The SAC alleges the disclosure of disability as providing information about Doe by a letter of counsel to all association members informing them about Doe’s complaint to the U.S. Department of Housing and Urban Development (HUD) which included information regarding Doe and her disability. (SAC, ¶¶ 142-144.) This letter was circulated among the members by other parties. (SAC, ¶ 144.)

With respect to the particular conduct involved, none of the conduct is alleged to show outrageous conduct within the meaning of this intentional tort. Calling the police on the facilitator is alleged to have occurred in the context of a dispute as to whether the facilitator was appropriately present at the October 9 meeting. (SAC, ¶ 125.) The circumstances may or may not have been proper; however, under the circumstances alleged calling the police was not outrageous conduct within the meaning of this tort. There are limited allegations presented regarding the disclosure of Doe’s information to a third party. As discussed below in the context of the invasion of privacy claim, the release of Doe’s information was alleged to have been done in response to a subpoena and was provided only to the subpoenaing party. These facts are insufficient to allege outrageous conduct. The circulation of a letter from counsel to association members addressing a complaint by Doe that affects the association is not outrageous conduct as here pleaded. The demurrer will be sustained as to this cause of action on these ground.

Doe’s seventeenth cause of action is for negligent infliction of emotional distress. Negligent infliction of emotional distress has its own, unique limitations that are not discussed by the parties here. (See Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071-1073.) Nonetheless, for the same reasons discussed above, Doe has not alleged conduct specific to the demurring defendants for the conduct upon which the cause of action is based. General allegations of duty to avoid emotional distress are insufficient. Doe provides no authority that generic fiduciary duties owed to members of an association are sufficient to permit recovery for negligent infliction of emotional distress (separate and apart from any claim for emotional distress damages arising out of a breach of those duties asserted as damages in that separate cause of action). The demurrer will be sustained to this cause of action.

(E) Defamation

Doe’s twenty-first cause of action is for defamation. The action is based upon allegations that Hedgpeth stated to Doe, “You are crazy” and “This is crazy. She’s acting crazy,” upon the suspension of the October 9, 2017, meeting. (SAC, ¶¶ 126, 279, 280.) Demurring defendants assert that these statements are insufficient to support a claim for defamation and that Hedgpeth’s statement cannot be imputed to demurring defendants.

In opposition, Doe argues that the cause of action alleges that all defendants to that cause of action (including demurring defendants) made statements to that effect and that SAC adequately alleges that an agent of demurring defendants made defamatory statements.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. [Citations, fn. omitted.] Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)

“In defamation cases California follows a … pleading rule, under which ‘the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.’ [Citations.]” (Glassdoor, Inc. v. Superior Court (2017) 9 Cal.App.5th 623, 635.) In slander cases, “[l]ess particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. [Citations.] Nor is the allegation defective for failure to state the exact words of the alleged slander. … [S]lander can be charged by alleging the substance of the defamatory statement.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 458.)

“Where the words or other matters which are the subject of a defamation action are of ambiguous meaning, or innocent on their face and defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the words had a particular meaning, or ‘innuendo,’ which makes them defamatory. [Citations, fn. omitted.] Where the language at issue is ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense (the ‘inducement’). [Citations.]” (Smith v. Maldonado, supra, 72 Cal.App.4th at pp. 645-646.)

The pleading of defamation is insufficient on several grounds. First, the SAC alleges a specific incident in which Hedgpeth made the statement, “You are crazy.” (This incident is further discussed below.) In opposition, Doe argues that all of the defendants made similar statements. To the extent that any other incident, or republication of the initial statement, is asserted as a basis for liability, those other incidents are not alleged sufficiently to give defendants notice of the issues sufficient to enable preparation of their defense. Alternatively, the cause of action is uncertain in that regard.

