Merilee Drew v. Bruce Black, et al.

No meet and confer declaration was submitted in support of the motion to strike as required. (Code Civ. Proc., § 435.5(a)(3).) However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5(a)(4).)

The Court notes that on July 20, 2026, Plaintiff filed a motion for leave to file a third amended complaint and lodged a proposed third amended complaint.

Demurrer.

I. Legal Standard.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are subject to judicial notice. (Code Civ. Proc., § 430.30(a).)

A demurrer tests only the legal sufficiency of the pleading, and “[t]he facts alleged in the pleading are deemed to be true, however improbable they may be. [citation].” (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) While the Court must accept as true all material facts properly pled, it may disregard logical inferences, contentions, or conclusions of fact or law. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1335-1336; Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) A demurrer must be overruled if the plaintiff has stated a cause of action under any possible legal theory. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379.)

When reviewing a demurrer, the court must draw all reasonable inferences in favor of the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1239.) “To survive a demurrer, the 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.)

II. Discussion.

Defendants demur to the first, second, third, fifth and sixth causes of action in the SAC on the grounds that Plaintiff’s claims are time-barred and fail to state facts sufficient to state a claim.

As stated above, Plaintiff filed six declarations with exhibits in opposition. Because the Court cannot consider extrinsic evidence in sustaining or overruling the demurrer, the evidence is

considered solely in regard to whether Plaintiff can amend. Plaintiff’s declarations also do not contain any citation to or discussion of any legal authority.

a. Statute of Limitations

Plaintiff’s claims under FEHA, FHA and for IIED, are all subject to a two-year statute of limitations. (Gov. Code, § 12989.1 [housing discrimination action under FEHA must be brought within two years of the occurrence or termination of the alleged discriminatory housing practice]; 42 U.S.C. 3613(a) [action under FHA must be brought within two years after the occurrence or termination of an alleged discriminatory housing practice]; Code Civ. Proc. § 335.1 [tort claims are subject to a two-year statute of limitations]; Wassmann v. South Orange County Community College District (2018) 24 Cal.App.5th 825, 832 [intentional infliction of emotional distress claim barred under two-year statute of limitations of Code of Civil Procedure section 335.1].)

Plaintiff alleges that she permanently vacated the premises by the end of January 2023. (SAC, ¶ 13 [permanently vacated on or about January 2023]; see also FAC, ¶ 9 [vacated on 1/26/23].) 2 This action was not filed until July 7, 2025, over two years after she vacated the apartment.

Defendants contend that once Plaintiff vacated the Premises, she was no longer subject to any alleged conduct that would give rise to any retaliation, discrimination or wrongful tort. (Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, 223 [a claim arises when the last element essential to the cause of action occurs].)

When a complaint shows on its face that the cause of action is barred by the applicable statute of limitations, the plaintiff must plead facts which show an excuse, tolling, or some other basis for avoiding the statutory bar (Grange Debris Box & Wrecking Co. v. Superior Court (1993) 16 Cal.App.4th 1349, 1359-1360.)

Plaintiff submits evidence she contends support delayed discovery or tolling. This includes a report made to the United States Department of Justice Civil Rights Division, record number 243114-THS, that reports housing discrimination or harassment and retaliation, amongst other violations over many years. (Second Supp. Drew Decl. filed 6/22/26, ¶ 5, Ex. G; Supp. Drew Decl. and Ex. Addendum filed 6/22/26, ¶ 3, Ex. G-1.) That report was filed on January 6, 2023, showing knowledge of the facts from which this action arises by that date, more than two years prior to filing this action. Nor does Plaintiff allege or declare that any action was taken on that report or that any administrative proceeding was opened.

Plaintiff also declares that a HASLO inspector identified safety issues at the property in March 2022, and that she contacted civil rights or fair housing related agencies regarding Black/Trustee issues, including a DFEH/CRD report in August 2, 2022, that was a rejected intake. (Drew Decl.

