Judge: John C. Gastelum, Case: 21-01229493, Date: 2022-11-30 Tentative Ruling

(1) Motion to Strike (2) CMC

Tentative Ruling: (1) Defendants UDR Eight80 I LP DBA UDR Newport Beach North, L.P. (“UDR Eight80”); UDR California GP, LLC; United Dominion Realty, L.P. move for an order striking the following portions of the First Amended Complaint (“FAC”) filed by Plaintiff, Eric M. Willens (“Plaintiff”):

1.    Paragraph 40 in its entirety, or in the alternative, the first sentence of Paragraph 40 beginning with “Defendants, by their conduct . . . .,” as well as the last three (3) sentences in Paragraph 40 beginning with: “Thus, Defendant’s actions…,” “These acts were malicious…,” and “Consequently, the acts of Defendant…”, including any and all references in the Amended Complaint to “despicable conduct,” “exemplary damages,” or “malicious or oppressive,” or “punitive damages,” (Amended Complaint: ¶ 40.), and

2.    Item number “3.” under Plaintiff’s Prayer for Relief for his Third Cause of Action, requesting “Punitive and exemplary damages in an amount according to proof at trial.”

Plaintiff has not filed an opposition.

To support exemplary damages, the complaint must allege facts of defendant’s oppression, fraud, or malice, as required by Civil Code section 3294.  (Civ. Code, § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)  “ ‘Malice is properly pleaded by alleging the wrongful motive, intent or purpose.’ [Citation.]” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) A “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. [Citations.]” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Conclusory allegations that conduct was oppressive, fraudulent, or malicious are insufficient to support a claim for punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) There must be factual assertions supporting a conclusion that a defendant acted with oppression, fraud, or malice. (Ibid.)

The allegations in the FAC are insufficient to support that UDR Eight80 acted with malice or oppression. Malice and oppression are pled only in conclusionary terms, and no wrongful motive, intent, or purpose is alleged.   In addition, UDR Eight80 is alleged to be an entity, and there are no allegations to support a claim for punitive damages against UDR Eight80 as an employer under Civil Code section 3294(b). There are no allegations that UDR Eight80 had advance knowledge of the unfitness of any employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. Nor are there any allegations that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice was on the part of an officer, director or managing agent.

The Motion to Strike paragraph 40 of the FAC and paragraph 3 of the Prayer for the Third Cause of Action is GRANTED, with 10 days’ leave to amend. Plaintiff shall file an amended complaint within 10 days of the notice of ruling.

Defendant UDR Eight80 to give notice.