Judge Daniel M. Crowley, Case 22STCV22442 2022-10-25 Tentative Ruling

Judge: Daniel M. Crowley, Case: 22STCV22442, Date: 2022-10-25 Tentative Ruling

Case Number: 22STCV22442 Hearing Date: October 25, 2022 Dept: 28

Motion to Strike Portions of Complaint

Having considered the moving and opposing papers, the Court rules as follows. The Court observes no reply papers have been filed as of October 19, 2022, which is beyond the statutory time period to file such papers. (Code Civ. Proc., § 1005, subd. (b).)

BACKGROUND

Jae In Suh (“Plaintiff Jae In Suh”) and John Suh (“Plaintiff John Suh”) (collectively, “Plaintiffs”) reside in an apartment unit, which is located within the residential rental property owned by Wol Soon Kang and John Kang (“collectively, “Defendants”). Plaintiffs contend a “surge protected power strip” was illegally installed within their apartment unit, below the kitchen sink. On July 15, 2020, Plaintiff Jae In Suh was severely electrocuted when she touched the handle of the dishwasher. Plaintiff John Suh witnessed the electrocution. Plaintiffs allege the electrocution was caused by the illegally installed “surge protected power strip”.

On July 12, 2022, Plaintiffs initiated the present action by filing a Complaint against Defendants and Does 1 through 100. Plaintiffs’ Complaint alleges the following causes of action: (1) Breach of Implied Warranty of Habitability; (2) Breach of Contract; (3) Negligence; (4) Negligence Per Se; (5) Premises Liability; (6) Negligent Infliction of Emotional Distress; and (7) Loss of Consortium.

On September 21, 2022, Defendants filed a Motion to Strike Portions of Complaint.

On October 11, 2022, Plaintiffs filed an Opposition to Defendants’ Motion to Strike Portions of Complaint.

Trial is set for January 9, 2024.

PARTY’S REQUESTS

Defendants move for an Order striking Plaintiffs’ prayer for punitive damages (Prayer for Relief, ¶ f.) and Plaintiffs’ allegations in support of the prayer for punitive damages (Complaint, ¶¶ 27, 53).

LEGAL STANDARD

“Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part” of that pleading. (Code Civ. Proc., § 435, subd. (b)(1).) “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 asserted 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.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) “Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 435.5, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5, subd. (a)(3).)

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages. (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.) In addition, punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) “Mere negligence, even gross negligence, is not sufficient to justify an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Civil Code Section 3294, subdivision (c), defines “malice” as follows: “[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.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., § 3294, subd. (c)(2).) “Fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., § 3294(c)(3).) To survive a motion to strike a prayer for punitive damages, a plaintiff must plead ultimate facts showing its entitlement to such relief. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) Allegations devoid of any factual assertions are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

DISCUSSION

Meet and Confer Requirement

Preliminarily, the Court concludes Defendants have complied with the meet and confer requirement outlined within Code of Civil Procedure section 435.5, subdivision (a). (Code Civ. Proc., § 435.5, subd. (a).) Defendants have filed the Declaration of Jason Barresi, Esq., which confirms Defendants’ counsel spoke with Plaintiffs’ counsel telephonically, on approximately September 15, 2022, concerning the issues presented within the Motion to Strike Portions of Complaint. (Barresi Decl., ¶ 4.) Despite counsels’ efforts, an agreement was not reached, requiring the filing of the present Motion to Strike Portions of Complaint. (Ibid.) Accordingly, the Court concludes Defendants have complied with the meet and confer requirement outlined within Code of Civil Procedure section 435.5, subdivision (a). (Code Civ. Proc., § 435.5, subd. (a).)

Request to Strike Prayer for Punitive Damages

Following a liberal review of Plaintiffs’ operative Complaint, the Court concludes Plaintiffs’ Complaint fails to state sufficient operative facts supporting Plaintiffs’ prayer for punitive damages. Therefore, the Court finds Defendants’ request to strike Plaintiffs’ prayer for punitive damages, as well as Plaintiffs’ supporting allegations, is warranted.

Plaintiffs’ Complaint alleges “an illegal surge protected power strip” was installed below the kitchen sink in Plaintiffs’ apartment unit, which is owned and maintained by Defendants. (Compl., ¶ 10.) Plaintiffs allege this purported “dangerous condition” was “created by Defendants”. (Id. ¶ 14.) Plaintiffs allege Defendants “knew or should have known” of the “dangerous condition,” and “deliberately” failed to repair the “dangerous condition” in order to refrain from spending additional funds. (Id. ¶ 27.) Plaintiffs’ Complaint alleges, as a result of the “illegally installed surge protected power strip,” Plaintiff Jae In Suh suffered an electrocution, which was witness by Plaintiff John Suh. (Id. ¶ 10.)

The Court concludes Plaintiffs’ allegations are inadequate to plead sufficient facts demonstrating Defendants acted with the requisite “malice” or “oppression”. First, Plaintiffs’ allegations are insufficient to demonstrate Defendants acted with “malice” as Plaintiffs’ Complaint fails to plead ultimate facts establishing Defendants installed the illegal “surge power protected strip” while knowing that this item posed a “probable” risk of electrocution to Plaintiffs or other residents and “willfully and deliberately” failed to eliminate such a risk. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 [“A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”].) Plaintiffs’ operative Complaint merely alleges, in a conclusory fashion, that Defendants “knew or should have known” of the “dangerous condition”, however fail to include any salient, ultimate facts showing Defendants’ had knowledge that the item posed a “probable” danger to Plaintiffs and other residents. Indeed, Plaintiffs continually rely upon the allegation that this item was “illegally” installed. However, such an allegation is insufficient to establish Defendants’ knowledge of the item’s dangerous aspects, and Defendants’ willful failure to remedy such a danger. Secondly, Plaintiffs’ allegations are insufficient to demonstrate Defendants acted with “oppression” for reasons largely identical to those discussed in connection with “malice”. Plaintiffs’ Complaint fails to plead ultimate facts showing Defendants acted with a “conscious disregard” for Plaintiffs’ rights. As stated previously, Plaintiffs’ Complaint fails to demonstrate Defendants were affirmatively aware of the “illegally installed surge protected power strip” would likely cause injury to Plaintiffs and, while having knowledge of such probability, deliberate failed to take action in order to avoid dangerous consequences. For these reasons, the Court finds Plaintiffs’ Complaint is properly subject to Defendants’ present Motion to Strike Portions of Complaint. The Court provides Plaintiffs with an opportunity to amend the Complaint in order to sufficiently state facts in support of the prayer for punitive damages.

CONCLUSION

Defendants’ Motion to Strike Portions of Complaint is GRANTED, with leave to amend.

Defendants are ordered to give notice of this ruling.

Defendants are ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.