2 Plaintiff’s proposed third amended complaint also alleges that she ceased residing on the property on or about January 30, 2023. (¶ 30.) 3

filed 5/19/2026, ¶¶ 25, 38.) She further declares that she has CRD-related records from 2023, including records associated with CRD Case No. 202303-19915010. (Id., ¶ 39.) Plaintiff does not attach those papers as exhibits, provide any details on that case, or declare that an administrative proceeding was opened.

“A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807, quoting Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 398.)

Plaintiff’s first two causes of action arise directly out of her tenancy, which ended in January 2023. All of the facts underlying those claims that are set forth in the six declarations show knowledge of the facts that form the basis of her claims by the end of January 2023 and she fails to identify any new claims arising after that date. (See Drew Decl. filed 5/19/2026.) None of her declarations or exhibits support an allegation of delayed discovery. Nor does Plaintiff show that any administrative proceeding was ever opened, such that the FEHA or FHA statutes of limitation were tolled.

As to IIED, Plaintiff alleges that “[d]efendants engaged in extreme and outrageous conduct, including discriminatory refusal to rent despite known disability needs, coercive threats and eviction pressure after refusing rent, and interference with lawful service-animal use.” (SAC. ¶ 40.) All of these allegations occurred while she was a tenant, and Plaintiff would by necessity have been aware of those actions at the time they occurred.

The Court finds that Plaintiff’s first, second, and fifth causes of action are barred on their face by the statute of limitations.

Plaintiff has not shown an ability to amend her first and second causes of action to allege facts showing tolling or delayed discovery. Plaintiff has already amended her complaint twice. Defendants’ demurrer to the first and second causes of action is sustained without leave to amend.

The Court grants Plaintiff leave to amend with regard to the fifth cause of action for IIED to the extent that Plaintiff can allege facts that occurred within the two-year window prior to the filing of this action on July 7, 2025.

Plaintiff’s third cause of action for retaliation and coercion in housing is alleged under FEHA, FHA, and also Civil Code section 1942.5.

Defendants contend that retaliatory eviction under Civil Code § 1942.5 is subject to the one-year statute of limitation prescribed by Code Civ. Proc. § 340(a) because punitive damages are required upon finding of “fraud, oppression or malice.” (Civ. Code §1942.5(h).)

No case law cited by the parties, or that could be found by the Court, expressly addresses the applicable statute of limitations under Civil Code 1942.5.

Civil Code section 1942.5, subdivision (h), provides for an award of (1) actual damages, as well as (2) punitive damages in an amount of not less than one hundred dollars nor more than two thousand dollars for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.

“Under well-established California law, statutes that provide for mandatory damages either in addition to actual injury or regardless of actual injury or fault are considered to be in the nature of a penalty or forfeiture subject to the one-year limitations period.” (County of El Dorado v. Superior Court (2019) 42 Cal.App.5th 620, 625.)

“Claims based upon statutes which provide for mandatory recovery of damages additional to actual losses incurred, such as treble damages, are considered penal in nature, and thus are governed by the one-year limitations period under section 340, subdivision (1).” (Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 243.) “Certain statutory schemes contain separate, independent statutory provisions for recovery of actual damages and treble damages. [Citation.] In such case, a claim for actual damages under one statute will be governed by a different statute of limitations than section 340, subdivision (1), which will govern the claim for treble damages.” (Ibid.)

Defendants cite Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1242 in support of their argument. In Prudential, the court found, in considering Civil Code section 2941, that “[c]ase law has consistently applied the one-year limitations period to statutes that provide for recovery of actual damages and a mandatory additional penalty.” (Ibid.)

However, under Civil Code section 1942.5, the additional penalty on top of actual damages is mandatory only where a lessor has also been guilty of fraud, oppression, or malice. The statute does not require those additional findings for recovery of actual damages under subdivision (h)(1). Therefore, it appears that a claim for actual damages under subdivision (h)(1) could be established without triggering the additional penalty under subdivision (h)(2). A penalty is therefore not always mandatory under that section. Defendants do not address that distinction.

Statutory causes of action that are not penalties or forfeitures are governed by a three-year statute of limitations. (Code Civ. Proc., § 338(a).) Even if the penalties under subdivision (h)(2) are barred by the one-year statute of limitations under Civil Code 340, Defendants have not shown at this time that a claim for actual damages under subdivision (h)(1) is also barred by that statute.