Second, the defamatory meaning of the statement is not pleaded. “A statement is not defamatory unless it can reasonably be viewed as declaring or implying a provably false factual assertion [citation], and it is apparent from the ‘context and tenor’ of the statement ‘that the [speaker] seriously is maintaining an assertion of actual fact.’ [Citation.]” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344.) “ ‘Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot “ ‘reasonably [be] interpreted as stating actual facts’ about an individual.” [Citations.] Thus, “rhetorical hyperbole,” “vigorous epithet[s],” “lusty and imaginative expression[s] of … contempt,” and language used “in a loose, figurative sense” have all been accorded constitutional protection. Citations.]’ [Citation.]” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809.) Apart from its meaning as “[m]entally deranged,” “crazy” also means “[d]eparting from proportion or moderation.” (American Heritage Dict. (5th ed. 2016) p. 426.) The circumstances in which these statements were made included a spirited dispute regarding Scafide’s presence at the October 7, 2017, meeting. These alleged circumstances strongly imply a non-defamatory meaning was intended and understood, notwithstanding the allegation that Doe has a documented intellectual disability. The statements under the circumstances as now alleged do not rise to the level of defamatory matter.

Third, the allegations specific to the twenty-first cause of action do not allege any agency relationship with the demurring defendants. As discussed above, the general allegations regarding ownership and control of entities are insufficient to plead vicarious liability for the demurring defendants based upon statements made by Hedgpeth at the October 7 meeting.

Accordingly, the demurrer to the twenty-first cause of action will be sustained.

(F) Invasion of Privacy

Doe’s twenty-second cause of action is for public disclosure of private facts. The elements of a cause of action for public disclosure of private facts are: “ ‘(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.’ ” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214, citation omitted.)

Doe alleges that on July 12, 2017, a tenant of the Santa Barbara Public Market, which is owned or controlled by Cafarelli, applied for a license to sell alcohol in violation of the CC&Rs of APOA. (SAC, ¶ 289.) Doe filed an opposition to the application. (Ibid.) As part of the discovery process related to a hearing on the license application, counsel for the applicant sought by subpoena from APOA, various documents, including closing documents relating to the sale of Doe’s unit, APOA’s governing documents, and disclosures made to Doe related to the purchase of her unit. (SAC, ¶ 290.) While some of the documents were in the possession of APOA, some were not. (Ibid.) At the same time, counsel for the license applicant requested the same information from VSP. (Ibid.) The documents were supplied by Cafarelli to APOA so that they could be provided in response to the subpoena. (SAC, ¶ 292.) Defendants’ publicized private information concerning plaintiff when defendants provided confidential documents related to Doe’s financing of her condominium. (SAC, ¶ 291.)

Demurring defendants argue that no cause of action is stated as to the demurring defendants because Doe fails to allege that the documents were publicly disclosed and because the demurring defendants were, to the extent applicable, merely responding to a subpoena as required by law.

The SAC alleges that the documents were provided by Cafarelli to APOA and then to the third party in response to the subpoena. (SAC, ¶¶ 138-139.) There are no allegations of conduct directly by any other demurring defendant. Again, as discussed above, the generic allegations are not sufficient allegations of agency as they relate to the specific conduct alleged. Doe fails adequately to allege vicarious liability of demurring defendants.

“ ‘ “[A]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.” ’ [Citation.]” (Rosales v. City of Los Angeles (2000) 82 Cal.App.4th 419, 429; see also Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 27 [“common law invasion of privacy by public disclosure of private facts requires that the actionable disclosure be widely published and not confined to a few persons or limited circumstances”].) The SAC alleges that the documents were conveyed to the third party through the response to the subpoena. (SAC, ¶ 138.) There are no facts alleged that the disclosure was made to anyone other than the party who issued the subpoena. There are no facts alleged by which disclosure solely to the party who issued the subpoena would constitute a serious invasion of privacy by “public” disclosure either by the quality or by the scope of the disclosure. The conclusory allegation that defendants publicized the information is not sufficient. Doe fails adequately to plead the element of public disclosure. The demurrer will be sustained to this cause of action.

Doe’s twenty-third cause of action is for conspiracy based upon the invasion of privacy asserted in the twenty-second cause of action. Because the Court determines that the invasion of privacy claim is not stated, for the reasons explained above regarding conspiracy claims, the conspiracy claim is also not stated. The demurrer to the twenty-third cause of action will be sustained.

