Judge: Cynthia A Freeland, Case: 37-2023-00010448-CU-WE-NC, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 24, 2023

08/25/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Wrongful Eviction Motion Hearing (Civil) 37-2023-00010448-CU-WE-NC SILVA VS. VIRGINIA KOFLER TRUSTEE OF THE VIRGINIA L KOFLER 2017 FAMILY TRUST DATED NOVEMBER 24, 2017 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/24/2023

Defendants Virginia Kofler and Virginia Kofler, Trustee of the Virginia L. Kofler 2017 Family Trust Dated November 24, 2017 (the 'Trust' and, together with Ms. Kofler, 'Defendants')'s motion to strike portions of Plaintiffs Lauren Silva and Gregorio Ngiraiwet (collectively, 'Plaintiffs')'s Complaint is granted.

California Code of Civil Procedure ('CCP') § 436 provides that '[t]he 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.' Cal. Code Civ. P. §§ 436(a)-(b). In ruling on a motion to strike, courts do not read allegations in isolation.

See Perkins v. Sup. Ct. (1981) 117 Cal. App. 3d 1, 6. 'In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.' Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. The grounds for a motion to strike must appear on the face of the challenged pleading or any matter of which the court is required to take judicial notice. See Cal. Code Civ. P. § 437(a).

Defendants move to strike from the Complaint the allegations set forth in ¶¶ 16, 19, 32, and 37. Initially, to the extent Defendants seek to strike ¶ 16's references to counsels' communications, Defendants' filing of an unlawful detainer action against Plaintiffs, and Defendants' filing of a request for entry of default against Plaintiffs in the unlawful detainer action under CCP § 425.16(e), the motion is denied as untimely. A special motion to strike 'may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.' Cal. Code Civ. P. § 425.16(f). Plaintiffs commenced this action by filing a Complaint against Defendants on March 13, 2023. See ROA No. 1.

Sixty days thereafter was May 12, 2023. Defendants did not file and serve this motion until May 24, 2023 – 72 days after the filing of the Complaint. Moreover, Defendants have provided no persuasive argument for why the court should exercise its discretion and construe this motion as a special motion to strike beyond the statutory deadline. Accordingly, to the extent Defendants are moving under CPC § 425.16, the motion is denied.

Additionally, to the extent Defendants move to strike from ¶ 16 the language concerning counsels' settlement discussions under California Evidence Code § 1152, the motion is denied. The Complaint alleges that, at some point, Plaintiffs' counsel reached out to Defendants' counsel to resolve the parties' dispute. Defendants' counsel 'indicated that he wanted to keep the channels of settlement open.' Plaintiffs' counsel then submitted a formal settlement offer, which Defendants' counsel responded to by moving for entry of default against Plaintiffs. That being said, the Complaint does not highlight the contents of the parties' settlement discussions – other than to note that a settlement offer was made and Calendar No.: Event ID:  TENTATIVE RULINGS

2977683 CASE NUMBER: CASE TITLE:  SILVA VS. VIRGINIA KOFLER TRUSTEE OF THE VIRGINIA L  37-2023-00010448-CU-WE-NC apparently not accepted. Ultimately, the content of any settlement talks will be inadmissible to prove Defendants' potential liability for Plaintiffs' alleged loss or damage in this action. See Cal. Evid. Code § 1152(a). However, Defendants provide no persuasive argument for why the court should strike such allegations, at the pleading stage, under CEC § 1152.

However, Plaintiffs concede in their opposition that '[t]hese allegations are essentially inconsequential allegations, as they simply provide context to the chain of events in this case.' See Plaintiffs' Opposition, p. 3, ll. 5-6. Toward that end, and as set forth above, the court may strike irrelevant matter inserted in any pleading. For the present motion's purposes, an 'immaterial allegation in a pleading' includes: '(1) An allegation that is not essential to the statement of a claim or defense. (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense . . . .' Cal. Code Civ. P. § 431.10(b)(1), (2). The court construes Plaintiffs' admission that the allegations set forth in ¶ 16 are 'essentially inconsequential allegations' as a concession of the motion's merits on that point. See San Diego Rules of Court, Rule 2.1.19.B.

