Judge Bruce G. Iwasaki, Case Number: 23STCV19807, Date: 2023-11-28 Tentative Ruling

Tentative Ruling: The Demurrer to the Complaint is sustained in its entirety. Plaintiffs shall have leave to amend except as to the tenth cause of action. The motion to strike is granted with leave to amend.

On August 18, 2023, Plaintiffs Byron Guzman and Nakeela Dillard (Plaintiffs) filed a Complaint for (1.) Violation of Civil Code §1942.4, (2.) Tortious Breach of the Warranty Of Habitability, (3.) Private Nuisance, (4.) Business and Professions Code Section 17200, (5.) Negligence., (6.) Breach of Covenant of Quiet Enjoyment, (7.) Intentional Infliction of Emotional Distress, (8.) Violation of Consumer Legal Remedies Act, (9.) Violation of Los Angeles Tenant Anti-Harassment Ordinance, (10.) False Advertising in Violation of Business and Professions Code § 17500, et seq., (11.) Negligent Hiring, Retention, and Supervision, and (12.) Intentional Influence to Vacate. Plaintiffs allege that Defendants caused uninhabitable conditions in their apartment.

On October 13, 2023, Defendant FPI Management, Inc. (FPI) demurred to the first, second, third, fourth, sixth, seventh, eighth, ninth, tenth, eleventh and twelfth causes of action in the Complaint. Defendant FPI also moved to strike the request for punitive damages, from the Complaint. Plaintiffs opposed the demurrer and the motion to strike.

The Court sustains the demurrer in its entirety. The motion to strike is granted in part and is moot as to the remaining part.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Defendant FPI demurs to the Complaint on the grounds that it fails to plead facts sufficient to state a cause of action against it.

As a preliminary matter, the Complaint fails to allege any specific facts as to Defendant FPI. In fact, the only specific citation to FPI is in the Caption of the Complaint and Paragraph 3 where Plaintiffs allege that Defendant FPI and all the other ten other Defendants – which includes both corporations and individuals – would be referred to “Defendants” in the Complaint. This way of pleading renders the allegations vague and uncertain; it is entirely unclear what conduct is alleged as to specific parties and how they are liable for the other’s conduct. In a sense, Defendant FPI has been deprived of an ability to mount a defense against specific allegations of misconduct.

This pleading defect alone is ground to sustain the demurrer to the Complaint. The Court nevertheless addresses the individual causes of action.

Defendant FPI argues this claim has not been pled with sufficient particularity as to all of the elements.

“(a) A landlord of a dwelling may not demand rent, collect rent, issue a notice of a rent increase, or issue a three-day notice to pay rent or quit pursuant to subdivision (2) of Section 1161 of the Code of Civil Procedure, if all of the following conditions exist prior to the landlord’s demand or notice:

(1) The dwelling substantially lacks any of the affirmative standard characteristics listed in Section 1941.1 or violates Section 17920.10 of the Health and Safety Code, or is deemed and declared substandard as set forth in Section 17920.3 of the Health and Safety Code because conditions listed in that section exist to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants of the dwelling.

(2) A public officer or employee who is responsible for the enforcement of any housing law, after inspecting the premises, has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions.

(3) The conditions have existed and have not been abated 35 days beyond the date of service of the notice specified in paragraph (2) and the delay is without good cause. For purposes of this subdivision, service shall be complete at the time of deposit in the United States mail.

(4) The conditions were not caused by an act or omission of the tenant or lessee in violation of Section 1929 or 1941.2.”

Stated more succinctly, Civil Code section1942.4 states that a landlord of a dwelling may not demand rent if (1) the dwelling substantially lacks specific affirmative characteristics, (2) a public officer has notified the landlord in writing of an obligation to abate the nuisance or repair the substandard conditions, (3) the conditions have existed and not been abated 35 days beyond the date of the service of the notice from the public officer, and (4) the conditions were not caused by an act or omission of the tenant or lessee.

Statutory causes of action, such as this one cause of action, must be pleaded with particularity. (Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 439 [“the general rule [is] that statutory causes of action must be pleaded with particularity”].)

Here, Plaintiffs have not adequately pled the requirements of Civil Code section 1942.4. With respect to the requirement that a public officer has notified the landlord or the landlord’s agent in writing of his or her obligations to abate the nuisance or repair the substandard conditions subsection, Plaintiffs allege “on information and belief” the Property has been subject to multiple inspections by the Los Angeles Housing and Community Investment Department “Housing Department” that resulted in citations against the Defendant for multiple violations. (Compl., ¶17.) Moreover, with respect to the third requirement that Plaintiffs plead conditions have existed and have not been abated 35 days beyond the date of service of the notice specified, Plaintiffs again alleges “on information and belief” that “Defendants failed to abate or repair the conditions identified in one or more of the Notice and Orders to Comply within 35 days of receiving the notice…” (Compl., ¶ 87).

