Judge Jill Feeney, Case 19STCV11633 2022-08-09 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

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On April 4, 2019, Plaintiff filed her Complaint against Defendant Crenshaw Medical Group LP for premises liability and general negligence. This action arises from two trip and fall incidents which took place in February and March 2018.

1. Paragraph 35, lines 13-16, page 8; "Defendant's conduct, in attempting to extort financial concessions from Dr. Bercutt by refusing to repair and make his suite safe and habitable unless he extended his lease, was done with fraud, oppression or malice as defined in Civil Code section 3294."

Defendant argues the FAC does not state facts constituting oppression, fraud, or malice. Defendant also argues the law does not favor punitive damages and they should be allowed only in the clearest of cases. Additionally, Defendant argues punitive damages are not appropriate because Defendant’s conduct does not constitute active or gross negligence.

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 of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (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. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).)

Allegations of negligence, gross negligence or recklessness are not sufficient to allege a claim for punitive damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-11.) As a point of comparison, gross negligence is defined as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” (CACI No. 425.)

“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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. 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 willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“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. [Citations.] 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. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41; 435.5.)

Defendant has filed a meet and confer declaration that appears to show Defendant spoke with Plaintiff regarding her claim for punitive damages. (Anz Decl., ¶2.) Although Defendant’s counsel does not specify, it appears the meeting took place either by telephone or in person since the parties spoke. They also exchanged correspondence via email and could not reach a resolution. (Id., ¶5, Exhibits A-B.)

The FAC alleges that Plaintiff and her husband worked in his dental office in Los Angeles, California, which they leased from Defendant. (Compl., ¶8.) After the property flooded, Defendant hired a subcontractor to remove the wet carpet to run industrial fans and dry the walls and concrete floors. (Id., ¶15.) When the subcontractor removed the carpet, carpet tack strips remained and the linoleum in the suite buckled and warped. (Id.) Plaintiff’s husband, Dr. Bercutt requested that Farzad Amid and Defendant remove the carpet tack strips and linoleum to make the suite presentable to their patients. (Id., ¶16.) Amid, the authorized agent of Defendant, refused the request unless Dr. Bercutt agreed to extend his lease by an additional year. (Id.) On February 26, 2018, Plaintiff fell on a carpet tack strip. (Id., ¶17.) Dr. Bercutt informed Amid about his concerns for the safety and appearance of the suite and again asked Defendant to remove the carpet tack strips and the linoleum. (Id.) Amid again refused to make the repairs unless Dr. Bercutt renewed the lease another year. (Id.)

Dr. Bercutt was reluctant to renew his lease because much of his dental equipment was destroyed in the flood and the new equipment would have required an upgrade to the plumbing to his suite, which Defendant also refused to provide. (Id., ¶19.) Dr. Bercutt attempted to hire a third party to make the repairs, but Defendant prohibited Dr. Bercutt from making the repairs. (Id., ¶20.) Dr. Bercutt terminated his lease effective May 31, 2018. (Id., ¶21.) Between January and May 2018, Defendant refused to make the repairs because Dr. Bercutt did not renew his lease. (Id.) On March 26, 2018, Plaintiff again fell on a carpet tack strip, sustaining injuries to her right and left knees and legs, necessitating knee surgery. (Id., ¶22.) Later, Plaintiff discovered the fall caused a hairline fracture to her femur, which later worsened to a fracture. (Id., 23.)

Here, there are sufficient allegations in the FAC to establish Defendant was aware of the probable dangerous consequences of Defendant’s conduct and that Defendant willfully and deliberately failed to avoid those consequences. This is because the FAC alleges that after Plaintiff’s first fall, Defendant was put on notice of the particular hazard at issue here and took no action to remedy the hazard.

Here, it is alleged that instead of repairing the dangerous floor, Defendant pressured Plaintiff’s husband to extend the lease by conditioning the completion of repairs on renewal of the lease. This does not rise to the level of conduct needed to allege despicable conduct. The alleged lease dispute between Defendant and Plaintiff’s husband does not constitute conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.

Plaintiff requests leave to amend. Specifically, Plaintiff contends that it has come to the attention of Plaintiff’s counsel that Defendant may have created the condition that flooded the office suite causing the damage by having unpermitted plumbing work done that did not comply with the Building Code. Even if alleged, this conduct does not rise the level of being despicable conduct.

Putting that aside, Plaintiff has had more than sufficient time to plead any relevant facts. This case was filed on February 4, 2019. An amended complaint was filed on June 10, 2022. At the time the FAC was filed, Plaintiff was on notice that Defendant would be opposing the addition of punitive damages allegations. (Defendant’s 5/27/2022 Opposition to Plaintiff’s Motion for Leave to File FAC).

Plaintiff “has the burden of proving the possibility of cure by amendment.” (Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173, citing Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78-79.) Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action. (Schulz v. Neovi Data Corp. (2007) 152 Cal.App.4th 86, 92.)