Judge Kerry Bensinger, Case 21STCV34582 2023-04-19 Tentative Ruling

On September 20, 2021, plaintiff Cheryl Ann Thomas (“Plaintiff”) filed this action against defendants GZ Portfolio V 80 LLC, Golden Z Holdings LLC, and Golden Bee Management LLC (collectively, “Defendants”). On November 29, 2021, Plaintiff filed a First Amended Complaint. On February 22, 2022, Plaintiff filed a Second Amended Complaint (“SAC”). On April 13, 2022, the parties filed a stipulation acknowledging that the SAC was the operative complaint. On May 23, 2022, Defendants filed a demurrer and motion to strike. The Court sustained Defendants’ demurrer, granted Defendant’s motion to strike Plaintiff’s prayer for punitive damages, and gave Plaintiff leave to amend to add a cause of action for negligent supervision. Plaintiff was not given leave to amend her request for punitive damages but was directed to file a motion for leave to amend in the future.

On November 7, 2022, Defendants filed a demurrer and motion to strike. Defendants demurred to the cause of action for Violation of Civil Code section 1942.4 and 1942.5 and moved to strike Plaintiff’s prayer for punitive damages and allegations of treble damages. The Court sustained Defendants’ demurrer, granted Defendants’ motion to strike, and gave Plaintiff 20 days leave to amend her cause of action for a Violation of Civil Code section 1942.5 and punitive damages under section 1942.5, subd. (h) only.

On January 4, 2023, Plaintiff filed the Fourth Amended Complaint (“FAC”) asserting causes of action for (1) Breach of Warranty of Habitability, (2) Breach of Statutory Warranty of Habitability, (3) Breach of the Covenant of Quiet Enjoyment, (4) Private Nuisance, (5) Negligence, (6) Negligent Infliction of Emotional Distress, (7) Premises Liability, (8) Intentional Infliction of Emotional Distress, and (9) Violation of Civil Code Section 1942.5. According to the FAC, on September 24, 2020, Plaintiff was seated on the toilet of her apartment when a portion of the ceiling collapsed upon her.

Defendants now move to strike the prayer for punitive damages and treble damages in the FAC. Plaintiff opposes and Defendants reply.

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); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 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.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

In ruling on a motion to strike punitive damages, “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.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 (College Hospital).) Under Civil Code section 3294, subdivision (b), “[a]n employer shall not be eligible for damages pursuant to subdivision (a), based upon acts of an employee of the employer unless the employer had advance knowledge of the unfitness of the 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.”

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].)

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5, subd. (a).) The meet and confer requirement is satisfied. (Voss Decl., ¶ 4.)

Defendants move to strike Plaintiff’s request for punitive damages and treble damages.

Defendants argue that the request for punitive damages should be stricken because (1) Plaintiff does not allege any facts to support a claim for punitive damages and (2) Plaintiff does not allege that an officer, director, or managing agent of the entity defendant authorized or ratified the alleged conduct of its employees as alleged in the FAC.

Plaintiff seeks punitive damages pursuant to Civil Code section 1942.5. That section states, “If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following: [¶] (2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.” (Civ. Code § 1942.5, subd. (a)(2).) Section 1942.5 further provides, “Any lessor or agent of a lessor who violates this section shall be liable to the lessee in a civil action for … [p]unitive damages in an amount of not less than one hundred dollars ($100) nor more than two thousand dollars ($2,000) for each retaliatory act where the lessor or agent has been guilty of fraud, oppression, or malice with respect to that act.” The statute expressly provides for punitive damages.

Here, the FAC adds new allegations at paragraphs 29-34, 101, and 105-111 which sufficiently plead punitive damages pursuant to Section 1942.5. According to those allegations, Plaintiff repeatedly called the Tenants’ Repair phone number provided by Defendants, requesting that the Defendants repair the hole in her bathroom ceiling before and after the ceiling collapsed. Defendants removed the debris, but never repaired the ceiling. As a result, Defendants forced Plaintiff to live nine months with a hole in her bathroom ceiling during the winter. Defendants failed to repair the ceiling because she repeatedly complained to an agency as to the uninhabitable living conditions.

Section 1942.5 provides a basis for punitive damages against a lessor (here, the entity Defendants) separate from Civil Code section 3294. (See, e.g., Rich v. Schwab (1998) 63 Cal.App.4th 803, 816 (recognizing that punitive damages under section 1942.5 are a distinct category of statutory penalty or statutory damages).) Plaintiff is not required to plead with specificity that an officer, director, or managing agent of Defendants acted with oppression, fraud, or malice because Section 1942.5 does not so require. Punitive damages under section 3294 and section 1942.5 are separate and distinct. Further, a reasonable trier of fact could infer malice from the new allegations in the FAC.

As the prayer for punitive damages relates only to punitive damages under Ninth Cause of Action for Violation of Civil Code section 1942.5, the motion to strike the prayer for punitive damages is DENIED.

Plaintiff improperly alleges treble damages as part of the Second Cause of Action for Breach of Statutory Warranty of Habitability. The Court granted Defendants’ motion to strike treble damages from Plaintiff’s TAC without leave to amend. Moreover, Plaintiff has not set forth any new allegations supporting a request for treble damages.

Accordingly, the motion to strike treble damages from the FAC is GRANTED without leave to amend.

Defendants are ordered to file and serve their answer within 15 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

Hon. Kerry Bensinger

Judge of the Superior Court