Judge Christian R. Gullon, Case Number: 22PSCV02789, Date: 2023-08-23 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV02789, Date: 2023-08-23 Tentative Ruling

DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT AND PORTIONS OF PLAINTIFF’S COMPLAINT is GRANTED with leave to amend.

This case arises from an assault. Plaintiff YANQIU ZHANG A/K/A/ MAGGIE ZHANG alleges the following against Defendants RONALDA GERSHMAN, CATHERINE J. GERSHMAN, GERSHMAN PROPERTIES LLC (collectively, “Defendants”): In October 2022, Plaintiff was brutally attacked by an unknown assailant while working at her store, which Plaintiff (tenant) leases from Defendants (landlord). The basis of the liability asserted against Defendants is that despite previous security breaches (e.g., burglary), Defendants did not take precautionary measures, breaching various duties owed to Plaintiff through the parties’ lease.

On December 12, 2022, Plaintiff filed suit against Defendants asserting the following causes of action (COA):

1.     Negligence

2.     Breach of Written Lease Agreement

3.     Negligent Security

4.     Premises Liability

5.     Breach of Fiduciary Duty

6.     Breached of Implied Covenant of Good Faith and Fair Dealing

7.     Intentional Infliction of Emotional Distress (IIED)

8.     Negligent Infliction of Emotional Distress (NIED)

On August 23, 2023, the court granted Defendants’ motion to compel Plaintiff’s deposition.

Code of Civil Procedure (CCP) section 435 provides, in pertinent part that the court may, upon a motion made pursuant to Section 435, “(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 any order of the court.”

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code § 3294(a).) Malice, as pertinent here, 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.” (Id. § 3294(c)(1).) Thus, a claim for punitive damages claim cannot be based on conduct that is merely unreasonable, negligence, or even grossly negligent. (Kendall Yacht v. United Cal. Bank (1975) 50 Cal.App.3d 949, 958.) Rather, the conduct which permits punitive damages must include "proof of an evil motive" or "hav[e] the character of outrage frequently associated with crime." (Id; American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-51.) That said, even absent evil motive or intent, a defendant’s conscious disregard of the probable dangerous consequences of his conduct is sufficient to find punitive damages. (See Ramona Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1141 (Ramona) [“There are many California decisions imposing punitive damages irrespective of the defendant's knowledge of the victim's specific identity . . . these cases require a conscious disregard of the probable dangerous consequences.”]); see also Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 [“We concur with the Searle observation that a conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.”], emphasis added and underline added.)

In pleading punitive damages, a plaintiff must allege specific facts. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial, 6:158 (The Rutter Group 1996).) Additionally, as for corporate defendants, “An employer shall not be liable for [punitive] damages ..., 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.... With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, [or] ratification ... must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code § 3294.) The California Supreme Court interpreted the “latter statement as requiring the officer, director, or managing agent to be someone who ‘exercise[s] substantial discretionary authority over decisions that ultimately determine corporate policy.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577.)

Lastly, the adequacy of a punitive damage claim is tested through a motion to strike, as opposed to a demurrer. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163–164 [“The adequacy of the punitive damage allegations could, however, have been tested by motion to strike.”].)

Here, Defendants aver that there are insufficient allegations that Defendants acted with malice, and the court agrees. While the complaint alleges that Defendants were on notice of previous criminal activity, the criminal activity was limited to burglaries, acts of vandalism, and acts of robberies and theft related damage occurring at the premises, these are far different acts than acts of criminal assault that could physically harm Plaintiff. (See Complaint pp. 7-10.)

Therefore, absent allegations of similar criminal third-party assaults occurring on the premises prior to the subject incident, Plaintiff has inadequately pled punitive damages.

Ordinarily, litigants must bear the expense of their own attorney fees. (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 504.) The Legislature codified this American Rule when it enacted Civil Code section 1021, which states in pertinent part that “Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties.”

Here, there is no applicable statute that provides for attorney’s fee recovery. To the extent that Plaintiff may rely upon its lease agreement (Complaint, Ex. 6, p. 50 of 135 of PDF), the lease does not contain an attorney fees provision.