Judge: Gail Killefer, Case: 24STCV00592, Date: 2024-07-17 Tentative Ruling

Case Number: 24STCV00592    Hearing Date: July 17, 2024    Dept: 37

HEARING DATE:                 Wednesday, July 17, 2024

CASE NUMBER:                   24STCV00592

CASE NAME:                        Daniel Rogosin, et al. v. 9 Silver LLC, et al.

MOVING PARTY:                 Defendants 9 Silver LLC and Nathan Young

OPPOSING PARTY:             Plaintiff Daniel Rogosin and Elizabeth Rogosin

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike FAC

OPPOSITION:                        7 July 2024

REPLY:                                  Not filed as of 07/12/24 at 11:28 am.

TENTATIVE:                         Defendants’ motion to strike is granted with leave to amend.  Plaintiff has 10 days leave to amend.  The Court sets an OSC Re: Filing of Amended Complaint for July 29, 2024, at 8:30 a.m.  Defendants to give notice.

Background

On January 9, 2024, Daniel and Elizabeth Rogosin (“Plaintiff”) filed a Complaint against 9 Sliver LLC; Nathan Young (collectively “Defendants”); and Does 1 to 100.

The operative First Amended Complaint (“FAC”) alleges five causes of action:

1)     Breach of Contract’

2)     Account Stated;

3)     Open Book Account;

4)     Negligence; and

5)     Private Nuisance.

Defendants now move to strike punitive damages from the FAC. Plaintiff opposes the Motion. The matter is now before the court.

Discussion

I.         Legal Standard

A.        Motion to Strike 

¿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”].)¿¿¿¿ 

B.        Leave to Amend 

“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.        Motion to Strike[1]

A.        Summary of Allegations

The FAC alleges that on or about January 6, 2022, Plaintiffs entered a residential least (the “Lease”) with Defendants for a premises located in Los Angeles, CA (the “Premises”). (FAC, ¶ 1, Ex. 1.) Under the Lease, Defendants would rent the Premises until January 31, 2024, with rent of $18,000 to be paid on the first day of each month. (FAC, ¶ 2.) Defendant Nathan Young (“Young”) personally guaranteed the Lease. (SAC, ¶ 3.) “Defendants have breached the term of the Lease by failing to pay the monthly rent owed for October 2023.” (FAC, ¶ 4.)

Plaintiffs filed an unlawful detainer action (the “UD Action”) (LASC Case No. 23STCV26741). FAC, ¶ 5.) Defendants vacated the Premises on November 2023 without paying the rent due for November 2023. (FAC, ¶ 6.) For the months of October and November 2023, Plaintiffs are owed a total of $36,000 for past rent due. (FAC, ¶ 6.)  Due to the Lease expiring in January 2024 and costs associated with repairs and legal fees incurred in the UD Action, the FAC alleges Defendants owe a total of $117,260, including credit for a $36,000 security deposit paid by Defendant.  (FAC, ¶¶ 7-10, Ex. 2, 3.) 

B.        Defendants’ Request to Strike Punitive Damages

Defendants move to strike Plaintiffs’ request for punitive damages because the FAC fails to allege facts to show malice, oppression, or fraud. (FAC, ¶¶ 33 at p.8:17-19.)

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. (Ibid.)¿¿“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).) 

Paragraph 44 states: “As a further direct and legal result of the wrongful acts and/or omissions of Defendants, Plaintiffs seek the recovery of punitive and exemplary damages against Defendants as set forth above.” The court finds that apart from Defendants not paying rent and breaching the lease, the FAC is devoid of facts showing how Defendants acted with malice, fraud, or oppression in not paying rent. Moreover, the FAC fails to explain why Defendants are liable for the repair costs of the Premises and how such conduct was intentional and done with malice, oppression, or fraud. As to the private nuisance claim, Plaintiffs fail to explain how Defendants interfered with Plaintiff’s right to use and enjoy the Premises by not paying rent and how such conduct was done with malice, oppression, or fraud. “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 wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896.)

The motion to strike is granted with leave to amend. 

Conclusion

Defendants’ motion to strike is granted with leave to amend. Plaintiff has 10 days leave to amend.  The Court sets an OSC Re: Filing of Amended Complaint for July 29, 2024, at 8:30 a.m.  Defendants to give notice.