Accordingly, the court grants, without leave to amend, the motion to strike ¶ 16 to the extent it references: (1) counsels' settlement discussions; (2) Defendants' filing of the unlawful detainer action against Plaintiffs; and (3) Defendants' filing of the notice of default against Plaintiffs in the unlawful detainer action. See Grieves v. Sup. Ct. (1984) 157 Cal. App. 3d 159, 168.

Defendants also move to strike the Complaint's references to punitive damages at ¶¶ 19, 32, and 37. 'In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294.' Turman v. Turning Point of Central California, Inc. (2010) 191 Cal. App. 4th 53, 63. California Civil Code ('CC') § 3294 allows a plaintiff to recover punitive damages '[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.' Cal. Civ. Code § 3294(a). For purposes of awarding punitive damages, ''[m]alice' 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.' Cal. Civ. Code § 3294(c)(1). ''Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.' Cal. Civ. Code § 3294(c)(2).

'Despicable conduct' is conduct that is so mean, vile, base, or contemptible that it would be looked down upon and despised by reasonable people. See CACI 3940. Such conduct has been described as having 'the character of outrage frequently associated with crime.' Scott v. Phoenix Schools, Inc. (2009) 175 Cal. App. 4th 702, 715.

The court finds that the Complaint, as presently pled, fails to sufficiently plead the ultimate facts with the requisite specificity demonstrating that Defendants' conduct, if ultimately proven by clear and convincing evidence, would warrant the imposition of punitive damages against Defendants. See Brousseau v. Jarrett (1977) 73 Cal. App. 3d 864, 872; Hillard v. A.H. Robins Co. (1983) 148 Cal. App. 3d 374, 391-392. The Complaint alleges that the Trust owns the real property located at 1168 Tylee Street, Unit 2, Vista, CA 92083 (the 'Property'). See Complaint, ¶ 4. In March 2022, Plaintiffs and Ms. Kofler entered into a written agreement under which Plaintiffs agreed to lease the Property. Ibid., ¶ 7. There are three buildings at the Property. Plaintiffs moved into the front house of the Property in March 2022, and then to a back unit in June 2022. Ibid. After moving in, Plaintiffs met with Defendants' property manager, David Solomon of Burmeister Real Estate, regarding the installation of a privacy barrier on the side of the Property to alleviate Mr. Ngiraiwet's anxiety and post-traumatic stress disorder. Ibid., ¶ 8. Mr. Solomon refused and indicated that Plaintiffs could install their own privacy barrier, though the Property's owner was not obligated to do so. Ibid. Several months later, Ms. Silva complained to Ms. Kofler about the lack of a privacy barrier and asked if one could be installed to accommodate Mr. Ngiraiwet. Ms. Kofler refused. Ibid., ¶ 9.

In addition, after moving into the Property, Plaintiffs began receiving mail addressed to a man who lived in a house next to the Property. The neighbor is a convicted felon and unstable. He has threatened Mr.

Ngiraiwet with violence and come onto the Property past midnight on occasion. Plaintiffs brought to Ms.

Calendar No.: Event ID:  TENTATIVE RULINGS

2977683 CASE NUMBER: CASE TITLE:  SILVA VS. VIRGINIA KOFLER TRUSTEE OF THE VIRGINIA L  37-2023-00010448-CU-WE-NC Kofler's attention the issues with the mail and neighbor, but Ms. Kofler did nothing to help. She instead blamed Plaintiffs for not delivering the mail to Mr. Solomon. Ibid., ¶ 10.

