This case was last updated from Los Angeles County Superior Courts on 11/12/2020 at 14:45:32 (UTC).

MORENA JARQUIN, ET AL VS. CARL HAMMOND

Case Summary

On 08/25/2017 MORENA JARQUIN filed a Contract - Other Contract lawsuit against CARL HAMMOND. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are JOHN J. KRALIK, ELAINE W. MANDEL and SHIRLEY K. WATKINS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6126

  • Filing Date:

    08/25/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Van Nuys Courthouse East

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JOHN J. KRALIK

ELAINE W. MANDEL

SHIRLEY K. WATKINS

 

Party Details

Plaintiffs

JARQUIN MORENA

JARQUIN JACQUELINE

MELARA ZOILA

MARTINEZ RICARDO

Defendants

DOES 1 THROUGH 50 INCLUSIVE

HARMOND CARL

PEASON PROPERTY MANAGEMENT INC.

HAMMOND CARL

WHITSETT PROPERTIES LLC A CALIFORNIA

5049 LAUREL CANYON LLC A CALIFORNIA

PEARSON PROPERTY MANAGEMENT INC.

5049 LAUREL CANYON LLC A CALIFORNIA LIMITED LIABILITY COMPANY

WHITSETT PROPERTIES LLC A CALIFORNIA LIMITED LIABILITY COMPANY

6551 WOODLEY AVENUE LLC

PEARSON AFFILIATED INC. DBA PEARSON PROPERTIES

PEARSON AFFILIATED INC. DBA PEARSON PROPERTIES A CALIFORNIA CORPORATION

Other

KESHISHYAN ROMINA

Attorney/Law Firm Details

Plaintiff Attorneys

AKHIDENOR MICHAEL O.

KAZANDJIAN HAIG B.

KAZANDJIAN HAIG B

KESHISHYAN ROMINA

Defendant Attorneys

SOBLE MARC STEVEN

HUSKEY STEVEN CARL

O'HARA MAUREEN

WINTER MEGAN CHRISTINE

 

Court Documents

Reply - REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT

7/15/2020: Reply - REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT

Notice Re: Continuance of Hearing and Order

4/17/2020: Notice Re: Continuance of Hearing and Order

Reply - REPLY IN SUPPORT OF DEFENDANT 5049 LAUREL CANYON LLC'S DEMURRER TO PLAINTIFFS' THIRD AMENDED COMPLAINT

3/30/2020: Reply - REPLY IN SUPPORT OF DEFENDANT 5049 LAUREL CANYON LLC'S DEMURRER TO PLAINTIFFS' THIRD AMENDED COMPLAINT

Notice Re: Continuance of Hearing and Order

4/3/2020: Notice Re: Continuance of Hearing and Order

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT CARL HAMMOND DEMURRER TO TAC

3/24/2020: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANT CARL HAMMOND DEMURRER TO TAC

Motion to Compel - MOTION TO COMPEL DEFS MOTION TO COMPEL Z MELARA RESP TO REQ FOR PROD SET ONE

1/30/2020: Motion to Compel - MOTION TO COMPEL DEFS MOTION TO COMPEL Z MELARA RESP TO REQ FOR PROD SET ONE

Motion to Compel - MOTION TO COMPEL DEFS MOTION TO COMPEL PLTF R MARTINEZ RESP TO REQ FOR PROD SET ONE

1/30/2020: Motion to Compel - MOTION TO COMPEL DEFS MOTION TO COMPEL PLTF R MARTINEZ RESP TO REQ FOR PROD SET ONE

Notice of Motion

12/17/2019: Notice of Motion

Notice of Posting of Jury Fees

9/24/2019: Notice of Posting of Jury Fees

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

6/25/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

6/19/2019: Case Management Statement

Proof of Service by Mail

3/28/2019: Proof of Service by Mail

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading) Portions of Plaintiffs' First Amended Complaint

10/26/2018: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading) Portions of Plaintiffs' First Amended Complaint

Opposition - Opposition to Defendant 5049 Laurel Canyon, LLC's Motion to Strike Portions of Plaintiffs' First Amended Complaint

11/28/2018: Opposition - Opposition to Defendant 5049 Laurel Canyon, LLC's Motion to Strike Portions of Plaintiffs' First Amended Complaint

Opposition - Opposition to Defendant 5049 Laurel Canyon, LLC's Demurrer to Plaintiffs' First Amended Complaint

11/28/2018: Opposition - Opposition to Defendant 5049 Laurel Canyon, LLC's Demurrer to Plaintiffs' First Amended Complaint

Proof of Service by Mail - Proof of Service by Mail of Notice of Continuance

11/9/2018: Proof of Service by Mail - Proof of Service by Mail of Notice of Continuance

Notice and Acknowledgment of Receipt -

10/2/2018: Notice and Acknowledgment of Receipt -

Notice of Case Reassignment and Order for Plaintiff to Give Notice -

9/27/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice -

158 More Documents Available

 

Docket Entries

  • 01/14/2021
  • Hearing01/14/2021 at 08:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Trial Setting Conference

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  • 10/13/2020
  • DocketNotice (of Entry of Order); Filed by Carl Hammond (Defendant)

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  • 10/09/2020
  • DocketStipulation and Order (re Responsive Pleadings to Fourth Amended Complaint); Filed by Carl Hammond (Defendant)

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  • 09/22/2020
  • DocketAmended Complaint ( (2nd)); Filed by Jacqueline Jarquin (Plaintiff); Morena Jarquin (Plaintiff); Zoila Melara (Plaintiff) et al.

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  • 08/26/2020
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel (Plaintiff Zoila Melara's Response to Request for Production of Documents (Set One)) - Not Held - Taken Off Calendar by Party

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  • 08/26/2020
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel (Plaintiff Zoila Melara's Response to Form Interrogatories (Set One)) - Not Held - Taken Off Calendar by Party

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  • 08/26/2020
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel (Plaintiff Zoila Melara's Response to Special Interrogatories (Set One)) - Not Held - Taken Off Calendar by Party

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  • 08/26/2020
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel (Plaintiff Martinez' Responses to Form Interrogatories (Set One)) - Not Held - Taken Off Calendar by Party

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  • 08/26/2020
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel (Defs 5049 Laurel Canyon and Whittsett Properties Mtn to Compel Pltf Ricardo Martinez' Resp to SROGs, RFP, FROGs; Defs 5049 Laurel Canyon and Whitsett Properties' Mtn to Compel Pltf Zoila Melara's Resp to SROGs, RFP and FROGs) - Not Held - Taken Off Calendar by Party

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  • 08/26/2020
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Hearing on Motion to Compel (Plaintiff Martinez' Response to Request for Production of Documents) - Not Held - Taken Off Calendar by Party

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248 More Docket Entries
  • 01/09/2018
  • DocketProof of Service of Summons and Complaint; Filed by Jacqueline Jarquin (Plaintiff); Morena Jarquin (Plaintiff)

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  • 08/30/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Court

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  • 08/30/2017
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by Court

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  • 08/30/2017
  • DocketSummons; Filed by null

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  • 08/25/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/25/2017
  • DocketRequest to Waive Court Fees; Filed by Jacqueline Jarquin (Plaintiff)

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  • 08/25/2017
  • DocketCivil Case Cover Sheet; Filed by Jacqueline Jarquin (Plaintiff); Morena Jarquin (Plaintiff)

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  • 08/25/2017
  • DocketComplaint; Filed by Jacqueline Jarquin (Plaintiff); Morena Jarquin (Plaintiff)

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  • 08/25/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/25/2017
  • DocketRequest to Waive Court Fees; Filed by Jacqueline Jarquin (Plaintiff)

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Tentative Rulings

Case Number: LC106126    Hearing Date: August 21, 2020    Dept: T

THERE ARE TENTATIVE RULINGS FOR ALL DEFENDANTS’ DEMURRERS AND MOTIONS TO STRIKE POSTED ON BOTH 8/18 AND 8/21. BECAUSE OF MULTIPLE CONTINUANCES, IT IS UNCLEAR WHICH OF THE DEMURRERS AND MOTIONS TO STRIKE ARE ON WHICH DATES. THE COURT APOLOGIZES FOR THE CONFUSION.

MORENAJARQUIN; et. al.,

Plaintiff,

vs.

CARL HAMMOND;et. al.

Defendants.

CASE NO: LC106126

[TENTATIVE]ORDER RE: Defendants 5049 Laurel Canyon, LLC (“Laurel”), Whitsett Properties,LLC (“Whitsett”), 6551 Woodley Avenue, LLC (“Woodley”) and PearsonAffiliated, Inc dba Pearson Properties (“Pearson”) (collectively “Defendants”) DEMURRERS AND MOTIONS TO STRIKE AGAINST THE THIRD AMENDEDCOMPLAINT

Dept. T

8:30 a.m.

