Vickers vs. L.G. Falconer Trust

While “[c]ourts can take judicial notice of the existence, content and authenticity of public records and other specified documents, [they] do not take judicial notice of the truth of the factual matters asserted in those documents.”].) (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400, italics original; see also Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090.)

Pending Motion

Defendants L.G. Falconer Trust and Stephen Osterman demur to the 2nd Cause of Action, 4th Cause of Action, Paragraph 31, and the Prayers for Relief for attorney’s fees, punitive damages, and preliminary injunction of Plaintiff’s First Amended Complaint (FAC) filed by Plaintiff Steven Vickers.

Standard for Demurrer

A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

For this reason, the court will not decide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.)

Instead, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” (Serrano v. Priest (1971) 5 Cal.3d

584, 591, citation omitted; see Blank v. Kirwan (1985) 39 Cal.3d 311, 318).

Therefore, the court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

However, “where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents.” (Jimenez vs. Mrs. Gooch’s Natural Foods Markets, Inc. (2023) 95 Cal.App.5th 645, 653.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413).

Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

2nd Cause of Action (Negligence Per Se – Violation of California Plumbing Codes s 4087.5 and 408.6)

Negligence per se is not an independent cause of action, but rather, an evidentiary doctrine that “can be applied generally to establish a breach of due care under any negligence-related cause of action.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210.)

Accordingly, a plaintiff alleging negligence per se must still make out the elements of a general negligence claim. (See id. at p. 1211.)

These elements are: (1) the existence of a duty, (2) breach, (3) causation, and (4) damages. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.)

In addition, the plaintiff must also show that the defendant “violated a statute, ordinance, or regulation of a public entity” and that “[t]he violation proximately caused death or injury to person or property.” (Evid. Code, § 669, subd. (a).)

Here, the FAC alleges that Defendants owed Plaintiff a duty and breached that duty in the manner in which they remodeled the shower. (See FAC, ¶¶ 12-14, 16, 20.)

The FAC also pleads that the failure to exercise due care caused Plaintiff to slip and fall while in the shower, which lead to serious injuries and damages. (See id., ¶¶ 17-18, 20.)

In addition, the FAC asserts that “Defendants failed to provide a permitted and code compliant shower.” (Id., ¶ 15.)

Specifically, the FAC alleges that Defendants violated California Plumbing Code sections 408.5 and 408.6 because the shower at the subject property failed to comply with required plumbing and safety standards. (See id., ¶¶ 4-8, 21-24.)

The FAC pleads that these plumbing code violations directly and proximately caused Plaintiff to slip and fall in the shower, resulting in severe personal injuries and permanent scarring. (id., ¶¶ 6-7, 24.)

These allegations sufficiently plead an underlying negligence claim premised on statutory violations of Plumbing Code sections 408.5 and 408.6.

Defendants argue that the FAC fails to allege sufficient facts regarding causation, notice, duty, and how the cited plumbing code provisions relate to slip-and-fall prevention or personal safety.

However, Defendants fail to cite to any authority to support the assertion that this level of detail is required.

In fact, at the pleading stage, a plaintiff is only required to allege ultimate facts sufficient to apprise Defendants of the basis of the claim. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)

“[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

Therefore, the court will overrule the demurrer to the 2nd Cause of Action.

4th Cause of Action (Retaliatory Eviction (Civ. Code § 1942.5)

Civil Code section 1942.5 prohibits landlords from retaliating against tenants in response to certain actions by the tenants:

(a) If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have

notice.

(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.

...

(c) To report, or to threaten to report, the lessee or individuals known to the landlord to be associated with the lessee to immigration authorities is a form of retaliatory conduct prohibited under subdivision (a). This subdivision shall in no way limit the definition of retaliatory conduct prohibited under this section.

(d) Notwithstanding subdivision (a), it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because the lessee has lawfully organized or participated in a lessees' association or an organization advocating lessees' rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor's conduct was, in fact, retaliatory.

(e) To report, or to threaten to report, the lessee or individuals known to the landlord to be associated with the lessee to immigration authorities is a form of retaliatory conduct prohibited under subdivision (d). This subdivision shall in no way limit the definition of retaliatory conduct prohibited under this section.

(Civil Code, § 1942.5, subd.s (a), (c), (d), (e).)

Courts have recognized that Section 1942.5 creates an affirmative cause of action for retaliatory eviction. (Banuelos v. LA Investment, LLC (2013) 219 Cal.App.4th 323, 332; see also Civil Code, § 1942.5, subd.s (h) [“Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action . . . .”].)