These allegations do not satisfy Plaintiffs’ pleading burden. First, allegations made on information and belief are insufficient if asserted without alleging the information that led Plaintiffs to believe the allegations are true. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-1159 [“A ‘ “[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true” ’].) Here, Plaintiffs only allege the conclusory statutory elements without any specific factual grounds for the belief and further fail to include any specific allegations such as the date noticed in the citations that start the 35 days clock.

Instead, seemingly conceding this insufficiency in opposition, Plaintiffs “maintain and pleads the delayed discovery rule.” (Opp. 3:4.) Plaintiff then cites Norgart v. Upjohn Co. (1999) 21 Cal.4th 383 for the proposition that “[T]he plaintiff discovers the cause of action when he at least suspects a factual basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof… He has reason to discover the cause of action when he has reason at least to suspect a factual basis for its elements. He has reason to suspect when he has ‘notice or information of circumstances to put a reasonable person on inquiry’; he need not know the ‘specific “facts” necessary to establish’ the cause of action; rather, he may seek to learn such facts through the ‘process contemplated by pretrial discovery…’” (Id. at 397-398.)

Plaintiffs misunderstand the application of the delayed discovery doctrine as it has no application in determining the sufficiency of a pleading outside the context of pleading around a statute of limitations affirmative defense. The doctrine does not relax the general pleading standard.

The demurrer to the first cause of action is well taken. Plaintiffs have failed to plead this cause of action with adequate particularity. The demurrer is sustained.

Defendant FPI argues that the second cause of action fails because Plaintiffs have failed to alleged the existence of a contract between themselves and FPI.

There is “a common law implied warranty of habitability in residential leases in California . . ..” (Fairchild v. Park (2001) 90 Cal.App.4th 919, 924; Green v. Superior Court (1974) 10 Cal.3d 616, 619.)

In the present case, Plaintiffs “did assert a contractual cause of action: breach of the implied warranty of habitability.” (Allstate Ins. Co. v. Loo (1996) 46 Cal.App.4th 1794, 1798.) Specifically, the Complaint alleges that Defendants have breached the warranty of habitability implied in all rental contracts under California law. (Compl., ¶ 98.)

However, Plaintiffs have failed to attach a copy of the contract to the Complaint and have also failed to state any material terms of the alleged contract that demonstrate the existence of a contract between FPI and Plaintiffs. As such, Plaintiffs cannot allege Defendant FPI is bound by any implied covenant arising from the parties’ contract.

In opposition, Plaintiffs again rely on the inapplicable delayed discovery rule and argue they intend to obtain a copy of the Lease at the time of discovery.

Plaintiffs have failed to state a claim against FPI. The demurrer to the second cause of action is sustained on this ground.

Defendant FPI argues the third cause of action for nuisance fails to state a cause of action against FPI because the claim is based on the same facts as and is duplicative of the negligence cause of action.

The elements of private nuisance claims are that the alleged nuisance activities cause (1) an interference with the plaintiff’s use and enjoyment of their property, (2) that the invasion must be substantial such that actual damages occur, and (3) that the interference must be unreasonable. (See, e.g., Wilson v. Southern California Edison Co. (2018) 21 Cal. App. 5th 786, 802-803.)

The nuisance cause of action alleges the “Property suffered conditions including but not limited to: improper weatherproofing, holes on the ceiling, peeling paint, cockroach infestation, inoperable heater/air conditioner, inconsistent hot water supply, inoperable smoke alarms, mold contamination, leaking pipes, dysfunctional plumbing systems, deficient fire alarms, broken elevators, unsafe parking lot, inadequate security.” (Compl., ¶ 103.) The nuisance cause of action attributes the creation of the uninhabitable conditions to “Defendants’ failure to provide repairs, their refusal to comply with complaints and/or government citations, and their lack of urgency in providing repairs.” (Compl., ¶ 105.) The negligence cause of action contains identical allegations. (Compl., ¶¶ 129; see also 127.)

In opposition, Plaintiffs argue that negligence cause of action is based more broadly on Defendant’s failure to meet their duty to exercise reasonable care in the ownership, management, and control of the Property.

