This case was last updated from Los Angeles County Superior Courts on 06/18/2019 at 14:21:52 (UTC).

CITY OF SANTA MONICA VS CECIL MCNABB, ET AL.,

Case Summary

On 03/03/2016 CITY OF SANTA MONICA filed a Civil Right - Other Civil Right lawsuit against CECIL MCNABB, . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CRAIG D. KARLAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5490

  • Filing Date:

    03/03/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Civil Right - Other Civil Right

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CRAIG D. KARLAN

 

Party Details

Plaintiff

CITY OF SANTA MONICA

Defendants, Cross Plaintiffs and Cross Defendants

BRIDA LLC

GOLSHANI KATHY

MCNABB CECIL

BRIDA PROPERTIES LLC

ROSENTHAL SHARI

OOSHANI BRIDA

BROWNING JULIA

BROWNING MARTHA

BROWNING MARTI

BROWNING ROBERT

Attorney/Law Firm Details

Plaintiff Attorneys

RHOADES GARY

RHOADES GARY WAYNE

Defendant and Cross Plaintiff Attorneys

LAW OFFICES OF JOSEPH B. OLLINGER

KIMBALL TIREY & ST. JOHN LLP

JEFFREY SHARON SACHIKO

ROSENTHAL SHARI

MANNING & KASS ELLROD RAMIREZ TRESTER

TAYLOR & RING

PURITSKY ERIC ASHTON

Cross Defendant Attorneys

ABESADZE VANO

DEMLER ARMSTRONG & ROWLAND

 

Court Documents

Case Management Statement

6/9/2016: Case Management Statement

Case Management Statement

6/17/2016: Case Management Statement

Minute Order

8/2/2016: Minute Order

Unknown

11/17/2016: Unknown

Summons

12/21/2016: Summons

Minute Order

1/4/2017: Minute Order

Unknown

1/30/2017: Unknown

Unknown

2/14/2017: Unknown

Case Management Statement

3/8/2017: Case Management Statement

Unknown

4/4/2017: Unknown

Unknown

4/14/2017: Unknown

Substitution of Attorney

7/6/2017: Substitution of Attorney

Substitution of Attorney

7/18/2017: Substitution of Attorney

Substitution of Attorney

7/24/2017: Substitution of Attorney

Minute Order

9/22/2017: Minute Order

Unknown

10/3/2017: Unknown

Notice of Ruling

11/14/2017: Notice of Ruling

Substitution of Attorney

11/17/2017: Substitution of Attorney

123 More Documents Available

 

Docket Entries

  • 03/01/2019
  • at 09:00 AM in Department N, Craig D. Karlan, Presiding; Order to Show Cause Re: (re Striking Brida,LLC's Answer & Entry of Default)

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  • 03/01/2019
  • at 09:00 AM in Department N, Craig D. Karlan, Presiding; Status Conference (re Representation of Brida,LLC)

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  • 02/22/2019
  • Substitution of Attorney; Filed by Kathy Golshani (Cross-Defendant); Brida, LLC (Cross-Defendant)

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  • 12/05/2018
  • at 08:30 AM in Department N, Craig D. Karlan, Presiding; Hearing on Motion to be Relieved as Counsel - Held - Motion Granted

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  • 12/05/2018
  • Minute Order ((Hearing on Motion to be Relieved as Counsel)); Filed by Clerk

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  • 11/28/2018
  • Opposition (to Motion and Request for Continuance to Motion to be Relieved as Counsel); Filed by City of Santa Monica (Plaintiff)

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  • 10/18/2018
  • Motion to Be Relieved as Counsel; Filed by Shari Rosenthal (Attorney)

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  • 10/18/2018
  • Declaration (in Support of Attorney's Motion to be Relieved as Counsel)

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  • 09/24/2018
  • Notice OF DEPOSITION FOR CECIL MCNABB

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  • 09/24/2018
  • Deposition; Filed by City of Santa Monica (Plaintiff)

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265 More Docket Entries
  • 04/21/2016
  • Proof-Service/Summons; Filed by City of Santa Monica (Plaintiff)

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  • 04/21/2016
  • Proof of Service (not Summons and Complaint); Filed by City of Santa Monica (Plaintiff)

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  • 04/21/2016
  • Proof of Service (not Summons and Complaint); Filed by City of Santa Monica (Plaintiff)

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  • 04/21/2016
  • Proof-Service/Summons; Filed by City of Santa Monica (Plaintiff)

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  • 04/21/2016
  • Proof of Service (not Summons and Complaint); Filed by City of Santa Monica (Plaintiff)

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  • 03/03/2016
  • Complaint Filed

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  • 03/03/2016
  • Civil Case Cover Sheet; Filed by City of Santa Monica (Plaintiff)

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  • 03/03/2016
  • Summons Filed; Filed by Attorney for Plaintiff

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  • 03/03/2016
  • Complaint; Filed by City of Santa Monica (Plaintiff)

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  • 03/03/2016
  • Summons; Filed by Plaintiff

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Tentative Rulings

Case Number: SC125490    Hearing Date: September 17, 2020    Dept: N

TENTATIVE RULING

Defendant Cecil McNab’s Demurrer to Plaintiff’s Second Amended [Complaint] is OVERRULED.

Defendant Cecil McNab’s Motion to Strike All or Portions of Plaintiff’s Second Amended Complaint is DENIED.

Defendants Cecil McNab, Brida, LLC, and Kathy Golshani shall file and serve an answer to the Second Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Plaintiff City of Santa Monica’s Request for a Preliminary Injunction is GRANTED.

Defendant Cecil McNab to give notice. 

REASONING

Defendants Brida, LLC and Kathy Golshani’s Demurrer to Plaintiff’s Second Amended [Complaint] and Motion to Strike All or Portions of Plaintiff’s Second Amended Complaint

Meet and Confer

As an initial matter, the Court notes Defendant Cecil McNab’s meet-and-confer efforts were insufficient, as Code of Civil Procedure section 430.41, subdivision (a)(3)(A), and section 435.5, subdivision (a)(3)(A), require stating how the moving party met and conferred with the party who filed the pleading subject to challenge. Defense counsel failed to file any such declaration describing the meet-and-confer efforts and why they failed to resolve the issues, so the Court cannot determine whether the parties engaged in a good faith attempt to resolve the issues raised in the motions. Nonetheless, in the interest of judicial efficiency, the Court exercises its discretion to consider the merits of Defendant’s demurrer and motion to strike, but it notes that subsequent failures to comply with statutory obligations may result in a continuance of the hearing on the subject motion.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon 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. (Code Civ. Proc., § 436, subd. (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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency(2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrer

Defendant Cecil McNab has filed a demurrer to the Second Amended Complaint (“SAC”) on the ground the pleading lacks sufficient facts to place McNab on notice of the nature of the City of Santa Monica (“the City”)’s claims. Defendants Brida, LLC, and Kathy Golshani have filed a joinder to McNab’s demurrer, with no argument of their own except to join in McNab’s arguments. Nonetheless, the Court provides below a brief analysis of Plaintiff’s claims against Defendants, such that the analysis as to McNab’s demurrer also addresses the claims against Brida, LLC, and Golshani (collectively, “Defendants”).

In the SAC, the City alleges McNab and Brida, LLC, own the property at 1123 17th Street in Santa Monica, which is managed by Golshani and McNab. (SAC ¶ 9.) Unit 6, where Marti Browning and Julia Browning reside, is a “controlled rental unit” subject to rent control ordinances, and Julia Browning is a tenant with disabilities. (SAC ¶¶ 10-12.) The City alleges Defendants ordered the Brownings to stop using an adjacent parking spot, with their neighbors’ permission, to transfer Julia to a ramp-equipped van, Defendants refused a request for a reasonable accommodation for use of the spot, Defendants ordered removal of a device that helps move Julia and her wheelchair, Defendants implemented new rules to prevent Julia’s transfer, Defendants shut off the Brownings’ hot water, Golshani entered the unit without permission, Golshani blocked the parking space necessary for Julia’s transfer, and Golshani photographed Marti Browning’s husband and reported him to the Santa Monica Police Department. (SAC ¶¶ 14-18.) Put simply, Defendants’ contentions that the SAC makes them unaware of the nature of the claims against them, after more than four years of litigation, is not well taken.

First Cause of Action: Tenant Harassment; Fifth Cause of Action: Tenant Harassment Ordinance (Brida, LLC and Golshani)

Santa Monica Municipal Code section 4.56.020 provides that “[n]o landlord, shall, with respect to property used as a rental housing unit under any rental housing agreement or other tenancy or estate at will, however created, do any of the following in bad faith:”

(a) Interrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws; . . .

