Judge: Joel L. Lofton, Case: 22STCV04899, Date: 2022-12-12 Tentative Ruling

Case Number: 22STCV04899    Hearing Date: December 12, 2022    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     December 12, 2022                             TRIAL DATE:  August 8, 2023

CASE:                         ROSEMARY JENKINS, an individual, v. AVANA NORTH HOLLYWOOD APARTMENTS, an unknown entity, AVANA, LLC, a California limited liability company, OTSEGO APARTMENTS, a California limited liability company, OTSEGO APARTMENTS, LLC, a California limited liability company, and DOES 1 through 50, inclusive.

CASE NO.:                 22STCV04899

MOTION TO STRIKE

MOVING PARTY:              Defendant Regency General Contractors, Inc.

RESPONDING PARTY:      Plaintiff Rosemary Jenkins

SERVICE:                              Filed October 24, 2022

REPLY:                                   Filed December 5, 2022

RELIEF REQUESTED

            Moving Party moves to strike Plaintiff’s prayer for punitive damages.

BACKGROUND

            This case arises out of Plaintiff Rosemary Jenkins’ (“Plaintiff”) trip and fall claim against Defendants Avana North Hollywood Apartments, Avana, LLC, Otsego Apartments, and  Otsego Apartments LLC (“Defendants”). Plaintiff alleges she was a tenant at Defendants’ apartment building. Plaintiff alleges that the building had been under construction and that the floor of the common area was not aligned with the floor of the elevator. Plaintiff alleges that on April 28, 2021, she tripped and fell as a result of the misalignment.

            Plaintiff filed this complaint on February 8, 2022, alleging eight causes of action for (1) general negligence/premises liability, (2) breach of the implied warranty of habitability, (3) negligence per se, (4) negligent maintenance of premises, (5) breach of the covenant of quiet enjoyment, (6) private nuisance, (7) violation of Civil Code section 1941.1, and (8) gross negligence.

TENTATIVE RULING

            Moving Parties’ motion to strike Plaintiff’s prayer for punitive damages is GRANTED with leave to amend.

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one 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.  (Code Civ. Proc., 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)   

DISCUSSION

            Moving Party moves to strike Plaintiff’s prayer for punitive damages.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. In Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042, the Court held that “conclusory allegations” “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud, or malice” were insufficient to properly plead a claim for punitive damages.

Here, the only allegation Plaintiff levies against Defendants in support of her claim for punitive damages is that they failed to install safety measures to offset the dangers of the construction. (Complaint ¶ 82.) Other than summarily claiming that Defendants are guilty of oppression, fraud, and malice, Plaintiff has failed to plead any facts that support Defendants acted in such a manner. Plaintiff has only alleged conclusory allegations, which are insufficient to plead a prayer for punitive damages.

CONCLUSION

            Moving Parties’ motion to strike Plaintiff’s prayer for punitive damages is GRANTED with 30 days leave to amend.

            Moving Party to give notice.

Dated:   December 12, 2022                           ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their