Judge: Deirdre Hill, Case: 21TRCV00765, Date: 2022-07-29 Tentative Ruling

Case Number: 21TRCV00765    Hearing Date: July 29, 2022    Dept: M

Hearing Date:                          July 29, 2022

Moving Parties:                      Defendants Denton Developments, Inc. and Kevin Lang

Responding Party:                  Plaintiffs Illien Thamer, et al.

Motion to Strike Portions of Second Amended Complaint

            The court considered the moving, opposition, and reply papers.

RULING

            The motion to strike is DENIED.

BACKGROUND

            On October 22, 2021, plaintiff Illien Thamer filed a complaint against Nola Properties, LLC, Lars Rojdon Viklund, Denton Developments, Inc., and Kevin Lang for (1) violation of LACC 8.52.130 et seq. (retaliatory eviction and anti-harassment), (2) violation of Civil Code §1940.2, (3) violation of Civil Code §1941.1, and (4) violation of Bus. and Prof. Code §17200.

            On December 21, 2021, plaintiffs Illien Thamer, Izack Saudedo, minor Nicolas Herrera, Robin Roth, and Ruthie Zipper filed a FAC.

            On April 13, 2022, the court denied Nola Properties, LLC and Lars Rojdon Viklund’s motion to strike punitive damages and granted Denton Developments, Inc. and Kevin Lang’s motion to strike punitive damages with leave to amend.

            On April 27, 2022, plaintiffs filed a SAC.

LEGAL AUTHORITY

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  CCP § 436(a).  The court may also strike 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.  CCP §436(b).  The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws.  CCP §436.  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP §437.

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .”  The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages.  There must be circumstances of aggravation or 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.”

“’Malice’ 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.”  Civil Code §3294(c)(1).  

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful.  The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.”  Id. at 725 (citation omitted).

Civil Code §3294(b) states:  “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.”  “[T]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal. App. 3d 31, 36.  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  Cruz v. Home Base (2000) 83 Cal. App. 4^th 160, 167 (citation and internal quotations omitted).

DISCUSSION

            Defendants Denton Developments, Inc. and Kevin Lang request that the court strike portions of the SAC at para. 25 of the Preliminary Statement, para. 12 of the 3^rd cause of action, and para. 3 of the prayer for punitive damages.

            In the SAC, as to moving defendants, plaintiffs allege that Kevin Lang is the registered agent and principal of Denton Developments and “has been actively engaged in the harassment of plaintiffs, including by participating in the demolition and ongoing redevelopment of the property.”  SAC, ¶25.  Plaintiffs also allege that in July 2021, defendants Denton and Lang constructed a fence dividing the property in half between the structure that is 147/149 Paseo De La Concha from the property that was 151/153 Paseo De La Concha and that the fence was just feet way from Thamer and her childrens’ patio.  Id., ¶58.  Some of defendants’ warnings of utility disruptions were not intended to provide plaintiffs with notice of an actual potential disruption , but to annoy and harass them.”  Id., ¶66.  In early September 2021, defendant Lang advised plaintiff Thamer that demolition would begin soon.  Defendant Lang delivered to Thamer a letter from defendant Denton offering $5,000 for her to vacate the unit.  Lang asked Thamer to deliver a similar letter to plaintiff Zipper and repeatedly asked her whether she and plaintiff Roth would move out of their units.  Id., ¶68.  On September 28, 2021, defendants began to demolish the units at 151/153 Paseo De La Concha using an excavator.  The building was a mere feet away from Thamer’s unit.  Id., ¶70.  The redevelopment plans for the property require the simultaneous redevelopment of both sides of the property and the demolition of only half the property is of little importance.  Id., ¶71.  Defendants intended that the demolition and construction activity on the 151/153 side would induce the residents of the 147/149 side into moving away and defendants have conducted their activities on the property to maximize that effect.  Id., ¶72.  Defendants told Thamer that they would be tearing down a structure connecting her unit to one of the units they were demolishing, which caused her great concern about the safety of her apartment for her and her children.  Id., ¶73.

            The SAC further alleges that the demolition continued for a week, causing loud crashes and tremors that terrified plaintiffs and caused dust and debris to pollute the air.  Id., ¶74.  By the end of the week, the structures at 151/153 were piles of rubble.  Id., ¶77.  On October 20, 2021, Lang called Thamer and offered her $20,000 to vacate the unit.  Id., ¶80.  Since the demolition, defendants have proceeded to dig and build a foundation on the 151/153 half of the property.  Id., ¶82.  Denton’s workers regularly shout harassing comments from the construction site to plaintiffs as they exit or enter their homes, along the lines of “when are you going to move” or “get out of here already,” even though defendants Denton and Lang, and those who work for them, are aware that plaintiffs have sued them for harassment.  Id., ¶83.  Denton’s workers regularly cross into the occupied half of the property where plaintiffs live and sometimes enter the vacant units, causing plaintiffs fear and concern.  Id., ¶84.  Defendants’ workers speak to neighbors around the property and disparage plaintiffs.  As a result, they are experiencing harassment from their neighbors, asking them when they are going to move away.  Id., ¶85.

Defendants argue that the allegations are insufficient against them to support a claim for punitive damages against a corporate entity as plaintiffs do not allege any wrongful conduct by a corporate officer, director, or managing agent or ratification by a managing member or unfitness or employment of an employee with a “conscious disregard for the rights and safety of others.”

In opposition, plaintiffs argue that the allegations are sufficient to show a joint plan with the other defendants Nola Properties and Lars Viklund to coerce plaintiffs to abandon their homes so that defendants can redevelop the property, by harassing them, including engaging in conduct intended to scare and annoy them.  Plaintiffs also contend that “[c]ritically, defendants’ consistent annoyance and harassment of plaintiffs has taken place during the Covid-19 pandemic and in defiance of legal protections designed to enable plaintiffs to remain safely in their homes.”  See SAC, ¶13.  Plaintiffs assert that they have alleged that defendants’ conduct has been intentional and have acted with a conscious disregard of plaintiffs’ safety and right to remain in their homes, which is malicious and oppressive conduct.  Plaintiffs note that the prior minute order stated that the “proper assessment is why and how [defendants] engaged in the work, not that they electively accepted the work assignment in the first place.”  Plaintiffs assert that they added several allegations to support harassment against plaintiffs in how defendants are engaging in the work.  Plaintiffs also note that LACC 8.52.130(B) includes “contractor” and “subcontractor,” which plaintiffs argue is a “clear acknowledgement by the legislature that harassment by third party agents . . . is a . . . problem that the anti-harassment ordinance was intended to prohibit and punish.”

The court finds that the allegations are sufficient to support a claim for punitive damages against moving defendants.  The allegations are sufficient to support harassment and that Denton authorized or ratified the wrongful conduct and was “personally guilty of oppression, fraud, or malice” as Lang is alleged to be an agent and principal.  “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. Superior Court (1998) 67 Cal. App. 4^th 1253, 1255 (citation omitted).  See also Monge v. Superior Court (1986) 176 Cal. App. 3d 503, 506 (“in determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. . . .”).

The motion is therefore DENIED.

            Plaintiffs are ordered to give notice of the ruling.