Judge Katherine Chilton, Case 22STLC02402 2022-08-09 Tentative Ruling

Defendant Morgutia’s DEMURRER as to the Second Cause of Action – Intentional Tort, Third Cause of Action – Premises Liability (Count Two – Willful Failure to Warn), and Fourth Cause of Action – Exemplary Damages is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Defendant Morgutia’s MOTION TO STRIKE is GRANTED WITH 20 DAYS LEAVE TO AMEND as to the following portions of the Complaint:

On April 8, 2022, Plaintiff Don Phung (“Plaintiff”), in propria persona, filed an action against Defendants Alicia Morgutia (“Morgutia”) and Paul A. Johnson (“Johnson”) (collectively “Defendants”) for 1) general negligence, 2) intentional tort, 3) premises liability, and 4) exemplary damages. The action arose out of an alleged fire on Defendant Morgutia’s property, caused by her tenant Defendant Johnson’s use of fireworks, which spread to Plaintiff’s property. (Compl. pp. 5-8.)

On June 9, 2022, Defendant Morgutia filed a Declaration of Demurring Party in Support of Automatic Extension to request additional time to meet and confer with Plaintiff and file a demurrer.

On July 13, 2022, Defendant Morgutia filed the instant Demurrer with Motion to Strike (“Demurrer”) and Motion to Strike (“Motion to Strike”) to the Complaint. No opposition was filed.

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10(f).) However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer. (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a)(3).)

On June 2, 2022, defense counsel states that she called Plaintiff’s counsel to discuss a possible demurrer and motion to strike and left a voicemail since Plaintiff’s Counsel was unavailable. (Chan Decl. ¶ 3; Ex. B.) She also sent a follow-up email that day regarding the call. (Ibid.) Counsel Chan attempted to reach Plaintiff’s counsel by phone and email on June 7, 2022, but was once again unable to reach Plaintiff’s counsel. (Ibid. at ¶ 4; Ex. C.) On June 14, 2022, defense counsel spoke to an office manager at the Plaintiff’s counsel’s office and was told that the office manager would get back to her. (Ibid. at ¶ 5.) Defense counsel spoke to a receptionist at the Plaintiff’s counsel’s office on June 23, 2022, and was told to email Counsel, which she did. (Ibid. at ¶ 6; Ex. D.) As of the date of the Demurrer and Motion to Strike, Plaintiff’s counsel has not responded to any of defense counsel’s attempts to meet and confer.

The Court notes, however, that Plaintiff is a self-represented litigant. No counsel is listed on the complaint and Plaintiff does not appear to be a lawyer. Plaintiff, however, has listed an email address that purports to be a law firm and a telephone number for that firm. Accordingly, given the multiple attempts that defense counsel made to contact plaintiff and even spoke to others at the law office regarding the case, the Court finds Counsel Chan’s declaration and attached email correspondence sufficient to satisfy the meet and confer requirement.

The Complaint[1] alleges the following regarding the cause of action for Intentional Tort:

Defendant Paul A. Johnsoni used fireworks on the date in question. This with deliberate intent and in such a manner as to cause fire starting in the rear garage area of the property 7639 Hellman Ave, Rosemead. The reuslting fire caused by Defendan'ts intentional acts through use of of fireworks caused the spread of fire to Plaintiffs property As a result Plaintiff suffered damage and losses to his porpety located at 7636 Columbia Ave, Rosemead CA.

Defendant Morgutia demurs to Plaintiff’s intentional tort cause of action for failure to state facts sufficient to constitute any intentional tort cause of action. (Demurrer pp. 4-7.) She states that “there is no generic cause of action for ‘Intentional Tort’” and Plaintiff’s “nonspecific ‘Intentional Tort’ cause of action offers Morgutia no indication as to what particular tort plaintiff is attempting to allege against her” and, thus, Defendant Morgutia does not have “adequate notice to prepare a defense against this vague claim.” (Ibid. at p. 5.)

