Judge: Frank M. Tavelman, Case: 23BBCV00105, Date: 2023-09-29 Tentative Ruling

Case Number: 23BBCV00105    Hearing Date: September 29, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO STRIKE

ALLEGATIONS: 

Zachary Kamen and Appel Appelusa (“Plaintiffs”) bring this action against Julie Lynn McIntire dba Golden Bear Management (“Defendant”) in connection with an alleged mold issue in Plaintiffs’ former apartment. Plaintiffs allege they experienced adverse health conditions while residing at 4918 Cahuenga Boulevard, North Hollywood, CA 91601 which ultimately forced them to vacate the premises.

The First Amended Complaint (“FAC”) contains causes of action for (1) Breach of Contract, (2) Breach of Implied Warranty of Habitability, (3) Breach of Covenant of Quiet Enjoyment, (4) Negligence, (5) Constructive Eviction, (6) Business & Professions Code Section 17200 et seq., and (7) Private Nuisance.

Defendant now moves to strike various portions of the FAC requesting punitive damages and Plaintiffs oppose.

RELIEF REQUESTED:

Defendant requests the Court issue an order striking the following portions of Plaintiffs’ Complaint:

1.      FAC p.15, Line 21: Plaintiffs’ prayer for punitive and/or exemplary damages

2.      FAC ¶ 30: Plaintiffs’ allegations that Defendants conduct was willful, oppressive, and malicious.

3.      FAC ¶ 31: Plaintiffs’ allegations that failure to remediate was an intentional act by Defendant to extract rent from Plaintiffs. Plaintiff’s allegations that the decision to not remediate was conscious and meant to subject Plaintiffs to subhuman living conditions for monetary gain.

ANALYSIS: 

I.                    LEGAL STANDARD 

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], 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.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike 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.” (C.C.P. § 436 (b).)

II.                 MEET AND CONFER

C.C.P. § 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the motion to strike. Upon review, the Court finds the meet and confer requirements were met. (Asrani Decl. ¶ 4.)

III.              MERITS

“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).)

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.)

“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.)

Plaintiffs allege the following facts with respect to Defendant’s alleged failure to remediate damage to the property:

A leak occurred in August of 2015 causing water to leak into the walls. Plaintiffs complained and Defendant called a plumber who repaired the leak, but Defendant did not address the water damage. (FAC ¶ 22.)

Another leak occurred in 2017, again a plumber was called to fix the leak. Water entered in between the walls and the leak was observed coming through the first-floor light fixtures. (FAC ¶ 23.)

In January 2021 the property suffered from water leaks, water damage, excess moisture, inadequate plumbing, mold, dust mites, and other related allergens. Defendants subsequently hired noncertified vendors to perform faulty remediations of the water leaks, water damage, excess moisture, inadequate plumbing, mold, dust mites, and other related allergens. (FAC ¶ 24.)

Plaintiffs informed management of the existence of mold and excessive water leaks, water damage, mold, dust mites and other related allergens a plethora of times via in person, telephone calls, and/or in emails, however, the issues were never adequately addressed. (FAC ¶ 28.)

Plaintiffs argue these facts are sufficient to allege despicable conduct. In doing so, Plaintiffs cite Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, where the Court of Appeals held that punitive damages were recoverable on a claim for constructive eviction. (Stoiber supra, 101 Cal.App.3d 903 at 926.) Stoiber concerned allegations of 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.) Stoiber also involved the landlord’s complete refusal to address any of these problems, save one occasion in which a plumber was called to repair a toilet. (Id. at 913.) 

The Court notes that the holding in Stoiber has been applied by the Appellate Court to mold remediation cases. In Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, plaintiffs repeatedly complained of a mold issue and defendant landlord refused to remediate. The trial court in Burnett granted the defendant’s motion for judgment on the pleadings without leave to amend. The Court of Appeals reversed the judgment, holding that whether the landlord’s refusal to rectify the mold issue was extreme and outrageous was a question of fact for the jury. (Id. at 1069, citing Stoiber, 101 Cal.App.3d 903.) The Court notes Burnett also involved a complete refusal by the landlord to repair. (Id. at 1062.)

While there exist instances where habitability actions can support punitive damages, Plaintiffs have not shown as much here. The Court finds the allegations in the FAC are far afield from those in Stoiber. The facts alleged only speak to three separate incidents of mold intrusion. The FAC states that in response to each of these incidents, Plaintiffs complained, and Defendants called a plumber or other person out to fix the problem. There are no allegations of refusal to remediate as in Stoiber and Burnett, rather allegations that the remediation that occurred was inadequate. The Court finds the provision of remediation which failed to address the issue does not speak to despicable conduct.  

Where the pleading defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question; it is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader's action. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174.) Here, The Court finds the defects in Plaintiff’s allegations cannot be reasonably cured by the addition of factual allegations because the allegations must necessarily contain Defendant’s attempts to repair and remediate.

Accordingly, the motion to strike the request for punitive damages is GRANTED without leave to amend.

--- 

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Julie Lynn McIntire dba Golden Bear Management’s Motion to Strike came on regularly for hearing on September 29, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO STRIKE PLAINTIFF’S REQUEST FOR PUNITIVE DAMAGES IS GRANTED WITHOUT LEAVE TO AMEND.  

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  September 29, 2023                          _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles