Judge: Malcolm Mackey, Case: 21STCV43405, Date: 2022-08-04 Tentative Ruling

Case Number: 21STCV43405    Hearing Date: August 4, 2022    Dept: 55

PARODI v. RUTH E. FLINKMAN                                                           21STCV43405

Hearing Date:  8/4/22,  Dept. 55

#9:   MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendants

RP:  Plaintiff

Summary

On 11/29/21, Plaintiff LISA PARODI filed a Complaint.

On 5/10/22, Plaintiff filed a First Amended Complaint, alleging that defendants acted in gross dereliction of duties of landlords and property managers, which rendered the dwelling leased to Plaintiff unfit for human habitation and detrimental to her health and safety.

The causes of action are:

1. BREACH OF IMPLIED WARRANTY  OF HABITABILITY

2. NEGLIGENCE

3. NUISANCE

4. BREACH OF COVENANT OF  QUIET ENJOYMENT

5. VIOLATIONS OF CIVIL CODE  SECTION 1942.4.

MP Positions

Moving parties request an order striking allegations regarding punitive damages, on grounds including the following:

·         Plaintiff’s claim and prayer for punitive damages must be stricken, as they continue to be conclusory and without factual or legal basis.

·         Plaintiff does not allege that Defendants intended to injure her. Rather, Plaintiff generically alleges that Defendants failed to repair and maintain the premises in a reasonably safe condition. (Complaint, pg. 4, ¶15.)

·         While the circumstances alleged in the First Amended Complaint may rise to the level of negligence, mere negligence is not a sufficient basis to justify an award of punitive damages.

·         Plaintiff has not named any managing agent of Defendants who engaged in malice, fraud or oppression, nor are there any facts demonstrating advance knowledge of the unfitness of an employee of Defendants, with authorization or ratification by a managing agent.

RP Positions

Opposing party advocates denying, or allowing leave to amend, for reasons including the following:

·         Defendants generally ignored the specific allegations describing uninhabitable conditions endured as a tenant. 

·         Defendants do not address the allegations of the multiple citations of the Los Angeles County Department of Public Health and City of Santa Monica Department of Planning and Community Development issued to Defendants for numerous violations of applicable health and safety codes.

·         Plaintiff alleges in paragraph 16 that the “following conditions, among others, exist or have existed at the Property, some of which will continue to exist in the future for an uncertain period until such time as Defendants abate the conditions: a) Insect infestation, including silverfish and lack of insect control; b) Rodents; c) Deteriorating carpeting; d) Broken tiles and other flooring; e) Inoperable stoves or ovens; f) Inoperable heating; g) Broken kitchen cabinets; h) Broken bathroom cabinets; i) Toxic mold causing mold spores to float in the air and be inhaled by Plaintiff, thereby causing serious medical and health problems; j) Water intrusion; k) Water leaks; l) Water damage; m) Inadequate water closet or toilet; n) Lack of sanitary  plumbing; o) Inadequate bathtub or shower; p) Lack of bathroom fixtures; q) Holes in ceilings and/or interior walls; r) Chipped or bubbling paint; and s) Building code and health and safety code violations.” FAC, ¶ 16.

·         Plaintiff specifically alleges, at paragraph 18 of her operative Complaint, that “During the relevant time period, Plaintiff complained to Defendants, through one of Defendants’ managing agents, Denise Hernandez, about a large crack in the floor foundation throughout Unit 2 of the Property (“Unit 2”), where she resided.  Plaintiff complained to Defendants and their managing agents, including but not limited to Ross Hoppers, every two weeks beginning in July 2020 about the dangers of the lifted separate piece of threshold and the improper installation of the threshold posed on her, to no avail. The list goes on.

Tentative Ruling

The motion is denied.

Twenty days to answer.

The pleading well alleges, in unusual detail, lessors’ and managers’ knowing failures to correct various uninhabitable conditions that include some that could cause probable injuries (e.g., First Amended Complaint, ¶¶ 16 - 18).

Additionally, the pleading sufficiently alleges actions by each defendant, and of managerial agents of a corporation  (e.g.,  First Amended Complaint, ¶¶ 1, 10, 12).

Depending on the circumstances, tenants may recover punitive damages related to breach of the warranty of habitability.  Cal. Prac. Guide: Cal. Landlord and Tenants (The Rutter Group 2022) §3:102 (citing Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 916–917, 922;  and Rivera v. Sassoon (1995) 39 Cal.App.4th 1045, 1046-47 (allowing punitive damages, and stating:  “The building and health code violations found on the property included hazardous electrical wiring, seepage of raw sewage under the buildings due to broken plumbing, infestation of rats, termites and other vermin, broken and deteriorated doors and windows, lack of hot and cold running water, lack of heat, leaking roofs and leaking plumbing fixtures.”)).  In contrast, allegations of refusal to repair defective conditions amounting to negligence, where injuries might occur, but are not probable, do not support a claim of punitive damages against a lessor.  McDonell v Amer. Trust Co. (1955) 130 Cal.App.2d 296, 300;   Civ. Pro. Before Trial (The Rutter Group 2022) §6:166.

Alleging that persons acted "with the permission and consent" of all defendants including corporate defendants is sufficient to plead corporate employer liability for punitive damages. O'Hara v. Western Seven Trees Corp. (1977) 75 Cal. App. 3d 798, 806 (“it was alleged that the misrepresentations were made by persons who acted ‘with the permission and consent’ of all the defendants. For the purpose of meeting a general demurrer, this was a sufficient allegation that the corporations had authorized their agent's acts; a corporation is liable for punitive damages when it authorizes the wrongful act.”);  Kisesky v. Carpenters’ Trust (1983) 144 Cal.App.3d  222, 235 (allegations of agents acting in scope of employment with employer’s permission and consent were sufficient).  See also generally  Scannell v. County of Riverside (1984) 152 Cal. App. 3d 596, 614 (insufficiency where a complete failure to plead acts done with the knowledge or under express direction or ratification of officer, director or managing agent);  United W. Medical Ctrs. v. Sup. Ct. (1996) 42 Cal. App. 4th 500, 505 n. 2 (dicta re sufficiency being questionable where a complete failure to allege authorization, ratification, or conduct by managerial agent).