In El Escorial Owners’ Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, the court held that a nuisance claim for toxic mold contamination could not exist separate from the plaintiff's negligence claim. (Id. at p. 1348.) The court explained that the definition of nuisance is “so broad that it could be “ ‘applied indiscriminately to everything.” ’ ” (Id. at p. 1348 [quoting City of San Diego v. U.S. Gypsum Co. (1995) 30 Cal.App.4th 575, 585].) The court explained that permitting traditional torts to be litigated as nuisance claims “would allow nuisance to “ ‘become a monster that would devour in one gulp the entire law of tort.” ’ ” (El Escorial, at p. 1348.)

In El Escorial, the “factual allegations incorporated into the nuisance cause of action involved negligence and defective workmanship.” The court concluded that, “[w]here 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, supra, 154 Cal.App.4th at p. 1349; see Melton v. Boustred (2010) 183 Cal.App.4th 521, 542–543 [nuisance claim failed with negligence claim where the nuisance claim relied on the same facts].)

The importance of preventing the broad label of “nuisance” from swallowing the elements of a negligence claim is particularly pronounced here, where, in contrast to a negligence claim, liability for nuisance does not depend on the defendant's ability to control the property creating the nuisance. (See Melton, supra, 183 Cal.App.4th at p. 542.) That is, nuisance liability “does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.)

Plaintiffs’ opposition does not cite any allegations from the Complaint which supports their argument that the nuisance claim is based on different facts from the negligence claim. Rather, Plaintiffs argue that the negligence and private nuisance causes of action rely on some of the same facts about lack of due care; however, the negligence cause of action is premised on additional separate facts. That is, Plaintiffs concede, in effect, that the nuisance claim is duplicative of the negligence claim.

Defendant FPI demurs to this cause of action on the grounds that Plaintiffs have failed to allege the existence of a contract between the parties.

Under California law, every lease includes an implied covenant of quiet possession and enjoyment. (Civ. Code, § 1927.) This covenant is breached upon actual or constructive eviction of the tenant. (McAlester v. Landers (1886) 70 Cal. 79, 82.) “Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1299; Kulawitz v. Pacific Woodenware Paper Co. (1944) 25 Cal.2d 664, 670; Pierce v. Nash (1954) 126 Cal.App.2d 606, 612–613.)

“ ‘It has long been the rule that in the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment. [Citations.] Initially, the covenant related solely to the right of possession and only protected the lessee against any act of molestation committed by the landlord or anyone claiming under him, or by someone with paramount title, which directly affected the tenant's use and possession of the leased premises; the covenant was construed to protect the lessee against physical interference only. [Citation.] In recent years, the covenant of quiet enjoyment has been expanded, and in this state, for example, it insulates the tenant against any act or omission on the part of the landlord, or anyone claiming under him, which interferes with a tenant’s right to use and enjoy the premises for the purposes contemplated by the tenancy. [Citations.]’ [Citations.]” (Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 291–292.)

Simply put, “ ‘[A]ny disturbance of the tenant's possession by the lessor or at his procurement ... which has the effect of depriving the tenant of the beneficial enjoyment of the premises, amounts to a constructive eviction, provided the tenant vacates the premises within a reasonable time. [Citations.]’ [Citations]. The Supreme Court stated in Standard Live Stock Co. v. Pentz (1928) 204 Cal. 618, 625, 269 P. 645 ... that ‘the covenant of quiet possession in a lease is not breached until there has been an actual or constructive eviction.’ Nevertheless, some authorities recognize that a tenant may sue for breach of the covenant while remaining in possession. [Citations.]” (Nativi, supra, at p. 292, 167 Cal.Rptr.3d 173.)

The only allegation asserting the existence of a lease between any parties in this case is as follows: “Plaintiffs have resided in the home since in or around 2017 pursuant to a lease agreement.” (Complaint, ¶55.) There is no indication of who entered into the written lease or what the terms of that lease was. Thus, the demurrer to this cause of action is sustained for the same reason as the second cause of action.

Defendant FPI contends the intentional infliction of emotional distress claim must fail because it is devoid of any factual allegations about outrageous conduct or the alleged severe emotional distress.

The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct (2) directed to the plaintiff by defendant, (3) with the intention of (4) causing, or reckless disregard of the probability of causing, (5) severe or extreme emotional distress. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903.) For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal. App. 4th 120, 130.)

The Complaint alleges “Defendant landlord’s practice/conduct of ignoring these conditions and/or otherwise failing to make any repairs, under the circumstances, is extreme and outrageous.” (Compl., ¶ 143.)

The demurrer is well taken. As previously noted, the Complaint fails to attribute any specific conduct to FPI and fails to allege any specific extreme emotional distress that resulted from Defendant FPI’s actions. The demurrer to the seventh cause of action is sustained.