Furthermore, Defendant argues that the “complaint fails to allege ultimate facts showing that Morgutia engaged in any conduct with the intent to cause harm.” (Ibid. at p. 6.) She states that “[a]llegations of Johnson’s purportedly intentional conduct are wholly insufficient to support an intentional tort cause of action against Johnson’s landlord, Morgutia.” (Ibid.) The rest of the complaint is “devoid of any allegations that Morgutia herself engaged in conduct intended to cause harm.” (Ibid. at p. 7.) Finally, Defendant Morgutia argues that any assertions of intent are conclusory as they simply state that the “use of fireworks was ‘with deliberate intent’ to cause fire.” (Ibid.)

The Court finds that the allegations in the Complaint do not identify a particular intentional tort. Under California Rule of Court, Rule 2.112(2), “[e]ach separately stated cause of action, count, or defense must specifically state its nature.” Therefore, Defendant Morgutia’s DEMURRER as to the non-specific intentional tort cause of action is SUSTAINED.

C. Third Cause of Action – Premises Liability – Count Two (Willful Failure to Warn)

The Complaint alleges that “the acts of defendants were the legal (proximate) cause of damages to plaintiff on July 8th, 2021” and “plaintiff was injured on the following premises in the following fashion” – “[f]ire stated July 4th 2021 on Property 7639 Hellman Ave, Rosemead CA 91770, then owned by Defendant Alicia Morgutia and occupied as a tenant by Defendant Paul A. Johnson The fire and resluting damages suffered to Plaintiff's property was the result of Negligent and Intentional acts caues of actions 1 and 2 as filed with this present complaint by Plaintiff.” (Compl. p. 7, Prem. L-1.) The form Complaint contains the language “defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were (names)” and Plaintiff has added “Alice Morgutia as Homeowner” to the form Complaint. (Ibid., Prem. L-3.)

Defendant demurs to Plaintiff’s premises liability cause of action, under the theory of willful failure to warn, for failure to allege sufficient facts that Defendant Morgutia acted “willfully or maliciously” when failing to warn of “any purportedly dangerous aspect or use of the subject property.” (Demurrer pp. 4, 9.) Defendant argues that the facts alleged in the Complaint would “amount to nothing more than ordinary or possibly gross negligence,” and not willful or malicious conduct. (Ibid. at p. 9.) In order to “allege willful or malicious conduct, the complaint must include specific facts demonstrating that Morgutia acted with a ‘positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.’ [Citation.]” (Ibid.) Defendant states that the Complaint does not allege facts demonstrating such positive intent existed. (Ibid.)

Furthermore, Defendant argues that “plaintiff’s assertion in count two of plaintiff’s premises liability claim that Morgutia ‘willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity’ is purely conclusory and unsupported by any actual allegations of fact.” (Ibid.)

Civil Code § 846 provides that a “landowner ‘owes no duty of care’ to persons using the land for recreation, either to maintain safe premises or to warn of hazards…” thereby “absolv[ing] California landowners from two separate and distinct duties: the duty to ‘keep the premises safe’ for recreational users, and the duty to warn such users of ‘hazardous conditions, uses of, structures, or activities’ on the premises.” (Klein v. United States of America (2010) 50 Cal.4th 68, 78.) However, § 846 does not limit the liability that otherwise exists for (1) “[w]ilfull or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[;] (2) [i]njury suffered in any case where permission to enter for [a recreational] purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where the consideration has been received from others for the same purpose [; or] (3) [a]ny persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” (Civ. Code § 846(c)(1)-(3).)

Here, Plaintiff fails to allege any facts that demonstrate Defendant Morgutia’s conduct amounts to willful failure to warn. The form complaint already contains the language “[t]he defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were” and Plaintiff has only added the phrase “Alice Morgutia as Homeowner.” (Compl. p. 7.) There are no facts stated to support a cause of action for willful failure to warn.

Defendant Morgutia’s DEMURRER to the Premises Liability, Count Two – Willful Failure to Warn cause of action is SUSTAINED.

Plaintiff seeks additional damages against Defendants Morgutia and Johnson in the form of exemplary damages of $5,000. (Compl. p. 8, EX.-1, EX-3.) He alleges that each defendant is guilty of “malice” and “oppression,” “as defined in Civil Code section 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and to punish defendant.” (Ibid.)

