Judge: Armen Tamzarian, Case: 23STCV29224, Date: 2024-08-29 Tentative Ruling

Case Number: 23STCV29224    Hearing Date: August 29, 2024    Dept: 52

Tentative Ruling:

            Defendants Crystal Property Management, Inc. and Hollypark Apartments GP’s Demurrer and Motion to Strike Portions of Complaint

Demurrer

Defendant Crystal Property Management, Inc. (Crystal) demurs to the third and fourth causes of action alleged by plaintiffs Jeanne Poole, Jayden Robinson, Jaylen Owens, and Logan Johnson.  Defendant Hollypark Apartments GP (Hollypark) demurs to all six causes of action. 

Defendant Hollypark

            Plaintiffs do not allege sufficient facts to constitute any cause of action against Hollypark.  The complaint is also uncertain as to Hollypark.  The complaint mentions Hollypark only once: in the caption identifying the parties.  The body of the complaint refers to “FPI Management Inc.” (Comp., ¶ 6), which is not a party.  The complaint makes no factual allegations about Hollypark.  Plaintiffs’ opposition does not address this argument.

3rd Cause of Action for Nuisance

            Plaintiffs do not allege sufficient facts for this cause of action against Crystal.  “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.”  (El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)  “ ‘A nuisance in many, if not in most, instances, especially with respect to buildings or premises, presupposes negligence.’ ”  (Ibid.)  A plaintiff does not adequately allege nuisance when it is “merely a clone of” a claim for negligence “using a different label.”  (Ibid.)

            Plaintiffs’ third cause of action for nuisance arises from the same factual allegations as the claim for negligence.  Plaintiffs allege defendants own or manage the subject property and did not correct dangerous conditions there.  (Comp., ¶¶ 40-46, 56-58.) 

Plaintiffs’ opposition argues this cause of action is not duplicative because it “is based on an intentional tort theory.”  (Opp., p. 4.)  But the only intentional conduct plaintiffs allege for the nuisance cause of action is that “Despite being required by law to abate the nuisance, defendants willfully failed to correct conditions rendering the premises a nuisance.”  (Comp., ¶ 43.)  Failing to do something defendants were required to do is a quintessential form of negligence.  Adding the word “willfully” does not change that.

4th Cause of Action for Intentional Infliction of Emotional Distress

Plaintiffs do not allege sufficient facts for this cause of action against Crystal.  Plaintiffs must allege “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.”  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) 

Plaintiffs do not adequately allege the second element.  “Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress.”  (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)  “The complaint must plead specific facts that establish severe emotional distress resulting from defendant’s conduct.”  (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal.App.4th 1093, 1114.) 

The complaint alleges, “[P]laintiffs suffered and continue to suffer severe mental and emotional distress.  This emotional distress has caused plaintiffs to sustain general and special damages in amounts to be proven at trial.”  (Comp., ¶ 53.)  These conclusory allegations do not satisfy plaintiffs’ burden of pleading facts establishing their emotional distress was substantial or enduring.

Motion to Strike

            Defendants Crystal Property Management, Inc. and Hollypark Apartments GP move to strike eight portions of plaintiffs’ complaint. 

Attorney Fees

            Defendants’ notice of motion states they move to strike two portions of the complaint concerning recovery of attorney fees.  (Notice, p. 2, Nos. 1, 8.)  The memorandum of points and authorities, however, only briefly mentions the issue of attorney fees in the introduction.  (Motion, p. 4.)  “The court may construe the absence of a memorandum as an admission that the motion … is not meritorious and cause for its denial.”  (Cal. Rules of Court, rule 3.1113(a).)  Assuming defendants did not waive their grounds for striking these portions of the complaint, the complaint does allege a contractual basis for attorney fees.  It alleges, “Pursuant to the written lease the plaintiffs are entitled to recover their reasonable attorney’s fees and costs of suit in this action.”  (Comp., ¶ 27.)  Plaintiffs’ allegation that they “are not in possession of this lease agreement” (id., ¶ 12) does not preclude them from alleging its terms.  On a motion to strike, the court must assume the truth of plaintiffs’ allegation that the lease includes a provision for attorney fees.

Punitive Damages

Plaintiffs do not allege sufficient facts to recover punitive damages from defendants, who are both business entities.  For an entity to be liable for punitive damages, “the advance knowledge and conscious disregard [of an employee’s unfitness], authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”  (Civ. Code, § 3294(b).)  “[M]anaging agents are employees who ‘exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ ”  (Mazik v. Geico General Ins. Co. (2019) 35 Cal.App.5th 455, 464.)

Plaintiffs do not adequately allege any officer, director, or managing agent of either defendant committed, authorized, or ratified an act of oppression, fraud, or malice.  They allege “Jake Cejka was a property manager at the subject property” and “was involved in all aspects of the day-to-day operations” (Comp., ¶ 10), but they do not allege he was an officer, director, or managing agent of either defendant.  Moreover, they make only allegations about his general role at the property—not factual allegations about what he personally did.  Thus, assuming Cejka is a managing agent, plaintiffs do not allege facts showing he committed acts of oppression, fraud, or malice.

Disposition

Defendant Crystal Property Management, Inc.’s demurrer to plaintiffs’ third and fourth causes of action is sustained with 20 days’ leave to amend.  Defendant Hollypark Apartments GP’s demurrer to the entire complaint is sustained with 20 days’ leave to amend.

Defendants Crystal Property Management, Inc. and Hollypark Apartments GP’s motion to strike is granted in part as to portions of the complaint regarding punitive damages.  The court hereby strikes the following portions of the complaint with 20 days’ leave to amend: the entirety of paragraphs 38, 48, 52, 54; the following portion of paragraph 51: “The conduct of defendants as herein alleged was egregious, extreme and outrageous and done with reckless disregard of the likelihood to inflict severe emotional distress” (page 9, lines 1-2); and paragraph 3 of the prayer.