Hodge v. Arzoo CA2/5

Filed 7/5/23 Hodge v. Arzoo CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
CHALA REKAY HODGE, B318100
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19STCV40597)
PAILICK T. ARZOO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ana Maria Luna, Judge. Affirmed.
Chala Rekay Hodge, in pro. per., for Plaintiff and
Appellant.
Anderson, McPharlin & Conners, Elmira R. Howard, and
Ali Z. Vaqar for Defendant and Respondent.
A court ordered the sale of plaintiff and appellant Chala
Rekay Hodge’s (Hodge’s) home to defendant and respondent
Pailick T. Arzoo (Arzoo) and approved a temporary tenancy for
Hodge after consummation of the sale. After that tenancy period
expired and Arzoo commenced unlawful detainer proceedings to
gain possession of the premises, Hodge sued Arzoo for racial
discrimination and inflicting emotional distress. The gist of the
allegations was Arzoo wrongly pursued unlawful detainer
proceedings and submitted a false police report claiming she was
assaulted by Hodge. The trial court sustained Arzoo’s demurrer
to the operative complaint without leave to amend, finding the
alleged misconduct was privileged activity. Hodge appeals and
we consider whether the court correctly concluded Hodge’s claims
are barred by the litigation privilege.
I. BACKGROUND1
Hodge is the mother of Chala Renay Hodge (Chala). In
2004, a special needs trust was established for the benefit of
Chala by her grandmother. The trust’s principal asset was a
single family residence with four detached apartment units
located in Inglewood, California. Chala and Hodge lived (rent-
free) in two of the complex’s units and the two remaining units
were rented to non-family members.
Thirteen years after the trust’s establishment, the trustees
petitioned the probate court to sell the property due to a lack of
1
Our factual recitation is taken from the operative
complaint’s allegations and court records judicially noticed by the
trial court. (See generally Yvanova v. New Century Mortgage
Corp. (2016) 62 Cal.4th 919, 924 & fn. 1 (Yvanova).)
2
sufficient funds to maintain and manage it. Notwithstanding
Hodge’s objection, the court authorized the sale.
In December 2018, the court approved the sale of the
property to Arzoo and her son Andre Arzoo (Andre) for $1.15
million under the following terms: following the sale, Hodge and
Chala would be allowed to continue to reside at the property for
59 days rent-free and for up to six months thereafter at a cost of
$2,000 per month. Later that same month, a grant deed
memorializing the transfer of the property to Arzoo and Andre
was recorded.
Nearly a year later, Hodge was served with an eviction
notice.2 The day after she was served, Hodge (representing
herself) filed suit against Arzoo and Andre seeking an injunction
that would preclude them from interfering with her “free
enjoyment” of the property as a “lifetime resident.” In addition,
Hodge sought monetary compensation for Andre’s “civil
harassment” which allegedly took the form of “racial words and
physical threats.”
Arzoo demurred to Hodge’s complaint and argued it was
uncertain because there were no allegations of misconduct made
against her.3 The trial court sustained the demurrer because the
2
Shortly thereafter, in December 2019, Andre initiated an
eviction proceeding against Hodge for unlawful occupation of the
property and failure to pay rent. Andre also alleged plaintiff had
made “numerous” threats and committed acts of violence against
him and his representatives.
3
Andre also demurred to Hodge’s original complaint. After
Hodge failed to timely file an amended pleading against Andre,
the trial court dismissed the claims against him with prejudice
3
complaint’s allegations left the court “to guess at what claims are
being asserted [against Arzoo] and what the facts in support of
them are.” The court granted Hodge leave to amend.
In her first amended complaint, Hodge replaced her claims
for injunctive relief with causes of action seeking damages for
racial discrimination and infliction of emotional distress. In
support of these causes of action, Hodge alleged Arzoo filed a
false police report against her and made false statements in the
unlawful detainer action against her. Attached as an exhibit to
the amended complaint was a copy of a report, dated November
16, 2019, filed by Arzoo and Andre with the Inglewood Police
Department. The report relates, among other things, that Arzoo
told the police Hodge became extremely upset when Andre served
her with the notice to vacate the property and said “something
bad is going to happen to you and your family.”4
Arzoo demurred to the first amended complaint on the
principal ground that her alleged misconduct was protected by
the litigation privilege. The trial court sustained the demurrer
with leave to amend.