(d) Abuse the landlord’s right of access into a rental housing unit as that right is specified in California Civil Code Section 1954. This includes entries for “inspections” that are not related to necessary repairs or services; entries excessive in number; entries that improperly target certain tenants or are used to collect evidence against the occupant or otherwise beyond the scope of an otherwise lawful entry; . . .

(f) Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion.

The City alleges Defendants made the Brownings’ right of access into their rental housing unit substantially more difficult by frustrating their ability to transfer Julia Browning in and out of the unit. Such conduct interrupts the housing services required by contract because the Brownings entered the unit with an understanding that the landlords would not frustrate their ability to peacefully enter and leave their unit, and Defendants’ conduct of preventing the Brownings’ use of the accessible parking spot, as well as their alleged entry into the unit at issue and communication with the police, attempted to influence the Brownings to vacate their unit. Such allegations support a claim for tenant harassment by Defendants. 

Insofar as Defendants argue McNab is simply being held liable as Brida, LLC’s attorney, this is belied by the pleadings, wherein McNab is alleged to be an owner of the property. While the body of each claim alleges conduct by Defendants generally, it also includes specific facts as to Golshani’s offensive conduct on behalf of the landlords, and it alleges McNab and Brida, LLC, are the landlords of the property at issue. Additionally, Santa Monica Municipal Code section 4.56.040, subdivision (b), allows “[a]ny person, including the City,” to enforce provisions such as those for tenant harassment, so Defendants’ argument that the City lacks standing is also rejected.

Further, the fifth cause of action is not an entirely “new” cause of action, as such claims for tenant harassment have been included since the City’s first iteration of the complaint and the City simply separated the claims based on the timing of the alleged violations. The Court ordered supplemental briefing on this issue after this motion first came on for hearing on July 22, 2020, wherein Defendants argued that the fifth cause of action was an impermissible new cause of action. Indeed, addition of a new cause of action would not be permitted without seeking leave of court (see Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [a plaintiff “may not amend the complaint to add a new cause of action without having obtained permission to do so”]), but the facts in this cause of action are substantially intertwined with facts already alleged in the pleadings; specifically, this “new” claim alleges facts of increased harassment after this litigation commenced, with allegations that Defendant Golshani sent a worker to enter the Brownings’ unit, photographed the Brownings’ acquaintance, and called the police to report a “suspicious person” at the unit. (SAC ¶ 14 (6)-(10).) Plaintiff could simply allege these new facts under the existing first cause of action and the new pleading could properly be deemed a supplemental SAC.

Insofar as Defendants contend this claim is beyond the statute of limitations, the Court is not so convinced, as this claim rests on the same general set of facts alleged in the initial complaint, specifically tenant harassment, and involves the same injury, i.e., violation of provisions of the Santa Monica Municipal Code, so it relates back to the initial claims and is “deemed, for purposes of the statute of limitations, to have been filed on the date of filing of the initial complaint.” (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 319; see also Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276-277 [describing elements of relation back doctrine and stating that amended complaint relates back even where plaintiff alleges a new cause of action].) Defendants’ demurrer to the first and fifth causes of action is OVERRULED.

Second Cause of Action: Housing Anti-Discrimination Ordinance

Santa Monica Municipal Code section 4.28.030, subdivision (g), makes it “unlawful for any person offering for rent or lease, renting, leasing, or listing any housing accommodation, or any authorized agent or employee of such person, to . . . [r]efuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy any dwelling.”

The City alleges the Brownings requested a reasonable accommodation of allowing them to park in a neighbor’s parking spot, with the neighbor’s permission, and allowing them to place a device in front of their parking spot, both requests were supported by a letter from their doctor, and Defendants refused the request. (SAC ¶ 14.) Such facts allege a violation of the Housing Anti-Discrimination Ordinance, as such accommodations would have afforded the Brownings equal use of their unit. Accordingly, Defendants’ demurrer to the second cause of action is OVERRULED.