8/18/20 or 8/21/20 (tentatives postedfor both days, unclear which demurrers are scheduled for which days)

[TENTATIVE] ORDER:

Demurrers to the Third Amended Complaint:

-- OVERRULED on the Ninth COA as to the Violation of BPC §17200, and the Tenth COA

-- SUSTAINED WITHOUT LEAVE TO AMEND as to the Fourth COA, Fifth COA, and the Ninth COA as to the Violation of BPC §17500

-- SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the Eleventh thru Thirteenth COA

Motions to Strike:

-- GRANTED WITHOUT LEAVE TO AMEND as to Punitive Damages in TAC para.65, 79

-- GRANTED WITH 20 DAYS LEAVE TO AMEND as to Punitive Damages in TAC para.120, 146 and as to Treble Damages in TAC para.120 & 143

-- DENIED as to Attorneys Fees and Costs in TAC para.92, 120

1. INTRODUCTION

Defendants 5049 Laurel Canyon, LLC (“Laurel”), Whitsett Properties, LLC (“Whitsett”), 6551 Woodley Avenue, LLC (“Woodley”) and Pearson Affiliated, Inc. dba Pearson Properties (“Pearson”) (collectively “Defendants”) demur to the Third Amended Complaint (“TAC”) filed by Plaintiffs Morena Jarquin (“Morena”), Jacqueline Jarquin (“Jacqueline”), Zoila Melara (“Zoila”) and Ricardo Martinez (“Ricardo”) (collectively “Plaintiffs”.) Zoila and Ricardo are newly added plaintiffs in the TAC. The Demurrers move against the fourth cause of action (“COA”) for Intentional Infliction of Emotional Distress (“IIED”); the fifth COA for Negligence Per Se; the ninth COA for Violation of BPC §17200 and §17500; the tenth COA for Elder Abuse; the eleventh COA for FEHA Disability Discrimination; the twelfth COA for FEHA Failure to Engage in the Interactive Process and the thirteenth COA for FEHA Breach of the Civil Rights Act. Defendants also move to strike against the TAC’s claims for punitive damages, treble damages per CC §3345, treble damages per CC §52 and attorney fees and costs.

Laurel filed a demurrer/motion to strike. Whitsett filed a demurrer/motion to strike. Woodley and Pearson, jointly, filed a demurrer/motion to strike. All demurrers and all motions to strike make similar arguments.

2. PROCEDURE

Due to the circumstances surrounding the coronavirus, the opposition is considered despite any timeliness issue as to filing or service.

3. DISCUSSION

A. Fourth COA for IIED

On April 11, 2019, the Court sustained without leave to amend the Demurrer to the Second Amended Complaint (“SAC”) filed by Co-Defendants Pearson and Woodley. At issue was the Fourth COA for IIED filed by Plaintiffs Morena and Jacqueline Jarquin.

The caption for the Fourth COA in the TAC shows that the IIED claim is alleged by all four Plaintiffs. The caption does not limit the IIED claim to any specific individual plaintiff. Plaintiffs argue that the IIED claim is supported by sufficient fact pleading as seen in TAC para.27-36. The Court notes that the allegations found in TAC para.27-34 & 36 are verbatim copies of the allegations made in the SAC para.23-31. The only new allegation made in the TAC is para.35. This new allegation is seen to support Plaintiff Zoila’s Tenth COA for Elder Abuse claim and Plaintiff Zoila and Plaintiff Ricardo Eleventh through Thirteenth COAs for FEHA violations due to the failure to maintain and repair. Nothing in TAC para.35 relates to any claim being made by Plaintiffs Morena and Jacqueline. Because the IIED claim in the TAC filed by Plaintiffs Morena and Jacqueline are exactly the same as the allegations found in the SAC, the Court’s prior ruling sustaining the demurrer without leave to amend on the SAC’s IIED claim as to Woodley/Pearson applies to these demurrers.[1]

Specifically, as to the IIED claim filed by Plaintiffs Zoila and Ricardo, the IIED claim based upon the conditions of the premise are insufficient to support IIED because there is insufficient factual allegation to show intentional misconduct. The claims related to the conditions of the premise are the same allegations from the prior pleadings. Because the allegations are the same, the prior ruling on this COA at the demurrer to the SAC is applicable herein.

The only allegations as to intentional conduct that may support IIED is Zoila and Ricardo’s claims of financial abuse and/or discrimination found in TAC para.35. However, this allegation is only a conclusory allegation without specific facts to show a financial abuse or discrimination. The conclusory buzz words for abuse and discrimination do not add specific facts to show any extreme or outrageous conduct as to the failure to repair and/or the conditions of the premise. It is noted that the Fourth COA does not incorporate the allegations found in the Tenth through Thirteenth COAs. Even if the Fourth COA for IIED incorporated the allegations found in the Elder Abuse and FEHA claims, the allegations are still insufficient in that the allegations amount to a wrongful taking of rent payments. Without specific facts to show the extreme or outrageous nature of the taking of rent payments, the IIED claim is not properly pleaded.

B. Fifth COA for Negligence Per Se

Defendants’ argument that the Fifth COA is duplicative of the Third COA for negligent maintenance was previously raised by Pearson in their demurrer to the FAC. The argument was overruled by the Court at the December 11, 2018 hearing. The Fifth COA has not changed from the FAC to the instant TAC. The claim against Pearson is the same as the claim against the other Corporate Defendants. Thus, the Court’s prior ruling to overrule this argument applies to the instant demurrers.[2]

Defendants’ next argument is not found in the prior demurrers and is newly made herein. Negligence per se is not an independent COA but an evidentiary presumption. Quiroz v Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1286-7. Plaintiffs’ citation to Randi W. v Muroc Joint Unified School District (1997) 14 Cal. 4th 1066, 1086-7 and Angelotti v Walt Disney Company (2011) 192 Cal. App. 4th 1394, 1400 do not support Plaintiffs’ contention that negligence per se is an independent COA. However, it is noted that both cases addressed/referenced a separately pleaded COA for negligence per se without making any determination as to whether the claim can be an independent COA. Without an express ruling within Plaintiffs’ case law that negligence per se is an independent COA, Defendants’ argument is persuasive.

The argument as to a lack of citation to statutory grounds for negligence per se is not considered because the issue is moot.

C. Ninth COA for Violation of BPC §17200 and §17500

The Court notes that Pearson’s demurrer to the FAC argued against this COA on the grounds that there were insufficient facts pleaded to support any unlawful conduct. The Court overruled this argument at the April 11, 2018 demurrer hearing. The arguments presented in the instant demurrer are not the same arguments presented previously by Pearson.[3]

The remedy for BPC §17200 violations is injunctive relief or restitution. Damages are not an authorized remedy. Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 317. Defendants argue that Plaintiffs lack standing because it is not alleged that Plaintiffs are currently in possession of the premise per Stoiber v Honeychuck (1980) 101 Cal. App. 3d 903, 928 (“Stoiber”). In Stoiber, the Court noted that plaintiff/tenant was no longer in possession of the unit and thus lacked standing to seek injunctive relief as to her unit or to be a representative of other tenants. In the instant action, Plaintiffs’ prayer does not seek injunctive relief ordering Defendants to repair or maintain or enjoining Defendants from the business practice alleged. The COA, as well as the Prayer, only seeks restitution/disgorgement of profits. (TAC para.107 and Prayer para.10.) It is noted that Plaintiffs allege that the business practices will continue unless enjoined but, as stated above, there is no express request for an injunction to enjoin any business practice. (TAC para.105.) Because there is no requested injunction, the fact that Plaintiffs may no longer be in possession does not show a lack of standing under Stoiber. The demurrer argument as to lack of standing is not persuasive.

Plaintiffs argue that they are suing on behalf of the general public. (TAC para.102.) Because Plaintiffs are not seeking injunctive relief, their claim on behalf of the general public is irrelevant. Further, Plaintiffs’ stance as a representative of a class is irrelevant because Plaintiffs’ claim is limited to the conditions found in their own apartment unit. There is no fact or allegation, as was the case in Stoiber, that the condition of other units was similar to Plaintiffs’ unit or that other apartment units were in uninhabitable conditions. The UCL claim is merely a personal claim and Plaintiffs fail to allege any grounds to be a representative of a class. (Even if Plaintiffs’ claim is made as a representative of a class, Plaintiffs fail to comply with CCP §382 per Proposition 64. Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal. 4th 223, 232.) Plaintiffs’ claim is limited to restitution of their own rental payments made.

Specific to the claim regarding the violation of BPC §17500, the TAC does not allege any facts related to false advertising. Despite Plaintiffs’ argument otherwise, there are no allegations regarding any advertising by Defendants. The specific claim of BPC §17500 violation does not survive this demurrer.

D. Tenth COA for Elder Abuse

Despite the title to the COA being Elder Abuse, Zoila clarifies that the claim is for financial elder abuse and is grounded on the claim that Defendants took Zoila’s rent payment through a wrongful use or an intent to defraud. (TAC para.113.) With this clarification, Defendants’ first argument that they are not caretakers is unpersuasive because caretaker status is not required for a financial elder abuse claim.

Defendants’ arguments as to pleading misconduct by an officer, director, or managing agent or that the misconduct was authorized or ratified by the employer or that there was advanced knowledge by an employer of the unfitness of the employee (CC §3294) is improper for a demurrer. Defendants’ citation to WIC §15657(c) and other case law to support their argument is further unpersuasive in that the statute applies to Elder Abuse under the form of abuse, neglect or abandonment and not Financial Elder Abuse. The factors cited by Defendants only apply to whether punitive damages is sufficiently alleged under Financial Elder Abuse. This is not a proper issue for demurrer.

Defendants argue that there are insufficient facts to plead that the rent payments were taken for a wrongful use or an intent to defraud. To support their argument, Defendants cite to Stebley v Litton Loan Servicing, LLP (2011)0202 Cal. App. 4th 522, 527-528 (“Stebley”). However, Defendants’ reliance upon Stebley is incorrect and the case does not support Defendants’ contention. The Court opined that the “proper” assertion of a contractual right is insufficient to show a wrongful use or fraud. It is noted that the Court of Appeal opined that plaintiff homeowner had not sufficiently pleaded a wrongful foreclosure claim nor did she plead sufficient facts to support any damages stemming from the trustee sale. There was no viable wrongful foreclosure. However, in the instant action, the TAC has a viable breach of habitability claim and a negligence maintenance claim. Further, the Elder Abuse COA alleges that Defendants misrepresented their right to collect rent based upon the failure to repair/maintain. Defendants’ argument against Elder Abuse is unpersuasive.