Hodge then filed a second amended complaint, which is the
operative pleading. Nominally, the operative complaint asserts
four causes of action: (1) violation of Civil Code sections 1940.2
and entered judgment in his favor. No timely appeal was noticed
from that ruling.
4
The police report also contains a similar statement by
Andre, who said that when he tried to serve plaintiff with the
notice to vacate she became “extremely irate” and stated
“‘something bad’ was going to happen to him.”
4
and 1954,5 (2) violation of Civil Code sections 51 and 1927,6 (3)
infliction of emotional distress, and (4) violation of Penal Code
section 148.5.7
Focusing on the operative complaint’s substantive
allegations, the first cause of action alleges Arzoo filed
“retaliatory court declarations” and other “court moving papers”
that falsely alleged Hodge “committed the act of assault and
battery.” In support of the second cause of action, Hodge alleged
Arzoo “contrive[d] a false [police] report.” In support of her
emotional distress claim, Hodge alleged she suffered emotional
distress as a result of Arzoo’s “quest” to evict her from the
property, which included the filing of a “knowingly fabricated
[police] report.” In connection with the fourth cause of action,
Hodge maintained Arzoo used the false police report in a number
of court proceedings, including the unlawful detainer action.
Hodge also generally alleged that Arzoo attempted to serve
her with court papers containing the purportedly false police
report. Hodge averred that Arzoo’s misconduct was an attempt to
5
Section 1940.2 of the Civil Code prohibits landlords from
taking certain actions for the purpose of influencing a tenant to
vacate a dwelling. Section 1954 regulates how and when a
landlord may enter leased premises.
6
Civil Code section 51, the Unruh Civil Rights Act,
prohibits, among other things, racial discrimination in housing.
Section 1927 of the Civil Code protects a tenant’s right to quiet
enjoyment of leased premises.
7
Subdivisions (a) and (b) of section 148.5 of the Penal Code
prohibit anyone from knowingly making a false report to the
police.
5
“cover[ ] up” for Andre’s alleged misconduct, including use of
racial epithets directed toward her. Hodge prayed for general
damages in the amount of $5 million, emotional distress damages
in the amount of $500,000, damages for claimed moving expenses
and rent in the amount of $15,876, and punitive damages in an
unspecified amount.
Arzoo demurred to the second amended complaint on the
same principal ground as her earlier demurrer: all of the causes
of action were barred by the litigation privilege. In addition,
Arzoo argued Hodge failed to state sufficient facts to support each
separate cause of action or, in the alternative, that each cause of
action was uncertain, unintelligible, and ambiguous. In support
of the demurrer, Arzoo requested judicial notice of court records
from the probate proceeding and the trial court’s earlier dismissal
of Hodge’s claims against Andre.
The trial court held a hearing on Arzoo’s demurrer in
January 2022.8 Although Hodge did not timely file a written
opposition to the demurrer, the trial court allowed her to argue
the merits of the matter.
The trial court sustained the demurrer. It found that even
if Arzoo’s statements in the police report and unlawful detainer
proceeding were assumed to be false, those statements were still
protected by the litigation privilege. The court also declined to
grant Hodge leave to amend because she did not identify any new
facts that could serve as the basis for a further amended
pleading.
8
At Hodge’s election, a transcript of the hearing on
defendant’s demurrer was not included in the record.
6
II. DISCUSSION
Hodge’s complaint is indeed barred by the litigation
privilege and the demurrer was correctly sustained. Although
Hodge’s claims are at times difficult to decipher, they are by all
appearances founded on communicative conduct by Arzoo taken
in connection with a judicial proceeding or with public authorities
whose responsibility is to investigate and remedy wrongdoing—
i.e., the allegedly false police report, the service and filing of the
unlawful detainer action, and allegedly false statements made in
support thereof. As we now briefly explain, such conduct is what
the litigation privilege protects.
The litigation privilege, codified at Civil Code section 47,
subdivision (b), “‘applies to any communication (1) made in
judicial or quasi-judicial proceedings; (2) by litigants or other
participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that [has] some connection or logical relation to
the action.’ [Citation.]” (Action Apartment Assn., Inc. v. City of
Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).)