Third Cause of Action: Unruh Civil Rights Act

The elements of a claim for violation of the Unruh Civil Rights Act are (1) defendant intentionally denied plaintiff accommodations, advantages, privileges, facilities, or services of a business establishment, (3) defendant was motivated to do so based on its perception that plaintiff belonged to a statutorily defined group, (4) plaintiff was harmed, and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See Civ. Code, § 51; In re Cox (1970) 3 Cal.3d 205, 216.) “The objective of the Act is to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination. Therefore, the Act applies not merely in situations where businesses exclude individuals altogether, but also where treatment is unequal.” (Pizarro v. Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1174, citations omitted.) Civil Code section 52 makes liable anyone who “denies, aids or incites a denial” of accommodations or privileges under Civil Code section 51.

The City again alleges a violation of the Brownings’ civil rights because Defendants refused to grant the Brownings’ request for a reasonable accommodation of allowing them to park in a neighbor’s parking spot, with the neighbor’s permission, and allowing them to place a device in front of their parking spot. (SAC ¶ 14.) Such facts sufficiently allege a violation of the Unruh Civil Rights Act such that Defendants’ demurrer to the third cause of action is OVERRULED. 

Fourth Cause of Action: Injunctive Relief

“The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410, citation omitted.) Notably, “injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief can be granted.” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356.)

The City has sufficiently alleged a claim which entitles the City to injunctive relief, as it alleges unless Defendants are enjoined from the alleged misconduct, current and future tenants will suffer injury and loss of their rights. (SAC ¶ 33.) Indeed, the Court has so issued such injunctive relief. Thus, Defendants’ demurrer to the fourth cause of action is OVERRULED.

Motion to Strike

As to Defendants’ argument that the City lacks standing to demand penalties for tenant harassment, the Court rejected this argument in the context of demurrer, as the statute specifically grants the City to authority to bring a civil action for enforcement. The Court also rejects the contention the fifth cause of action is new, as such a claim is merely a restatement of the claim that has been included since the initial complaint was filed more than four years ago. While injunctive relief is not a cause of action and is merely a remedy, the City alleges conduct which is subject to injunctive relief, so the Court declines to strike the injunctive relief cause of action on this basis. Insofar as Defendants argue certain allegations are immaterial, the Court disagrees; the statements are allegations relating to the City’s claims against Defendants.

Finally, punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) The trier of fact can conclude that Defendants acted with malice and oppression in denying the Brownings sufficient access to the unit, and the trier of fact may impute knowledge of Julia Browning’s disability simply based on the submission of a request for reasonable accommodation. 

The City alleges Defendants went out of their way to prevent the Brownings from having proper access to their unit in an attempt to influence them to vacate the unit. Such conduct, if proven, constitutes malicious and oppressive behavior that warrants an award of punitive damages. Thus, Defendants’ motion to strike is DENIED.

Order to Show Cause Re: Preliminary Injunction

The City moves the Court to issue a preliminary injunction which prohibits Defendant Kathy Golshani from directly coming within fifty yards of the apartment building located at 1123 17th Street in Santa Monica for any reason except an emergency, pending the trial of this action or further order this Court, and ordering Golshani to hire a third party approved by the City to manage the subject rental property. 

The function of a preliminary injunction is the preservation of the status quo until a final determination of the merits.” (Beehan v. Lido Isle Cmty. Ass’n (1977) 70 Cal.App.3d 858, 866.) “Trial courts traditionally consider and weigh two factors in determining whether to issue a preliminary injunction. They are (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or nonissuance of the injunction.” (Dodge, Warren & Peters Ins. Servs., Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420.) “The greater the showing on one, the less must be shown on the other to support an injunction.” (Ibid., quoting Butt v. State of California(1992) 4 Cal.4th 668, 678, brackets and ellipses omitted.) The burden of proof is on the plaintiff as the moving party “to show all elements necessary to support issuance of a preliminary injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)

Preliminary injunctive relief requires the use of competent evidence to create a sufficient factual showing on the grounds for relief. (See, e.g., Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 150 [injunction erroneously granted without verified complaint, affidavits, or declarations to support injunctive relief].) Injunctive relief may be granted based upon a verified complaint only if it contains sufficient evidentiary, as opposed to ultimate, facts. (Code Civ. Proc., § 527, subd. (a).) A plaintiff seeking injunctive relief must also show the absence of an adequate damages remedy at law. (Code Civ. Proc., § 526, subd. (a)(4).)