Thus, a tenant may pursue a standalone civil action for damages based on retaliatory conduct related to efforts to recover possession of real property. (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239.)

Here, the FAC alleges Defendants served Plaintiff with a Notice of Termination of Tenancy shortly after Plaintiff served Defendants with Code of Civil Procedure section 998 offers to compromise and pursued claims regarding alleged code violations and habitability issues at the Subject Property. (See FAC, ¶¶ 9-10, 33-36.)

The FAC further alleges the eviction notice was retaliatory and intended to punish Plaintiff for exercising legal rights under Civil Code section 1942.5. (See id., ¶¶ 33-36.)

These allegations sufficiently plead a claim for retaliatory eviction under Section 1942.5.

Defendants argue that the termination of tenancy was mandated by the terms of the trust following the trustor’s death and therefore could not have been retaliatory.

However, such facts cannot be found anywhere within the four corners of the FAC, nor are they subject to judicial notice.

In any case, while these facts may support a potential good-faith defense under Civil Code section 1942.5, they raise factual questions regarding Defendants’ motive and whether the termination was genuinely mandatory or pretextual. Such issues cannot be resolved on demurrer.

Therefore, the court will overrule the demurrer to the 2nd Cause of Action.

Paragraph 31 and Prayers for Relief

“A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

“Thus, a court must overrule a demurrer to a cause of action if it is based on at least one viable theory of liability.” (Thompson v. Spitzer (2023) 90 Cal.App.5th 436, 452; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1681 [“[A] party may not demur to a portion of a cause of action.”].)

As a result, the court will overrule the demurrers to Paragraph 31 and the Prayers for Relief for attorney’s fees, punitive damages, and preliminary injunction of the FAC.

Uncertainty

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

In addition, a demurrer for uncertainty must identify by line and page number, the language that creates the uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d

797, 809, disapproved of on other grounds, Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.)

“Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved of on other grounds, Katzberg v. Regents of University of California (2002) 29 Cal.4th 300.)

Here, Defendants argue that the 2nd and 4th Causes of Action, Paragraph 31, and the Prayers for Relief for attorney’s fees, punitive damages, and preliminary injunction of the FAC are uncertain, but do not point to any specific sentences or lines that are uncertain.

In addition, the FAC is not so uncertain that Defendants cannot reasonably respond.

The FAC sufficiently alleges the claims, the alleged plumbing code violations, the basis for the retaliatory eviction claim, and Plaintiff’s resulting injuries, thereby placing Defendants on notice of the claims asserted against them.

Any remaining ambiguity may be clarified through discovery.

Accordingly, the demurrer for uncertainty is overruled.

Motion to Strike

Defendants L.G. Falconer Trust’s and Stephen Osterman’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED in part and DENIED in part.

Paragraph 31 and the Prayer for Relief for Injunctive Relief contained in the First Amended Complaint are STRICKEN.

Defendants L.G. Falconer Trust and Stephen Osterman shall file an answer or other pleading in response to remaining portions of the First Amended Complaint within 10 days of service of the notice of ruling. (See Cal. Rules of Court rule 3.1320(j).)

Defendants L.G. Falconer Trust’s and Stephen Osterman’s Request for Judicial Notice in Support of Defendants’ Demurrer to and Motion to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED as to Matters 1, 4, and 5, and DENIED as to Matters 2 and 3. (See Evid. Code, § 452, subds. (c), (d), (h).)

While “[c]ourts can take judicial notice of the existence, content and authenticity of public records and other specified documents, [they] do not take judicial notice of the truth of the factual matters asserted in those documents.”].) (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400, italics original; see also Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090.)

Pending Motion

Defendants L.G. Falconer Trust and Stephen Osterman demur to the 2nd Cause of Action, 4th Cause of Action, Paragraph 31, and the Prayers for Relief for attorney’s fees, punitive damages, and preliminary injunction of Plaintiff’s First Amended Complaint (FAC) filed by Plaintiff Steven Vickers.

Standard for Motion to Strike

A party may move to strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim, or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

A party may also request to strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Specifically, conclusory allegations that are not supported by factual allegations in the complaint may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

For example, prayers for relief that lack factual foundation may be stricken from a complaint. (See Turman v. Turning Point of Central Calif., Inc.

(2010) 191 Cal.App.4th 53, 63 [trial court properly struck prayer for punitive damages where complaint failed to allege sufficient facts to show that defendant acted with malice, oppression, or fraud].)

The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may judicially notice. (See Code Civ. Proc., § 437.)

However, pleadings are to be construed liberally with a view to substantial justice. (Code Civ. Proc., § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010).)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255, citations omitted.)