E. Eleventh thru Thirteenth COA for FEHA Disability Discrimination, for FEHA Failure to Engage in the Interactive Process, for FEHA Breach of the Civil Rights Act

Housing discrimination cases do not require a right to sue letter from the Department of Fair and Equal Housing. GC §12989.1. Because housing discrimination claims do not require a right to sue letter, Defendants’ first two arguments regarding a prerequisite to obtain a right to sue letter and the statute of limitations (“SOL”) due to the lack of a right to sue letter is unpersuasive.

Defendants’ argument that they have no ownership interest in the property is a dispute over a factual allegation. Because the demurrer assumes factual allegations to be true, Zoila and Ricardo’s claim that Defendants are owners is deemed true for the demurrer. Defendants’ dispute over their status as owners is improper for a demurrer.

Pertinent to the discussion of all three FEHA COAs, there are insufficient facts to show a disability by Zoila and Ricardo. The TAC merely alleges in general terms that they suffer a disability as defined by FEHA. However, there are no specific facts to show their actual disability. This deficiency in fact pleading makes all three FEHA claims insufficiently pleaded.

Without specific facts as to Zoila and Ricardo’s disability, the three claims as to disability discrimination, failure to engage and Unruh Civil Rights violation also are insufficiently pleaded. The TAC fails to plead how Defendants discriminated against Zoila and Ricardo or failed to engage or accommodate Zoila and Ricardo based upon their disability. Further, there is insufficient fact pleading as to Zoila and Ricardo’s request for a reasonable accommodation based upon their disability. The allegations of the TAC, as argued by Defendants, merely show a habitability claim based upon a failure to repair/maintain the premise. It is seen that Zoila and Ricardo made request to repair/maintain that were ignored but they fail to allege facts to show how the repairs/maintenance are linked to their disability. The demurrer is persuasive as to the FEHA COAs.

F. Punitive Damages

TAC para.65/Prayer para.7 in the Fourth COA for IIED: Because the demurrer to the IIED claim is sustained without leave, the motion to strike punitive damages from the IIED claim is granted without leave to amend.

Note that at the April 11, 2019 hearing, Woodley/Pearson’s Motion to Strike Punitive Damages under the IIED claim was granted without leave to amend. As stated above, the IIED claim between the SAC and the TAC specific to Plaintiffs Morena and Jacqueline’s claim related to the failure to repair/maintain are the same. Without any changes to the IIED claim, there are no new facts to support punitive damages under the Fourth COA. Because the claim for punitive damages made by Plaintiffs Morena and Jacqueline are the same, the prior ruling to grant the striking of punitive damages under the Fourth COA as to Woodley/Pearson applies to the punitive damages alleged here.

TAC para.79/Prayer para.7 in the Fifth COA for Negligence Per Se: Because the demurrer to the negligence per se claim is sustained without leave, the motion to strike punitive damages is granted without leave to amend.

Even if the Court were to consider the merits of the motion, the motion should be granted without leave because a claim based upon a negligence theory is improper to support punitive damages because there is no intentional conduct alleged, let alone, malicious, oppressive or fraudulent conduct.

TAC para.120/Prayer para.7 in the Tenth COAs for Elder Abuse: As noted above, punitive damages under a Financial Elder Abuse claim must plead specific and particular facts to show misconduct by an officer, director, or managing agent or that the misconduct was authorized or ratified by the employer or that there was advanced knowledge by an employer of the unfitness of the employee (CC §3294). There are no facts to support any of these elements. Further, the claim alleges that there were misrepresentations made to Plaintiff Zoila regarding the collection of rent. However, the allegation is conclusory and lacks any specific facts as to any misrepresentation. Thus, the request for punitive damages under Financial Elder Abuse is not properly pleaded.

TAC para.141/Prayer para.7 in the Twelfth COAs for FEHA Failure to Engage: Because the demurrer to this claim is sustained with leave, the motion to strike punitive damages is granted with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

G. Treble Damages

TAC para.120/Prayer para.6 in the Tenth COA for Elder Abuse: Per CC §3345(b), damages may be trebled upon the imposition of a “fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter.” In that this request is found under the Financial Elder Abuse claim, Plaintiffs request the trebling of the Financial Elder Abuse damages. In that Plaintiffs have not yet sufficiently made a claim for punitive damages under the Tenth COA, the request for Treble Damages is also insufficiently pleaded.

TAC para.143/Prayer para.6 in the Thirteenth COA for Violation of Unruh Civil Rights Act: Because the demurrer to these two claims is sustained with leave, the motion to strike

punitive damages is granted with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

H. Attorney Fees & Costs

TAC para.92/Prayer para.9 in the Seventh COA for Breach of Quiet Enjoyment (PAGA): The attorneys fees and costs were previously ruled upon at the motion to strike against the FAC heard on December 11, 2018. The fees and costs at issue in the instant motion to strike are the exact same fees and costs that were at issue in the motion to strike against the FAC. In that the fees and costs are the same, the denial of the motion to strike at the December 11, 2018 hearing is applicable herein.[4]

TAC para.120/Prayer para.9 in the Tenth COA under Financial Elder Abuse: Preliminarily, it is noted that the notice to the motion identifies the request for attorneys fees and costs under the Tenth COA to be at issue in this motion. However, Defendants do not present any legal or factual argument against this request for attorneys and costs. The request for attorneys fees and costs are authorized under the statute. WIC §15657.5. Thus, attorneys fees and costs under Financial Elder Abuse is properly pleaded.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.

[1] Counsel are reminded that when a demurrer or motion to strike is sustained/granted without leave to amend, those sustained/stricken allegations should not be pleaded again.

[2] Counsel are reminded when a demurrer is overruled or a motion to strike denied, the same demurrer or motion to strike should not be brought against the same allegations.

[3] Counsel are reminded when a demurrer is overruled or a motion to strike denied, the same demurrer or motion to strike should not be brought against the same allegations.

[4] Counsel are reminded when a demurrer is overruled or a motion to strike denied, the same demurrer or motion to strike should not be brought against the same allegations.

_____________________________________________________________________

MORENA JARQUIN;et. al.,

Plaintiff,

vs.

CARL HAMMOND;et. al.

Defendants.

CASE NO: LC106126

[TENTATIVE]ORDER RE: DEFENDANT HAMMOND’S

DEMURRERTO AND MOTION TO STRIKE AGAINST THE THIRD AMENDED COMPLAINT

Dept. T

8:30 a.m.

8/18/20 or 8/21/20

[TENTATIVE] ORDER: The Demurrer to the Third Amended Complaint is OVERRULED Ninth COA as to the Violation of BPC §17200, and the Tenth COA; SUSTAINED WITHOUT LEAVE as to the First COA, Fourth COA, Fifth COA, and the Ninth COA as to the Violation of BPC §17500; and SUSTAINED WITH LEAVE as to the Eleventh thru Thirteenth COA.

The Motion to Strike is GRANTED WITHOUT LEAVE as to Punitive Damages in TAC para.65, 79 and GRANTED WITH LEAVE as to Punitive Damages in TAC para.120, 146 and as to Treble Damages in TAC para.120 & 143 and DENIED as to Attorneys Fees and Costs in TAC para.92, 120.

Introduction

Defendant Carl Hammond (“Hammond”) demurs to the Third Amended Complaint (“TAC”) filed by Plaintiffs Morena Jarquin (“Morena”), Jacqueline Jarquin (“Jacqueline”), Zoila Melara (“Zoila”) and Ricardo Martinez (“Ricardo”) (collectively “Plaintiffs”.) Zoila and Ricardo are newly added plaintiffs in the TAC. The Demurrer moves against the first Cause of Action (“COA”) for Private Nuisance; the fourth COA for Intentional Infliction of Emotional Distress (“IIED”); the fifth COA for Negligence Per Se; the ninth COA for Violation of BPC §17200 and §17500; the tenth COA for Elder Abuse; the eleventh COA for FEHA Disability Discrimination; the twelfth COA for FEHA Failure to Engage in the Interactive Process and the thirteenth COA for FEHA Breach of the Civil Rights Act. Hammond also moves to strike against the TAC’s claims for punitive damages, treble damages per CC §3345, treble damages per CC §52 and attorney fees.

Procedure

Due to the circumstances surrounding the coronavirus, the opposition is considered despite any timeliness issue as to filing or service.

Discussion

First COA for Private Nuisance

At the December 11, 2018 hearing on the demurrer filed by Co-Defendants 5049 Laurel Canyon, LLC. (“Laurel”) and Whitsett Properties, LLC. (“Whitsett”), the issue of duplicity was not raised. The demurrer filed by Co-Defendant Pearson Property Management, Inc. (“Pearson”) argued a duplicity argument but not the exact same argument raised here. Pearson merely argued that the nuisance claim was duplicative with the negligence maintenance COA so that any defects found in the negligence maintenance COA carried over to the nuisance COA. The Court overruled this argument raised by Pearson. The issue in the instant demurrer is that the nuisance COA is duplicative of the breach of warranty of habitability and negligence maintenance COA because all three claims are grounded on the exact same facts. This is a new argument first raised by Hammond.

The case law submitted by both parties provides that nuisance can be alleged in cases involving housing conditions. El Escorial Owners’ Assn v DLC Plastering, Inc. (2007, 2nd DCA) 154 Cal. App, 4th 1337, 1349; Stoiber v Honeychuck (1980, 5th DCA) 101 Cal. App. 3d 911, 919. However, our Second District further provided that nuisance causes of action that rely on the same facts about lack of due care and request the same remedies as negligence are merely negligence claims. El Esorial Owners’ Assn (supra). All three COAs at issue incorporate the allegations of defective and dangerous conditions identified in the general allegations and the duty to maintain and the duty to repair. (TAC para.27, 37, 38, 42, 45, 54, 55.) Hammond differentiates the nuisance claim by arguing it includes a remedy for injunctive relief. However, the COA and the Prayer of the TAC do not request abatement of the nuisance as a remedy. (See TAC para.41 and Prayer.) The COA and Prayer only request money damages. Thus, there is no different remedy requested between nuisance and negligence. The nuisance claim is seen to be duplicative of the negligence maintenance COA and Hammond’s argument is persuasive.

