Judge Lee S. Arian, Case Number: 22STCV25326, Date: 2023-11-02 Tentative Ruling

MOVING PARTY: Defendants Sanford Sigal and Cindy Sigal; Trustees of the Sigal Family Trust UA (“Sigal”)

This is an action arising from a slip and fall. On August 5, 2022, Plaintiff Houssem Zidi (“Plaintiff”) filed a complaint against Defendants Sanford Sigal and Cindy Sigal, Trustees of the Sigal Family Trust UA and Does 1 through 100, alleging causes of action for premises liability and general negligence.

On March 3, 2023, Defendant Sanford Sigal and Cindy Sigal, Trustees of the Sigal Family Trust UA filed a cross-complaint against Diamante Electric & Construction alleging causes of action for implied indemnity, contribution, and declaratory relief.

On July 19, 2023, Plaintiff filed an Amendment to Complaint, which substituted Diamante Electric & Construction for Doe 1.

On October 30, 2023, Defendant Diamante Electric, Inc. (“DEI”)[1] filed a motion to strike Plaintiff’s claims for punitive damages and corresponding allegations from the complaint. On November 30, 2023, the Court granted that motion.

On December 20, 2023, Plaintiff filed the operative First Amended Complaint against Sigal, DEI, and Allison Binder (“Binder”)[2] alleging causes of action for premises liability and general negligence.

On January 19, 2024, Sigal filed a motion to strike Plaintiff’s punitive damage allegations. On January 23, 2024, Sigal filed an amended notice of motion to strike Plaintiff’s punitive damage allegations. On February 13, 2024, Plaintiff filed an opposition. On February 20, 2024, Sigal filed a reply.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc., § 435, subd. (b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[s]trike 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.” (Code Civ. Proc., § 436, subd. (b).)

“Before filing a motion to strike . . . 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 if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

Counsel for Sigal sent letters and attempted to contact Plaintiff’s counsel telephonically in an attempt to meet and confer before bringing this motion to strike. (Adams Decl., ¶ 2.) Plaintiff’s counsel failed to respond to the meet and confer letters and phone calls. (Id.) The meet and confer requirement has been met per Code Civ. Proc. § 435.5.

2. Page 3, Lines 17-19: “In a premises liability case like this one, the standard for punitive damages is ‘with conscious disregard of the safety of others,’ which is a subcategory of malice.”

3. Page 4, Lines 15 – 17: “demonstrated malice, conscious disregard, and extreme recklessness for the safety of all residents and visitors to the premises…”

4. Page 4, Line 19: “demonstrated malice, conscious disregard, and extreme recklessness”

6. Page 5, Lines 4-5: “demonstrating a conscious disregard for the safety of the residents of the premises and others.”

14. Page 6, Lines 6-7 “and acted with a conscious disregard for the safety of others”

16. Page 6, Line 10 “As a result, Plaintiff is entitled to punitive damages”

18. Page 8, Line 23-24 “For punitive and exemplary damages as provided for by Cal. Civil Code § 3294”

“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.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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.” (Civ. Code, § 3294, subd. (c)(1).) “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.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” California Civil Code, Section 3294(c)(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)

The Court finds that Plaintiff has not alleged sufficient facts showing malice, fraud, or oppression to warrant the imposition of punitive damages against Sigal. The Court agrees with Sigal that the FAC at most alleges facts that support claims for a common premises liability or general negligence claim. Plaintiff essentially alleges that there was a dangerous condition on the property, Sigal was aware of the dangerous condition but failed to warn Plaintiff, and Plaintiff was injured as a result. (FAC, ¶¶ 12-29.) These allegations do not rise to the level of misconduct necessary to warrant the imposition of punitive damages in the context of a premises liability claim. (See Nolin v. Nat’l Convenience Store, Inc. (1979) 95 Cal.App.3d 279, 286 [punitive damages available for nonintentional tort “where defendant's conduct which causes injury is of such severity or shocking character that it warrants the same treatment as that accorded to willful misconduct conduct in which the defendant intends to cause harm.”])

The Court further agrees with Sigal that Plaintiff’s citation to Nolin is unavailing. Nolin is factually distinguishable because it involved a unique set of facts where, among other things, the defendant had stated, “’the store didn't have anything to worry about because they had a team of lawyers that would tie it up [i.e., negligence lawsuits] in court for years.’” (Nolin, supra, 95 Cal.App.3d at p. 283.) There had also been a known history of patrons slipping under the same conditions as the plaintiff’s injuries. (Id. at p. 283.) If anything, Nolin undermines Plaintiff’s position, because it makes clear that punitive damages based on a nonintentional tort claim like premises liability requires particularly egregious conduct to warrant their imposition. (See Id. at p. 286.)

Plaintiff requests that if the Court grants the motion, it provide leave to amend. The Court is not necessarily convinced that Plaintiff can allege facts sufficient to establish a basis for punitive damages, even on the allegations it puts forth in its reply, but given the liberal rules regarding leave to amend, the Court will give Plaintiff the opportunity one additional (and final) opportunity to plead sufficient facts to support punitive damages.

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. Lee S. Arian

Judge of the Superior Court

[1] DEI was erroneously sued as Diamante Electric & Construction, but Plaintiff filed an Amendment to Complaint on November 30, 2023, indicating that DEI’s true name is Diamante Electric, Inc.

[2] Binder was added as a defendant via an Amendment to Complaint on August 10, 2023.