Plaintiffs faced other issues during their tenancy. For example, in late 2022, someone attempted to break into their unit. Ms. Silva asked to see security camera footage but was informed that the cameras were not working. Ms. Silva e-mailed Mr. Solomon and Ms. Kofler about this issue, which allegedly created tension between the parties. Ibid., ¶ 11. In addition, there have been several occasions where maintenance workers have entered Plaintiffs' unit without proper notice or permission. In one instance, a maintenance worker was arrested outside of Plaintiffs' unit, with neither Mr. Solomon nor Ms. Kofler offering an explanation to Ms. Silva for why this occurred. In response to other complaints concerning the entrance of maintenance workers into Plaintiffs' unit, Ms. Kofler allegedly 'brushed off' Plaintiffs' concerns. Ibid., ¶¶ 12-13. In addition, Plaintiffs submitted various repair requests during their tenancy.

Defendants failed to make various repairs, expressed displeasure with the requests, and lied about such matters. Ibid., ¶ 14. On October 10, 2022, Defendants, allegedly in retaliation for Plaintiffs' various complaints, served Plaintiffs with a 30-day notice of termination of tenancy. Ibid., ¶¶ 15-16.

The foregoing is insufficient, at the pleading stage, to state an entitlement to punitive damages. To start, Plaintiffs are correct that punitive damages are recoverable for retaliatory eviction under CC § 1942.5, emotional distress damages, and breach of the implied covenant of quiet enjoyment under appropriate circumstances, provided the requisite fraudulent, oppressive, and/or malicious conduct is proven by clear and convincing evidence. See Cal. Civ. Code § 1942.5(h)(2); Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004; Ginsberg v. Gamson (2012) 205 Cal. App. 4th 873. However, the Complaint, as presently pled, fails to allege with the requisite specificity that Defendants either: (1) intended to injure Plaintiffs, or (2) engaged in despicable conduct in conscious disregard of Plaintiffs' rights. For example, the Complaint alleges that Defendants refused to install a privacy barrier to accommodate Mr. Ngiraiwet; however, the allegations indicate that, according to Defendants, they were not under a contractual or legal obligation to do so. Moreover, the Complaint fails to allege that Defendants knew that a convicted felon lived next door to the Property. Nor does the Complaint explain how Defendants' alleged failure to disclose such a fact meets the statutory definition of malicious, oppressive, and/or despicable conduct. Furthermore, Plaintiffs fail to explain how their receipt of a neighbor's mail somehow equates to malicious, oppressive, and/or despicable conduct on Defendants' part. Finally, while the Complaint arguably alleges negligence on Defendants' parts in failing to make the requested repairs or in permitting maintenance workers to enter Plaintiffs' unit without notice or permission, punitive damages are not recoverable for ordinary negligence, gross, negligence, or reckless conduct. See, e.g., Colombo v. BRP US Inc. (2014) 230 Cal. App. 4th 1442, 1486, fn. 8. The Complaint, as presently pled, fails to allege sufficient facts demonstrating that Defendants, by permitting the maintenance workers to enter Plaintiffs' unit, intended to harm Plaintiffs or consciously disregarded Plaintiffs' rights or safety. Such conclusion is bolstered by the allegation in ¶ 13 of the Complaint that, in response to Plaintiffs' complaints, Ms. Kofler indicated 'that she had no control over whether workers came or went.' See Complaint, ¶ 13.

Accordingly, the court grants the motion to strike ¶¶ 19, 32, and 37 with leave to amend to address the foregoing deficiencies, if possible. See Grieves, 157 Cal. App. 3d at 168.

In light of the foregoing, the court grants the motion and strikes: (1) ¶ 16 to the extent it refers to: (a) counsels' settlement discussions; (b) Defendants' filing of the unlawful detainer action against Plaintiffs; and (c) Defendants' filing of the notice of default against Plaintiffs in the unlawful detainer action, without leave to amend, and (2) ¶¶ 19, 32, and 37 in their entirety with leave to amend. Plaintiffs shall file and serve a first amended complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 25, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 25, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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2977683 CASE NUMBER: CASE TITLE:  SILVA VS. VIRGINIA KOFLER TRUSTEE OF THE VIRGINIA L  37-2023-00010448-CU-WE-NC Calendar No.: Event ID:  TENTATIVE RULINGS

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