Fourth COA for IIED

On April 11, 2019, the Court sustained without leave the Demurrer to the Second Amended Complaint (“SAC”) filed by Co-Defendants Pearson and 6551 Woodley Avenue, LLC (“Woodley”). At issue was the Fourth COA for IIED filed by Plaintiffs Morena and Jacqueline Jarquin.

The caption for the Fourth COA in the TAC shows that the IIED claim is alleged by all four Plaintiffs. The caption does not limit the IIED claim to any specific individual plaintiffs. Plaintiffs argue that the IIED claim is supported by sufficient fact pleading as seen in TAC para.27-36. The Court notes that the allegations found in TAC para.27-34 & 36 are verbatim copies of the allegations made in the SAC para.23-31. The allegations of IIED made against Woodley/Pearson are exactly the same as the allegations made against Hammond. The only new allegation made in the TAC is para.35. This new allegation is seen to support Plaintiff Zoila’s Tenth COA for Elder Abuse claim and Plaintiff Zoila and Plaintiff Ricardo Eleventh through Thirteenth COAs for FEHA violations due to the failure to maintain and repair. Nothing in TAC para.35 relates to any claim being made by Plaintiffs Morena and Jacqueline. Because the IIED claim in the TAC filed by Plaintiffs Morena and Jacqueline are exactly the same as the allegations found in the SAC against Woodley/Pearson and Hammond, the Court’s prior ruling sustaining the demurrer without leave to amend on the SAC’s IIED claim as to Woodley/Pearson applies to Hammond.

Specifically, as to the IIED claim filed by Plaintiffs Zoila and Ricardo, the IIED claim based upon the conditions of the premise are insufficient to support IIED because there is insufficient factual allegation to show intentional misconduct. The claims related to the conditions of the premise against Hammond are the same allegations against Woodley and Pearson. Because the allegations are the same, the prior ruling on this COA at the demurrer to the SAC is applicable herein.

The only allegations as to intentional conduct that may support IIED is Zoila and Ricardo’s claims of financial abuse and/or discrimination found in TAC para.35. However, this allegation is only a conclusory allegation without specific facts to show a financial abuse or discrimination. The conclusory buzz words for abuse and discrimination do not add specific facts to show any extreme or outrageous conduct as to the failure to repair and/or the conditions of the premise. It is noted that the Fourth COA does not incorporate the allegations found in the Tenth through Thirteenth COAs. Even if the Fourth COA for IIED incorporated the allegations found in the Elder Abuse and FEHA claims, the allegations are still insufficient in that the allegations amount to a wrongful taking of rent payments. Without specific facts to show the extreme or outrageous nature of the taking of rent payments, the IIED claim is not properly pleaded.

Fifth COA for Negligence Per Se

Hammond’s argument that the Fifth COA is duplicative of the Third COA for negligent maintenance was previously raised by Co-Defendant Pearson in their demurrer to the FAC. The argument was overruled by the Court at the December 11, 2018 hearing. The Fifth COA has not changed from the FAC to the instant TAC. The claim against Pearson is the same as the claim against Hammond. Thus, the Court’s prior ruling to overrule this argument applies to Hammond.

Negligence per se is not an independent COA but an evidentiary presumption. Quiroz v Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1286-7. Plaintiffs’ citation to Randi W. v Muroc Joint Unified School District (1997) 14 Cal. 4th 1066, 1086-7 and Angelotti v Walt Disney Company (2011) 192 Cal. App. 4th 1394, 1400 do not support Plaintiffs’ contention that negligence per se is an independent COA. However, it is noted that both cases addressed/referenced a separately pleaded COA for negligence per se without making any determination as to whether the claim can be an independent COA. Without an express ruling within Plaintiffs’ case law that negligence per se is an independent COA, Hammond’s argument is persuasive.

The argument as to a lack of citation to statutory grounds for negligence per se is not considered because the issue is moot.

Ninth COA for Violation of BPC §17200 and §17500

The Court notes that Co-Defendant Pearson’s demurrer to the FAC argued against this COA on the grounds that there were insufficient facts pleaded to support any unlawful conduct. The Court overruled this argument at the April 11, 2018 demurrer hearing. The arguments presented in the instant demurrer are not the same arguments presented by Co-Defendant Pearson.

The remedy for BPC §17200 violations is injunctive relief or restitution. Damages are not an authorized remedy. Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 317. Hammond argues that Plaintiffs lack standing because it is not alleged that Plaintiffs are currently in possession of the premise per Stoiber v Honeychuck (1980) 101 Cal. App. 3d 903, 928 (“Stoiber”). In Stoiber, the Court noted that plaintiff/tenant was no longer in possession of the unit and thus lacked standing to seek injunctive relief as to her unit or to be a representative of other tenants. In the instant action, Plaintiffs’ prayer does not seek injunctive relief ordering Hammond to repair or maintain or enjoining Hammond from the business practice alleged. The COA, as well as the Prayer, only seeks restitution/disgorgement of profits. (TAC para.107 and Prayer para.10.) It is noted that Plaintiffs allege that the business practices will continue unless enjoined but, as stated above, there is no express request for an injunction to enjoin any business practice. (TAC para.105.) Because there is no requested injunction, the fact that Plaintiffs may no longer be in possession does not show a lack of standing under Stoiber. The demurrer argument as to lack of standing is not persuasive.

Plaintiffs argue that they are suing on behalf of the general public. (TAC para.102.) Because Plaintiffs are not seeking injunctive relief, their claim on behalf of the general public is irrelevant. Further, Plaintiffs’ stance as a representative of a class is irrelevant because Plaintiffs’ claim is limited to the conditions found in the own apartment unit. There is no fact or allegation, as was the case in Stoiber, that the condition of other units was similar to Plaintiffs’ unit or that other apartment units were in uninhabitable conditions. The UCL claim is merely a personal claim and Plaintiffs fail to allege any grounds to be a representative of a class. (Even if Plaintiffs’ claim is made as a representative of a class, Plaintiffs fail to comply with CCP §382 per Proposition 64. Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal. 4th 223, 232.) Plaintiffs’ claim is limited to restitution of her own rental payments made. Despite the allegation of suing on behalf of the general public, the claim survives this demurrer.

Specific to the claim regarding the violation of BPC §17500, the TAC does not allege any facts related to false advertising. Despite Plaintiffs’ argument otherwise, there are no allegations regarding any advertising by Hammond. The specific claim of BPC §17500 violation does not survive this demurrer.

Tenth COA for Elder Abuse

Despite the title to the COA being Elder Abuse, Zoila clarifies that the claim is for financial elder abuse and is grounded on the claim that Defendants took Zoila’s rent payment through a wrongful use or an intent to defraud. (TAC para.113.) With this clarification, Hammond’s first argument that he is not a caretaker is unpersuasive because caretaker status is not required for a financial elder abuse claim.

Hammond argues that there are insufficient facts to plead that the rent payments were taken for a wrongful use or an intent to defraud. To support their argument, Hammond cites to Stebley v Litton Loan Servicing, LLP (2011)0202 Cal. App. 4th 522, 527-528 (“Stebley”). However, Hammond’s reliance upon Stebley is incorrect and the case does not support Hammond’s contention. The Court opined that the “proper” assertion of a contractual right is insufficient to show a wrongful use or fraud. It is noted that the Court of Appeal opined that plaintiff homeowner had not sufficiently pleaded a wrongful foreclosure claim nor did she plead sufficient facts to support any damages stemming from the trustee sale. There was no viable wrongful foreclosure. However, in the instant action, the TAC has a viable breach of habitability claim and a negligence maintenance claim. Because these two claims are viable, there is, as of yet, an insufficient showing of a “proper” assertion of a contractual right by Hammond. Further, the Elder Abuse COA alleges that Hammond misrepresented their right to collect rent based upon the failure to repair/maintain. Hammond’s argument against Elder Abuse is unpersuasive.

Eleventh thru Thirteenth COA for FEHA Disability Discrimination, for FEHA Failure to Engage in the Interactive Process, for FEHA Breach of the Civil Rights Act

Housing discrimination cases do not require a right to sue letter from the Department of Fair and Equal Housing. GC §12989.1. Because housing discrimination claims do not require a right to sue letter, Hammond’s first two arguments regarding a prerequisite to obtain a right to sue letter and the statute of limitations (“SOL”) due to the lack of a right to sue letter is unpersuasive.

Hammond’s argument that he has no ownership interest in the property is a dispute over a factual allegation. Because the demurrer assumes factual allegations to be true, Zoila and Ricardo’s claim that Hammond is an owner is deemed true for the demurrer. Hammond’s dispute over his status as an owner is improper for a demurrer.

Pertinent to the discussion of all three FEHA COAs, there are insufficient facts to show a disability by Zoila and Ricardo. The TAC merely alleges in general terms that they suffer a disability as defined by FEHA. However, there are no specific facts to show their actual disability. This deficiency in fact pleading makes all three FEHA claims insufficiently pleaded.

Without specific facts as to Zoila and Ricardo’s disability, the three claims as to disability discrimination, failure to engage and failure to accommodate also are insufficiently pleaded. The TAC fails to plead how Hammond discriminated against Zoila and Ricardo or failed to engage or accommodate Zoila and Ricardo based upon their disability. Further, there is insufficient fact pleading as to Zoila and Ricardo’s request for a reasonable accommodation based upon their disability. The allegations of the TAC, as argued by Hammond, merely show a habitability claim based upon a failure to repair/maintain the premise. It is seen that Zoila and Ricardo made request to repair/maintain that were ignored but they fail to allege facts to show how the repairs/maintenance are linked to their disability. The demurrer is persuasive as to the FEHA COAs.

