Reply_to_city_of_santa_monicas_opposition_to_demurrer_to_second_amended_complaintReplyCal. Super. - 2nd Dist.March 3, 2016Electronically FILHD by Superior Court of California, County of Los Angeles on 06/18/2020 09:48 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Mariscal,Deputy] Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O LISA M. HOWARD, STATE BAR NO. 106667 LAW OFFICE OF LISA M. HOWARD 1515 7™ Street, Suite 196 Santa Monica, CA 90401 Telephone Number: 310-395-2030 Fax Number: 310-218-0040 Email: Lisa@howardlaw.pro ATTORNEY FOR DEFENDANT CECIL MCNAB SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES CITY OF SANTA MONICA, Plaintiff, VS. CECIL McNAB, KATHY GOLSHANI, BRIDA LLC and DOES 1-10, Defendants. N r N r ’ N r ’ N r ’ N r N r N r N r N r N r N r ’ CASE NO.: SC125490 REPLY TO CITY OF SANTA MONICA’S OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES Date: June 26, 2020 Time: 10:00 a.m. Dept.: N Judge: Hon. Craig D. Karlan Defendant Cecil McNab (“McNab”), joined with Defendants Kathy Golshani and Brida Properties, LLC, will, and hereby does, file this reply to Plaintiff City of Santa Monica’s (“City”) Opposition to Demurrer (“Opposition”) as follows: Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint Clerk Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO CITY OF SANTA MONICA’S OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT 1. PRELIMINARY STATEMENT Now pending before this Court is the Demurrer to the Second Amended Complaint (“2AC”) filed by Defendant Cecil McNab (“McNab”) on January 29, 2020 (“Demurrer”). On June 15, 2020, Plaintiff City of Santa Monica (“City”) filed the City of Santa Monica's Opposition to Demurrer to the 2AC (“Opposition”). After reviewing the Opposition and because the City cannot cure the myriad of defects in the 2AC, as demonstrated in the City’s Opposition, the court should clearly sustain the demurrer in its entirety. As it stands, the 2AC does not allege sufficient facts demonstrating that Defendants are liable for Tenant Harassment and Housing Discrimination, Santa Monica Municipal Code §§ 4.56.020 and 4.28.030 and Civil Code § 51. In fact, the City’s Opposition all but concedes that each cause of action in the 2AC fails to state a valid claim. The City’s Opposition ignores the grounds raised in the demurrer and fails to show that it pled sufficient facts showing (or disproving) the following: (1) that the tenants were subjected to tenant harassment because of Defendants’ actions; (2) that Defendants failed to reasonably accommodate a disability!"; (3) that Defendants failed to engage in the interactive process; (4) that McNab was, at all relevant times, acting in good faith as an attorney for Defendants Kathy Golshani and Brida™™); (5) that McNab was never an owner, landlord or 1 On page 5 of its Opposition, the City claims that there is no requirement that the complaint must specify that the landlord engaged in an interactive process to make a claim under the THO, the ADHO or the Unruh Act, distinguishing Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal. App.4th 986 (cited in the Demurrer) because that case arose out of a summary judgment, not a demurrer. The City ignores its own allegations in 9 16 of the 2AC in which the City contends: “Supported with a letter from their doctor, the Brownings requested a reasonable accommodation from this order. The defendants refused to grant the request . . . ” In other words, the City is alleging that the defendants refused to engage in the interactive process! See also 2AC, 9 27. Bl To survive the demurrer, the City must allege facts sufficient to establish that McNab was Golshani and Brida’s ostensible agent authorized to contract on their behalf. As set forth herein, the City 2 Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O manager of the subject property; (6) that a supplemental pleading cannot be used to allege facts constituting an entirely new cause of action; (7) that the 2AC is not uncertain, ambiguous and unintelligible; (8) that the tenants were subjected to tenant harassment because of a disability; (9) that the City lacks standing under the Tenant Harassment Ordinance to demand penalties and damages; (10) that Defendants cannot be liable under the anti discrimination ordinance (SMMC § 4.28.030(g) because they were not offering the subject property for rent, lease or listing; (11) that the City failed to allege any intentional discrimination nor any denial of a business accommodation protected under the Unruh Act; (12) that injunctive relief is not a cause of action; (13) that the City failed to plead facts sufficient to show that the tenants were subjected to tenant harassment because of Defendants’ actions and/or a disability; and (14) that the City lacks statutory standing under the Tenant Harassment Ordinance to demand penalties and damages. Unable to refute those points, the City simply ignores most of the arguments set forth in the Demurrer. It abandons and/or misconstrues the actual allegations in the 2AC. For the reasons explained below, all of the City’s counter arguments fail. Instead of responding to the numerous legal defects in the 2AC established in the Demurrer, the City’s Opposition makes inflammatory and inaccurate allegations against the Defendants. In addition to being factually wrong, these allegations are irrelevant to this demurrer as the vast majority of them are not pleaded in the 2AC. Their outlandish nature speaks volumes about the baseless nature of the has failed to meet its burden. Consequently, the City’s 2AC should be dismissed in its entirety. As an initial matter, the City’s claim that its conclusory, unsubstantiated allegation that McNab was an owner and manager of the subject property (when he NEVER was) is insufficient to establish an agency relationship. The court does not assume the truth of “contentions, deductions, or conclusions of fact or law” on a demurrer. