Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. SC049641, William Q. Liebmann, Judge
Michael D. O'Neal, in pro. per., for Plaintiff and Appellant.
Dougherty Law Firm, Gerard M. Dougherty, for Defendants and Respondents.
COFFEE, J.
A tenant was evicted by his landlord for nonpayment of rent. The landlord filed an unlawful detainer action and obtained a judgment against him. The tenant, in propria persona, filed a personal injury action against his landlord in which he alleged discriminatory housing practices. The landlord filed a demurrer, which the trial court sustained with leave to amend. The tenant filed a first amended complaint and landlord again demurred. The trial court sustained the demurrer without leave to amend. We affirm.
FACTS
Unlawful Detainer Action
Jorge Borbon and his wife, Clara Romero, live in a single family home, along with Borbon's daughter, Sandra Borbon and her husband, Juan Carlos Orjuela (collectively respondents). Their house is located at 1886 Timberhill Court in Simi Valley. There is a studio apartment on the property.
On March 21, 2006, appellant Michael O'Neal entered into a written lease agreement with Sandra Borbon to rent the apartment. The lease was for a term of six months, at a monthly rental of $800. Appellant ceased paying rent in June. In late August, Jorge Borbon served upon appellant a 3-day notice to pay rent or quit, but appellant did not move. On September 1, Borbon filed an unlawful detainer action against him.
Appellant, in propria persona, filed an answer, alleging that he had stopped paying rent because he had suffered a stroke and could not work. He alleged that he had applied for Social Security Disability (SSD), Supplemental Security Income (SSI) and benefits from the Veteran's Administration (VA). He stated that he would pay his rent as soon as he began receiving this income.
The matter proceeded to trial and the court entered judgment in favor of Jorge Borbon and awarded him $2,719.82 in damages, plus attorney's fees and costs. A writ of possession was issued on October 17, 2006. Appellant filed a "motion to vacate writ of possession," which was denied. He has not paid the judgment.
Appellant Files Complaint against Respondents
On March 5, 2007, appellant filed a personal injury action against "Jorge Borbon, et al," which he served on Jorge Borbon, Clara Romero, Sandra Borbon and Juan Carlos Orjuela. (Borbon v. O'Neal (Super Ct. Ventura County, 2007, No. SC049641).) No issue has been raised as to standing, thus we do not address it.
In his complaint, appellant alleged that he had become permanently disabled due to a stroke and heart condition. He claimed that respondents' "den[ial] of housing" had contributed to his physical ailments and constituted a violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and the Unruh Civil Rights Act (Civ. Code, § 51).
In support of his claim of housing discrimination, appellant alleged that respondents withheld medication mailed by the VA, as well as letters relating to his SSD and SSI benefits. Appellant claimed that they limited his electricity use, which subjected him to 100-degree summer heat and destroyed his computer. They also denied him access to storage areas and trash bins. Appellant claimed that this caused a stroke and heart attack which required him to undergo an angioplasty and a heart stent implant procedure.
Appellant alleged that respondents had no "fiscal need" to evict him. He argued that, given his health condition, he should have been permitted to stay in the apartment until he began receiving public benefits. He asserted that respondents were fully employed, while he was not, thus they were financially able to forego rent until he could reimburse them.
Appellant further alleged that he had attempted to serve upon respondents a notice of appeal from the unlawful detainer action. He claimed that Sandra Borbon and Orjuela tore it up, then followed the process server into the street where appellant was waiting in his car. Borbon and Orjuela allegedly tried to incite an altercation and Orjuela struck the car.
On April 9, 2007, respondents demurred to the complaint. One of the grounds for the demurrer was that appellant had failed to allege facts constituting a violation of FEHA or the Unruh Act.
First Amended Complaint
The trial court sustained the demurrer with leave to amend as to appellant's cause of action for housing discrimination against all respondents and his cause of action against Sandra Borbon and Orjuela for assault.
Appellant filed a first amended complaint. The language is convoluted and difficult to follow. He appears to allege that a landlord is required to accommodate the needs of a disabled person, unless the landlord can show that such an accommodation would cause the landlord undue hardship. Appellant argued that respondents were aware of his disability, yet they refused his requests for reasonable and necessary accommodation. He asserts that, prior to the eviction, respondents made the premises uninhabitable, restricted certain rental privileges and threatened assault. Appellant claims that respondents ultimately evicted him due to his disability and source of income, in violation of the FEHA. (Gov. Code § 12955, subd. (a).)