Punitive Damages

TAC para.65/Prayer para.7 in the Fourth COA for IIED: Because the demurrer to the IIED claim is sustained without leave, the Court grants the motion to strike without leave to amend.

At the April 11, 2019 hearing, Woodley/Pearson’s Motion to Strike Punitive Damages under the IIED claim was granted without leave to amend. As stated above, the IIED claim between the SAC and the TAC specific to Plaintiffs Morena and Jacqueline’s claim related to the failure to repair/maintain against Woodley/Pearson are the same as those alleged against Hammond. Without any changes to the IIED claim, there are no new facts to support punitive damages under the Fourth COA. Because the claim for punitive damages made by Plaintiffs Morena and Jacqueline are the same, the prior ruling to grant the striking of punitive damages under the Fourth COA as to Woodley/Pearson applies to the punitive damages alleged against Hammond.

TAC para.79/Prayer para.7 in the Fifth COA for Negligence Per Se: Because the demurrer to the negligence per se claim is sustained without leave, the Court grants the motion to strike without leave to amend.

Even if the Court were to consider the merits of the motion, the motion should be granted without leave because a claim based upon a negligence theory is improper to support punitive damages because there is no intentional conduct alleged, let alone, malicious, oppressive or fraudulent conduct.

TAC para.120/Prayer para.7 in the Tenth COAs for Elder Abuse: As noted above, punitive damages under a Financial Elder Abuse claim must plead specific and particular facts to show misconduct by an officer, director, or managing agent or that the misconduct was authorized or ratified by the employer or that there was advanced knowledge by an employer of the unfitness of the employee (CC §3294). There are no facts to support any of these elements. Further, the claim alleges that there were misrepresentations made to Plaintiff Zoila regarding the collection of rent. However, the allegation is conclusory and lacks any specific facts as to any misrepresentation. Thus, the request for punitive damages under Financial Elder Abuse is not properly pleaded.

TAC para.141/Prayer para.7 in the Twelfth COAs for FEHA Failure to Engage: Because the demurrer to this claim is sustained with leave, the Court grants the motion to strike with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

Treble Damages

TAC para.120/Prayer para.6 in the Tenth COA for Elder Abuse: Per CC §3345(b), damages may be trebled upon the imposition of a “fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter.” In that this request is found under the Financial Elder Abuse claim, Plaintiffs request the trebling of the Financial Elder Abuse damages. In that Plaintiffs have not yet sufficiently made a claim for punitive damages under the Tenth COA, the request for Treble Damages is also insufficiently pleaded.

TAC para.143/Prayer para.6 in the Thirteenth COA for Violation of Unruh Civil Rights Act: Because the demurrer to these two claims is sustained with leave, The Court grants the motion to strike with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

Attorney Fees & Costs

TAC para.92/Prayer para.9 in the Seventh COA for Breach of Quiet Enjoyment (PAGA): The attorneys fees and costs were previously ruled upon at the motion to strike against the FAC heard on December 11, 2018. The fees and costs at issue in the instant motion to strike are the exact same fees and costs that were at issue in the motion to strike against the FAC. In that the fees and costs are the same, the denial of the motion to strike at the December 11, 2018 hearing is applicable herein.

TAC para.120/Prayer para.9 in the Tenth COA under Financial Elder Abuse: Preliminarily, it is noted that the notice to the motion identifies the request for attorneys fees and costs under the Tenth COA to be at issue in this motion. However, Hammond does not present any legal or factual argument against this request for attorneys and costs. The request for attorneys fees and costs are authorized under the statute. WIC §15657.5. Thus, attorneys fees and costs under Financial Elder Abuse is properly pleaded.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.

Case Number: LC106126    Hearing Date: August 18, 2020    Dept: T

THERE ARE TENTATIVE RULINGS FOR ALL DEFENDANTS’ DEMURRERS AND MOTIONS TO STRIKE POSTED ON BOTH 8/18 AND 8/21. BECAUSE OF MULTIPLE CONTINUANCES, IT IS UNCLEAR WHICH OF THE DEMURRERS AND MOTIONS TO STRIKE ARE ON WHICH DATES. THE COURT APOLOGIZES FOR THE CONFUSION.

MORENA JARQUIN; et. al.,

Plaintiff,

vs.

CARL HAMMOND; et. al.

Defendants.

CASE NO: LC106126

[TENTATIVE] ORDER RE: Defendants 5049 Laurel Canyon, LLC (“Laurel”), Whitsett Properties, LLC (“Whitsett”), 6551 Woodley Avenue, LLC (“Woodley”) and Pearson Affiliated, Inc dba Pearson Properties (“Pearson”) (collectively “Defendants”) DEMURRERS AND MOTIONS TO STRIKE AGAINST THE THIRD AMENDED COMPLAINT

Dept. T

8:30 a.m.

8/18/20 or 8/21/20 (tentatives posted for both days, unclear which demurrers are scheduled for which days)

[TENTATIVE] ORDER:

Demurrers to the Third Amended Complaint:

-- OVERRULED on the Ninth COA as to the Violation of BPC §17200, and the Tenth COA

-- SUSTAINED WITHOUT LEAVE TO AMEND as to the Fourth COA, Fifth COA, and the Ninth COA as to the Violation of BPC §17500

-- SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the Eleventh thru Thirteenth COA

Motions to Strike:

-- GRANTED WITHOUT LEAVE TO AMEND as to Punitive Damages in TAC ¿¿65, 79

-- GRANTED WITH 20 DAYS LEAVE TO AMEND as to Punitive Damages in TAC ¿120, 146 and as to Treble Damages in TAC ¿¿120 & 143

-- DENIED as to Attorneys Fees and Costs in TAC ¿¿92, 120

1. INTRODUCTION

Defendants 5049 Laurel Canyon, LLC (“Laurel”), Whitsett Properties, LLC (“Whitsett”), 6551 Woodley Avenue, LLC (“Woodley”) and Pearson Affiliated, Inc. dba Pearson Properties (“Pearson”) (collectively “Defendants”) demur to the Third Amended Complaint (“TAC”) filed by Plaintiffs Morena Jarquin (“Morena”), Jacqueline Jarquin (“Jacqueline”), Zoila Melara (“Zoila”) and Ricardo Martinez (“Ricardo”) (collectively “Plaintiffs”.) Zoila and Ricardo are newly added plaintiffs in the TAC. The Demurrers move against the fourth cause of action (“COA”) for Intentional Infliction of Emotional Distress (“IIED”); the fifth COA for Negligence Per Se; the ninth COA for Violation of BPC §17200 and §17500; the tenth COA for Elder Abuse; the eleventh COA for FEHA Disability Discrimination; the twelfth COA for FEHA Failure to Engage in the Interactive Process and the thirteenth COA for FEHA Breach of the Civil Rights Act. Defendants also move to strike against the TAC’s claims for punitive damages, treble damages per CC §3345, treble damages per CC §52 and attorney fees and costs.

Laurel filed a demurrer/motion to strike. Whitsett filed a demurrer/motion to strike. Woodley and Pearson, jointly, filed a demurrer/motion to strike. All demurrers and all motions to strike make similar arguments.

2. PROCEDURE

Due to the circumstances surrounding the coronavirus, the opposition is considered despite any timeliness issue as to filing or service.

3. DISCUSSION

A. Fourth COA for IIED

On April 11, 2019, the Court sustained without leave to amend the Demurrer to the Second Amended Complaint (“SAC”) filed by Co-Defendants Pearson and Woodley. At issue was the Fourth COA for IIED filed by Plaintiffs Morena and Jacqueline Jarquin.

The caption for the Fourth COA in the TAC shows that the IIED claim is alleged by all four Plaintiffs. The caption does not limit the IIED claim to any specific individual plaintiff. Plaintiffs argue that the IIED claim is supported by sufficient fact pleading as seen in TAC ¿¿27-36. The Court notes that the allegations found in TAC ¿¿27-34 & 36 are verbatim copies of the allegations made in the SAC ¿¿23-31. The only new allegation made in the TAC is ¿35. This new allegation is seen to support Plaintiff Zoila’s Tenth COA for Elder Abuse claim and Plaintiff Zoila and Plaintiff Ricardo Eleventh through Thirteenth COAs for FEHA violations due to the failure to maintain and repair. Nothing in TAC ¿35 relates to any claim being made by Plaintiffs Morena and Jacqueline. Because the IIED claim in the TAC filed by Plaintiffs Morena and Jacqueline are exactly the same as the allegations found in the SAC, the Court’s prior ruling sustaining the demurrer without leave to amend on the SAC’s IIED claim as to Woodley/Pearson applies to these demurrers.[1]

Specifically, as to the IIED claim filed by Plaintiffs Zoila and Ricardo, the IIED claim based upon the conditions of the premise are insufficient to support IIED because there is insufficient factual allegation to show intentional misconduct. The claims related to the conditions of the premise are the same allegations from the prior pleadings. Because the allegations are the same, the prior ruling on this COA at the demurrer to the SAC is applicable herein.

The only allegations as to intentional conduct that may support IIED is Zoila and Ricardo’s claims of financial abuse and/or discrimination found in TAC ¿35. However, this allegation is only a conclusory allegation without specific facts to show a financial abuse or discrimination. The conclusory buzz words for abuse and discrimination do not add specific facts to show any extreme or outrageous conduct as to the failure to repair and/or the conditions of the premise. It is noted that the Fourth COA does not incorporate the allegations found in the Tenth through Thirteenth COAs. Even if the Fourth COA for IIED incorporated the allegations found in the Elder Abuse and FEHA claims, the allegations are still insufficient in that the allegations amount to a wrongful taking of rent payments. Without specific facts to show the extreme or outrageous nature of the taking of rent payments, the IIED claim is not properly pleaded.