The Court cannot say at this time that Plaintiff’s third cause of action is barred in its entirety on its face by the statute of limitations.

Defendants’ demurrer to the third cause of action is overruled on the grounds that it is barred by the statute of limitations. 3

3 As set forth above, a demurrer must be overruled if the plaintiff has stated a cause of action under any possible legal theory. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1379.) 5

Finally, Defendants argue that to the extent that the conspiracy claim is based on these causes of action, the conspiracy claim is likewise time-barred. (Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 301 [conspiracy statute of limitations is determined by the nature of the action in which the conspiracy is alleged].)

Because Defendants’ argument is solely that all of the other claims are time barred, and because the Court does not find that the third cause of action is barred, the Court cannot say that the conspiracy claim is also necessarily time barred as a matter of law.

b. Sufficiency of the Allegations

Statutory claims must be pleaded with particularity. (G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 273 [facts in support of each of the requirements of a statute upon which a cause of action is based must be pleaded].) Defendants contend that under that standard, Plaintiff fails to allege sufficient facts to state a cause of action under Civil Code section 1942.5, FEHA and FHA.

However, the Court does not consider Defendants’ argument with regard to the sufficiency of Plaintiff’s FEHA and FHA allegations, because as set forth above the Court finds those claims barred by the statute of limitations, and does not grant leave to amend.

i. Third Cause of Action—Claim Under Civil Code section 1942.5

Civil Code section 1942.5(a) provides, in relevant part:

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...

Any lessor or agent of a lessor who violates that section is liable to the lessee in a civil action. (Civ. Code, § 1942.5(h).)

Plaintiff’s allegations do not detail the reports and/or complaints made, the dates they were made, or the specific adverse actions that were taken or the dates those adverse actions were taken.

The Court finds Plaintiff’s claim under Civil Code section 1942.5 in her third cause of action to be insufficiently pleaded. However, leave to amend is appropriate.

ii. Fifth Cause of Action—IIED

Defendants contend that Plaintiff fails to allege facts showing extreme distress and outrageous conduct sufficient to state a claim for IIED.

A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. [Citations.] A defendant's conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.] And the defendant's conduct must be intended to inflict injury or engaged in with the realization that injury will result. Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051

“In order to avoid a demurrer, the plaintiff must allege with ‘great specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160– 161.)

Plaintiff’s pleading here is brief and insufficient. Leave to amend is appropriate to the extent that Plaintiff can allege facts, with specificity, stating a claim for IIED that is not barred by the statute of limitations.

iii. Sixth Cause of Action—Civil Conspiracy

“The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062.)

Defendants contend that Plaintiff’s allegations are merely conclusory, and do not allege what the underlying tort was or how Defendants have conspired to complete this objective. The Court agrees that the allegations, including the persons involved, actions taken and theory of liability

are unclear. Moreover, to the extent that Plaintiff’s other claims are insufficiently pleaded, they cannot support a claim for civil conspiracy.

The Court sustains Defendants’ demurrer to the sixth cause of action with leave to amend.

III.

Conclusion

Defendants’ demurrer to Plaintiff’s first and second causes of action under FEHA/FHA is sustained on grounds that those claims are barred by the statute of limitations without leave to amend.

Defendants’ demurrer to Plaintiff’s third cause of action is overruled on the grounds of statute of limitations. Defendants’ demurrer to Plaintiff’s third cause of action under Civil Code section 1942.5 is sustained with leave to amend on the grounds that it is insufficiently pleaded, as set forth above.

Because the Court finds that Plaintiff’s FEHA and FHA claims are barred by the statute of limitations and denies leave to amend, the Court strikes Plaintiff’s FEHA and FHA claims from the third cause of action, leaving her claim solely under Civil Code section 1942.5. (Code Civ. Proc., § 436.)

Defendants’ demurrer to Plaintiff’s fifth cause of action is sustained on the grounds that the claim is barred by the statute of limitations and is insufficiently pleaded, with leave to amend to the extent that she can allege facts stating a claim based on conduct that occurred within the twoyear window prior to the filing of this action on July 7, 2025.

