Judge: Curtis A. Kin, Case: 22STCV21663, Date: 2022-12-15 Tentative Ruling

Case Number: 22STCV21663    Hearing Date: December 15, 2022    Dept: 72

MOTION TO STRIKE

Date:         12/15/22 (8:30 AM)               

Case:         Pak, et al. v. 620 S. Gramercy Place Homeowners Assn. (22STCV21663)

TENTATIVE RULING:

Defendant 620 S. Gramercy Place Homeowners’ Association’s Motion to Strike Portions of Verified First Amended Complaint is GRANTED IN PART.

Defendant 620 S. Gramercy Place Homeowners’ Association moves to strike the prayer for punitive damages on the ground that plaintiffs do not sufficiently plead facts showing malice, oppression, or fraud.

As a preliminary matter, punitive damages may be available in actions “for the breach of an obligation not arising from contract.” (Civ. Code § 3294(a).) It is undisputed that the first cause of action for Breach of CC&Rs and the second cause of action for Enforcement of Equitable Servitude are contract-based causes of action. With respect to the fifth cause of action for Declaratory Relief, damages are not available. (See CCP § 1060 [declaration of rights and duties].) Accordingly, the only causes of action for which punitive damages may be available are the third cause of action for Private Nuisance and the fourth cause of action for Breach of Fiduciary Duties.

Plaintiffs Dong Kwon Pak and Mi Sook Pak allege that, starting in 2019, they complained to defendant on multiple occasions about noise from the gym directly below their condominium. (FAC ¶¶ 11, 13, 14.) Defendant knew of the disruption that the gym noise posed to plaintiffs from the following: (1) a gym noise test conducted by a maintenance staffer; (2) the admission from the on-site manager that the prior owner of plaintiffs’ condominium moved due to the gym noise; and (3) two acoustical tests conducted by a third-party at the request of plaintiff. (FAC ¶¶ 10, 12, 18, 19, 31, 32 & Exs. 6, 7.)

Defendant maintains that it installed gym mats, reduced the gym hours, and purchased treadmills and ellipticals to replace weightlifting machines to address plaintiffs’ complaints. (FAC ¶¶ 15, 26, 32(C).) Defendant maintains that it sufficiently addressed plaintiff’s complaints. (FAC ¶ 24.) However, plaintiffs allege that defendant did not address the sources of noise, including not eliminating stacked weight machines and not changing the flooring where free weights can be dropped. (FAC ¶¶ 18(A), 18(B), 28, 32(D).)

While a reasonable juror may find that defendant made all reasonably necessary changes to address the gym noise, a reasonable juror could alternatively find that defendant consciously disregarded plaintiffs’ rights to be free from substantial and unreasonable gym noise by failing to sufficiently address the sources of the noise. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 263 [for private nuisance, interference with protected interest must be substantial and unreasonable].) Plaintiffs’ allegations cited above could be found to rise to the level of malice or oppression. (Civ. Code § 3294(a); 3294(c)(1) [“malice” defined as “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”]; 3294(c)(2) [“oppression” defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights”].)

The motion to strike with respect to punitive damages is DENIED.

Defendant also seeks to strike the portion of paragraph 31 of the First Amended Complaint that states: “On April 11, 2022, mediation took place wherein the HOA had agreed to allow Plaintiffs to conduct additional acoustical testing.” “No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible….” (Evid. Code § 1119(a).) Plaintiffs stipulate to the striking of the above-cited portion of paragraph 31. (Opp. at 3:23-25.)

The motion to strike with respect to the portion of paragraph 31 cited by defendant is GRANTED. The following portion of paragraph 31 is STRICKEN: “On April 11, 2022, mediation took place wherein the HOA had agreed to allow Plaintiffs to conduct additional acoustical testing.”