Judge: Gail Killefer, Case: 23STCV14939, Date: 2023-10-31 Tentative Ruling

Case Number: 23STCV14939    Hearing Date: January 26, 2024    Dept: 37

HEARING DATE:                 Friday, January 26, 2024

CASE NUMBER:                   23STCV14939

CASE NAME:                        Avishai Kohanzad v. Daftari Sion

MOVING PARTY:                 Defendant Daftari Sion

OPPOSING PARTY:             Plaintiff Avishai Kohanzad

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike Punitive Damages from FAC

OPPOSITION:                        12 January 2024

REPLY:                                  19 January 2024

TENTATIVE:                         Defendant’s Motion to Strike is granted with leave to amend. The Plaintiff is granted 10 days leave to amend from this date. The court sets a Non-Appearance OSC re Amended Complaint for February 23, 2024, at 8:30 a.m.  The Case Management Conference is continued to March 28, 2024, at 8:30 a.m.  Defendant to give notice.

Background

On June 27, 2023, Avishai Kohanzad (“Plaintiff”) filed a Complaint against Daftari Sion as Trustee of the 2006 Sion Daftari and Simin Daftari Revocable Trust (“Defendant”) alleging three causes of action: (1) Premise Liability; (2) Trespass; and (3) Private Nuisance.  

On October 31, 2023, the court granted the Defendant’s Motion to Strike the punitive damages from the Complaint.

On November 22, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging the same three causes of action.

On December 26, 2023, Defendant filed a Motion to Strike the FAC. The Plaintiff opposes the Motion. The matter is now before the court.

MOtion to Strike[1]

I.         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 thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿ 

“Where the 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.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Discussion

Defendant moves to strike the following portions from Plaintiff’s FAC:

1)     Paragraph 39 of the FAC in its entirety. (FAC at p. 7:7-11);

2)     Paragraph 2 of the Prayer as to the second cause of action in its entirety – “For exemplary or punitive damages.” (FAC at p. 7:26);

3)     Paragraph 2 of the Prayer as to the third cause of action in its entirety – “For punitive damages.” (FAC at p. 8:3).

A.        Summary of Allegations in FAC

Plaintiff is the owner of 10701 Wilshire Blvd., Unit 601 (the “Property”) and Defendant is the owner of 10701 Wilshire Blvd., Unit 701, located directly vertically of the Property (the “Upstairs Property”). (FAC ¶¶ 9, 10.) The respective properties are condominiums and part of the Crown Towers Homeowners’ Association (“HOA”). (FAC ¶ 9.) On or about April 6, 2023, Plaintiff was notified by Defendant’s plumber, Roto-Rooter, that there were substantial plumbing issues in the upstairs unit that needed to be addressed urgently. (FAC ¶ 11.) Plaintiff agreed to allow Roto-Rooter to access the Property to repair any plumbing issues needed but Roto-Rooter failed to contact Plaintiff. (FAC ¶¶ 12, 13.)

The FAC alleges that Defendant had knowledge of the extent of damages, need for repair, and impending damage to Plaintiff’s unit (the Property) but Defendant opted for a “cheaper” work around solution and failed to follow the advice of Roto-Rooter. (FAC ¶ 14.) Instead, Defendant hired a new plumber, Burpees Plumbing, who failed to sufficiently repair the water leakage and instead caused substantial damage to the Property. (FAC ¶ 14.) On information and belief, Plaintiff alleges that Defendant was aware of Burpees Plumbing’s failure to properly repair the plumbing issues and damages caused to the Property, “yet Defendant concealed this information from Plaintiff.” (FAC ¶ 15.)

