TENTATIVE RULING

Defendants 25016 Walnut, LLC and Newhall Bliss, LLC’s Demurrer to Plaintiffs’ Complaint is OVERRULED.

Defendants 25016 Walnut, LLC and Newhall Bliss, LLC’s Motion to Strike Portions of Plaintiffs’ Complaint is GRANTED with thirty (30) days leave to amend as to Plaintiffs’ claim for punitive damages and DENIED without prejudice as to Plaintiffs’ claim for attorney fees.

Plaintiffs Joshuanna Lapp Lapplander and Chebella Lapplander may amend their complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendants 25016 Walnut, LLC and Newhall Bliss, LLC to give notice. 

REASONING

At the outset, the Court notes that Plaintiffs Joshuanna Lapp Lapplander and Chebella Lapplander (“Plaintiffs”) argue that Defendants 25016 Walnut, LLC and Newhall Bliss, LLC (“Defendants”)’s demurrer and motion to strike should be denied as untimely. Defendants represent that Plaintiffs’ counsel had extended the time to respond. The untimeliness of a demurrer and motion to strike are not sufficient grounds to overrule a demurrer or deny a motion to strike, and given the defects in the complaint, the Court exercises its discretion to consider this untimely demurrer and motion to strike. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280 [30-day deadline to file a demurrer pursuant to Code of Civil Procedure section 430.40, subdivision (a), is not mandatory; Jackson v. Doe (2011) 192 Cal.App.4th 742, 749 [trial court has discretion to consider an untimely demurrer].)

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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).) The court may also strike 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).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) 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. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Demurrer

In the notice of demurrer, Defendants state that this demurrer is “based on the grounds that Plaintiffs’ FAC fails to state sufficient facts to constitute a cause of action of Negligence, Breach of Warranty of Habitability against Defendants and the cause of action of Premises Liability is duplicative and redundant of Plaintiffs’ Fourth Cause of Action for Negligence.” (Dem., p. 2, ll. 4-7.) First, this pleading is the initial complaint, not a First Amended Complaint; second, Defendants include no argument in their memorandum of points and authorities as to the claim for negligence; third, the complaint does not include a claim for premises liability; and fourth, there is no fourth cause of action for negligence. The Court assumes this was typographical error, and the Court does not address these purported grounds for demurrer given Defendants provide no argument as to each of these statements.

The memorandum of points and authorities includes only argument that the prayer for punitive damages with the second cause of action for breach of warranty of habitability is improper. A demurrer is not a proper vehicle to challenge a prayer or allegations for punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163 [“a demurrer does not lie to a part of a cause of action,” such that punitive damage allegations are not subject to demurrer].) Accordingly, Defendants 25016 Walnut, LLC and Newhall Bliss, LLC’s Demurrer to Plaintiffs’ Complaint is OVERRULED.

Motion to Strike

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiffs seek an award of punitive damages as part of their second cause of action for breach of warranty of habitability on the ground that the property was cited for habitability issues, such that Defendants’ failure to remedy the issues at the property shows a disregard for Plaintiffs’ health, safety, and well-being. (See Compl., p. 5, ll. 10-14.) The allegations, as stated, are conclusory, as it is not clear who was made aware of what issues at the property. Further, given that it appears Plaintiffs seek to hold Defendants liable for the acts of specific individuals, such as employees, who could have remedied the issue, corporate employers like Defendants may be liable for punitive damages only where the acts supporting the award were performed by or with knowledge of or with ratification by corporate officials. (Civ. Code, § 3294, subd. (b).) Plaintiffs have alleged no facts that would allow the trier of fact to conclude that corporate officials were aware of the likelihood of injury to Plaintiffs due to failure to remedy the issues or that they ratified the wrongful conduct which ultimately caused harm to Plaintiffs. Upon amending the complaint, Plaintiffs must allege specific facts in this regard to support an award for punitive damages, and conclusory statements will not suffice. Accordingly, Defendants’ motion to strike is GRANTED with thirty (30) days leave to amend as to Plaintiffs’ claim for punitive damages.

Defendants also apparently seek to strike Plaintiffs’ request for attorney fees in the complaint (see Compl., p. 9), but Defendants provide no argument to this effect. While this alone may be a basis to deny Defendants’ motion to strike, the Court notes that an award of attorney fees is proper when authorized by contract, statute, or law (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10)), and Plaintiffs have cited a statutory basis for such fees under Civil Code section 1942.4, subdivision (b)(2). It is not clear which prayer Defendants seek to strike, and the Court declines to rule on this without specific argument as to each claim. Thus, Defendants’ motion to strike is DENIED without prejudice as to Plaintiffs’ request for attorney fees.

Accordingly, Defendants 25016 Walnut, LLC and Newhall Bliss, LLC’s Demurrer to Plaintiffs’ Complaint is OVERRULED, and Defendants 25016 Walnut, LLC and Newhall Bliss, LLC’s Motion to Strike Portions of Plaintiffs’ Complaint is GRANTED with thirty (30) days leave to amend as to Plaintiffs’ claim for punitive damages and DENIED without prejudice as to Plaintiffs’ claim for attorney fees. Upon amending the complaint, Plaintiffs are asked to revise the paragraph numbers in the pleading, as the complaint currently jumps from paragraph 3 to paragraph 50 (Compl., p. 1), then from paragraph 67 to 33 (Compl., p. 5), rendering it difficult to cite specific paragraphs of the pleading.