LA CRESTA PROPERTY OWNERS’ ASSOCIATION VS GHAFOURI

It just generically alleges which conduct it contends violated the governing documents. (Id.) To assert a breach of contract cause of action, the plaintiff may attach the contract, set forth the terms of the agreement verbatim, or plead the legal effect of the contract. (Construction Protective Services, Inc. v. TIG Specialty (2002) 29 Cal.4th 189, 198-199.) “In order to plead a contract by its legal effect, plaintiff must ‘allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument.” (McKell v.

Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) This requirement has not been met. The first cause of

action also fails to allege that Ghafouri complied with the agreements or was excused from compliance.

Fourth Cause of Action for Negligence Per Se - Negligence per se is not a separate cause of action. (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.) It is an evidentiary presumption that applies to the standard of care in a negligence cause of action. (Id.) “The doctrine of negligence per se does not provide a private right of action for violation of statute.” (Id. at 556.)

This cause of action is based on Association’s failure to apply unidentified statutes, ordinance, regulations regarding grading and the Eight-Foot Rule. (FAC, ¶ 79.) As such, it does appear to be an attempt to provide a private right of action for violation of statute. There is no reason why this cause of action could not be reframed into a negligence claim that alleges the Association breached its duty of care in its conduct in grading around the association. However, the third cause of action for negligence is already based on Association’s negligence in grading.

Fifth Cause of Action for Trespass - A trespass cause of action requires: (1) plaintiff owns or controls the property, (2) the defendant intentionally, recklessly, or negligently entered onto the property, (3) defendant did not have permission to enter the property, (4) harm, and (5) defendant’s conduct was a substantial factor in causing harm. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261-262.) A trespass can occur when an individual causes objects to migrate onto another’s real property. (Thrifty-Tel, Inc. v.

Bezenek (1996) 46 Cal.App.4th 1159, 1566, f. 6.) Association contends this cause of action fails because based on the allegations in the Cross-Complaint, it had an easement on the property. As such, it had permission to be on the property. While the fifth cause of action alleges that Association caused rocks, gravel, dirt, and sand to enter Association’s easement adjoining Ghafouri’s property, it also alleges that it caused said substances to enter onto Ghafouri’s private property along with contractors and heavy equipment. (Cross-Complaint, ¶ 83.)

These allegations appear to be separate conduct that occurred on Association’s easement and Ghafouri’s private property without an easement. Association points to no allegations in the Cross- Complaint that it is allowed to access the portion of Ghafouri’s property that does not contain an easement.

Ninth Cause of Action for Violation of Unruh Civil Rights Act - This cause of action is brought under Civil Code § 51 of the Unruh Civil Rights Act (“Unruh”). It provides” All person within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

(Civil Code § 51(b).) Association argues that this cause of action fails because it is conclusory and the allegations do not support that Ghafouri was denied full and equal accommodations, advantages, facilities, privileges, or services because he is Iranian.

A statutory claim must be specifically alleged. (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1020.) This cause of action is generically alleged. It is unclear what accommodations, advantages, facilities, privileges, or services were withheld from Ghafouri. Additionally, the only specific allegations in the Cross-Complaint regarding Ghafouri’s Iranian decent/origin is that after he had been assessed significant penalties for his grading, the Association tried to negotiate when Ghafouri. (Cross-Complaint, ¶ 34.) When Ghafouri refused to negotiate, Association’s President said “Well I know how you Iranian’s are!!” (Cross-Complaint, ¶ 34.) These allegations are insufficient to allege that Ghafouri was denied full and equal accommodations, advantages, facilities, privileges, or services because of nationality.

Tenth Cause of Action for Violation of FEHA - Association argues that this cause of action fails because there are no allegations that Ghafouri complied with pre-filing requirements under Government Code § 12960. Ghafouri contends that he is not required to meet the pre-filing requirements under Government Code § 12960 because of California Code of Regulations, title 2, § 14501. It appears that neither party is relying on the appropriate authority.

Government Code § 12960 does not appear to apply to claims brought under Government Code § 12955. Government Code § 12980 appears applicable. Government Code § 12980 specifically states that it pertains to claims made under Government Code §§ 12955, 12955.1, and 12955.7. Like Government Code § 12960, Government Code § 12980 has pre-filing requirements. There are no allegations in the Cross-Complaint that the pre-filing requirements have been met.

Ghafouri argues that no pre-filing requirements apply to him because of California Code of Regulations, title 2, § 14501 indicates that his claim is exempt from said requirement. However, this regulation does not appear applicable. This regulation states: Exhaustion of administrative remedies available for employment claims under the Fair Employment and Housing Act, Government Code section 12900 et seq., shall not be a prerequisite to the bringing of actions for judicial enforcement of Article 9.5, this subchapter, or other implementing regulations, nor shall any person first be required to exhaust administrative remedies of any other state or federal agency or the internal grievance procedures of any recipient, or comply with the Government Claims Act, Government Code section 900 et seq, before filing an intake form or a complaint with the department or a civil action for enforcement of Article 9.5.

(California Code of Regulations, title 2, § 14501(a).) Article 9.5 is Government Code § 11135 et seq. (California Code of Regulations, title 2, § 14000(a).) The purpose of “this subchapter is to implement Article 9.5 of Chapter 1 of Division 3 of Title 2 of the Government Code, sections 11135 et seq.” (California Code of Regulations, title 2, § 14000(a).) Ghafouri’s tenth cause of action is not brought under Government Code § 11135 et seq. As such, this regulation is not applicable.

