Judge Gary I. Micon, Case Number: 23CHCV02958, Date: 2025-01-06 Tentative Ruling

Order striking illegal immigration allegations and punitive damages allegations against Defendant Eho Two, LLC from the First Amended Complaint.

Plaintiff Pizza de Cal (Plaintiff) filed this action against Defendants N.V.N. Shopping Center, LLC (NVN), Eho Two, LLC (Eho Two), and Does 1 through 20 on October 2, 2023 alleging Defendants breached a lease agreement in order to force Plaintiff, and Defendants’ other tenants, to vacate Defendants’ strip mall located in Pacoima, CA. On May 20, 2024, Plaintiff filed its First Amended Complaint (FAC) alleging causes of action for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, (3) breach of the implied covenant of quiet enjoyment, and (4) negligence.

Javier Bencomo owns Plaintiff. In 2018, Plaintiff purchased La Pizza Loca, a Los Angeles based pizza restaurant chain and assumed a written lease for a commercial space located at a strip mall in Pacoima, CA (Pacoima Location). (FAC, ¶ 31.) Plaintiff leased the location from Defendants NVN, an alleged alter ego of Eho Two. (FAC, ¶¶ 10, 20, Exh. A - Lease Agreement.) NVN was listed as the Landlord in the lease agreement. (Ibid.) Eho Lin allegedly operated the Pacoima Location through Eho Two. (FAC, ¶ 6.) Plaintiff began paying rent in or about 2018/2019.

Plaintiff’s revenues exceeded expectations, and the Pacoima Location performed well until the Coronavirus pandemic. During the pandemic, Plaintiff temporarily shut its doors as required by law and reopened as soon as reasonably possible. (FAC, ¶ 21.) In early October 2021, several individuals trespassed on the strip mall and stole the copper wire that carried electricity to the strip mall. (FAC, ¶ 22.) Plaintiff reported the situation to NVN through phone calls and emails between Mr. Bencomo and NVN’s representatives. (FAC, ¶¶ 22, 23.)

NVN first agreed to fix everything but then directed Plaintiff to make a claim with its insurer. (FAC, ¶ 23.) NVN also suggested that Plaintiff abandon the store and move out and then refused to identify its own insurance carrier to avoid Plaintiff making an independent claim. (Ibid.) Next, NVN told Plaintiff that Plaintiff needed to replace the wires in Plaintiff’s store. (Ibid.) NVN was then nonresponsive for various periods of time and refused to undertake the necessary repairs in the common area it controlled—the wires that carried electricity to the strip mall. (Ibid.) NVN then filed an eviction case against Plaintiff demanding that Plaintiff pay rent for the Pacoima Location. (Ibid.) NVN then unilaterally waived all back rent and any other monies due or owed by Plaintiff in the unlawful detainer case. (FAC, ¶ 23, fn. 3.)

Between October 1, 2019 and late 2022 NVN allegedly abandoned its landlord duties and obligations by failing (1) to maintain adequate levels of insurance coverage despite premiums being part of the common area maintenance charges; (2) to provide electrical to the strip mall generally and to Plaintiff’s store; (3) interfered with Plaintiff’s ability to conduct business to produce the maximum profitable volume of sales reasonably obtainable; (4) to timely remove graffiti from the common areas defined in the lease; (5) to repair electrical components of common areas; (6) to adequately provide and repair plumbing and other utilities comprising part of the common areas; (7) to adequately provide pest control to the common areas; (8) to adequately provide fire protection and related annual inspections of fire protection equipment to common areas; and (9) allowing homeless individuals to run amuck through the strip mall without any security or other preventative measures to help abate the nuisance. (FAC, ¶ 24.)

Due to lack of electricity, Plaintiff shut down and dismissed all its Pacoima Location employees. (FAC, ¶ 25.)

Plaintiff alleges that Defendants and Eho Lin refused to repair the electricity issues in order to force all tenants to vacate the strip mall and to redevelop the strip mall and generate investments from foreign nationals. (FAC, ¶ 27.)

Plaintiff alleges that Defendants’ Pacoima Location property manager and supervisor, Dora Contreras, disclosed that Defendants never intended to repair the electrical system, refused to file an insurance claim to make Plaintiff whole or even attempt to repair the strip mall’s electrical system, planned to redevelop the entire strip mall, and wanted to force Plaintiff and the tenants out by, in part, refusing to fix the electrical system. (FAC, ¶ 28.)

Plaintiff alleges that other individuals, such as insurance adjusters, agents, and brokers attempted to intervene on Plaintiff’s behalf by reaching out to NVN. (FAC, ¶ 29.) Defendants expressed to these individuals that Defendants would not participate with any insurance claim to Defendants’ own carrier for the purposes of repairing the electrical issues or compensating Plaintiff for loss. (FAC, ¶ 29.) Further, Defendants indicated they did not plan to undertake any repairs while tenants occupied the strip mall. (FAC, ¶ 29.)

On October 16, 2024, Eho Two filed a motion to strike punitive damages and allegations of illegal immigration Visa schemes against Eho Two from the FAC.