A preliminary injunction may be classified as either a prohibitory injunction, which requires parties “to refrain from a particular act,” or a mandatory injunction, which requires parties to perform “an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) Mandatory preliminary injunctions are rarely granted. (Teachers Insurance & Annuity Association v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.) More specifically, “[t]he granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Ibid.)

On August 16, 2017, the Court ordered Golshani to refrain from certain conduct, and on June 19, 2019, the City requested further restraining orders based on Golshani’s purported 911 emergency call from the subject property and her filing of a false report against the Browning/Nappin family. On June 21, 2019, the Court ordered Golshani to refrain from certain identified conduct, and on March 3, 2020, the Court signed an amended temporary restraining order which enjoined Golshani from entering the subject building, its carport, or its parking area, or coming within fifty feet of the building, and conducting any type of management work affecting the Browning/Nappin family. Such management work was to be handled by a third party, either a professional property management company or a professional, experienced property manager, who Golshani was required to identify within a reasonable time.

In support of its application for a preliminary injunction, which now seeks to extend the restraints identified in the March 3, 2020, order, the City provides the declaration of Andrew Nappin, who describes that he found Golshani in the adjacent storage locker when he returned home on June 13, 2019, and the next morning, he was confronted by two Santa Monica Police Department squad cars. (Nappin Decl. ¶¶ 2-7.) The officers told Nappin they were responding to a report of a homeless man in the carport; he later learned that Golshani had called the police to report his presence. (Nappin Decl. ¶¶ 11-13.) The City also provides the declaration of Martha McCarty Browning, who describes that Golshani has engaged in certain forms of harassment against her since Golshani purchased the building in which she resides (Browning Decl. ¶¶ 10-14), and she recalled an incident where Golshani was in front of the building with fire extinguishers in a manner that made her uneasy (Browning Decl. ¶ 4). The City also provides a transcript of a June 13, 2019, 911 call in which Golshani states that a “suspicious person” threatened her. (Cavanaugh Decl. ¶ 3, Ex. A.) The City provides the declaration of Plaintiff’s counsel, who states “there have been no problems with Kathy Golshani since the June orders” prohibiting her from certain conduct. (Rhoades Decl. ¶ 2.)

In opposition to the motion, Golshani states she was never charged with making a false police report, she has always been a good owner and manager, Nappin has insulted her on certain occasions, and she understood Nappin’s actions on June 13, 2019, to be a threat to her bodily safety. (Golshani Decl. ¶¶ 6-12.) Golshani states she has never used lies or intimidation to make the Brownings vacate the unit, and she has not interfered with their right to privacy. (Golshani Decl. ¶ 17.) She asks that the Court dissolve the order and deny the City’s request so she can carry out her managerial duties. (Golshani Decl. ¶ 20.)

The Court finds the City has made a sufficient showing to warrant issuance of a preliminary injunction. The City provides evidence Golshani has engaged in a campaign of tenant harassment, such that the City is reasonably likely to prevail on the merits of its claim. Golshani will not suffer substantial harm by the extension of the order already in place, as the Court has allowed work/management to be performed by third parties. Instead, the Brownings will likely suffer further harm if the order prohibiting Golshani from certain conduct is dissolved. As such, the City’s request for a preliminary injunction is GRANTED.

Evidentiary Objections

Defendants object to certain statements within the declaration of Andrew Nappin and Andrea Cavanaugh. Defendants have not correctly formatted their evidentiary objections, as the objections are not numbered consecutively to allow the Court to issue a ruling without restating the evidence and the objection. (See Cal. Rules of Court, rule 3.1354(b).) Further, the objections to the declaration of Andrew Nappin are not signed by counsel, and the proof of service of the objections is similarly unsigned. Accordingly, the objections are OVERRULED, in their entirety.

Case Number: SC125490    Hearing Date: July 22, 2020    Dept: N

TENTATIVE RULING

Defendant Cecil McNab’s Demurrer to Plaintiff’s Second Amended [Complaint] is OVERRULED.

Defendant Cecil McNab’s Motion to Strike All or Portions of Plaintiff’s Second Amended Complaint is DENIED.

The Second Amended Complaint remains the operative pleading in this action.

Defendants Cecil McNab, Brida, LLC, and Kathy Golshani shall file and serve an answer to the Second Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant Cecil McNab to give notice. 

