Judge: Helen Zukin, Case: 22STCV07001, Date: 2022-12-08 Tentative Ruling
Case Number: 22STCV07001 Hearing Date: December 8, 2022 Dept: 207
Background
Plaintiffs Marina Harmon (“Harmon”), Michael Colonnese
(“Colonnese”) and Brittany Gleason (collectively with Harmon and Colonnese,
“Plaintiffs”) bring this action against Defendant Management Services, Inc.,
dba Moss & Company Property Management (“Defendant”) and others stemming
from allegations of mold at a residential property leased by Plaintiffs.
Plaintiffs’ operative Complaint, filed February 25, 2022, alleges four causes
of action against Defendant: constructive eviction, negligence, intentional
infliction of emotional distress, and nuisance. Plaintiffs seek punitive
damages in connection with their claims for intentional infliction of emotional
distress and nuisance. Defendant moves to strike Plaintiffs’ claim for punitive
damages, arguing Plaintiffs have failed to set forth sufficient factual
allegations supporting such a claim. Plaintiffs oppose Defendant’s motion.
Motion to Strike Standard
Motions to strike are used to reach defects or objections to
pleadings which are not challengeable by demurrer (i.e., words, phrases, prayer
for damages, etc.). (C.C.P. §§ 435, 436 & 437.) A motion to strike lies
only where the pleading has irrelevant, false or improper matter, or has not
been drawn or filed in conformity with laws. (C.C.P. § 436.) The grounds for
moving to strike must appear on the face of the pleading or by way of judicial
notice. (C.C.P. § 437.)
Analysis
1. Meet and
Confer Requirement
Before filing a
motion to strike, the moving party is required to “meet and confer in person or
by telephone” with the party who filed the pleading that is subject to the
motion to strike for the purposes of determining whether an agreement can be
reached through a filing of an amended pleading to resolve the objections to be
raised in the demurrer. (C.C.P. § 435.5(a).) The Court finds Defendant has not
satisfied this requirement. Defendant sent a single email attaching a meet and
confer letter and requesting Plaintiffs’ counsel provide their availability to
discuss the matter telephonically over the next five days. (Forgey Decl. at
¶3.) When Plaintiffs’ counsel did not respond, Defendant proceeded to file the
motion without making any further efforts to meet and confer as required.
Nonetheless, the Court will consider the merits of Defendant’s motion. (C.C.P.
§ 435.5(a)(4).)
2. Punitive
Damages
“In order to survive a motion to
strike an allegation of punitive damages, the ultimate facts showing an
entitlement to such relief must be pled by a plaintiff. In passing on the
correctness of a ruling on a motion to strike, judges read allegations of a
pleading subject to a motion to strike as a whole, all parts in their context,
and assume their truth.” (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255 [internal citations omitted].)
A motion to strike punitive damages is
properly granted where a plaintiff does not state a prima facie claim for
punitive damages, including allegations that defendant is guilty of oppression,
fraud, or malice. (Turman v. Turning Point of Cent. California, Inc.
(2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not
sufficient to justify such an award” for punitive damages. (Kendall Tacht
Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The
allegations supporting a request for punitive damages must be alleged with
specificity; conclusory allegations without sufficient facts are not enough. (Smith
v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42.) A plaintiff’s
“conclusory characterization of defendant’s conduct as intentional, willful and
fraudulent is a patently insufficient statement of ‘oppression, fraud, or
malice, express or implied, within the meaning of section 3294.” (Brousseau
v. Jarrett (1977) 73 Cal.App.3d 864.)
Plaintiffs’ Complaint makes the
following factual allegations regarding Defendant:
1.
Plaintiffs leased a
residential property located at 515 Altair Place in Venice, California.
(Complaint at ¶¶2, 7.) Defendant acted as property manager for the subject
property until June 1, 2021. (Id. at ¶5.)
2.
In March 2019,
Plaintiffs notified Defendant the kitchen sink in the subject property had
overflown and flooded the kitchen cabinet drawers. Defendant responded the same
day that a maintenance person would come check the sink. (Id. at ¶10.)