The California Fair Employment and Housing Act (FEHA) provides in part that "[i]t shall be unlawful . . . [f]or the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religions, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability of that person." (Gov. Code, § 12955, subd. (a), italics added.)
Appellant argued that respondents were healthy and employed, were aware of his medical conditions and knew that he would become homeless if evicted. As such, they owed him a duty of care. They breached this duty, which deprived them of their entitlement to rental income.
Appellant alleged the same facts as in the original complaint concerning the alleged confrontation when he attempted to serve a notice of appeal from the unlawful detainer action. The only additional factual allegation was that, before Orjuela struck the car, he threatened to call the police. Appellant claimed that he had alleged facts showing that respondents acted willfully and negligently, and their actions violated the Unruh Act, FEHA, Americans with Disability Act and federal anti-discrimination statutes. He prayed for damages for emotional distress, personal injury, pain and suffering, property loss and compensatory and punitive damages.
Respondents demurred to appellant's first amended complaint and simultaneously filed a motion to strike. The trial court sustained the demurrer without leave to amend on the grounds that appellant failed to state a claim for housing discrimination or a tort claim based on his alleged confrontation with respondents.
In its written decision, the trial court indicated that appellant had failed to allege facts showing that respondents had intentionally discriminated against him on the basis of his disability, or the source of his income, or that they engaged in any discriminatory conduct prohibited under FEHA or the Unruh Civil Rights Act. The court further ruled that a landlord is not required to provide a tenant with preferential treatment concerning the timely payment of rent due to a tenant's disability or reliance on public benefits. The court concluded that appellant did not allege facts to indicate that respondents' actions resulted from "discriminatory animus," as opposed to the nonpayment of rent.
Considering appellant's second cause of action (alleged confrontation with Sandra Borbon and Orjuela), the court ruled that appellant had failed to allege facts to establish a tort claim against any one of the four respondents. The court noted that appellant did not allege any conduct by Jorge Borbon or Clara Romero. As to Sandra Borbon and Orjuela, the court concluded that appellant had not alleged that they had caused him harm or acted with the intent to cause him physical or emotional harm.
The motion to strike was rendered moot by the court's ruling on the demurrer. The trial court issued its order on August 3, 2007, which was filed on August 15, 2007. Appellant appeals from this order. The record on appeal does not contain a judgment of dismissal. However, we may deem the order to incorporate a judgment of dismissal, since this formality is all that is left to make the order appealable. (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
DISCUSSION
"When a demurrer is sustained without leave to amend, the reviewing court must determine whether there is a reasonable probability that the complaint could have been amended to cure the defect; if so, it will conclude that the trial court abused its discretion by denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of establishing that it could have amended the complaint to cure the defect." (Sisemore v. Master Financial, Inc., supra, 151 Cal.App.4th at p. 1397.)
The Unruh Civil Rights Act provides, in pertinent part, that "[a]ll persons 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, . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever." (Civ. Code, § 51, subd. (b).) "[A] plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act. (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175 [housing discrimination].) The FEHA makes a variety of discriminatory housing practices unlawful. (Gov. Code § 12900 et seq; Sisemore v. Master Financial, Inc., supra, 151 Cal.App.4th at p. 1410.) It prohibits "the owner of any housing accommodation to discriminate against or harass any person" due to that individual's source of income or disability. (Gov. Code, § 12955, subd. (a).)
Appellant was evicted from his apartment because he failed to pay rent for three months. After respondents prevailed in an unlawful detainer action, appellant retaliated by filing a complaint against them, alleging that he was wrongfully evicted. Although he describes in detail his medical conditions and recounts the strained relationship between himself and respondents, he cites no legal basis for his assertion that respondents owed him a special duty of care to house him due to his disability. Nor has he established that his eviction was due to his disability or the source of his income. He has made no showing that respondents engaged in discriminatory conduct in violation of FEHA or the Unruh Act. Appellant has not carried his burden of showing that the first amended complaint could be amended to state a cause of action for housing discrimination or assault. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur: GILBERT, P.J., PERREN, J.