Judge Kerry Bensinger, Case Number: 23STCV19034, Date: 2023-12-19 Tentative Ruling

This is a nuisance case. On August 10, 2023, Plaintiffs, Reijo Myllyla, Ray Myllyla, and Alma Myllyla, filed this action against Defendants, Shahco, Inc. (“Shahco”) and Shahram Saba (“Saba”), alleging causes of action for (1) Public Nuisance, (2) Public Nuisance Per Se, (3) Abatement of Public Nuisance, (4) Private Nuisance, (5) Private Nuisance Per Se, and (6) Negligence.

The Complaint alleges as follows: Plaintiffs are the owners and residents of real property at 1545 Cambria Street, Los Angeles, California 90017. Shahco, a corporation, is the owner of real property at 1537 Cambria Street, Los Angeles, California, 90017 (“Subject Property”). Saba is the owner, employee, officer, director, shareholder, or agent of Shahco. The foregoing properties are adjoining. Over the past year, Shahco and Saba have allowed homeless drug addicts to reside at the Subject Property, wherein there have been repeated and unabated incidents of public intoxication, public urination, public defecation, public masturbation, lewdness, prostitution, loitering crowds of drug users, all-out physical brawls, physical of assaults of the elderly (including Plaintiff Reijo), and two separate instances where the Subject Property caught fire. Defendants have failed to adequately maintain or ensure the reasonable safety of the Subject Property or its surrounding properties. These conditions have interfered with Plaintiffs’ enjoyment of life and property. Plaintiffs seek punitive damages.

On October 2, 2023, Defendants filed this motion to strike punitive damages allegations from the Complaint.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (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, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)

Defense counsel has satisfied this the meet and confer requirement.¿(Declaration of Kevin E. Barry, ¶¶ 7, 8.)¿¿¿

Defendant moves for an order to strike allegations of and requests for punitive damages from the Complaint. The allegations appear at Paragraphs 39, 44, 58, 63, and 46, and the requests appear throughout the Prayer for Relief.

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. (Civ. Code § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] 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. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) 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.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Defendants argue the Court should strike the punitive damages allegations from the Complaint because there are no specific factual allegations to show that Defendant acted with oppression, fraud, or malice within the meaning of Civil Code section 3294.

Here, the Complaint alleges, in relevant part, that “there have been repeated and unabated incidents of public intoxication, public urination, public defecation, public masturbation, lewdness, prostitution, loitering crowds of drug users, all-out physical brawls, physical of [sic] assaults of the elderly (including Plaintiff Reijo), and two separate instances where the Subject Property caught fire” (Complaint, ¶ 13), that “Defendants have also allowed the Subject Properly to be used for the purpose of unlawfully selling and storing a controlled substance, its precursor, or its analog, as specified in Health & Safety Code §§ 11000-11651, namely, heroin, fentanyl, and methamphetamine. As a result, Plaintiffs wake up each morning to the sight of used hypodermic needles strewn across the front and backyards of Plaintiffs’ property” (Complaint, ¶ 14), that vagrants repeated scaling of Plaintiffs’ fence has damaged the fence to the point of requiring replacement (Complaint, ¶ 15), and that “[o]n May 31, 2023, Plaintiffs sent a letter to Defendants ... to notify them of the unlawful and actionable conduct occurring at the Subject Property. No response has been received, nor has any action been taken to abate the herein alleged nuisances occurring at the Subject Property” (Complaint, ¶ 26).

“[W]hen the facts warrant, exemplary or punitive damages may be recovered in a nuisance case ....” (Hutcherson v. Alexander (1968) 264 Cal.App.2d 126, 136.) After reviewing the Complaint, the Court finds that, contrary to Defendants’ position, the allegations in the Complaint are not conclusory. Rather, the Complaint specifically alleges serious conditions and ongoing occurrences on Defendants’ property, of which Defendants were notified. In particular, the Complaint alleges that Plaintiff Reijo was assaulted as a result from Defendants’ failure to properly secure the Subject Property. Defendants were on notice and failed to abate the nuisances[1] or even to respond to Plaintiffs’ letter. Construed together, the Court finds the punitive damages allegations are supported by specific facts. Further, the factual allegations rise to the level of despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.

Accordingly, the motion to strike punitive damages from the Complaint is DENIED.

Defendants are ordered to serve and file their Answer to the Complaint within 10 days of this order.

[1] The Complaint alleges causes of action for public and private nuisance. Each claim has different elements. The necessary elements for public nuisance are: (1) the defendant, by acting or failing to act, created a condition that was (a) harmful to health or (b) obstructed the free use of the property so as to interfere with the comfortable enjoyment of life or property; (2) the condition affected a substantial number of people at the same time; (3) an ordinary person would be reasonably annoyed or disturbed by the condition; (4) the seriousness of the harm outweighs the social utility of the conduct; (5) the plaintiff did not consent to the conduct; (6) the plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) the defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 2021; Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.)

“The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of¿Sacramento¿(1993) 20 Cal.App.4th 152, 160.) Thus, to¿allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. (See¿Adams v. MHC Colony Park Limited Partnership¿(2014) 224 Cal.App.4th 601, 610.)¿The three elements of private nuisance claims is that the alleged nuisance activities cause (1) an interference with the plaintiff’s use and enjoyment of their property, (2) that the invasion must be substantial such that actual damages occur, and (3) that the interference must be unreasonable. (See, e.g., Wilson v. Southern California Edison Co. (2018) 21 Cal. App. 5th 786, 802-03 (As to the unreasonable prong, the interference “must be ‘of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.’”).) The standard is objective, and is fundamentally a question of fact. (Ibid.) As to the "substantial actual damages" prong, "[t]he [Restatement of the Law, Seconds, Torts, § 821F] recognizes the same requirement as the need for proof of "significant harm" [citation omitted], which it variously defines as "harm of importance" and a "real and appreciable invasion of the plaintiff's interests" [citation omitted] and an invasion that is "definitely offensive, seriously annoying or intolerable" [citation omitted]. The degree of harm is to be judged by an objective standard, i.e., what effect would the invasion have on persons of normal health and sensibilities living in the same community? [Citation omitted.]" (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 938.)