2nd Cause of Action (Negligence Per Se – Violation of California Plumbing Codes s 4087.5 and 408.6) and 4th Cause of Action (Retaliatory Eviction (Civ. Code § 1942.5)

Pleading challenges to an entire cause of action are better brought in a demurrer than in a motion to strike. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [where entire cause of action is challenged, proper procedural vehicle is demurrer rather than motion to strike].)

In any case, for the reasons explained in the court’s ruling on Defendants’ demurrer, the FAC adequately alleges the 2nd and 4th Causes of Action.

Therefore the court will deny the motion to strike as to the 2nd and 4th Causes of Action.

Paragraph 31 and Prayer for Relief for Injunctive Relief

Plaintiff concedes that Paragraph 31 improperly references an unrelated automobile collision and explains that it was included as a clerical error.

In addition, Plaintiff does not oppose striking the request for preliminary injunctive relief.

Thus, the court will grant the motion to strike as to Paragraph 31 and the Prayer for Relief for Injunctive Relief.

Prayer for Relief for Attorney’s Fees

Defendants argue that the request for attorney’s fees fails because the 2nd and 4th Causes of Action are not adequately plead.

However, for the reasons explained in the court’s ruling on Defendants’ demurrer, the FAC adequately alleges the 2nd and 4th Causes of Action.

Further, in an action for retaliatory eviction, the court is required to “award reasonable attorney's fees to the prevailing party if either party requests attorney's fees upon the initiation of the action.” (Civ. Code, § 1942.5, subd. (i).)

Accordingly, the court will deny the motion to strike as to the Prayer for Relief for Attorney’s Fees.

Prayer for Relief for Damages

To obtain punitive damages, a plaintiff must plead and prove one of the following: malice, oppression, or fraud. (See Civil Code, § 3294, subd. (a).)

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code, § 3294, subd. (a)(1).)

“Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civil Code, § 3294, subd. (a)(2).)

“Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or

otherwise causing injury.” (Civil Code, § 3294, subd. (a)(3).)

In order to survive a motion to strike, a complaint must not only allege in general terms oppression, fraud, or malice, but also plead ultimate facts in support. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”], citations omitted.)

However, the distinction between conclusions and ultimate facts is often one of degree, and the complaint need only contain sufficient facts to apprise Defendant of the basis for the relief sought. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

Conduct carried on with a willful and conscious disregard of the rights or safety of others, but that is not “despicable,” will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

“Despicable conduct” refers to circumstances that are so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (Ibid.; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as “having the character of outrage frequently associated with crime.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 715.)

“Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044, quoting Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

Here, the FAC alleges Defendant Stephen Osterman personally participated in the allegedly unlawful and unpermitted remodeling of the shower, knowingly allowed unsafe and noncompliant conditions to exist, and participated in the retaliatory eviction of Plaintiff after Plaintiff

exercised rights protected under Civil Code section 1942.5. (See FAC, ¶ 40.)

The FAC further alleges the L.G. Falconer Trust authorized, ratified, or was willfully indifferent to the alleged conduct. (See id., ¶ 41.)

Read as a whole and accepted as true for purposes of this motion, the FAC sufficiently alleges facts supporting punitive damages based on conscious disregard for Plaintiff’s rights and safety and despicable retaliatory conduct that goes beyond mere negligence.

Whether Plaintiff can ultimately prove malice, oppression, or fraud presents factual issues not properly resolved on a motion to strike.

Therefore, the court will deny the motion to strike as to the Prayer for Relief for Punitive Damages.

Plaintiff shall give notice of these rulings.

Motion for Attorney’s Fees 4 30-2023-01346312 Cross-Complainant Sigthora V. Solter’s Motion for Attorney’s Fees Pursuant to Welfare and Solter vs. Capsavage Institutions Code 15657.5 is GRANTED in part and DENIED in part.

Cross-Defendant Frederik Solter is ORDERED to pay Cross-Complainant Sigthora V. Solter reasonable attorney’s fees in the amount of $192,045 within 90 days of service of the notice of ruling.

Pending Motion

Cross-Complainant Sigthora V. Solter, by and through her representative Shirley Capsavage, moves for an award of reasonable attorney’s fees in the amount of $193,585.

Standard for Motion for Attorney’s Fees

Generally, attorney’s fees are borne by the party that incurred them. (See Pederson v. Kennedy (1982) 128 Cal.App.3d 976, 978-79).

Therefore, a party may recover attorney’s fees only if provided for by contract or statute. (See Code Civ. Proc., § 1033.5, subd. (a)(10); see also