Judge: Edward B. Moreton, Jr., Case: 22STCV13505, Date: 2023-01-27 Tentative Ruling
Case Number: 22STCV13505 Hearing Date: January 27, 2023 Dept: 205
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JULIE PLATNER, et al., Plaintiffs, v. PAUL G. RYAN INDIVDUALLY AND AS TRUSTEE
OF THE RYAN SORIANO LIVING TRUST DATED OCTOBER 13, 2011, et al., Defendants. |
Case No.:
22STCV13505 Hearing Date: January 27, 2023 [TENTATIVE]
order RE: DefendanTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT |
MOVING PARTY: Defendants Paul G. Ryan, individually and as
trustee of the Ryan/Soriano Living Trust dated October 13, 2011, Teresa T.
Soriano, individually and as trustee of the Ryan/Soriano Living Trust dated
October 13, 2011 and Olivia Caroline Riley
RESPONDING PARTY: Plaintiffs
Julie Platner and Domenick Cimino
BACKGROUND
This
case arises out of a landlord tenant dispute.
Plaintiffs Julie Platner and Domenick Cimino (and their two young
children) were tenants of 627 Westminster Avenue, Apartment 4, Venice,
California (the “Property”). The
property is owned by Defendants Paul G. Ryan and Teresa T. Soriano,
individually and as trustees of the Ryan/Soriano Living Trust dated October 13,
2011. Defendant Olivia Riley manages the
Property. Plaintiffs allegedly complained
about significant cracks in the roof of the building following an earthquake. Defendants failed to promptly repair the
cracks, and as a result, the roof came down rendering Plaintiffs’ unit uninhabitable.
The
operative (first amended) complaint (“FAC”) alleges claims for breach of the
implied warranty of habitability, breach of the covenant of quiet enjoyment,
negligence and wrongful constructive eviction.
Plaintiffs seek punitive damages as part of their claim for wrongful
constructive eviction.
This
hearing is on Defendants’ motion to strike all references to punitive damages
in the FAC. Defendants argue the FAC lacks
the requisite factual allegations of malice, fraud or oppression to support a
claim for punitive damages as required under Civ. Code § 3294.
LEGAL STANDARD
The
court may, upon 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. (Code Civ. Proc., § 436, subd.
(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. (Code Civ. Proc., § 436, subd.
(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.
(Code Civ. Proc., § 436.) The
grounds for moving to strike must appear on the face of the pleading or by way
of judicial notice. (Code Civ. Proc., § 437.)
The adequacy of a claim for punitive damages may be tested by a motion
to strike. (Grieves v. Superior Court
(1984) 157 Cal.App.3d 159, 164.)
Leave
to amend must be allowed where there is a reasonable possibility of successful
amendment. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the
defect which justifies striking a complaint is capable of cure, the court
should allow leave to amend.”).) The
burden is on the complainant to show the Court that a pleading can be amended successfully.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
DISCUSSION
Defendants move to strike Plaintiffs’ claim for punitive
damages. Defendants argue Plaintiffs
have only made conclusory allegations that they are entitled to punitive
damages without stating facts supporting a finding of malice, oppression or
fraud. The Court agrees.
“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff.” (Clauson v.
Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was
committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of
oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim.” (Grieves v.
Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).) Allegations that merely plead the statutory
phraseology are wholly insufficient to state a basis for recovery of punitive
damages. (Smith v. Superior Court (1992)
10 Cal.App.4th 1033, 1041.) Conclusory characterizations of defendant’s
conduct as willful, intentional or fraudulent is a patently insufficient
statement of the necessary factual grounds for punitive damages. (Brousseau v. Jarrett (1977) 73
Cal.App.3d 864, 872.)
To establish “malice”, a plaintiff must demonstrate that (1) the
defendant intended to cause injury to plaintiff or (2) despicable conduct with
a willful and conscious disregard of the rights or safety of others. (Civ. Code §3294(c)(1).). “[A]bsent an intent to injure the plaintiff,
malice requires more than a willful and conscious disregard of the plaintiffs’
interest. The additional component of ‘despicable
conduct’ must be found.” (College
Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) To establish “oppression,” Plaintiff must
allege “despicable conduct that subjects a person to cruel and unjust hardship
in conscious disregard of that person’s rights.” (Id.)
To establish “fraud,” Plaintiffs must allege “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.)
Malice and oppression both include a finding of despicable
conduct. “Despicable” means conduct that
is “so vile, contemptible, miserable, wretched or loathsome that it would be
looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009)
175 Cal.App.4th 702, 715.)
“Such conduct has been described as having the character of outrage
frequently associated with [a] crime.” (Id.)
Here, Plaintiffs seek punitive damages as part of their wrongful
constructive eviction. But Plaintiffs
have not alleged any facts supporting a claim for punitive damages. They conclusorily allege that Defendants were
recklessly indifferent to their requests to repair the roof. (FAC ¶40.) That does not rise to the level of malice,
oppression or fraud. This allegation
does not demonstrate intent to injure, despicable conduct, intentional
misrepresentation or deceit.