Plaintiff alleges that Defendants “are responsible for the combustible substances that contributed to a fire.” (Ibid., EX-2) In particular, Defendant Morgutia, as the homeowner of the property “was responsible manintance and upkeep of property” and “failed in her responsibility for storing and keeping combustible subsentences in a manner on her property that would have prevented the repaid spread of the fire to Plaintiff’s property.” (Ibid.) Furthermore, the Complaint states that “Defendants should have been aware of the dry conditions and high fire risk dangers” around July 4, 2021. (Ibid.) Defendant Morgutia, in particular, “should have heeded the extra warning of Los Angeles County officials” and she was “negligent and not warning her tenants” of the conditions and did not warn Defendant Johnson to “abstain from use of July 4th fireworks.” (Ibid.) Plaintiff alleges that “Defendants should pay extra to teach them a lesson not to commit such acts” and intends to “send a message and thus discourage others not to commit similar acts.” (Ibid.)

Defendant demurs to Plaintiff’s exemplary damages cause of action because exemplary damages are a remedy and not an independent cause of action. (Demurrer p. 10.)

Civil Code § 3294 defines the circumstances in which exemplary or punitive damages may be awarded. As set out in this section, exemplary damages are awarded for certain causes of action and are not an independent cause of action.

Here, Plaintiff lists “Exemplary Damges” as an independent cause of action under the “Other” category. Given that exemplary damages cannot be awarded without a specific cause of action, Defendant Morgutia’s DEMURRER as to the Exemplary Damages cause of action is SUSTAINED.

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Here, Defendant Morgutia’s Demurrer as to the Second Cause of Action – Intentional Tort, Third Cause of Action – Premises Liability (Count Two – Willful Failure to Warn), and Fourth Cause of Action – Exemplary Damages is SUSTAINED.

The Court finds that there is a reasonable possibility that an amendment may cure the defects in the pleadings. Therefore, Defendant’s Demurrer to the causes of action listed above is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

In its Motion to Strike, Defendant moves to strike the following portions from the Complaint:

Defendant argues that the factual allegations in the Complaint are not sufficient to support a request for exemplary or punitive damages because they “do not infer the requisite malice, oppression, or fraud” necessary for these types of damages. (Ibid. at p. 3.) “First, the complaint fails to allege any facts that Morgutia engaged in malicious conduct ‘intended by [Morgutia] to cause injury to plaintiff.’ (See Civ. Code § 3294(c)(1)).” (Ibid. at p. 6.) Despite setting forth a cause of action for “Intentional Tort,” the facts merely allege that Defendant Johnson used the fireworks “‘with deliberate intent and in such a manner as to cause fire’…(Complaint. ¶IT-1 (Exhibit A).)” (Ibid.) Defendant states that these allegations are both conclusory and pertain to Defendant Johnson. (Ibid.) Defendant Morgutia states that the allegations do not demonstrate in any manner that “Morgutia engaged in despicable conduct that is base, vile, or contemptible and has the severe and shocking character as that frequently associated with crime. Rather, the complaint’s allegations as to Morgutia are rooted in ordinary negligence.” (Ibid. at p. 7.)

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) 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.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.) Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall 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 purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5(a).)

“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.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A request for punitive damages may be made pursuant to Civil Code § 3294(a) which provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Under the statute, malice is defined as “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” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc. § 3294(c)(1), (c)(2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

As discussed above, Defendant Morgutia has satisfied the meet and confer requirement through its Counsel’s declarations.

The Court finds that Plaintiff has not presented facts sufficient to show that he is entitled to punitive or exemplary damages. The allegations pleaded in the Complaint as to Defendant Morgutia do not rise to the kind of despicable, vile conduct that may warrant these damages. To the extent Plaintiff seeks punitive damages from Defendant Morgutia, he has not pleaded any facts demonstrating that Defendant Morgutia acted in a malicious or oppressive manner. Thus, Defendant Morgutia’s request to strike Plaintiff’s references to exemplary and punitive damages and intentional, willful, or malicious conduct is GRANTED WITH 20 DAYS LEAVE TO AMEND.

Defendant Morgutia’s MOTION TO STRIKE is GRANTED WITH 20 DAYS LEAVE TO AMEND as to the following portions of the Complaint:

[1] The Court notes that the Complaint contains numerous spelling errors. References to the Complaint reflect the exact language of the Complaint without correcting those errors.