3.
Later in March 2019,
Plaintiff Colonnese notified Defendant there was a foul odor on the property
and she was concerned about the potential for mold forming as a result of the
prior flooding. (Id. at ¶11.) Defendant responded the next day saying
they would send someone to the property to assess those concerns. Defendant
inspected the property and advised there was nothing to be concerned about and
that no mold inspection was required. (Id. at ¶12.)
4.
In September 2020,
Plaintiff Harmon sent a maintenance request to Defendant requesting that mold
testing be performed because she smelled a musty odor in her bedroom and had
been feeling ill. Defendant responded by sending someone to steam clean the
carpet but did not have the property inspected for mold. (Id. at 13.)
5.
On April 28, 2021,
Plaintiffs hired a company to test the third-floor carpet for mold and
Defendant stated it would not reimburse them for that expense. (Id. at
¶15.) Plaintiffs sent the results of the test to Defendant on April 30. (Id.
at ¶16.) On May 3 Plaintiffs inquired as to the status of the mold remediation
and on May 4 Defendant responded that a vendor was being hired to replace the
upstairs carpet. (Id. at ¶17.)
6.
On May 14, one of
Defendant’s representative advised Plaintiffs that “Defendants had: (a)
their Maintenance Director evaluate moisture levels with a high-tech thermal
imaging camera; (b) our Certified Industrial Hygienist evaluate the lab tests
provided; and, (c) our In-House Counsel review the full scope of the claim.” (Id.
at ¶18.) Defendant further advised Plaintiffs, “It is our determination that no
active leaks, no elevated moisture levels were found in the apartment home.
However, out of an abundance of caution (sic), we will be deploying our
remediation vendor to contain the subject rooms, . . . remove the carpets,
treat the air with commercial grade air scrubbers, then follow with carpet or
flooring reinstallation.” (Id.) Defendant stated it has “qualified staff
who’ve evaluated the reports provided, understand the condition, have inspected
the premises, and we are well aware of our obligations” and would not be
negotiating the scope of remediation work. (Id.)
7.
Before any remediation work was performed,
Defendant was terminated as property manager for the subject residence. (Id.
at ¶21.)
8.
In July 2021, the subsequent property manager
inspected the property after the conclusion of the remediation work and “agreed
that the carpet should have been replaced….” (Id. at ¶23.)
Plaintiffs characterize
Defendant’s conduct as “knowing, intentional, and willful and done with a
reckless disregard of the probability of causing Plaintiffs emotional
distress,” and “malicious and oppressive … in conscious disregard of
Plaintiffs’ rights….” (Id. at ¶¶40, 42.)
The Court finds the allegations in
Plaintiffs’ Complaint are insufficient to support a claim for punitive damages
against Defendant. The Complaint does not allege facts from which a trier of
fact could conclude Defendant acted with oppression, fraud, or malice against
Plaintiffs. The Complaint alleges Plaintiffs notified Defendant of problems in
the subject property, Defendant responded to those problems, investigated them,
and took efforts to perform the remediation work they felt was appropriate
after the investigation. Plaintiffs disagree with the results of Defendant’s
investigations, but that does not mean Defendant acted with oppression, fraud,
or malice against them. Plaintiffs do not claim Defendant did not perform the
investigation it claimed to, or mislead Plaintiffs in some way about the work
Defendant was willing to perform. Plaintiff also does not allege Defendant
impermissibly narrowed its scope of proposed remediation because of some animus
toward Plaintiffs, rather Plaintiffs allege Defendant made a proposal in line
with the results of their own investigation.
The Court therefore GRANTS
Defendant’s motion to strike Plaintiff’s claim for punitive damages. However,
the Court rejects Defendant’s request to strike this claim without leave to amend
and will grant Plaintiffs 30 days’ leave to file an amended Complaint which
states a sufficient cause of action against Defendant.
Conclusion
Defendant’s motion to strike Plaintiffs’ claim for punitive
damages against it is GRANTED with 30 days’ leave to amend.