Judge: Gregory Keosian, Case: 23STCV19739, Date: 2023-11-29 Tentative Ruling
Case Number: 23STCV19739 Hearing Date: November 29, 2023 Dept: 61
Defendants
Greystar California, Inc. and KW Westmoreland TIC, LLC’s Demurrers and Motions
to Strike the First Amended Complaint are OVERRULED and DENIED.
Plaintiff to give notice.
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311:
“We treat the demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law. . . . Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Id. at
p. 318; see also Hahn. v. Mirda
(2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.
[Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“A demurrer
for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery
procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if
the complaint, liberally construed, can state a cause of action under any
theory or if there is a reasonable possibility the defect can be cured by
amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendants Graystar California Inc. and KWWestmoreland TIC,
LLC (Defendants) demurrer to the First Amended Complaint (FAC) on the grounds
that it is uncertain, that the claims are pleaded against each defendant
collectively, and on the grounds that the claims for nuisance and premises
liability are duplicative of the fourth cause of action for negligence.
(Demurrer at pp. 4–8.)
Defendants’ arguments concerning the uncertainty of the FAC,
or the practice of making allegations against Defendants collectively, are
unpersuasive. Demurrers for uncertainty are only sustained “if the pleading is so incomprehensible that
a defendant cannot reasonably respond.” (Mahan, supra,.14
Cal.App.5th at p. 848.) Defendants are not confused about the
allegations here. Rather, they are in agreement as to the nature of the claims
against them: KW Westmoreland is the owner of the property, and Greystar California,
Inc. is the property manager. (Demurrer at p. 2.) It is alleged that both were
parties to the lease agreements at issue here. (FAC ¶¶ 17, 32, 47, 61, 76, 93,
107.) There is no uncertainty or failure to plead necessary facts.
Defendants’
argument as to the nuisance and premises liability claims is also unpersuasive.
“Where negligence and nuisance causes of action rely on the same facts
about lack of due care, the nuisance claim is a negligence claim.” (El
Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337,
1349.) However, this authority does not stand merely for the proposition that
the assertion of twin negligence and nuisance claims renders one or the other
subject to demurrer, but rather that “[t]he nuisance claim “stands or falls
with the determination of the negligence cause of action” in such cases. (Melton
v. Boustred (2010) 183 Cal.App.4th 521, 542.) Thus while both legal
theories are connected, they may be pleaded together, consistent with the
ordinary rule that a party may plead “alternative and inconsistent legal
theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96
Cal.App.4th 465, 477.)
The demurrer is therefore OVERRULED.
II.
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. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The grounds for a motion to
strike shall appear on the face of the challenged pleading or form any matter
of which the court is required to take judicial notice. (Code Civ. Proc., §
437(a)). The court then may strike out any irrelevant, false, or improper
matter inserted in any pleading and strike 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. (Code Civ. Proc., § 436.) When the defect which
justifies striking a complaint is capable of cure, the court should allow leave
to amend. (Perlman v. Municipal Court
(1979) 99 Cal.App.3d 568, 575.)
Defendants move to strike the
prayer for punitive damages contained in the FAC.
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code §
3294.) The terms are defined as:
“Malice” means conduct which is 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.
“Oppression” means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person's rights.
“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.
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
The allegations here support a prayer for
punitive damages. Plaintiffs do not allege a mere “failing to repair,” as was
the case in the authority that Defendants rely upon, McDonnnell v. American
Trust Co. (1955) 130 Cal.App.2d 296, but rather that Defendants had
cosmeticaly concealed the harmful conditions on the premises to induce
Plaintiffs to rent the units, falsely promised on many occasions to repair the
defects with the intent of extracting further rent from the tenants, and when
confronted with their failure to live up to their promises, demanded that
Plaintiffs either undertake the expense themselves or move out. (See, e.g.,FAC
¶¶ 28, 43, 58, 72, 74, 89.)
Defendants also argue that Plaintiffs fail
to allege corporate ratification as required to state a claim for punitive
damages under Civil Code § 3294, subd. (b). (Motion at pp. 8–9.) However, the
FAC alleges that the acts described were ratified by an officer of Defendants,
as required by Civil Code § 3294, subd. (b). (FAC ¶ 139.)
The motion to strike is therefore DENIED.