“The privilege ‘is not limited to statements made during a trial or
other proceedings, but may extend to steps taken prior thereto, or
afterwards.’” (Ibid.; accord, Rusheen v. Cohen (2006) 37 Cal.4th
1048, 1057; Hagberg v. California Federal Bank (2004) 32 Cal.4th
350, 362 (Hagberg) [“‘The privilege extends beyond statements
made in the proceedings, and includes statements made to
initiate official action’”].) The privilege has been held to extend
specifically to statements made in a police report.9 (Hagberg,
9
In 2021, an amendment to Civil Code section 47 that adds a
new subdivision took effect. As amended, the statute now
provides the litigation privilege “does not make privileged any
communication between a person and a law enforcement agency
7
supra, at 359-360 [Civil Code section 47, subdivision (b) provides
a privilege for statements made by a citizen who contacts the
police to report suspected criminal activity]; see also, e.g., Kenne
v. Stennis (2014) 230 Cal.App.4th 953, 971-972 [claim for
intentional infliction of emotional distress based on allegedly
false police reports was barred by the litigation privilege].) In
addition, the initiation and prosecution of unlawful detainer
actions have been held to be protected by the litigation privilege.
(See, e.g., Action Apartment, supra, 41 Cal.4th at 1249; Bisno v.
Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534,
1551-1553 [wrongful eviction claim barred by litigation privilege
to extent it was based on landlord’s service of three-day notice to
quit and the subsequent filing of unlawful detainer action].)
As should be apparent at this point, the lawsuit filed by
Hodge falls within the scope of the litigation privilege. The
factual foundation for all of Hodge’s causes of action are
allegations that Arzoo made a false police report and then made
false statements in a declaration supporting the unlawful
detainer action. All of Arzoo’s alleged misconduct, in other
words, was either made in a legal proceeding or in connection
with one—including steps preliminary thereto. (See, e.g,
in which the person makes a false report that another person has
committed, or is in the act of committing, a criminal act or is
engaged in an activity requiring law enforcement intervention,
knowing that the report is false, or with reckless disregard for the
truth or falsity of the report.” (Civ. Code, § 47, subd. (b)(5).)
Even assuming the current version of the statute would apply for
purposes of this appeal, there is no allegation that Arzoo knew
the report she made was false at the time she made it or
recklessly disregarded the truth or falsity of the report.
8
Hagberg, supra, 32 Cal.4th at 362 [“By analogy to cases
extending the litigation privilege to statements made outside the
courtroom, many cases have held that the official proceeding
privilege applies to a communication intended to prompt an
administrative agency charged with enforcing the law to
investigate or remedy a wrongdoing”].) In addition, all of Arzoo’s
alleged wrongs are asserted to have been undertaken to further
the objectives of ongoing or potential judicial proceedings, i.e., to
hold Hodge to account for either her own allegedly injurious
conduct or her failure to abide by the terms of the probate court’s
order approving the sale of the property to Arzoo and her son.10
The trial court also did not abuse its discretion in denying
further leave to amend the operative complaint because Hodge
did not—and still has not—identified any factual allegations she
could make in good faith that would put her claims against Arzoo
outside the protection of the litigation privilege. (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890 [“A trial
court does not abuse its discretion when it sustains a demurrer
10
There is no claim or allegation that the filing of the police
report was itself undertaken because of racial prejudice. Insofar
as the operative complaint can be read to maintain an Unruh Act
claim, there are no facts that might plausibly state a proper
Unruh Act cause of action and a demurrer to that claim was
properly sustained for that reason alone. Similarly, even if we
were to look only to the labels of Hodge’s other causes of action
rather than the factual allegations offered to support those labels
(but see Malott v. Summerland Sanitary Dist. (2020) 55
Cal.App.5th 1102, 1110 [“A pleading should be judged by the
substance of its allegations rather than its label”]), the complaint
manifestly fails to state facts that could support the asserted
legal wrongs.
9
without leave to amend if either (a) the facts and the nature of
the claims are clear and no liability exists, or (b) it is probable
from the nature of the defects and previous unsuccessful
attempts to plead that the plaintiff cannot state a claim”].)
DISPOSITION
The judgment is affirmed. Arzoo shall recover her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
10