Eleventh Cause of Action for Defamation - Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injury or which causes special damages.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Defamation consists of two forms - libel and slander. (Burrill v. Nair (2013) 217 Cal.App.4th 357, 382.) “Libel is a false and

unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injury him in his occupation.” (Civil Code § 45.) Slander is a false and unprivileged publication, orally uttered that indicates an individual was involved in a crime, has an infectious or contagious disease, that tends to injure someone’s reputation, pertains to the individual’s lack of chastity, or by natural consequences causes actual damages. (Civil Code § 46.)

In the Cross-Complaint, the alleged defamatory statements were made by a former board member. (Cross-Complaint, ¶ 105.) Ghafouri fails to cite to any authority that Association can be liable for statements made by its former Board member. He cites to Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 273, in opposition but this case only indicates that the individual who originally makes the defamatory statement can be held liable for damages caused by others who repeat the defamatory statement. This is not alleged in this case. Ghafouri argues that they have alleged ratification of the statement by Association. However, there are no factual allegations to support this assertion.

Thirteenth Cause of Action for Indemnity, Contribution, and Apportionment of Fault - This cause of action alleges indemnity, contribution, and apportionment of fault. Indemnity means “the obligation resting on one party to make good a loss or damage another party has incurred.” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.) “An indemnitor is the party who is obligated to pay another.” (Maryland Casualty Co. v. Bailey & Sons, Inc. (1995) 35 Cal.App.4th 856, 864.) “An indemnitee is the party who is entitled to receive the payment from the indemnitor.” (Id.) “An indemnity obligation arises from two general sources.” (Id.)

First, it may arise from “express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.” (E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 506.) Second, indemnity may also arise based on equitable considerations. (Id. at 507.) “Unlike contractual indemnity which looks to the parties’ intent, equitable indemnification focuses on principles of fairness and justice and is designed to apportion loss among tortfeasors in proportion to their relative culpability[.]” (Maryland Casualty, supra, 35 Cal.App.4th at 864.)

“Contribution and indemnity are related doctrines, but contribution ‘“presupposes a common liability which is shared by the joint tortfeasors on a pro rata basis.”’” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1162, f. 7.) Apportionment of fault appears to be equitable indemnity. (See Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 808.)

Association contends that this cause of action fails because it is speculative. This assertion is correct. While Ghafouri seeks indemnity and contribution, no one has been injured by the Association’s conduct. This cause of action alleges that “[i]n the event any third party, including but not limited to motorist, pedestrians, or equestrians, assert claims for injuries or damages arising out of the hazardous conditions and grading activities described, Cross-Complainant alleges that such injuries or damages would be caused in whole or in party” by the Association. (Cross-Complaint, ¶ 113.) This claim is entirely speculative. It is not ripe yet.

Fourteenth Cause of Action for Interference with Property Rights - Association contends that it is unclear what this cause of action seeks. This claim references numerous code sections, many of which are based on claims already asserted by Ghafouri. However, it does seem to allege that Association denied him due process under Civil Code §§ 5850-5855 by bringing disciplinary proceedings without proper notice and violated Civil Code §§ 4510 and 4765 by having individuals access Ghafouri’s property without proper notice. Association does not address said allegations and provides no authority that they are not proper or cannot form the basis of a proper claim.

Fifteenth Cause of Action for Intentional Infliction of Emotional Distress - Intentional infliction of emotional distress requires: (1) outrageous conduct, (2) intent to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional distress, and (4) accrual and proximate causation. (Stoiber v. Honey (1980) 101 Cal.App.3d 903, 921.) Behavior is outrageous if it exceeds all bounds typically tolerated by decent society. (Id.) There is no liability under a claim for intentional infliction of emotional distress for insults, threats, annoyances, indignities, petty oppressions, or other trivial behavior. (Pilotrik v. Melhaus (2012) 208 Cal.App.4th 1590, 1610.)

This cause of action is based on a Board member calling him an Iranian and statements by a former board member that Ghafouri is a terrorist sympathizer, antisemitic, communist, and an extremist. (Cross-Complaint, ¶ 129.) As discussed above, insults, threats, annoyances, and indignities do not support a claim for intentional infliction of emotional distress. Also, all of the conduct, except for the statement “Well I know how you Iranian’s are”, was made by a former board member. Ghafouri fails to provide any authority that the Association can be liable for statements made by an individual that has no relationship to Association. While the statement about Iranians by the Association’s President was in bad taste, it appears to fall within the category of insults, annoyances, or indignities.

Sixteenth Cause of Action for Negligent Infliction of Emotional Distress - “Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply.” (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 126.) Recovery for negligent infliction of emotional distress is typically permitted in two situations - referred to as “bystander” and “direct victim” claims. (Id. at 126-127.)

“Recovery may be permitted in bystander case where the plaintiff is closely related to the victim of a physical injury, is present at the scene of the injury-causing event and is then aware that it is causing injury, and suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Id. at 127.)

“Direct victim cases involve the breach of a duty owed to the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two.” (Id.) To recover under a claim of negligent infliction of emotional distress where there is no personal physical injury, the plaintiff must suffer from serious emotional distress. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377- 1378.)

This cause of action is based on the same conduct discussed above in the intentional infliction of emotional distress cause of action. I know of no duty, nor does Ghafouri identify any duty that is owed by an individual not to make offensive comments to others. Additionally, the allegations do not support serious emotional distress.

Eighteenth Cause of Action for Constructive Eviction - “Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299-1300.) Association rightfully argues that this cause of action fails because Ghafouri is not a tenant and Association is not a landlord. Since these relationships do not exist, this cause of action fails. In opposition, the only authority relied on by Ghafouri involves landlords and tenants.