APPEAL from a judgment (order of dismissal) of the Superior Court for the County of Los Angeles. Malcolm Mackey, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC 393521).
The opinion of the court was delivered by: Grimes, J.
CERTIFIED FOR PUBLICATION
Two female tenants sued their landlord after the resident manager of their apartment building entered their apartment in their absence, opened their dresser drawer and removed and sniffed their underwear. The tenants alleged a single cause of action under the Unruh Civil Rights Act (Civ. Code, § 51) and other sections of the Civil Code that provide the right to be free from violence or intimidation by threat of violence based on sex and that prohibit sexual harassment. The trial court sustained the landlord's demurrer to the complaint without leave to amend and dismissed the case. We affirm the order of dismissal.
Lourdes Ramirez and her minor daughter Jessica (collectively, plaintiffs) were tenants in an apartment building owned by Weller Wong. Wong (landlord) employed Daniel Valdez as resident manager. Valdez was responsible for supervising repairs, maintenance, tenant concerns and similar matters for the landlord.
One day in June 2007, Valdez entered plaintiffs' residence (while on duty as resident manager and using a key provided by the landlord), went into the bedroom, opened plaintiffs' dresser drawer and removed and sniffed plaintiffs' underwear, all without plaintiffs' permission or knowledge. Valdez knew no one would be present at the time he entered plaintiffs' residence, because he knew Ramirez's working hours, place of employment and status as a single, working mother, and knew Jessica was of school age. Valdez also knew the layout of plaintiffs' residence and knew other tenants living in proximity to plaintiffs would be absent. Plaintiffs had no personal relationship with the landlord or Valdez.
Plaintiffs sued the landlord and Valdez, alleging the right under Civil Code section 51.7 to be free from any violence or intimidation committed against their persons or property on account of characteristics listed in the Unruh Civil Rights Act (Unruh Act), including sex and marital status. Plaintiffs' first amended complaint alleged Valdez's conduct "intimidated [them] sexually and on account of the status of [Ramirez], as a single mother," thereby denying their rights under Civil Code section 51.7, including their rights under the Unruh Act to equal accommodations "regardless of sex, marital status or the perception of plaintiffs' scent." Plaintiffs alleged the landlord was vicariously liable for Valdez's conduct and landlord had a "non-delegable duty to plaintiffs . . . not to conduct a search of plaintiffs' sexually intimate property . . . ." Lourdes Ramirez was "further intimidated on an ongoing basis," the complaint alleged, because Valdez, as a result of his employment as resident manager, knew her Social Security number, credit information, the location of Jessica's school, and other personal information. Plaintiffs sought treble damages, statutory damages of $25,000 each, and attorney fees under Civil Code section 52.*fn1
The landlord demurred, and the trial court sustained the demurrer without leave to amend. The court's written order dismissing the action against the landlord, entered two weeks after the ruling, observed the complaint did not state a cause of action for violation of Civil Code section 51.7 "in that plaintiffs have not alleged and cannot allege violence or threat of violence against plaintiffs or plaintiffs' property."
The day before entry of the court's order of dismissal, plaintiffs filed a motion for reconsideration and for leave to file a second amended complaint. The motion argued that Valdez's acts were a sexual assault on plaintiffs, who felt threatened that Valdez "would use his control over [landlord's] apartment complex to enter plaintiffs' apartment in the middle of the night to rape either or both plaintiffs." Plaintiffs stated that they had sued for sexual harassment and that the proposed second amended complaint "more fully articulated the facts, particularly those facts concerning the issue of threat of violence which the court addressed at the hearing on the demurrer . . . ."*fn2
The court denied plaintiffs' motion, observing that it could not reconsider its ruling sustaining the landlord's demurrer because an order of dismissal had already been entered, and even if plaintiffs were entitled to reconsideration of the order, they had failed to show the existence of "new or different facts, circumstances, or law . . . ." (Code Civ. Proc., § 1008, subd. (a).)
Plaintiffs filed a timely appeal from the order of dismissal.
" 'When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) When a demurrer is sustained without leave to amend, " 'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its ...