Judge: Lee W. Tsao, Case: 22NWCV00323, Date: 2023-03-07 Tentative Ruling

Case Number: 22NWCV00323    Hearing Date: March 7, 2023    Dept: C

HARTON v. JACOBS

CASE NO.:  22NWCV00323

HEARING:  3/7/23 @ 1:30 PM

#4

TENTATIVE RULING

Defendant Jacobs’s unopposed motion to strike portions of Plaintiff’s first amended complaint is GRANTED.

As there is no opposition, the court is inclined to deny leave to amend, but will hear from Plaintiff.

If leave to amend is denied, Defendant will be ORDERED to file and serve the Answer within 10 days.

Moving Party to give NOTICE.

Defendant Jacobs moves to strike punitive damages from the first amended complaint.

This is a landlord tenant dispute.  On April 27, 2022, Plaintiff Nichelle Harton ("Plaintiff"), in pro per, filed her initial Complaint against Defendant, alleging that the premises have vermin rodent infestation, defective doors, defective plumbing, defective electrical wiring, mold, and the carpet is in need of the replacement.  The FAC asserts causes of action for:

1.    Breach of Warranty of Habitability

2.    Specific Performance of Negligent Maintenance of Premises

3.    Nuisance

4.    Order Abating a Nuisance

5.    Intentional or Reckless Infliction of Mental Distress

6.    Breach of Covenant of Good Faith and Fair Dealing

7.    Order Restraining Unlawful Business Practice

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or 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.  (CCP § 436.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records).  (CCP § 437.)

In 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.  (1) "Malic means 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.  (2) "Oppressio means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) "Frau 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.  (CC § 3294(a).)  

The court finds the FAC fails to plead sufficient facts supporting malice, oppression or fraud.

Accordingly, the unopposed motion to strike is GRANTED.  As there is no opposition, the court is inclined to deny leave to amend, but will hear from Plaintiff.

If leave to amend is denied, Defendant will be ORDERED to file and serve the Answer within 10 days.