REASONING

Meet and Confer

As an initial matter, the Court notes that Defendant Cecil McNab’s meet-and-confer efforts were insufficient, as Code of Civil Procedure section 430.41, subdivision (a)(3)(A), and section 435.5, subdivision (a)(3)(A), require stating how the moving party met and conferred with the party who filed the pleading subject to challenge. Defense counsel failed to file any such declaration, describing the meet-and-confer efforts and why they failed to resolve the issues, so the Court cannot determine whether the parties engaged in a good faith attempt to resolve the issues raised in the motions. Nonetheless, in the interest of judicial efficiency, the Court exercises its discretion to consider the merits of Defendant’s demurrer and motion to strike, but it notes that subsequent failures to comply with statutory obligations may result in a continuance of the hearing on the subject motion.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Further, the court may, upon 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. (Code Civ. Proc., § 436, subd. (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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency(2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrer

Defendant Cecil McNab has filed a demurrer to the Second Amended Complaint (“SAC”) on the ground the pleading lacks sufficient facts to place McNab on notice of the nature of the City of Santa Monica (“the City”)’s claims. Defendants Brida, LLC, and Kathy Golshani have filed a joinder to McNab’s demurrer, with no argument of their own except to join in McNab’s arguments. Thus, the Court analysis on McNab’s demurrer also addresses the claims against Brida, LLC, and Golshani (collectively, “Defendants”).

In the SAC, the City alleges McNab and Brida, LLC, own the property at 1123 17th Street in Santa Monica, which is managed by Golshani and McNab. (SAC ¶ 9.) Unit 6, where Marti Browning and Julia Browning reside, is a “controlled rental unit” subject to rent control ordinances, and Julia Browning is a tenant with disabilities. (SAC ¶¶ 10-12.) The City alleges Defendants ordered the Brownings to stop using an adjacent parking spot, even though they had their neighbors’ permission, to transfer Julia to a ramp-equipped van, Defendants refused a request for a reasonable accommodation for use of the spot, Defendants ordered removal of a device that helps move Julia and her wheelchair, Defendants implemented new rules to prevent Julia’s transfer, Defendants shut off the Brownings’ hot water, Golshani entered the unit without permission, Golshani blocked the parking space necessary for Julia’s transfer, and Golshani photographed Marti Browning’s husband and reported him to the Santa Monica Police Department. (SAC ¶¶ 14-18.) Put simply, Defendants’ contentions that the SAC makes them unaware of the nature of the claims against them, after more than four years of litigation, is not well taken.

First Cause of Action: Tenant Harassment; Fifth Cause of Action: Tenant Harassment Ordinance (Brida, LLC and Golshani)

Santa Monica Municipal Code section 4.56.020 provides that “[n]o landlord, shall, with respect to property used as a rental housing unit under any rental housing agreement or other tenancy or estate at will, however created, do any of the following in bad faith:”

(a) Interrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws; . . .

(d) Abuse the landlord’s right of access into a rental housing unit as that right is specified in California Civil Code Section 1954. This includes entries for “inspections” that are not related to necessary repairs or services; entries excessive in number; entries that improperly target certain tenants or are used to collect evidence against the occupant or otherwise beyond the scope of an otherwise lawful entry; . . .

(f) Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion.

The City alleges Defendants made the Brownings’ right of access into their rental housing unit substantially difficult by frustrating their ability to transfer Julia Browning in and out of the unit. Such conduct interrupts the housing services required by contract because the Brownings entered the unit with an understanding that the landlords would not frustrate their ability to peacefully enter and leave their unit, and Defendants’ conduct of preventing the Brownings’ use of the accessible parking spot, as well as their alleged improper entry into the unit at issue and communication with the police, were allegedly attempts to influence the Brownings to vacate their unit. Such allegations support a claim for tenant harassment by Defendants. 

Insofar as Defendants argue McNab is simply being held liable as Brida, LLC’s attorney, this is belied by the pleadings, wherein McNab is alleged to be an owner of the property. While the body of each claim alleges conduct by Defendants generally, it also includes specific facts about Golshani’s offensive conduct on behalf of the landlords and it alleges McNab and Brida, LLC, are the landlords of the property at issue. Further, the fifth cause of action is not a new cause of action, as such claims for tenant harassment have been included since the City’s first iteration of the complaint, and the City simply separated the claims based on the alleged violations. 