B. Fifth COA for Negligence Per Se

Defendants’ argument that the Fifth COA is duplicative of the Third COA for negligent maintenance was previously raised by Pearson in their demurrer to the FAC. The argument was overruled by the Court at the December 11, 2018 hearing. The Fifth COA has not changed from the FAC to the instant TAC. The claim against Pearson is the same as the claim against the other Corporate Defendants. Thus, the Court’s prior ruling to overrule this argument applies to the instant demurrers.[2]

Defendants’ next argument is not found in the prior demurrers and is newly made herein. Negligence per se is not an independent COA but an evidentiary presumption. Quiroz v Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1286-7. Plaintiffs’ citation to Randi W. v Muroc Joint Unified School District (1997) 14 Cal. 4th 1066, 1086-7 and Angelotti v Walt Disney Company (2011) 192 Cal. App. 4th 1394, 1400 do not support Plaintiffs’ contention that negligence per se is an independent COA. However, it is noted that both cases addressed/referenced a separately pleaded COA for negligence per se without making any determination as to whether the claim can be an independent COA. Without an express ruling within Plaintiffs’ case law that negligence per se is an independent COA, Defendants’ argument is persuasive.

The argument as to a lack of citation to statutory grounds for negligence per se is not considered because the issue is moot.

C. Ninth COA for Violation of BPC §17200 and §17500

The Court notes that Pearson’s demurrer to the FAC argued against this COA on the grounds that there were insufficient facts pleaded to support any unlawful conduct. The Court overruled this argument at the April 11, 2018 demurrer hearing. The arguments presented in the instant demurrer are not the same arguments presented previously by Pearson.[3]

The remedy for BPC §17200 violations is injunctive relief or restitution. Damages are not an authorized remedy. Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 317. Defendants argue that Plaintiffs lack standing because it is not alleged that Plaintiffs are currently in possession of the premise per Stoiber v Honeychuck (1980) 101 Cal. App. 3d 903, 928 (“Stoiber”). In Stoiber, the Court noted that plaintiff/tenant was no longer in possession of the unit and thus lacked standing to seek injunctive relief as to her unit or to be a representative of other tenants. In the instant action, Plaintiffs’ prayer does not seek injunctive relief ordering Defendants to repair or maintain or enjoining Defendants from the business practice alleged. The COA, as well as the Prayer, only seeks restitution/disgorgement of profits. (TAC ¿107 and Prayer ¿10.) It is noted that Plaintiffs allege that the business practices will continue unless enjoined but, as stated above, there is no express request for an injunction to enjoin any business practice. (TAC ¿105.) Because there is no requested injunction, the fact that Plaintiffs may no longer be in possession does not show a lack of standing under Stoiber. The demurrer argument as to lack of standing is not persuasive.

Plaintiffs argue that they are suing on behalf of the general public. (TAC ¿102.) Because Plaintiffs are not seeking injunctive relief, their claim on behalf of the general public is irrelevant. Further, Plaintiffs’ stance as a representative of a class is irrelevant because Plaintiffs’ claim is limited to the conditions found in their own apartment unit. There is no fact or allegation, as was the case in Stoiber, that the condition of other units was similar to Plaintiffs’ unit or that other apartment units were in uninhabitable conditions. The UCL claim is merely a personal claim and Plaintiffs fail to allege any grounds to be a representative of a class. (Even if Plaintiffs’ claim is made as a representative of a class, Plaintiffs fail to comply with CCP §382 per Proposition 64. Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal. 4th 223, 232.) Plaintiffs’ claim is limited to restitution of their own rental payments made.

Specific to the claim regarding the violation of BPC §17500, the TAC does not allege any facts related to false advertising. Despite Plaintiffs’ argument otherwise, there are no allegations regarding any advertising by Defendants. The specific claim of BPC §17500 violation does not survive this demurrer.

D. Tenth COA for Elder Abuse

Despite the title to the COA being Elder Abuse, Zoila clarifies that the claim is for financial elder abuse and is grounded on the claim that Defendants took Zoila’s rent payment through a wrongful use or an intent to defraud. (TAC ¿113.) With this clarification, Defendants’ first argument that they are not caretakers is unpersuasive because caretaker status is not required for a financial elder abuse claim.

Defendants’ arguments as to pleading misconduct by an officer, director, or managing agent or that the misconduct was authorized or ratified by the employer or that there was advanced knowledge by an employer of the unfitness of the employee (CC §3294) is improper for a demurrer. Defendants’ citation to WIC §15657(c) and other case law to support their argument is further unpersuasive in that the statute applies to Elder Abuse under the form of abuse, neglect or abandonment and not Financial Elder Abuse. The factors cited by Defendants only apply to whether punitive damages is sufficiently alleged under Financial Elder Abuse. This is not a proper issue for demurrer.

Defendants argue that there are insufficient facts to plead that the rent payments were taken for a wrongful use or an intent to defraud. To support their argument, Defendants cite to Stebley v Litton Loan Servicing, LLP (2011)0202 Cal. App. 4th 522, 527-528 (“Stebley”). However, Defendants’ reliance upon Stebley is incorrect and the case does not support Defendants’ contention. The Court opined that the “proper” assertion of a contractual right is insufficient to show a wrongful use or fraud. It is noted that the Court of Appeal opined that plaintiff homeowner had not sufficiently pleaded a wrongful foreclosure claim nor did she plead sufficient facts to support any damages stemming from the trustee sale. There was no viable wrongful foreclosure. However, in the instant action, the TAC has a viable breach of habitability claim and a negligence maintenance claim. Further, the Elder Abuse COA alleges that Defendants misrepresented their right to collect rent based upon the failure to repair/maintain. Defendants’ argument against Elder Abuse is unpersuasive.

E. Eleventh thru Thirteenth COA for FEHA Disability Discrimination, for FEHA Failure to Engage in the Interactive Process, for FEHA Breach of the Civil Rights Act

Housing discrimination cases do not require a right to sue letter from the Department of Fair and Equal Housing. GC §12989.1. Because housing discrimination claims do not require a right to sue letter, Defendants’ first two arguments regarding a prerequisite to obtain a right to sue letter and the statute of limitations (“SOL”) due to the lack of a right to sue letter is unpersuasive.

Defendants’ argument that they have no ownership interest in the property is a dispute over a factual allegation. Because the demurrer assumes factual allegations to be true, Zoila and Ricardo’s claim that Defendants are owners is deemed true for the demurrer. Defendants’ dispute over their status as owners is improper for a demurrer.

Pertinent to the discussion of all three FEHA COAs, there are insufficient facts to show a disability by Zoila and Ricardo. The TAC merely alleges in general terms that they suffer a disability as defined by FEHA. However, there are no specific facts to show their actual disability. This deficiency in fact pleading makes all three FEHA claims insufficiently pleaded.

Without specific facts as to Zoila and Ricardo’s disability, the three claims as to disability discrimination, failure to engage and Unruh Civil Rights violation also are insufficiently pleaded. The TAC fails to plead how Defendants discriminated against Zoila and Ricardo or failed to engage or accommodate Zoila and Ricardo based upon their disability. Further, there is insufficient fact pleading as to Zoila and Ricardo’s request for a reasonable accommodation based upon their disability. The allegations of the TAC, as argued by Defendants, merely show a habitability claim based upon a failure to repair/maintain the premise. It is seen that Zoila and Ricardo made request to repair/maintain that were ignored but they fail to allege facts to show how the repairs/maintenance are linked to their disability. The demurrer is persuasive as to the FEHA COAs.

F. Punitive Damages

TAC ¿65/Prayer ¿7 in the Fourth COA for IIED: Because the demurrer to the IIED claim is sustained without leave, the motion to strike punitive damages from the IIED claim is granted without leave to amend.

Note that at the April 11, 2019 hearing, Woodley/Pearson’s Motion to Strike Punitive Damages under the IIED claim was granted without leave to amend. As stated above, the IIED claim between the SAC and the TAC specific to Plaintiffs Morena and Jacqueline’s claim related to the failure to repair/maintain are the same. Without any changes to the IIED claim, there are no new facts to support punitive damages under the Fourth COA. Because the claim for punitive damages made by Plaintiffs Morena and Jacqueline are the same, the prior ruling to grant the striking of punitive damages under the Fourth COA as to Woodley/Pearson applies to the punitive damages alleged here.

TAC ¿79/Prayer ¿7 in the Fifth COA for Negligence Per Se: Because the demurrer to the negligence per se claim is sustained without leave, the motion to strike punitive damages is granted without leave to amend.

Even if the Court were to consider the merits of the motion, the motion should be granted without leave because a claim based upon a negligence theory is improper to support punitive damages because there is no intentional conduct alleged, let alone, malicious, oppressive or fraudulent conduct.

TAC ¿120/Prayer ¿7 in the Tenth COAs for Elder Abuse: As noted above, punitive damages under a Financial Elder Abuse claim must plead specific and particular facts to show misconduct by an officer, director, or managing agent or that the misconduct was authorized or ratified by the employer or that there was advanced knowledge by an employer of the unfitness of the employee (CC §3294). There are no facts to support any of these elements. Further, the claim alleges that there were misrepresentations made to Plaintiff Zoila regarding the collection of rent. However, the allegation is conclusory and lacks any specific facts as to any misrepresentation. Thus, the request for punitive damages under Financial Elder Abuse is not properly pleaded.

TAC ¿141/Prayer ¿7 in the Twelfth COAs for FEHA Failure to Engage: Because the demurrer to this claim is sustained with leave, the motion to strike punitive damages is granted with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

G. Treble Damages

TAC ¿120/Prayer ¿6 in the Tenth COA for Elder Abuse: Per CC §3345(b), damages may be trebled upon the imposition of a “fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter.” In that this request is found under the Financial Elder Abuse claim, Plaintiffs request the trebling of the Financial Elder Abuse damages. In that Plaintiffs have not yet sufficiently made a claim for punitive damages under the Tenth COA, the request for Treble Damages is also insufficiently pleaded.