(G) Discrimination Claims

Doe’s twenty-fourth cause of action is for violation of federal law by being denied full and equal access to association meetings, common areas, and elections as a result of her disability. (SAC, ¶ 304.) The specific federal laws at issue are not discussed by either party. Demurring defendants argue that these causes of action are premised upon the fact that Doe was not permitted access to the wine room and that defendants failed to accommodate Doe’s disability when Scafide was not permitted to act as her facilitator at the October 7 meeting. (Demurrer, p. 22.)

Demurring defendants do not sufficiently explain the basis for their demurrer. (See Rules of Court, rule 3.1113(a), (b).) Although demurring defendants identify one basis for this cause of action, i.e., refusal of access to the wine room, demurring defendants provide no argument or citation to authority to explain why the allegations regarding this discriminatory conduct are insufficient to state a cause of action. One sufficient basis for a cause of action is sufficient for demurrer. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047. [“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”].) Moreover, complaints are required to allege facts, not legal theories. (Code Civ. Proc., § 425.10, subd. (a).) “When a complaint complies with the fact-pleading requirement of section 425.10, subdivision (a)(1), ‘ “ ‘[t]he existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen, together with the facts which constitute the defendant’s delict or act of wrong.’ ’’ [Citation.] [Citation.]” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) The absence of legal specificity in the SAC is not itself a ground for demurrer.

In the absence of articulation as to why the allegations are not sufficient allegations to state any cause of action, the demurrer will be overruled as to the twenty-fourth cause of action. The same issues and analysis apply to Doe’s twenty-fifth cause of action under Civil Code section 51. The demurrer will be overruled to this causes of action as well.

(H) Declaratory and Injunctive Relief

Doe’s first cause of action is for declaratory relief. “Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, … may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.) “A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties … and requests that these rights and duties be adjudged by the court.” (Maguire v. Hibernia Savings & Loan Society (1944) 23 Cal.2d 719, 728.)

The demurring defendants argue that the action is barred by the one-year time limit of Civil Code section 5145.

The SAC seeks declarations that the 2017 election was held in contravention of law. (SAC, ¶ 153 & p. 39.) Insofar as the results of the 2017 election affect the present authority of the demurring defendants as directors, the SAC alleges a present controversy as to these demurring defendants.

“A member of an association may bring a civil action for declaratory or equitable relief for a violation of this article by the association, including, but not limited to, injunctive relief, restitution, or a combination thereof, within one year of the date the cause of action accrues. Upon a finding that the election procedures of this article, or the adoption of and adherence to rules provided by Article 5 (commencing with Section 4340) of Chapter 3, were not followed, a court may void any results of the election.” (Civ. Code, § 5145, subd. (a).)

This action was originally filed on October 10, 2018. The meeting originally set to tally the votes was on October 9, 2017. (SAC, ¶ 124.) That meeting was interrupted by the events regarding Scafide’s presence in room and suspended until a later date. (SAC, ¶ 128.) The results of the election were not announced until a meeting on October 19, 2017 (SAC, ¶ 95), within one year of the filing of the original complaint. As a matter of pleading, Doe has adequately alleged timely filing. The demurrer to the first cause of action will be overruled.

Doe’s second cause of action is for an injunction relating to the election issue discussed above. An injunction is expressly authorized by Civil Code section 5145. The demurrer to the second cause of action will be overruled for the same reasons as the demurrer to the declaratory relief claim.

(F) Leave to Amend

This is the first complaint on which the Court has ruled regarding the demurring parties’ demurrer. It is unclear to what extent Doe can truthfully allege these claims based upon the court’s analysis. Nonetheless, the Court will grant leave to amend as to all causes of action for which the Court sustains the demurrer of demurring defendants.

(3) Demurrer and Motion to Strike of Defendants APOA and Management Trust

As noted above, APOA and Management Trust filed a special motion to strike under Code of Civil Procedure section 425.16 on June 7, 2019, after their demurrer had been filed. The special motion to strike overlaps somewhat with the demurrer that is now set for this hearing. The demurrer and special motion to strike have different standards and have different procedural requirements. To avoid conflicts in ruling on the demurrer and special motion to strike, the hearing on the demurrer will be continued to July 16, 2019, to be heard concurrently with the special motion to strike.