On April 13, 2023, Plaintiff discovered a water intrusion coming from his kitchen ceiling and immediately notified the HOA. (FAC ¶ 16.) The next morning, Plaintiff attempted to contact the Upstairs Property, but they were unable to be reached. (FAC ¶ 17.) For several days, Plaintiff notified the HOA and the Upstairs Property about the water intrusion and attempted to speak with Defendant, but no response was received. (FAC ¶ 17.) The Upstairs Property now refuses to accept liability and failed to take any remedial action to repair the damage to the Property. (FAC ¶ 19.) This has resulted in a horrific smell emanating from the kitchen cabinets, which may be the result of mold from the water intrusion. (FAC ¶ 19.)

            A.        The FAC Fails to Allege Facts Showing Malice, Oppression or Fraud

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.)¿¿ “Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) Fraud means “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.” (Civ. Code § 3294(c)(3).)¿ 

Defendant asserts that the failure to fix a known water leak is insufficient to support a claim for punitive damages. In Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, the employer “was aware that the condition and location of the ice machine at the snack shop constituted a hazard for passing employees, who might slip and fall on leaking water or on ice that had spewed out of the machine.” (Id. at p. 933.) The employer “sent a mechanic to fix the leak and adjust the ice machine, but his action was ineffective in remedying the condition. He also neglected to make secure the adjoining walkway, either by putting down duckboards or moving the ice machine elsewhere.” (Id. at p. 933.) The leak from the ice machine caused the walkway to become slippery and the plaintiff to slip and fall. (Id. at p. 928.)

The Court of Appeal found that despite the employer’s knowledge and his “effective action and his inaction, even when measured by the most demanding yardstick, do not constitute anything more heinous than neglect to satisfactorily solve the relatively minor problem of eliminating the risk of slip-and-fall at a particular location. Patently, the elements of deliberate intent to injure, of cavalier disregard for human safety, or of willingness to risk injury to increase profits, are all lacking.” (Johns-Manville Sales Corp., supra, 96 Cal.App.3d at pp. 933-934.)

Here, the FAC does not allege that the water intrusion was a “minor problem” and instead alleges that Defendant was aware Burpees Plumbing failed to properly repair the issues and concealed this information from Plaintiff, causing damages. (FAC ¶ 15.) Knowledge alone is insufficient to support a claim for punitive damages, however; Plaintiff must also allege facts to malice, oppression, or fraud. (Civ. Code, § 3294.) Serious or willful misconduct may be shown by: “a) a deliberate act for the purpose of injuring another; (b) an intentional act with knowledge that serious injury is a probable result; or (c) an intentional act with a positive and reckless disregard of its possible consequences.” (Dowden v. Industrial Acc. Commission (1963) 223 Cal.App.2d 124, 130.)

The FAC asserts that Defendant chose a “cheaper” workaround solution without specifying what that cheaper alternative was. (FAC ¶ 14.) The FAC also states that Defendant failed to follow Roto-Rooter’s advice but does not state what the advice was or that Defendant acted with malice, fraud, or oppression in choosing not to follow said advice. (FAC ¶ 14.) Without said facts, the FAC fails to show that Defendant acted with malice, fraud, or oppression in hiring a new plumber, Burpees Plumbing. Moreover, the FAC fails to state facts to show how Defendant concealed the improper repairs to the plumbing. (FAC ¶ 14.) Thus, Plaintiff fails to allege that Defendant acted with the deliberate intent to injure Plaintiff by failing to adequately fix the plumbing in the Upstairs Property or that, in hiring a new plumber, Burpees Plumbing, Defendant did so with the knowledge that serious injury to the Property would result or that such action constituted reckless disregard for Plaintiff’s safety or property. Similarly, the FAC fails to allege facts to show that Defendant acted with malice, fraud, or oppression by purposefully failing to respond to Plaintiff’s notice of the water intrusion. (FAC ¶ 17.)

Based on the above, Defendant’s Motion is granted.

Conclusion

Defendant’s Motion to Strike is granted with leave to amend. The Plaintiff is granted 10 days

 leave to amend from this date. The court sets a Non-Appearance OSC re Amended Complaint

for February 23, 2024, at 8:30 a.m.  The Case Management Conference is continued to March

28, 2024, at 8:30 a.m.  Defendant to give notice.