TAC ¿143/Prayer ¿6 in the Thirteenth COA for Violation of Unruh Civil Rights Act: Because the demurrer to these two claims is sustained with leave, the motion to strike

punitive damages is granted with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

H. Attorney Fees & Costs

TAC ¿92/Prayer ¿9 in the Seventh COA for Breach of Quiet Enjoyment (PAGA): The attorneys fees and costs were previously ruled upon at the motion to strike against the FAC heard on December 11, 2018. The fees and costs at issue in the instant motion to strike are the exact same fees and costs that were at issue in the motion to strike against the FAC. In that the fees and costs are the same, the denial of the motion to strike at the December 11, 2018 hearing is applicable herein.[4]

TAC ¿120/Prayer ¿9 in the Tenth COA under Financial Elder Abuse: Preliminarily, it is noted that the notice to the motion identifies the request for attorneys fees and costs under the Tenth COA to be at issue in this motion. However, Defendants do not present any legal or factual argument against this request for attorneys and costs. The request for attorneys fees and costs are authorized under the statute. WIC §15657.5. Thus, attorneys fees and costs under Financial Elder Abuse is properly pleaded.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.


[1] Counsel are reminded that when a demurrer or motion to strike is sustained/granted without leave to amend, those sustained/stricken allegations should not be pleaded again.

[2] Counsel are reminded when a demurrer is overruled or a motion to strike denied, the same demurrer or motion to strike should not be brought against the same allegations.

[3] Counsel are reminded when a demurrer is overruled or a motion to strike denied, the same demurrer or motion to strike should not be brought against the same allegations.

[4] Counsel are reminded when a demurrer is overruled or a motion to strike denied, the same demurrer or motion to strike should not be brought against the same allegations.

MORENA JARQUIN; et. al.,

Plaintiff,

vs.

CARL HAMMOND; et. al.

Defendants.

CASE NO: LC106126

[TENTATIVE] ORDER RE: DEFENDANT HAMMOND’S

DEMURRER TO AND MOTION TO STRIKE AGAINST THE THIRD AMENDED COMPLAINT

Dept. T

8:30 a.m.

8/18/20 or 8/21/20

[TENTATIVE] ORDER: The Demurrer to the Third Amended Complaint is OVERRULED Ninth COA as to the Violation of BPC §17200, and the Tenth COA; SUSTAINED WITHOUT LEAVE as to the First COA, Fourth COA, Fifth COA, and the Ninth COA as to the Violation of BPC §17500; and SUSTAINED WITH LEAVE as to the Eleventh thru Thirteenth COA.

The Motion to Strike is GRANTED WITHOUT LEAVE as to Punitive Damages in TAC ¿¿65, 79 and GRANTED WITH LEAVE as to Punitive Damages in TAC ¿120, 146 and as to Treble Damages in TAC ¿¿120 & 143 and DENIED as to Attorneys Fees and Costs in TAC ¿¿92, 120.­­­­

Introduction

Defendant Carl Hammond (“Hammond”) demurs to the Third Amended Complaint (“TAC”) filed by Plaintiffs Morena Jarquin (“Morena”), Jacqueline Jarquin (“Jacqueline”), Zoila Melara (“Zoila”) and Ricardo Martinez (“Ricardo”) (collectively “Plaintiffs”.) Zoila and Ricardo are newly added plaintiffs in the TAC. The Demurrer moves against the first Cause of Action (“COA”) for Private Nuisance; the fourth COA for Intentional Infliction of Emotional Distress (“IIED”); the fifth COA for Negligence Per Se; the ninth COA for Violation of BPC §17200 and §17500; the tenth COA for Elder Abuse; the eleventh COA for FEHA Disability Discrimination; the twelfth COA for FEHA Failure to Engage in the Interactive Process and the thirteenth COA for FEHA Breach of the Civil Rights Act. Hammond also moves to strike against the TAC’s claims for punitive damages, treble damages per CC §3345, treble damages per CC §52 and attorney fees.

Procedure

Due to the circumstances surrounding the coronavirus, the opposition is considered despite any timeliness issue as to filing or service.

Discussion

First COA for Private Nuisance

At the December 11, 2018 hearing on the demurrer filed by Co-Defendants 5049 Laurel Canyon, LLC. (“Laurel”) and Whitsett Properties, LLC. (“Whitsett”), the issue of duplicity was not raised. The demurrer filed by Co-Defendant Pearson Property Management, Inc. (“Pearson”) argued a duplicity argument but not the exact same argument raised here. Pearson merely argued that the nuisance claim was duplicative with the negligence maintenance COA so that any defects found in the negligence maintenance COA carried over to the nuisance COA. The Court overruled this argument raised by Pearson. The issue in the instant demurrer is that the nuisance COA is duplicative of the breach of warranty of habitability and negligence maintenance COA because all three claims are grounded on the exact same facts. This is a new argument first raised by Hammond.

The case law submitted by both parties provides that nuisance can be alleged in cases involving housing conditions. El Escorial Owners’ Assn v DLC Plastering, Inc. (2007, 2nd DCA) 154 Cal. App, 4th 1337, 1349; Stoiber v Honeychuck (1980, 5th DCA) 101 Cal. App. 3d 911, 919. However, our Second District further provided that nuisance causes of action that rely on the same facts about lack of due care and request the same remedies as negligence are merely negligence claims. El Esorial Owners’ Assn (supra). All three COAs at issue incorporate the allegations of defective and dangerous conditions identified in the general allegations and the duty to maintain and the duty to repair. (TAC ¿¿27, 37, 38, 42, 45, 54, 55.) Hammond differentiates the nuisance claim by arguing it includes a remedy for injunctive relief. However, the COA and the Prayer of the TAC do not request abatement of the nuisance as a remedy. (See TAC ¿41 and Prayer.) The COA and Prayer only request money damages. Thus, there is no different remedy requested between nuisance and negligence. The nuisance claim is seen to be duplicative of the negligence maintenance COA and Hammond’s argument is persuasive.

Fourth COA for IIED

On April 11, 2019, the Court sustained without leave the Demurrer to the Second Amended Complaint (“SAC”) filed by Co-Defendants Pearson and 6551 Woodley Avenue, LLC (“Woodley”). At issue was the Fourth COA for IIED filed by Plaintiffs Morena and Jacqueline Jarquin.

The caption for the Fourth COA in the TAC shows that the IIED claim is alleged by all four Plaintiffs. The caption does not limit the IIED claim to any specific individual plaintiffs. Plaintiffs argue that the IIED claim is supported by sufficient fact pleading as seen in TAC ¿¿27-36. The Court notes that the allegations found in TAC ¿¿27-34 & 36 are verbatim copies of the allegations made in the SAC ¿¿23-31. The allegations of IIED made against Woodley/Pearson are exactly the same as the allegations made against Hammond. The only new allegation made in the TAC is ¿35. This new allegation is seen to support Plaintiff Zoila’s Tenth COA for Elder Abuse claim and Plaintiff Zoila and Plaintiff Ricardo Eleventh through Thirteenth COAs for FEHA violations due to the failure to maintain and repair. Nothing in TAC ¿35 relates to any claim being made by Plaintiffs Morena and Jacqueline. Because the IIED claim in the TAC filed by Plaintiffs Morena and Jacqueline are exactly the same as the allegations found in the SAC against Woodley/Pearson and Hammond, the Court’s prior ruling sustaining the demurrer without leave to amend on the SAC’s IIED claim as to Woodley/Pearson applies to Hammond.

Specifically, as to the IIED claim filed by Plaintiffs Zoila and Ricardo, the IIED claim based upon the conditions of the premise are insufficient to support IIED because there is insufficient factual allegation to show intentional misconduct. The claims related to the conditions of the premise against Hammond are the same allegations against Woodley and Pearson. Because the allegations are the same, the prior ruling on this COA at the demurrer to the SAC is applicable herein.

The only allegations as to intentional conduct that may support IIED is Zoila and Ricardo’s claims of financial abuse and/or discrimination found in TAC ¿35. However, this allegation is only a conclusory allegation without specific facts to show a financial abuse or discrimination. The conclusory buzz words for abuse and discrimination do not add specific facts to show any extreme or outrageous conduct as to the failure to repair and/or the conditions of the premise. It is noted that the Fourth COA does not incorporate the allegations found in the Tenth through Thirteenth COAs. Even if the Fourth COA for IIED incorporated the allegations found in the Elder Abuse and FEHA claims, the allegations are still insufficient in that the allegations amount to a wrongful taking of rent payments. Without specific facts to show the extreme or outrageous nature of the taking of rent payments, the IIED claim is not properly pled.

Fifth COA for Negligence Per Se

Hammond’s argument that the Fifth COA is duplicative of the Third COA for negligent maintenance was previously raised by Co-Defendant Pearson in their demurrer to the FAC. The argument was overruled by the Court at the December 11, 2018 hearing. The Fifth COA has not changed from the FAC to the instant TAC. The claim against Pearson is the same as the claim against Hammond. Thus, the Court’s prior ruling to overrule this argument applies to Hammond.

Negligence per se is not an independent COA but an evidentiary presumption. Quiroz v Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1286-7. Plaintiffs’ citation to Randi W. v Muroc Joint Unified School District (1997) 14 Cal. 4th 1066, 1086-7 and Angelotti v Walt Disney Company (2011) 192 Cal. App. 4th 1394, 1400 do not support Plaintiffs’ contention that negligence per se is an independent COA. However, it is noted that both cases addressed/referenced a separately pled COA for negligence per se without making any determination as to whether the claim can be an independent COA. Without an express ruling within Plaintiffs’ case law that negligence per se is an independent COA, Hammond’s argument is persuasive.

