NATURE OF PROCEEDINGS: Hearing on Dever Pest Control Inc.’s Motion to Strike

 

Dever Pest Control Inc.’s Motion to Strike is sustained.

 

 

BACKGROUND

Plaintiffs Phillips Percy Ronald Tubbs filed this action against Asbury Apartments Winstar Properties, Inc., Barker Management, Inc., Sandra Washington, Asbury Apartments, L.P. (collectively “landlord defendants”), and Dever Pest Control, Inc. (“Dever”) alleging defendants failed to eradicate a bed bug infestation in Plaintiffs’ apartment.

The causes of action are: 1) Battery; 2) Negligence; 3) Intentional Infliction of Emotional Distress; 4) Statutory Breach of Warranty of Habitability (Civil Code §§1941 and 1941.1); 5) Tortious Breach of Implied Warranty of Habitability; 6) Violation of Business & Professions Code §17200 et seq.; 7) Breach of Covenant of Quiet Enjoyment; 8) Violation of Civil Code §1942.3; 9) Violation of Civil Code §1942.4; 10) Negligent Violation of Statutory Duty to Maintain Habitable Conditions; 11) Breach of Contract; 12) Private Nuisance; and13) Public Nuisance.

 

Dever filed a Motion to Strike. Plaintiffs filed an Opposition.

 

LEGAL STANDARD

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike 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. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. Id. § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id. § 437.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”). The burden is on the complainant to show the Court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

 

ANALYSIS

Dever requests that the Court strike the prayer for punitive damages.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice ….” The court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95 held, “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“Malice” is defined in Civil Code § 3294 to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294(c)(1). As the court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The court further held that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted). Such conduct has been described as “having the character of outrage frequently associated with crime.” Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 (citation omitted) (internal quotation marks omitted). Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.

A claim for punitive damages may not be based on conclusory allegations of oppression, fraud, or malice but instead must be based on factual allegations that support such a conclusion. See Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive damages because “[t]he sole basis for seeking punitive damages are … conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”).

A negligence claim generally will not support a claim for punitive damages, as negligence is an unintentional tort, and a negligent party has no desire to cause the harm that results from its conduct, differing from a party who has engaged in willful misconduct and intended to cause harm. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167. Allegations of negligence where injuries might occur but are not probable do not support punitive damages claims. McDonell v American Trust Co. (1955) 130 Cal.App.2d 296, 300; see also Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 12 (evidence of negligence insufficient to show that defendant knew or must have known of the danger).

Plaintiffs allege that on December 2021, Sandra Washington, the apartment manager, hired Dever to treat the apartment unit for bedbugs and allowed treatment to be conducted once each month for approximately four months. Compl. at ¶ 25. Plaintiffs further allege that “Due to the inadequate pest control treatment and insufficient measures taken by the Subject Apartment management, the bedbug infestation persisted in the Apartment Unit. Compl. at ¶ 26. However, that Dever’s treatment was ineffective is not sufficient to show malice.

Additionally, in their Opposition, Plaintiffs argue that Dever is an agent of landlord defendants Asbury Apartments, Winstar Properties, Inc., Baker Management, Inc., and Sandra Washinton and that they “are therefore entitled to allege claims against [Dever] to the same extent they are entitled to allege such a claim against the landlord.” Opp. at p. 6: 5-9.

“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency…. [A]n agent is liable for his or her own torts, whether the principal is liable or not, and in spite of the fact that the agent acted in accordance with the principal's directions….[However] in contrast to the vicarious liability of principals, agents are not vicariously liable for the torts of their principals.” Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 692 (citations omitted).

Plaintiffs quote Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 929 (Stoiber), “since appellant can plead a cause of action in negligence against the landlord, such a cause of action could also be pleaded against the agent defendants.” Opp. at p. 6: 11-13. However, the facts of Stoiber are inapposite. In Stoiber, the court held that “a rental agent managing the premises for the owner has a duty towards the tenant by virtue of that relationship.” Stoiber, supra, 101 Cal.App.3d at p. 930. In reaching that conclusion, the court observed that “the fact that an agent owes a duty to his principal does not preclude him from also owing a duty to third parties foreseeably injured by his conduct.” Ibid. Therefore, the managing agents were directly liable for their own tortious acts, according to general agency principles.

Here, unlike Stoiber, Dever is not a managing agent, generally responsible for the property, but an exterminator. As alleged in the Complaint, Dever was only directed to treat the bedbug infestation in December 2021. Therefore, Dever is liable for a narrower range of allegedly malicious acts than the landlord defendants. Accordingly, the Court need not consider whether the landlord defendants’ other alleged conduct was malicious. Because Dever’s failure to exterminate the bedbugs does not constitute a malicious act, Dever’s motion to strike is granted with leave to amend.

 

CONCLUSION

Dever Pest Control Inc.’s Motion to Strike is granted with twenty days leave to amend.