McDonnell
v. American Trust (1955)
130 Cal.App.2d 296 is instructive. In McDonnell,
plaintiff tenant sued defendant landlord for injuries sustained when the tenant
slipped and fell on water that had entered her store due to defects in the roof
and roof drains. Tenant alleged the
landlord knew of the problems with the roof and roof drains and the problems
could cause injury to plaintiff’s person or property but did not remedy the
conditions. The tenant sued landlord for
punitive damages. The trial court
sustained a demurrer to the complaint without leave to amend and entered
judgment for landlord. The trial court
held that the facts did not support a claim for an intentional tort or conduct in
reckless disregard of the rights of others as would show the malice in fact
which Cal. Civ. Code §
3294
required as a predicate for punitive damages.
The tenant appealed. The Court of
Appeal held that the facts did not support a finding of malice. “Calling this a ‘willful’ failure to repair
was not the same as saying defendant acted with a wrongful personal intent to
injure or in reckless disregard of the rights of others.” (Id. at 300.) Like in McDonnell, here, Defendants’
knowledge of problems with the roof and failure to promptly repair the roof do
not rise to the level of malice, oppression or fraud, necessary to state a
claim for punitive damages.
Plaintiffs’
cases are factually inapposite. In Taylor
v. Superior Court (1979) 24 Cal.3d 890, the appellate court reversed an
order sustaining a demurrer to a claim for punitive damages, finding that a drunk
driver who “voluntarily commences, and thereafter
continues, to consume alcoholic beverages to the point of intoxication, knowing from
the outset that he must thereafter operate a motor vehicle demonstrates, in the
words of Dean Prosser, such a conscious and deliberate disregard of the
interests of others that his conduct may be called willful or wanton.” (Id.
at 895.) This case does not involve
drunk driving, which clearly falls within the scope of “despicable
conduct.”
Plaintiffs’ other authority, Ginsberg v. Gamson (2012)
205 Cal.App.4th 873, is similarly inapposite. The case involved a landlord tenant dispute
over repairs. The tenant filed suit
alleging that the landlord had breached the lease and had intentionally
interfered with the tenant's use of the premises. The court concluded the tenant’s breach of
the implied covenant of quiet enjoyment did not support a claim for punitive
damages. The appellate court sustained
the trial court’s order to strike the punitive damages claim finding that
tenant’s breach of covenant claim sounded in contract and was distinguishable
from a tort claim for wrongful eviction.
(Id. at 902.) Ginsberg stands
for the unremarkable proposition that punitive damages is not available when
there is only a breach of contract claim.
(Id. at 903.) It does not
conclude that all tort claims (including one for wrongful eviction) will
support a claim for punitive damages.
Plaintiffs’ citation to Stoiber v. Honeychuck (1980) 101 Cal.
App. 3d 903 is also unavailing. There,
the court held that a plaintiff may recover exemplary damages “when the
landlord’s conduct justifies the award.”
(Id. at 926.) The case does
not discuss what conduct would justify an award of punitive damages. It did not even rule that the conduct at
issue in the case (where there were numerous defective and dangerous conditions
that defendants failed to repair such that the department of health ordered the
premises be vacated and destroyed) is conduct that would justify an award of punitive
damages. Further, there, defendants’
conduct was significantly more egregious than the conduct alleged here – the
conditions in Stoiber included leaking sewage from the bathroom plumbing; defective and dangerous
electrical wiring; structural weaknesses in the walls; deteriorated flooring;
falling ceiling; leaking roof; dilapidated doors; and broken windows. (Id. at 912.) Defendants were also cited by the health
department for heavy cockroach infestation, broken interior walls, broken deteriorated
flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper
plumbing connection to sewage system in bathroom, sewage under bathroom floor,
leaking roof, broken windows, and fire hazard.
(Id.)
Likewise, Plaintiffs’ citation to Pfeifer v. John Crane, Inc.
(2013) 220 Cal.App.4th 1270 is unavailing. There, the court found evidence of malice
where defendant fully understood by the 1970s that asbestos dust endangered
workers, but it did not issue warnings to customers until 1983, notwithstanding
its awareness that they used the products in ways that generated considerable
asbestos dust. Indeed, although defendant
informed its employees that the asbestos used in making its products caused
cancer, defendant provided that information to customers only when they asked
for the safety data sheet. The evidence thus established that defendant carried
on despicable conduct with an awareness of the “probable dangerous
consequences,” and “willfully fail[ed] to avoid such consequences.” (Id. at 1300-1301.) The facts here are entirely different, and
the mere failure to promptly repair a roof after an earthquake cannot be said
to constitute despicable conduct.
As in Pfeifer, the conduct alleged in Johnson v.
Monsato Co. (2020) 52 Cal.App.5th 434 is also factually
distinguishable from this case. The
court in Johnson concluded the evidence was sufficient to support an
award of punitive damages where defendant and its employees discounted
legitimate questions surrounding its product’s genotoxic effect, failed to
conduct adequate studies, surreptitiously contributed to and promoted articles
reporting on its product’s safety, lobbied regulators to conclude that its
product is safe and ignored calls from plaintiff raising concerns with its
product.
(Id. at 455-461.) The facts here are nowhere close to the type
of despicable conduct found in Johnson.
CONCLUSION
Based on the foregoing, the Court GRANTS Defendants’
motion to strike all references to punitive damages in the FAC. Specifically, the Court will strike page 7,
lines 16-21 and page 8, line 10. The
Court grants the motion to strike without leave to amend as Plaintiffs have not
met their burden to show there is a reasonable possibility of successful
amendment. Plaintiffs have not proposed
any amendments in their opposition.
IT IS SO ORDERED.
DATED: January 27, 2023 ___________________________
Edward
B. Moreton, Jr.
Judge
of the Superior Court