Eighth Cause of Action for Violation of California Consumer Legal Remedies Act (CLRA), California Civil Code section 1750, et. seq.:

Defendants argue this cause of action fail because Plaintiffs do not allege the lease of a “good.”

The CLRA prohibits “unfair methods of competition and unfair or deceptive acts or practices...undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer...” (Civ. Code, § 1770, subd. (a) [emphasis added].) Under the CLRA, “goods” are defined as “tangible chattels bought or leased for use primarily for personal, family, or household purposes...” (Civ. Code, § 1761, subd. (a).)

The Complaint alleges a violation of Civil Code section 1770 on the grounds that Defendants leased the Property – a good under Civil Code section 1761 – and represented the good was fit for “for human occupation to the public, and to the Plaintiffs.” (Compl., ¶¶ 154-156.)

Here, the lease was for real property, not chattel. The Opposition fails to address the argument made on demurrer; Plaintiffs have failed to state a claim. The demurrer to the CLRA claim is sustained.

Ninth Cause of Action for Violation of Los Angeles Municipal Code section 45.33:

Los Angeles Municipal Code (LAMC) section 45.33 is a tenant harassment statute that prohibits landlords from knowingly and willfully committing certain conduct against tenants that serves no lawful purpose. Additionally, LAMC section 45.35, subdivision (F), states that “A civil proceeding or small claims case initiated under this article alleging any violation of Section 45.33 may be commenced only after the tenant provides written notice to the landlord of the alleged violation, and the landlord fails to remedy the repair or maintenance issue within a reasonable period of time.”

First, Defendant FPI argue that the Complaint fails to allege compliance with the written notice requirement of LAMC Section 45.35, subdivision (F). In opposition, Plaintiffs do not identify any specific allegation in the Complaint that satisfies this element but instead argues, in opposition, that “Plaintiffs have cried, begged, and complained to the Defendants for years now about the issues with the property and they have been ignored.” (Opp. 9:14-15.) Contrary to Plaintiffs assertion, this argument in the Opposition does not satisfy the requirement of the local ordinance.

Further, the allegations that purportedly alleges violations of some of the sixteen stated actions listed under LAMC section 45.33 are conclusory and fail to specify what specific conduct by FPI violated what specific provision of the law.

Defendant FPI demurs on the grounds that Plaintiffs have not alleged sufficient facts to apprise FPI of the factual basis for Plaintiffs’ negligent hiring claim.

The Complaint purports to allege negligent misconduct by Defendant Lea Kim, individual, and Shandie Gairson, another individual. (Complaint ¶¶ 183-188). The Complaint alleges that Kim refused to turn over video surveillance footage of an accident in the Property’s parking lot and failed to provide “assistance” to tenant requesting such help for burglaries that occurred in the parking lot. (Compl., ¶¶ 184-185.) The Complaint alleges that “Defendant Lea Kim was hired to be the manager at said Property by the Corporation Defendant.” (Compl., ¶ 183).

On demurrer, Defendant FPI argues that Plaintiffs have failed to adequately allege that it is the employer of Lea; nor do any of these allegations amount to negligence; specifically, Plaintiffs fail to set out how FPI allegedly knew hiring an individual employee “created a particular risk or hazard.” (Dem. 14:25-26.)

In opposition, Plaintiffs contend “[d]iscovery will ascertain the truth, the whole truth, and nothing but the truth. However, for now, paragraphs 182 through 190 clearly set out the factual analysis, in addition to the facts incorporated by reference.” (Opp. 9:21-23.)

The allegations are insufficient to show that FPI “knew or should have known that hiring” Kim “created a particular risk or hazard” or that any particular “harm materialized” as result of Kim’s employment. The demurrer to the eleventh cause of action is sustained.

Twelfth Cause of Action for Intentional Influence to Vacate (Violation of Civil Code section 1940.2):

Defendant FPI argues that – like Plaintiffs’ other statutory claims – Plaintiffs have not alleged this claim with sufficient particularity.

Section 1940.2 of the Civil Code prohibits landlords from taking certain actions for the purpose of influencing a tenant to vacate a dwelling. Civil Code section 940.2, subdivision (a), states: “It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling: (1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code. (2) Engage in conduct that violates Section 518 of the Penal Code. (3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief. (4) Commit a significant and intentional violation of Section 1954. (5) Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant. This paragraph does not require a tenant to be actually or constructively evicted in order to obtain relief.”