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) Bl" An agency is either actual or ostensible. (Cal. Civ. Code, § 2298.) In its opposition to the Demurrer, the City does not refute McNab’s position that the City has not (and cannot) alleged an actual agency relationship. The law is clear that “[o]stensible authority of an agent cannot be based on the agent’s conduct alone; there must be evidence of conduct by the principal which causes a third party reasonably to believe the agent has authority.” (Lindsay-Field v. Friendly (1995) 36 Cal. App.4th 1728, 1734; see also Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal. App.4th 741, 747 [“The ostensible authority of an agent cannot be based solely upon the agent’s conduct.””].) The City’s allegations concerning statements supposedly made by McNab do not support a finding that he was an ostensible agent of Defendants Golshani and Brida. 3. Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O City’s legal claims. For example, on page 2 of its Opposition, the City states that “it is simply too late to demur to these 2016 claims” without specifying exactly what 2016 claims are the subject of this demurrer and why it is now too late to demurrer to said claims. Such examples evidence the City’s fundamental misunderstanding of the facts and the purpose of a Demurrer. The City does not even state that it pled the causes of action in the 2AC with the requisite particularity. As McNab explained in his demurrer, the entire premise of the City’s causes of action is fundamentally flawed. Because the 2AC demonstrates on its face that the factual and legal allegations do not state a cause of action and are uncertain, the court should grant the demurrer with prejudice. In the 2AC, the City failed to allege facts sufficient to identify the elements of any cause of action stated therein. The 2AC contains only legal conclusions and no factual allegations. Instead, because the City fails to set forth any coherent arguments in opposition and its 2AC remains flawed without any ability to cure the blatant defects, the court should sustain the Demurrer in its entirety without leave to amend. 2. THE COURT MUST DISREGARD AND STRIKE THE CITY’S EXTRINSIC EVIDENCE The City improperly attempts to salvage the 2AC and overcome the subject Motion to Strike by filing with its Opposition the Declaration of Gary Rhodes in Support of City’s Opposition to Demurer. By filing this declaration, the City ignores the rule that a demurrer challenges only defects appearing on the face of the pleadings or from matters outside of the pleadings that are judicially noticed. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 [“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed."] This futile attempt at amendment through briefing only highlights the deficiency in its pleading. But, as the Court is well aware, and the City itself ignores, the facts (or lack thereof) in the 2AC are at issue and control on the demurrer. Those facts are woefully deficient and fail to plead a single viable claim. For this reason, the Court must disregard this declaration in ruling on this 4. Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O demurrer. 3. THE CITY CANNOT FILE A THIRD AMENDED COMPLAINT BECAUSE OF THE THREE- AMENDMENT LIMIT On pages 1-2 of its Opposition to the Demurrer to the 2AC filed by McNab, the City states that it is “filing a Third Amended Complaint the same day as the Opposition Briefs.” The City states that it is withdrawing the 2AC “out of an abundance of caution and to keep the case moving toward trial.” Notwithstanding the fact that the City admits that McNab’s Demurrer and Motion to Strike are warranted and justified, the fact is that pursuant to C.C.P. § 430.41(e)(1)"*, the City cannot file a Third Amended Complaint because a pleading cannot be amended more than three times in response to a demurrer without plaintiff making “an offer to the trial court as to such additional facts to be pleaded to show that there is a reasonable possibility the defect can be cured to state a cause of action.” The City’s proposed Third Amended Complaint makes essentially the same confusing and uncertain allegations as in its previous complaints. Like the 2AC, the Third Amended Complaint does not state facts sufficient to constitute a cause of action, and the City does not carry its burden of proving a reasonable possibility that amendment can cure the defects. C.C.P. § 430.41 now imposes a limit on the number of amended complaints that can be filed. Under the previous demurrer statutes, there was no such limitation. Now, a complaint cannot be amended more than three times, absent an offer to the trial court that there is a reasonable possibility the defect can be cured. Here, the City failed to make any offer to this court showing a reasonable possibility that it can cure the defects in the new amended complaint. Moreover, C.C.P. § 472"! was amended to prevent amended complaints from being 4 C.C.P. § 430.41(e)(1) states in relevant part: “In response to a demurrer and prior to the case being at issue, a complaint...shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” BB) C.C.P. § 472(a) states: “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is 5. Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O filed on the eve of a demurrer hearing, as in this case. In short, these new rules limit the number of amended complaints and demurrers that can be filed. It will also save counsel and the courts from having to prepare for demurrer hearings, only to have them rendered moot by amended complaints filed on the eve of the hearing. For these reasons, the Court must not allow the filing of the Third Amended Complaint. 4. THE DEMURRER SHOULD BE SUSTAINED WITHOUT LEAVE TO AMEND BECAUSE THE CITY FAILED TO SET FORTH ANY MEANINGFUL AUTHORITY IN ITS OPPOSITION When a complaint contains allegations that are fatal to a cause of action, a plaintiff cannot avoid those defects simply by filing an amended complaint that omits the problematic facts or pleads facts inconsistent with those alleged earlier. (Banis Restaurant Design, Inc. v. Serrano (2005) 134 Cal. App. 4th 1035, 1044.) Absent an explanation for the inconsistency, a court will read the original defect into the amended complaint, rendering it vulnerable to a demurrer again. (/d.) Consistent with the narrative ramblings in the City’s 2AC, the Opposition fails to set forth any intelligible arguments about why this matter should move forward or that any amendment can cure its blatant defects. Simply put, the 2AC is fatally flawed as it fails to state facts sufficient to support any of its claims. As such, the court should sustain the Demurrer in its entirety, without leave to amend. 5. THE CITY FAILS TO STATE A SINGLE COGNIZABLE CAUSE OF ACTION The City argues that it properly alleged statutory causes of action for violation of the Tenant Harassment and Housing Discrimination, Santa Monica Municipal Code §§ 4.56.020 and 4.28.030 and Civil Code § 51. However, as set forth in this Demurrer, the City solely relies upon legal conclusions and not factual allegations to support these claims. In other words, the filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” 6. Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint Oo 0 9 O N Wn hk W N = N N N N N N N N N mm e m e m e m e m e m e m e m e p co NN O N Un BAA W D = D O O N N RE W N = O City failed to specifically plead every facts giving rise to liability. To state a statutory cause of action, a plaintiff must "specifically allege every fact that would give rise to liability." (County of Los Angeles v California State Water Res. Control Bd. (2006) 143 Cal. App. 4th 985,1001-02 citing Covenant Care, Inc. v. Super. Ct. (2004) 32 Cal. 4th 771,790; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal. 3d 780,795; see also Shields v. County of San Diego (1984) 155 Cal. App. 3d 103,113 ["when seeking to establish a statutory cause of action, general allegations are insufficient."]. The City fails to state any facts in the 2AC, let alone specifically allege every fact, that it contends would create liability under these statutes. For these reasons alone, the Court must sustain the demurrer without leave to amend. 6. CONCLUSION Based on the deficiencies in the City’s arguments set forth in its Opposition including the City’s failure to rebut the arguments set forth in the Demurrer, Defendant Cecil McNab respectfully requests that the Demurrer be sustained in its entirety. Dated: June 18, 2020 Respectfully submitted, vel Wi. boven. LISA M. HOWARD Attorney for Defendant CECIL McNAB 7. Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint ~~ W N Oo 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY ELECTRONIC SERVICE VIA ELECTRONIC FILING SERVER PROVIDER 1. I am a resident of and employed in the County of Los Angeles, Stale of California. 2. | am over the age of eighteen years and not a party to this action. 3. My business address is 1555 7" Street, Ste 196, Santa Monica, CA 90401, which is located in the county where the electronic delivery described below took place. 4. | am readily familiar with this firm’s practice for electronically filing documents and the document being electronically served herein will be electronically served on the same day in the ordinary course of business following the ordinary business practices of this firm. 5. My electronic service address is: lisa@howardlaw.pro 6. On June 18, 2020, | served the following document by electronic service via an electronic filing server provider on the interested parties in this action: REPLY TO CITY OF SANTA MONICA’S OPPOSITION TO DEMURRER TO SECOND AMENDED COMPLAINT; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES 7. Name and electronic service addresses of persons electronically served: GaryRhodes ............. Gary.Rhoades@SMGOV.NET (Attorney for Plaintiff City of Santa Monica) Kathy Golshani ...................................... kathygolshani@gmail.com (Defendant, Cross-Defendant & Cross-Complainant, In Pro Per) LisaM.- Howard ...:x:icvsnssnmmessnnmcinnmessmmars wansis <>Lisa@howardlaw.pro (Attorney for Defendant Cecil McNab) 8. | served this document by electronic service via an electronic filing service provider by transmitting the document listed above to One Legal, an electronic filing service provider, at https://www.onelegal.com in accordance with California Rules of Court, Rules 2.253, 2.255, 2.260 and other applicable statutes. The transmission was reported as complete and without error. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 18, 2020 at Santa Monica, California. vet Jy. denad. L. HOWARD 3. Reply to City of Santa Monica’s Opposition to Demurrer to Second Amended Complaint
