Judge: Lee W. Tsao, Case: 22NWCV01608, Date: 2023-11-14 Tentative Ruling

Case Number: 22NWCV01608    Hearing Date: November 14, 2023    Dept: C

Mario Antonio Perez, et al. vs Countrywide Mediterranean Apartments, LLC

CASE NO.: 22NWCV01608

HEARING:  11/14/23 

#4

TENTATIVE ORDER 

Motion to Strike is DENIED, as to the first, third, fourth, and seventh causes of action.

Motion to Stike is GRANTED, as to the second cause of action, with 20 days to amend.   

Moving party to give notice.  

Background

This a habitability action wherein multiple Plaintiffs are alleging seven causes of action against Defendant including (1) Breach of The Implied Warranty of Habitability; (2) Breach of Covenant and Right to Quiet Enjoyment; (3) Nuisance; (4) Negligence; (5) Unfair Business Practices; (6) Intentional Infliction of Emotional Distress; And (7) Intentional Misrepresentation. The prayer seeks damages, including punitive damages.

Meet and Confer Requirement  

“Before 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, subd. (a).)¿ 

Defendant’s Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5.

Legal Standard

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., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿ 

“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.) Furthermore, parties cannot recover attorney’s fees unless expressly authorized by a statute or contract. (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464.)

Discussion

Defendant moves to strike portions of the Complaint seeking punitive damages:

1.    Paragraph 54 in its entirety in the Third Cause of action relating to exemplary and punitive damages;

2.    Paragraph 76 in its entirety in the Sixth Cause of action relating to exemplary and punitive damages;

3.    Paragraph 83 in its entirety in the Seventh Cause of action relating to exemplary and punitive damages;

4.    Prayer for relief under First Cause of Action at paragraph 3, relating to punitive and exemplary damages;

5.    Prayer for relief under Second Cause of Action at paragraph 2, relating to punitive and exemplary damages;

6.    Prayer for relief under Third Cause of Action at paragraph 2, relating to punitive and exemplary damages;

7.    Prayer for relief under Seventh Cause of Action at paragraph 2, relating to punitive and exemplary damages.

Defendant argues that Plaintiffs have failed to assert any specific factual contentions upon which punitive damages may be awarded. (Mot, p. 3.) Defendant argues the Complaint offers nothing more than a collection of conclusory allegations of wrongful, knowing, and willful conduct.  Furthermore, the Complaint does not state which officer, director, or managing agent of Defendant is responsible for the alleged conduct. 

In opposition, Plaintiffs argue that the complaint sufficiently asserts facts to justify a finding that Defendant has been guilty of malice and oppression.

In reply, Defendant makes similar arguments as in the motion and argues the opposition should not be considered because it is untimely.   

Plaintiffs’ opposition is untimely. An opposition to a motion to strike is to be “filed and served at least 9 court days before the hearing.” Cal. Code Civ. Proc. §1005(b). In spite of deadline, California Courts have generally found “there is a judicial preference to hear matters on their merits even when filings are late, but there must be good reason.” (Kapitanski v. Von’s Grocery Co., Inc., (1983) 146 Cal. App.3d 29.) “The court, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him through his or her mistake, inadvertence, surprise, or excusable neglect.” (Cal. Code Civ. Proc. §473(b).) “An attorney's neglect in untimely filing opposing papers must be evaluated in light of the reasonableness of the attorney's conduct.” (Kapitanski, 146 Cal. App.3d at 33.) “The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005.” (Cal. Rules of Court 3.1300 (b).) Here, Plaintiffs’ Counsel attests that she inadvertently calculated the deadline to file an opposition to the motion to strike. The Court will consider the opposition on its merits.

Defendant points out that some causes of action do not mention punitive damages until the prayer for relief. Plaintiff is not required to prove in his complaint that the defendant is liable for punitive damages.  That is an issue to be decided by a jury at trial. Rather, plaintiff is required to allege in his complaint the “ultimate facts” upon which his claim for punitive damages is based. (Burke v. Superior Court (1969) 71 Cal.2d 276, 279, fn 4 [It is “the general rule that a complaint must contain only allegations of ultimate facts as opposed to allegations of the evidentiary facts or of legal conclusions or arguments”].)  Plaintiffs do not have to affirmatively state punitive damages are necessary in each cause of action, but rather allege facts that may give rise to punitive damages.

i.                 First, Third, Fourth, and Seventh Causes of Action

The right to a punitive damages award in California is strictly statutory. Civil Code section 3294 provides that a plaintiff can obtain punitive damages when it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice. Here, the first cause of action for Breach of The Implied Warranty of Habitability, the third cause of action for Nuisance, the fourth cause of action for Negligence; and the seventh cause of action for Intentional Misrepresentation all have statutory provisions that allow for punitive damages, if plaintiff can prove oppression, fraud, or malice.

After careful consideration of the pleadings, the Court is persuaded that Plaintiffs had adequately pled specific facts.  Plaintiffs allege that their 257-unit apartment complex is uninhabitable because the hot water shuts off, there is mold, the plumbing and sewage system is not maintained to an adequate condition, and there are no lights in the parking lot, among other contentions.  (Compl., pp. 6-8.)  At this stage of the proceedings, the Plaintiffs has alleged sufficient facts to support the first, third, fourth, and seventh causes of action. 

Accordingly, the motion to strike is DENIED as to the first, third, fourth, and seventh causes of action.

ii.             Second Cause of Action for Breach of Quiet Enjoyment

In Ginsberg v. Gamson (2012) 205 Cal.App.4th 873 (Ginsberg), the appellate court observed that courts have allowed tort damages for breach of covenant of quiet enjoyment only where there has been a wrongful eviction—i.e., where the landlord's acts or omissions affected the tenant's use of the property and compelled the tenant to vacate the property.  (Id. at pp. 897-898.)  The Ginsberg court noted that "some courts have implicitly or explicitly indicated a tenant may recover punitive damages in connection with a claim for breach of the implied covenant of quiet enjoyment, or identified the claim as a tort.  However, all of those cases describe wrongful eviction claims.  In other words, they are cases in which the implied covenant of quiet enjoyment is breached by a wrongful eviction."  (Id. at pp. 898-899.)  "[W]hen the landlord has breached the implied covenant of quiet enjoyment, but the tenant remains in possession of the premises, the tenant's remedy is to 'sue for breach of contract damages.' "  (Id. at p. 902.)

          In summary, California case law has recognized a tort cause of action for wrongful eviction, including breaches of the covenant of quiet enjoyment that compel a tenant to vacate, whereas breach of covenant of quiet enjoyment that does not result in a wrongful constructive or actual eviction is a breach of contract.  (Ginsberg, supra, 205 Cal.App.4th at pp. 898-902.)

          Here, Plaintiffs seemingly remain in possession of their units, therefore they have not adequately pled wrongful eviction necessary to pled punitive damages.

              Therefore, the Court GRANTS the motion to strike as to the second cause of action for Breach of Quiet Enjoyment.

"Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question."  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) 

Here, there is a reasonable possibility that Plaintiffs may show that they have left their units due to the conditions of the premises. Therefore, Defendant’s Motion to Strike is GRANTED with 20 days leave to amend.

Conclusion

For the foregoing reasons, the Court decides the pending motion as follows: 

Motion to Strike is DENIED, as to the first, third, fourth, and seventh causes of action.

Motion to Stike is GRANTED, as to the second cause of action, with 20 days to amend.   

Moving party to give notice.