Finally, Santa Monica Municipal Code section 4.56.040, subdivision (b), allows “[a]ny person, including the City,” to enforce provisions such as those for tenant harassment, so Defendants’ argument that the City lacks standing is also rejected. As such, Defendants’ demurrer to the first and fifth causes of action is OVERRULED.

Second Cause of Action: Housing Anti-Discrimination Ordinance

Santa Monica Municipal Code section 4.28.030, subdivision (g), makes it “unlawful for any person offering for rent or lease, renting, leasing, or listing any housing accommodation, or any authorized agent or employee of such person, to ... [r]efuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy any dwelling.”

The City alleges that the Brownings requested a reasonable accommodation of allowing them to park in a neighbor’s parking spot, with the neighbor’s permission, and allowing them to place a device in front of their parking spot, both requests were supported by a letter from their doctor, and Defendants refused the request. (SAC ¶ 14.) Such facts allege a violation of the Housing Anti-Discrimination Ordinance, as such accommodations would have afforded the Brownings equal use of their unit. Defendants’ demurrer to the second cause of action is therefore OVERRULED.

Third Cause of Action: Unruh Civil Rights Act

The elements of a claim for violation of the Unruh Civil Rights Act are (1) defendant intentionally denied plaintiff accommodations, advantages, privileges, facilities or services of a business establishment, (3) defendant was motivated to do so based on its perception that plaintiff belonged to a statutorily defined group, (4) plaintiff was harmed, and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See Civ. Code, § 51; In re Cox (1970) 3 Cal.3d 205, 216.) “The objective of the Act is to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination. Therefore, the Act applies not merely in situations where businesses exclude individuals altogether, but also where treatment is unequal.” (Pizarro v. Lamb’s Players Theatre (2006) 135 Cal.App.4th 1171, 1174, citations omitted.) Civil Code section 52 makes liable anyone who “denies, aids or incites a denial” of accommodations or privileges under Civil Code section 51.

Again, the City alleges a violation of the Brownings’ civil rights because Defendants refused to grant the Brownings’ request for a reasonable accommodation allowing them to park in a neighbor’s parking spot, with the neighbor’s permission, and allowing them to place a device in front of their parking spot. (SAC ¶ 14.) Such facts allege a violation of the Unruh Civil Rights Act. As such, Defendants’ demurrer to the third cause of action is OVERRULED. 

Fourth Cause of Action: Injunctive Relief

“The elements of a cause of action for injunctive relief are (1) a tort or other wrongful act constituting a cause of action; and (2) irreparable injury, i.e., a factual showing that the wrongful act constitutes an actual or threatened injury to property or personal rights which cannot be compensated by an ordinary damage award.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410, citation omitted.) Notably, “injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief can be granted.” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356.)

The City has sufficiently alleged a claim which entitles the City to injunctive relief, as it alleges that unless Defendants are enjoined from the alleged misconduct, current and future tenants will suffer injury and loss of their rights. (SAC ¶ 33.) Indeed, the Court has preliminarily issued such injunctive relief. Thus, Defendants’ demurrer to the fourth cause of action is OVERRULED.

Motion to Strike

Defendants argue the City lacks standing to demand penalties for tenant harassment. The Court, though, rejected this argument above, as the statute specifically grants the City the authority to bring a civil action for enforcement. The Court has also rejected the contention that the fifth cause of action is new, in that such a claim is merely a restatement of the claim that has been included since the initial complaint was filed more than four years ago. In addition, while injunctive relief is not a cause of action but merely a remedy, the City has alleged conduct which is subject to injunctive relief, so the Court declines to strike the injunctive relief cause of action on this basis. Insofar as Defendants argue certain allegations are immaterial, the Court disagrees; the statements are allegations relating to the City’s claims against Defendants.

Finally, punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) 

Here, the trier of fact could reasonably conclude Defendants acted with malice and oppression in denying the Brownings sufficient access to the unit and the trier of fact may impute knowledge of Julia Browning’s disability simply based on the submission of a request for reasonable accommodation. The Defendants allegedly went out of their way to prevent the Brownings from having proper access to their unit in an attempt to influence them to vacate the unit, and such conduct constitutes malicious and oppressive behavior that warrants an award of punitive damages. Thus, Defendants’ motion to strike is DENIED.