The Complaint alleges that “Defendants” refused to provide repairs with the intention of rendering tenancy in the Property oppressive and burdensome. (Compl., ¶ 105.) Further, Defendants intimidated Plaintiff Guzman and prevented her from entering the leasing office, forcing her to put her rental check in a different box. (Compl., ¶ 196.)

The demurrer is well taken. Plaintiffs’ allegations do not satisfy the requirement of Section 1940.2 as they do not constitute the “[u]se, or [a] threat[] to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person.” (Civ. Code, § 1940.2.) The demurrer is sustained.

Fourth Cause of Action for Violation of Business and Professions Code section 17200 and Tenth Cause of Action for Violation of Business and Professions Code section 17500:

With respect to the fourth cause of action, the UCL does not proscribe specific activities, but in relevant part broadly prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) “Because . . . section 17200 is written in the disjunctive, it establishes three varieties of unfair competition—acts or practices which are unlawful, or unfair, or fraudulent. In other words, a practice is prohibited as ‘unfair’ or ‘deceptive’ even if not ‘unlawful’ and vice versa.” (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1184 [citing Cel–Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180].) The UCL incorporates by reference the False Advertising Act. (See Bus. & Prof. Code, § 17200 [UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.”].)

“[W]hen the underlying legal claim fails, so too will a derivative UCL claim.” (AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 950.) Here, Plaintiff’s Section 17200 claim fails as dependent on and derivative of Plaintiffs’ defective remaining claims.

There are no allegations about any purported actor on the part of any of the Defendants. Almost all of Plaintiffs’ allegations in these causes of action are made against “Defendants” as a collective – even though seven of the eleven defendants are business entities who were involved with the Property in some way at different times.

The Complaint alleges that “[t]hroughout Defendants’ ownership of the Property, Defendants have advertised the Property for rent….” (Compl., ¶ 175.) The Complaint continues “Defendants have engaged in the advertising herein alleged...” (Compl., ¶ 177.)

As argued by Defendant FPI, Plaintiffs seek to bring each of these causes of action against multiple, separate business entity defendants and four individuals, but fail to distinguish the grounds of those causes of action as against any specific defendants. As a result of the lack of specificity in pleading this statutory claim and the failure of the underlying derivative claims, Plaintiffs have failed to state a claim under Business and Professions Code sections 17200 and 17500. The demurrer to these two causes of action are sustained – as to the fourth cause of action with leave to amend, but as to the tenth cause of action without leave to amend.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.”¿(Code Civ. Proc., § 436.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

Defendant FPI moves to strike punitive damages, request for attorneys’ fees, civil penalties pursuant to violation of Los Angeles Municipal Code section 45.35, special damages pursuant to a violation of Civil Code section 1942.4(b)(1), and restitution of rent monies pursuant to Business and Professions Code Section 17200 in the Complaint.

As the Court has sustained the demurer to all but the fifth cause of action for negligence, the motion to strike is largely moot. Plaintiffs have not stated a cause of action under Civil Code section 1942.4, Civil Code section 1780, subdivision (e), Los Angeles Municipal Code Section 45.35, Civil Code section 1942.5 or Business and Professions Code section 17200. Thus, Plaintiffs have not stated a statutory basis for the recovery of attorneys’ fees, civil penalties, special damages or restitution.

Moreover, with respect to the punitive damages request, Plaintiffs have further failed to plead the request for these damages with the heightened particularity required for pleading punitive damages against FPI, a corporate employer.

Punitive damages are recoverable where the defendant has been guilty of oppression, fraud, or malice, express or implied. (Civ. Code, § 3294.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation our 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.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Specific intent to injure is not necessary for a showing of malice—it is sufficient that the defendant’s conduct was so “wanton or so reckless as to evince malice or conscious disregard of others’ rights.” (McConnell v. Quinn (1925) 71 Cal. App. 671, 682.)

A request for punitive damages that is not supported with specific allegations of oppression, fraud, or malice is subject to a motion to strike. Conclusory allegations that defendants acted “willfully,” “maliciously,” or with “oppression, fraud, or malice” are not, without more, sufficient to give rise to a claim for punitive damages, but such language is permissible where the complaint contains sufficient factual support for the conclusions. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

Further, Civil Code section 3294, subdivision (b), provides as follows: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

The Complaint is devoid of any allegation showing that Defendant FPI had advance knowledge, employed any individual with a conscious disregard of the rights or safety of others or authorized or ratified any wrongful conduct. Accordingly, the motion to strike is granted as to the request for punitive damages.

The demurrer is sustained in its entirety. Plaintiffs shall have leave to amend except as to the tenth cause of action. The motion to strike is granted with leave to amend. An amended complaint shall be filed and served by December 28, 2023.