Defendants’ demurrer to Plaintiff’s sixth cause of action for civil conspiracy is overruled on statute of limitations grounds but sustained with leave to amend on the grounds that that claim is insufficiently pleaded.

In summary:

Defendants’ demurrer is sustained without leave to amend as to the first, and second causes of action.

Defendants’ demurrer is sustained with leave to amend as to the third, fifth and sixth causes of action.

Plaintiff’s FEHA and FHA claims are stricken from the third cause of action by the Court.

Plaintiff shall file and serve her amended complaint that addresses the issues raised in the ruling above by August 21, 2026. Defendants shall serve written notice of this order.

Motion to Strike.

I.

Legal Standard

Code of Civil Procedure section 436 permits a court to strike: (1) “any irrelevant, false, or improper matter inserted in any pleading”; and (2) “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.” As with demurrers, the grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

In ruling on a motion to strike, courts do not review allegations in isolation but rather read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 7:197.5.)

The adequacy of punitive damages allegations may be tested by motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 86.)

II. Discussion

a. Punitive Damages

Punitive damages are governed by Civil Code section 3294, which requires “clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice ....” (Civ. Code, § 3294, subd. (a).)

Conclusory allegations are insufficient to support a prayer for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [general allegations insufficient to meet pleading requirement.].)

Defendants contend that Plaintiff has insufficiently alleged facts to state a claim for punitive damages, and that to the extent that the Court sustains Defendants’ demurrer to Plaintiff’s intentional tort and statutory causes of action, the only remaining cause of action is a premises liability claim that is based on mere negligence and will not support punitive damages claim. As to the latter argument, the Court sustains Defendants’ demurrer but notes that it is granting leave to amend on claims that could support such a claim, if sufficiently pleaded.

The Court finds that Plaintiff fails to allege sufficient, specific facts showing that Defendants are guilty of malice or oppression.

Defendants’ motion to strike Plaintiff’s claim for punitive damages is granted with leave to amend.

b. Goldi Black Trust as Defendant

A trust is not a legal entity and cannot be sued, instead, the trustee of the trust is the proper defendant. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 522.)

Defendants’ motion to strike the Goldi Black Trust as defendant is granted, with leave to amend to name the trustee of the trust in their representative capacity as defendant.

III.

Conclusion

Defendants’ motion to strike Plaintiff’s claim for punitive damages is granted with leave to amend to allege additional facts showing malice and/or oppression on the part of Defendants.

Defendants’ motion to strike the Goldi Black Trust as defendant is granted, with leave to amend to name the trustee of the trust in their representative capacity as defendant.

Plaintiff shall file and serve her amended complaint by August 21, 2026. Defendants shall serve written notice of this order.

Black’s Motion to Deem RFAs Admitted.

On May 1, 2026, Black’s counsel served RFAs on Plaintiff via mail. (Howell Decl., ¶ 3; Ex. A.) No responses have been served. (Id. ̧¶ 4.)

Black now moves for an order deeming the RFAs admitted. The motion and an amended notice including the hearing date were timely served on Plaintiff via U.S. Mail and no opposition was filed.

Code of Civil Procedure section 2033.280(b-c) requires the court to deem the RFAs admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”

The motion to deem the facts and documents admitted is granted.

Code of Civil Procedure section 2033.280(c) further provides, “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated the motion.”

Any request for sanctions must identify every person, party, and attorney against whom the sanction is sought, as well as specify the type of sanction sought in the notice of motion. (Code Civ. Proc., § 2023.040.) Black’s notice of motion seeks $1,242 in costs and attorney’s fees against Plaintiff. (See also Howell Decl., ¶ 5.) This represents 5.5 total hours, including an hour to respond

to any opposition and attend the hearing, at $215 per hour plus the $60 filing fee.

The Court reduces the hours spent by.75 as no opposition was filed and the appearance can be by Zoom.

The Court awards monetary sanctions in the total amount of $1,080.75, in favor of Black against Plaintiff.

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