The argument as to a lack of citation to statutory grounds for negligence per se is not considered because the issue is moot.

Ninth COA for Violation of BPC §17200 and §17500

The Court notes that Co-Defendant Pearson’s demurrer to the FAC argued against this COA on the grounds that there were insufficient facts pled to support any unlawful conduct. The Court overruled this argument at the April 11, 2018 demurrer hearing. The arguments presented in the instant demurrer are not the same arguments presented by Co-Defendant Pearson.

The remedy for BPC §17200 violations is injunctive relief or restitution. Damages are not an authorized remedy. Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal. 4th 303, 317. Hammond argues that Plaintiffs lack standing because it is not alleged that Plaintiffs are currently in possession of the premise per Stoiber v Honeychuck (1980) 101 Cal. App. 3d 903, 928 (“Stoiber”). In Stoiber, the Court noted that plaintiff/tenant was no longer in possession of the unit and thus lacked standing to seek injunctive relief as to her unit or to be a representative of other tenants. In the instant action, Plaintiffs’ prayer does not seek injunctive relief ordering Hammond to repair or maintain or enjoining Hammond from the business practice alleged. The COA, as well as the Prayer, only seeks restitution/disgorgement of profits. (TAC ¿107 and Prayer ¿10.) It is noted that Plaintiffs allege that the business practices will continue unless enjoined but, as stated above, there is no express request for an injunction to enjoin any business practice. (TAC ¿105.) Because there is no requested injunction, the fact that Plaintiffs may no longer be in possession does not show a lack of standing under Stoiber. The demurrer argument as to lack of standing is not persuasive.

Plaintiffs argue that they are suing on behalf of the general public. (TAC ¿102.) Because Plaintiffs are not seeking injunctive relief, their claim on behalf of the general public is irrelevant. Further, Plaintiffs’ stance as a representative of a class is irrelevant because Plaintiffs’ claim is limited to the conditions found in the own apartment unit. There is no fact or allegation, as was the case in Stoiber, that the condition of other units was similar to Plaintiffs’ unit or that other apartment units were in uninhabitable conditions. The UCL claim is merely a personal claim and Plaintiffs fail to allege any grounds to be a representative of a class. (Even if Plaintiffs’ claim is made as a representative of a class, Plaintiffs fail to comply with CCP §382 per Proposition 64. Californians For Disability Rights v. Mervyn's, LLC (2006) 39 Cal. 4th 223, 232.) Plaintiffs’ claim is limited to restitution of her own rental payments made. Despite the allegation of suing on behalf of the general public, the claim survives this demurrer.

Specific to the claim regarding the violation of BPC §17500, the TAC does not allege any facts related to false advertising. Despite Plaintiffs’ argument otherwise, there are no allegations regarding any advertising by Hammond. The specific claim of BPC §17500 violation does not survive this demurrer.

Tenth COA for Elder Abuse

Despite the title to the COA being Elder Abuse, Zoila clarifies that the claim is for financial elder abuse and is grounded on the claim that Defendants took Zoila’s rent payment through a wrongful use or an intent to defraud. (TAC ¿113.) With this clarification, Hammond’s first argument that he is not a care taker is unpersuasive because care taker status is not required for a financial elder abuse claim.

Hammond argues that there are insufficient facts to plead that the rent payments were taken for a wrongful use or an intent to defraud. To support their argument, Hammond cites to Stebley v Litton Loan Servicing, LLP (2011)0202 Cal. App. 4th 522, 527-528 (“Stebley”). However, Hammond’s reliance upon Stebley is incorrect and the case does not support Hammond’s contention. The Court opined that the “proper” assertion of a contractual right is insufficient to show a wrongful use or fraud. It is noted that the Court of Appeal opined that plaintiff homeowner had not sufficiently pled a wrongful foreclosure claim nor did she plead sufficient facts to support any damages stemming from the trustee sale. There was no viable wrongful foreclosure. However, in the instant action, the TAC has a viable breach of habitability claim and a negligence maintenance claim. Because these two claims are viable, there is, as of yet, an insufficient showing of a “proper” assertion of a contractual right by Hammond. Further, the Elder Abuse COA alleges that Hammond misrepresented their right to collect rent based upon the failure to repair/maintain. Hammond’s argument against Elder Abuse is unpersuasive.

Eleventh thru Thirteenth COA for FEHA Disability Discrimination, for FEHA Failure to Engage in the Interactive Process, for FEHA Breach of the Civil Rights Act

Housing discrimination cases do not require a right to sue letter from the Department of Fair and Equal Housing. GC §12989.1. Because housing discrimination claims do not require a right to sue letter, Hammond’s first two arguments regarding a prerequisite to obtain a right to sue letter and the statute of limitations (“SOL”) due to the lack of a right to sue letter is unpersuasive.

Hammond’s argument that he has no ownership interest in the property is a dispute over a factual allegation. Because the demurrer assumes factual allegations to be true, Zoila and Ricardo’s claim that Hammond is an owner is deemed true for the demurrer. Hammond’s dispute over his status as an owner is improper for a demurrer.

Pertinent to the discussion of all three FEHA COAs, there are insufficient facts to show a disability by Zoila and Ricardo. The TAC merely alleges in general terms that they suffer a disability as defined by FEHA. However, there are no specific facts to show their actual disability. This deficiency in fact pleading makes all three FEHA claims insufficiently pled.

Without specific facts as to Zoila and Ricardo’s disability, the three claims as to disability discrimination, failure to engage and failure to accommodate also are insufficiently pled. The TAC fails to plead how Hammond discriminated against Zoila and Ricardo or failed to engage or accommodate Zoila and Ricardo based upon their disability. Further, there is insufficient fact pleading as to Zoila and Ricardo’s request for a reasonable accommodation based upon their disability. The allegations of the TAC, as argued by Hammond, merely show a habitability claim based upon a failure to repair/maintain the premise. It is seen that Zoila and Ricardo made request to repair/maintain that were ignored but they fail to allege facts to show how the repairs/maintenance are linked to their disability. The demurrer is persuasive as to the FEHA COAs.

Punitive Damages

TAC ¿65/Prayer ¿7 in the Fourth COA for IIED: Because the demurrer to the IIED claim is sustained without leave, the Court grants the motion to strike without leave to amend.

At the April 11, 2019 hearing, Woodley/Pearson’s Motion to Strike Punitive Damages under the IIED claim was granted without leave to amend. As stated above, the IIED claim between the SAC and the TAC specific to Plaintiffs Morena and Jacqueline’s claim related to the failure to repair/maintain against Woodley/Pearson are the same as those alleged against Hammond. Without any changes to the IIED claim, there are no new facts to support punitive damages under the Fourth COA. Because the claim for punitive damages made by Plaintiffs Morena and Jacqueline are the same, the prior ruling to grant the striking of punitive damages under the Fourth COA as to Woodley/Pearson applies to the punitive damages alleged against Hammond.

TAC ¿79/Prayer ¿7 in the Fifth COA for Negligence Per Se: Because the demurrer to the negligence per se claim is sustained without leave, the Court grants the motion to strike without leave to amend.

Even if the Court were to consider the merits of the motion, the motion should be granted without leave because a claim based upon a negligence theory is improper to support punitive damages because there is no intentional conduct alleged, let alone, malicious, oppressive or fraudulent conduct.

TAC ¿120/Prayer ¿7 in the Tenth COAs for Elder Abuse: As noted above, punitive damages under a Financial Elder Abuse claim must plead specific and particular facts to show misconduct by an officer, director, or managing agent or that the misconduct was authorized or ratified by the employer or that there was advanced knowledge by an employer of the unfitness of the employee (CC §3294). There are no facts to support any of these elements. Further, the claim alleges that there were misrepresentations made to Plaintiff Zoila regarding the collection of rent. However, the allegation is conclusory and lacks any specific facts as to any misrepresentation. Thus, the request for punitive damages under Financial Elder Abuse is not properly pled.

TAC ¿141/Prayer ¿7 in the Twelfth COAs for FEHA Failure to Engage: Because the demurrer to this claim is sustained with leave, the Court grants the motion to strike with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

Treble Damages

TAC ¿120/Prayer ¿6 in the Tenth COA for Elder Abuse: Per CC §3345(b), damages may be trebled upon the imposition of a “fine, or a civil penalty or other penalty, or any other remedy the purpose or effect of which is to punish or deter.” In that this request is found under the Financial Elder Abuse claim, Plaintiffs request the trebling of the Financial Elder Abuse damages. In that Plaintiffs have not yet sufficiently made a claim for punitive damages under the Tenth COA, the request for Treble Damages is also insufficiently pled.

TAC ¿143/Prayer ¿6 in the Thirteenth COA for Violation of Unruh Civil Rights Act: Because the demurrer to these two claims is sustained with leave, The Court grants the motion to strike with leave to amend. The claim for punitive damages lacks specific fact pleading to show malice, oppression or fraud.

Attorney Fees & Costs

TAC ¿92/Prayer ¿9 in the Seventh COA for Breach of Quiet Enjoyment (PAGA): The attorneys fees and costs were previously ruled upon at the motion to strike against the FAC heard on December 11, 2018. The fees and costs at issue in the instant motion to strike are the exact same fees and costs that were at issue in the motion to strike against the FAC. In that the fees and costs are the same, the denial of the motion to strike at the December 11, 2018 hearing is applicable herein.

TAC ¿120/Prayer ¿9 in the Tenth COA under Financial Elder Abuse: Preliminarily, it is noted that the notice to the motion identifies the request for attorneys fees and costs under the Tenth COA to be at issue in this motion. However, Hammond does not present any legal or factual argument against this request for attorneys and costs. The request for attorneys fees and costs are authorized under the statute. WIC §15657.5. Thus, attorneys fees and costs under Financial Elder Abuse is properly pled.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.