STEVEN SMITH VS CANTWELL-ANDERSON

Tentative Rulings

Case Number: 20STLC00652    Hearing Date: September 10, 2020    Dept: 26

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Cantwell-Anderson’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

Plaintiff Steven Smith (“Plaintiff”) filed the instant action for negligence and discrimination against Cantwell-Anderson (“Defendant”) on January 22, 2020. Defendant filed a meet and confer

declaration pursuant to Code of Civil Procedure section 430.41 on March 11, 2020. On April 10, 2020, Defendant filed the instant Demurrer to the Complaint. The day before the August 11, 2020 hearing on Demurrer, Plaintiff filed an opposition. At the hearing the Court continued the matter to September 10, 2020 to allow Plaintiff to obtain counsel and concurrently set an Order to Show Cause regarding representation. (Minute Order, 8/11/20.) The Court also ordered that “[t]he amended complaint addressing deficiencies listed below will be due within 20 days from the next hearing date scheduled for 09/10/2020.” (Ibid.)

On August 28, 2020, Plaintiff refiled the opposition previously filed on August 10, 2020.

Discussion

The Court finds that the Demurrer is supported by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Ewert Decl., ¶¶2-5.) The Complaint alleges causes of action for (1) negligence; and (2) discrimination. Defendant demurs to the Complaint for failure to allege sufficient facts to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).)

1st Cause of Action for Negligence

A cause of action for negligence must allege the elements of duty, breach, causation and damages. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Without the existence of a duty of care, there can be no liability against the defendant for negligence. (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 396.) The existence and scope of duty are questions of law for the court. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614.) The Complaint

Defendant argues that the Complaint does not allege that it owed Plaintiff a duty of reasonable care. The cause of action for negligence is alleged against “Cantwell-Anderson/CloudBreak Communities” and contends Defendant was notified of a bed bug infestation and drug dealing activity “within residence.” (Compl., ¶GN-1.) No allegation, however, is made regarding Defendant’s connection to this “residence” or what duty it owed to Plaintiff regarding the existence of either bed bugs or drug dealing. (Ibid.) There is no allegation that Defendant had any ownership, occupation, or control of the “residence” such that it was obligated to address the presence of bed bugs or drug dealers. (Ibid; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [“Premises liability ‘is grounded in the possession of the premises and the attendant right to control and manage the premises.’”].)

Even assuming the allegations against Defendant arise out of premises liability, with respect to the behavior of third parties such as drug dealers, landlords only have a duty to protect against behavior that can be reasonably anticipated. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 676.) No allegations are set forth in the Complaint showing how Defendant could have reasonably anticipated the drug dealing. (Compl., ¶GN-1.) Correspondingly, without allegations that Defendant owed Plaintiff a duty of care, the Complaint does not allege how Defendant breached that duty and thereby caused Plaintiff’s damages.

Plaintiff’s opposition includes facts that would support this cause of action based on Defendant’s purported ownership of the apartment building in which Plaintiff lived. Therefore, the demurrer to the first cause of action is sustained with leave to amend.

2nd Cause of Action for Discrimination

Plaintiff also alleges he suffered discriminated when he failed to pay rent. Specifically, the Complaint alleges that other unpaying tenants who were white males were offered payment plans while CloubBreak tried to evict Plaintiff. (Compl., p. 4.)

A claim for discrimination in housing must allege (1) Plaintiff was a member of a protected class;

(2) applied for and was qualified for a housing accommodation; (3) was denied a housing accommodation; and (4) circumstantial evidence of discriminatory motive, such as similarly situated individuals applied for and obtained housing. (Department of Fair Employment and Housing v. Superior Court (2002) 99 Cal.App.4th 896, 902.) Here, the Complaint does not allege discrimination by Defendant, but apparently by CloudBreak. It is also unclear whether Plaintiff is a member of a protected class as the Complaint only indicates the race and gender of others who were allegedly offered payment plans. Finally, Plaintiff does not allege that he qualified for a rent payment program.

The demurrer to the second cause of action is also sustained with leave to amend.

Conclusion

Defendant Cantwell-Anderson’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice

Case Number: 20STLC00652    Hearing Date: August 11, 2020    Dept: 26

Smith v. Cantwell-Anderson, et al.

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Cantwell-Anderson’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

ANALYSIS:

Plaintiff Steven Smith (“Plaintiff”) filed the instant action for negligence and discrimination against Cantwell-Anderson (“Defendant”) on January 22, 2020. Defendant filed a declaration pursuant to Code of Civil Procedure section 430.41 on March 11, 2020. On April 10, 2020, Defendant filed the instant Demurrer to the Complaint. To date, no opposition has been filed.

Discussion

The Court finds that the Demurrer is supported by a meet and confer declaration as required by Code of Civil Procedure section 430.41. (Demurrer, Ewert Decl., ¶¶2-5.) The Complaint alleges causes of action for (1) negligence; and (2) discrimination. Defendant demurs to the Complaint for failure to allege sufficient facts to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).)

1st Cause of Action for Negligence

A cause of action for negligence must allege the elements of duty, breach, causation and damages. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Without the existence of a duty of care, there can be no liability against the defendant for negligence. (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 396.) The existence and scope of duty are questions of law for the court. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614.) The Complaint

Defendant argues that the Complaint does not allege that it owed Plaintiff a duty of reasonable care. The cause of action for negligence is alleged against “Cantwell-Anderson/CloudBreak Communities” and contends Defendant was notified of a bed bug infestation and drug dealing activity “within residence.” (Compl., ¶GN-1.) No allegation, however, is made regarding Defendant’s connection to this “residence” or what duty it owed to Plaintiff regarding the existence of either bed bugs or drug dealing. (Ibid.) There is no allegation that Defendant had any ownership, occupation, or control of the “residence” such that it was obligated to address the presence of bed bugs or drug dealers. (Ibid.) Furthermore, with respect to the behavior of third parties such as drug dealers, landlords only have a duty to protect against behavior that can be reasonably anticipated. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 676.) No allegations are set forth in the Complaint showing how Defendant could have reasonably anticipated the drug dealing. (Compl., ¶GN-1.) Correspondingly, without allegations that Defendant owed Plaintiff a duty of care, the Complaint does not allege how Defendant breached that duty and thereby caused Plaintiff’s damages.

Therefore, the demurrer to the first cause of action is sustained with leave to amend.

2nd Cause of Action for Discrimination

Plaintiff also alleges he was discriminated against when he failed to pay rent. Specifically, the Complaint alleges that other unpaying tenants who were white males were offered payment plans while CloubBreak tried to evict Plaintiff. (Compl., p. 4.)

A claim for discrimination in housing must allege (1) Plaintiff was a member of a protected class;

(2) applied for and was qualified for a housing accommodation; (3) was denied a housing accommodation; and (4) circumstantial evidence of discriminatory motive, such as similarly situated individuals applied for and obtained housing. (Department of Fair Employment and Housing v. Superior Court (2002) 99 Cal.App.4th 896, 902.) Here, the Complaint does not allege discrimination by Defendant, but apparently by CloudBreak. It is also unclear whether Plaintiff is a member of a protected class as the Complaint only indicates the race and gender of other who were allegedly offered. Finally, Plaintiff does not allege that he qualified for a rent payment program.

The demurrer to the second cause of action is also sustained with leave to amend.

Conclusion

Defendant Cantwell-Anderson’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.