Judge: Armen Tamzarian, Case: 23STCV25807, Date: 2024-01-31 Tentative Ruling

Case Number: 23STCV25807    Hearing Date: January 31, 2024    Dept: 52

Defendant Loretta Westlund’s Motion to Strike Portions of Complaint

            Defendant Loretta Westlund, as an individual and as trustee of the Westlund Family Trust, moves to strike 18 portions of the complaint by plaintiffs Eddy Haemker and Debra Haemker. 

            Defendant moves to strike portions of the complaint related to punitive damages.  Courts may strike a “demand for judgment requesting relief not supported by the allegations of the complaint.”  (Code Civ. Proc., § 431.10, subd. (b)(3).)  Courts may strike allegations regarding punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) 

Punitive Damages for Breach of Implied Covenant of Quiet Enjoyment

One of the 18 portions of the complaint defendant moves to strike concerns punitive damages for the fourth cause of action for breach of implied covenant of quiet enjoyment.  (Comp., ¶ 73.)  Plaintiffs do not allege sufficient facts to recover punitive damages for that cause of action.  “[W]hen the landlord has breached the implied covenant of quiet enjoyment, but the tenant remains in possession of the premises, the tenant’s remedy is to ‘sue for breach of contract damages.’ ”  (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 902.)  Without eviction, there can be “no tort liability … that would entitle [a plaintiff] to punitive damages.”  (Ibid.)

Plaintiffs do not allege they were evicted or have vacated the subject premises.  They instead allege they “have resided at the Property since approximately September 2013” (¶ 13) and that defendant “sought to evict Plaintiffs for retaliatory reasons” (¶ 41).  Without eviction, plaintiffs cannot recover punitive damages for breach of the implied covenant of quiet enjoyment. 

Remaining Portions

Plaintiffs allege sufficient facts for punitive damages with respect to the other 17 portions defendant moves to strike.  They allege facts constituting malice.  “ ‘Malice’ means 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.”  (Civ. Code, § 3294(c)(1).)  The Court of Appeal has found allegations of retaliation can establish malice.  (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 455; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) 

Plaintiffs allege defendant intentionally sought to evict them because they complained about flooding and requested compensation.  (¶ 28.)  They allege defendant claimed she would evict them for having a cat, which they had for over two years (¶ 30), “as pretext for terminating their tenancy … which was actually done to retaliate against them for complaining about the condition of the Property and requesting repairs” (¶ 31).  They further allege defendant increased the rent by an amount prohibited under the Tenant Protection Act “to push Plaintiffs out of the Property.”  (¶ 34.)  These factual allegations can reasonably be characterized as conduct intended to harm plaintiffs or despicable conduct carried on with a willful and conscious disregard of plaintiffs’ rights.

Disposition

Defendant Loretta Westlund’s motion to strike portions of plaintiffs Eddy Haemker and Debra Haemker’s complaint is granted in part with 20 days’ leave to amend. 

The court hereby strikes only the following portion of the complaint, with 20 days’ leave to amend: “Defendant’s conduct has been fraudulent, grossly negligent, malicious, and oppressive, thereby entitling Plaintiffs to punitive damages in an amount to be determined at trial.”  (Comp., ¶ 73, page 11, lines 19-20.)