Judge: Malcolm Mackey, Case: 22STCV12390, Date: 2022-09-14 Tentative Ruling
Case Number: 22STCV12390 Hearing Date: September 14, 2022 Dept: 55
BORGEL
v. THE GOLDIE APPEL ADMIN. TRUST 22STCV12390
Hearing Date: 9/14/22,
Dept. 55
#8: MOTION TO STRIKE PORTIONS OF THE COMPLAINT.
Notice: Okay
Opposition
MP:
Defendant MCM PROPERTY MANAGEMENT, INC.
RP:
Plaintiffs.
Summary
On 4/12/22, plaintiffs MELISSA BORGEL
and RAWLES ASKEW filed a Complaint alleging that they were tenants living
in untenantable conditions at residential property (roof ripped open and dust
and debris including nails and asbestos), those conditions lasted unrepaired
for 5 months, and the bedroom ceiling collapsed on them while sleeping in bed, notwithstanding
plaintiffs’ repeated complaints to the owner and manager defendants.
The causes of action are:
1. NEGLIGENT BREACH OF
THE IMPLIED WARRANTY OF HABITABILITY;
2. INTENTIONAL BREACH OF
THE IMPLIED WARRANTY OF HABITABILITY;
3. NUISANCE (NEGLIGENT);
4. NUISANCE
(INTENTIONAL);
5. NEGLIGENCE;
6. INTENTIONAL INFLICTION
OF EMOTIONAL DISTRESS;
7. BREACH OF IMPLIED
COVENANT OF QUIET ENJOYMENT - WRONGFUL CONSTRUCTIVE EVICTION;
8. NEGLIGENT VIOLATION OF
STATUTORY DUTY;
9. INTENTIONAL VIOLATION
OF STATUTORY DUTY.
MP
Positions
Moving parties request an order striking allegations
re “defendants” and punitive damages from the Complaint, on grounds including
the following:
·
Plaintiffs failed to define the term
"defendants," making the Complaint uncertain where plaintiffs allege
that "defendants" have knowledge of something, participated in or
committed any of the acts alleged.
·
Vague and conclusory allegations are
insufficient to support a punitive damages claim, which must instead be alleged
specifically.
·
With respect to a corporation (like Defendant),
the advance knowledge and conscious disregard, authorization, ratification, or
a direct act of oppression, fraud or malice, must be on the part of an officer,
director, or managing agent.
·
Plaintiffs inadequately allege that Defendant
had knowledge of substandard conditions described.
·
Due process requires that a defendant have
“fair notice of not only the conduct the will subject [it] to punishment, but
also of the severity of the penalty that a State may impose.” (Roby v. McKesson
Corp. (2009) 47 Cal.4th 686, 712. See
also Wiley v. Rhodes (1990) 223
Cal. App.3d 1470, 1474.)
RP
Positions
Opposing parties advocate denying, or leave to amend, for
reasons including the following:
·
Uncertainty is not an authorized ground
for a motion to strike.
·
All defendants are sufficiently named in
every cause of action.
·
Plaintiffs alleged ultimate facts
supporting punitive damages, as required.
·
The Complaint sufficiently alleges untenantable conditions at the property (roof ripped open
and dust and debris including nails and asbestos), and that those conditions
lasted unrepaired notwithstanding plaintiffs’ repeated complaints.
·
The Complaint sufficiently alleges actions
done by officers, directors and managerial agents of defendants, and with the
authorization or ratification of defendants.
·
Case law related to due-process notice of
punitive damages for defaults, is inapplicable to pleading punitive damages.
Tentative
Ruling
The motion is denied.
Twenty days to answer.
“Defendants”
Reference
A motion to strike on the ground of uncertainty is
procedurally improper, but instead a demurrer is the prescribed procedure. Allerton
v. King (1929) 96 Cal. App. 230, 234;
B.F.G. Builders v. Weisner & Coover Co., (1962) 206 Cal. App. 2d
752, 759 (“A motion to strike is not a proper substitute for a special
demurrer.”).
Also, the ground of uncertainty does not lie as to
which defendant committed the alleged conduct, where the pleading alleges that
all defendants were responsible. Dillard v. County of Kern (1943) 23
Cal. 2d 271, 279 (“The complaint charges
all the defendants and their agents and servants with having negligently
operated . . . the truck. Liberality in pleading compels the conclusion that
the demurrer should not have been sustained. Defendants were in a superior
position to know….”). Alleging conduct
of defendants and each of them was sufficient to charge each with
liability. Lee v. Escrow Consultants,
Inc. (1989) 210 Cal. App. 3d 915, 925.
Punitive
Damages
Ultimate facts regarding lessor’s and manager’s long-known
roof being ripped open, and eventual roof collapse on lessees while sleeping,
are sufficiently alleged (e.g.,
Complaint, ¶¶ 10 – 16). An open or
collapsing roof is a condition risking probable harm to the people inside.
Depending on the circumstances, tenants may recover
punitive damages related to breach of the warranty of habitability. 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.”).
A tort involving negligence, together with conduct or
omissions that one knows or should know probably will result in harm, can
support an award of punitive damages. Nolin
v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286-88
(defendant's inattention to danger showed a complete lack of concern for the
likelihood of personal injuries at defendant’s premises). “To support an award
of punitive damages on the basis of conscious disregard of the safety of
others, a plaintiff ‘must establish that the defendant was aware of the
probable dangerous consequences of his conduct, and that he willfully and
deliberately failed to avoid those consequences.’ ” Penner v. Falk
(1984) 153 Cal.App.3d 858, 867 (citing Taylor v. Sup. Ct. (1979) 24
Cal.3d 890, 895–96).
Additionally, managerial agents’ participation is
sufficiently alleged with typical, general allegations (e.g., Complaint, ¶ 9).
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).
Further, the due process required at the pleading
stage, is ultimate facts.
“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. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. Accord
Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th
1004, 1055; Blegen v. Sup. Ct.
(1981) 125 Cal.App.3d 959, 962.