Before filing a motion to strike, the parties must meet and confer “in person, by telephone, or by video conference.” (Code Civ. Proc., § 435.5, subd. (a).) The moving party must file and serve a meet and confer declaration stating either: “(A) The means by which the moving party met and conferred with the party who filed the pleading subject to motion, and that the parties did not reach an agreement resolving the objections raised in the motion to strike;” or “(B) That the party who filed the pleading subject to motion to strike failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).)

Eho Two’s counsel of record, Jennie Barkinskaya, states she sent Plaintiff’s counsel, Daniel Bramzon, a meet and confer correspondence discussing deficiencies in the FAC on October 2, 2024. (Declaration of Jennie Barkinskaya, ¶ 4, Exh. B.) Ms. Barkinskaya claims as of October 16, 2024, Plaintiff’s counsel has not responded to Ms. Barkinsaya’s request to meet and confer. (Barkinskaya Dec., ¶ 5.)

Eho Two argues that the Court should strike allegations of an illegal Visa scheme and punitive damages from the FAC. The FAC includes inflammatory, unfounded, fantastical, irrelevant, and unnecessary allegations that Eho Two was engaged in a sinister Visa scheme. These allegations are prejudicial and irrelevant to Plaintiff’s causes of action regarding what is at its core: a complaint regarding substandard conditions at a shopping plaza where Plaintiff operated its pizza restaurant business. Further, punitive damages are not available in connection to causes of action for breach of the implied covenant of good faith and fair dealing and breach of the implied covenant of good faith and fair dealing. Additionally, the alleged conduct and failure to act lacks the requisite willfulness, oppression, and malice to support punitive damages.

A court may, upon motion or at any time, strike from the complaint “any irrelevant, false, or improper matter” or “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, subds. (a)-(b), 187; Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 830 [noting the court’s inherent power to limit the focus of the proceedings to the issues framed by the remaining viable pleadings].) An “irrelevant matter” is an allegation that “is not essential to the statement of a claim or defense,” “is neither pertinent to nor supported by an otherwise sufficient claim or defense,” or “a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subds. (b)-(c).)[1] The Court must read the factual allegations in the complaint as a whole and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

· Page 2, line 26 - page 3, line 1: “Eho Lin had different plans” “strip mall which included the LPL Pacoima store.”

· Page 3, lines 5 - 19: “Eho Lin apparently funded” through “whatever that may be – and property redevelopment.”

· Page 3, lines 20 - 23: “This lawsuit is an ex post facto dream catcher” through “spirit can overcome Eho Lin’s twisted version of capitalism.”

· Page 4, lines 15 - 17: “Based on information and belief, this entity is an alter-ego of Eho Two, LLC,” through “involving Chinese nationals.”

· Page 5, lines 25 - 27: “Either Eho Lin owns a mailbox store,” through “the individual.”

· Page 6, lines 2 - 4: “The origin of this tangled ownership web” through “Mr. Bencomo’s Pacoima LPL store . . . .”

The complaint must contain (1) a statement of facts constituting a cause of action in ordinary and concise language and (2) a demand for judgment for the relief to which the pleader claims to be entitled. (Code Civ. Proc., § 425.10, subd. (a)(1)-(2); see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60 [striking exhibits and exhibit quotes because they were irrelevant to the causes of action complaint].)

Eho Two moves to strike allegations which describe Eho Two’s alleged motivation for breaching the lease agreement and the related implied covenants. However, Eho Two’s motives are irrelevant to Plaintiff’s contract-based claims. (Alki Partners, LP v. DB Fund Servs., LLC (2016) 4 Cal.App.5th 574, 597.) Although motive is relevant to establish willful conduct in a punitive damages request, Plaintiff does not request punitive damages for his Negligence cause of action, and willful conduct cannot be negligent. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29-30; Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869.)

Accordingly, the Court grants Eho Two’s motion to strike these factual allegations from the complaint.[2]

· Page 12, lines 14 - 19: “Such intent or motive” through “to deter future, similar conduct.”

· Page 13, lines 10 - 14: “Such intent or motive” through “to deter future, similar conduct.”

To state a prima facie claim for punitive damages, a complaint must set forth specific facts demonstrating the elements stated in Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721; see also Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) “Malice is defined in the statute as conduct 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.” (Id. at p. 725; Civ. Code, § 3294, subd. (c)(1).) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) Fraud is “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, subd. (c)(3).)

Eho Two argues that alleging “failure to timely or properly maintain the premises is insufficient to show any reprehensible or despicable conduct.” (Motion, p. 3:14-15.) Awareness of defective conditions and refusal to make repairs is not sufficient to support punitive damages. (Motion, p. 3:16-18.)

Punitive damages are not available for breach of contract claims including derivative claims for breach of the implied covenant of good faith and fair dealing and breach of the implied covenant of quiet enjoyment. (Civ. Code, § 3294, subd. (a); Cates Constructions, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 61; Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 901.)

Accordingly, the Court grants Eho Two’s motion to strike punitive damages from the FAC.

Plaintiff Pizza De Cal is ordered to file and serve an amended complaint within thirty (30) days of the date of this complaint.

[1] The Court notes that Eho Two’s notice of motion does not list section 431.10 as a basis for this motion.

[2] The Court also believes additional allegations in the FAC are questionable: Page 3, lines 1-3 and footnote 2; Page 6, lines 4-15; and Page 10, lines 10-15.