Judge: Malcolm Mackey, Case: 22STCV31142, Date: 2023-03-24 Tentative Ruling

Case Number: 22STCV31142    Hearing Date: March 24, 2023    Dept: 55

GEDDEN v, DIAMOND ESTATE REALTORS, et al.                                        22STCV31142

Hearing Date:  03/24/23,  Dept. 55

#5:  MOTION TO STRIKE PUNITIVE DAMAGES

Notice: Okay

Opposed

MP:  Defendants Diamond Estate Realtors and Patrick Okwandu

RP:  Plaintiff Julie Gedden

Summary

On 9/26/22, Plaintiff Julie Gedden (“Plaintiff”) filed this suit against Defendants Diamond Estate Realtors and Patrick Okwandu (“Defendants”). The Complaint alleges causes of action for (1) Breach of Contract, (2) Breach of Implied Warranty of Habitability/Tenantability, (3) Breach of Implied Warranty of Quiet Enjoyment, (4) Negligence, (5) Nuisance (Private), and (6) Retaliatory Acts (Violation of California Civil Code § 1942.5).

On 11/15/22, Defendants filed the instant motion to strike punitive damages from Plaintiff’s Complaint. On 12/14/22, Plaintiff filed an opposition and on 3/9/23 Defendants replied.

MP Positions

Plaintiff moves the Court to strike punitive damages from the complaint arguing the allegations are vague and conclusory.

RP Positions

Defendants oppose the motion arguing that the allegations are sufficient because it is pleaded that Defendants not only failed to make needed repairs to the atrocious conditions at the Subject Property after Plaintiffs gave Defendant notice, Defendant refused to make said repairs. (Complaint at ¶¶ 25, 27, 35, & 36.) Defendant refused to make any repairs even though Plaintiff pleaded with them to do so and gave them more than sufficient notice over a period of years, and in response, instead of making repairs, Defendants retaliated against Plaintiff by reducing services and refusing to pay for relocation. (Complaint at ¶¶ 14 – 21, 25, 27, & 32 – 36.)

Tentative Ruling

The opposed motion to strike punitive damages is granted with leave to amend, for the reasons stated.

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.) The adequacy of a claim for punitive damages may be tested by a motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) 

Leave to amend must be allowed where there is a reasonable possibility of successful 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.)

“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.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).) Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.) Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

To establish “malice”, a plaintiff must demonstrate that (1) the defendant intended to cause injury to plaintiff or (2) despicable conduct with a willful and conscious disregard of the rights or safety of others. (Civ. Code §3294(c)(1).). “[A]bsent an intent to injure the plaintiff, malice requires more than a willful and conscious disregard of the plaintiffs’ interest. The additional component of ‘despicable conduct’ must be found.” (College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) To establish “oppression,” Plaintiff must allege “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Ibid.) To establish “fraud,” Plaintiffs must allege “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.” (Ibid.)

Malice and oppression both include a finding of despicable conduct. “Despicable” means conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) “Such conduct has been described as having the character of outrage frequently associated with [a] crime.” (Ibid.)

Here, the Complaint alleges that since the inception of the lease the property has been afflicted by, among other issues, an ongoing toxic mold problem. Plaintiff first informed Defendants about the presence of mold in January 2019. In response, Defendants sent a handyman who failed to adequately remediate the issue at the time. Defendants did not conduct any follow-up mold inspections to ensure that the mold problem had been remediated. Over time, the mold infestation expanded as it spread to other areas of the Property. There have also been severe leaks in the ceiling such that Plaintiff was unable to sleep in her own bed for months. HCIDLA visited the Property at least four times. Defendant was cited by HCIDLA for the water damage sustained to the Property. Defendants were ordered by HCIDLA to repair the damage each of the four times that HCIDLA visited the Property. Defendants failed to comply with the HCIDLA’s citation. After much cajoling and an unreasonable amount of requesting and pleading, Defendant finally agreed to conduct a mold remediation. The remediation project lasted about nine months and Defendants did not pay for relocation. Despite this mold remediation project, there is still substantial mold growth in the Property. Mold is currently growing in the kitchen and bathroom, and Plaintiff continues to suffer health complications due to the mold exposure. (Complaint, ¶¶13-28.)

Further, prior to the lease, the Subject Property was advertised as having access to private backyard, and Defendants represented to Plaintiff that they would have full and unfettered access to the backyard and the time of transacting, but Defendants have since deprived Plaintiff of the bargained-for unfettered access and have refused to give Plaintiff any consideration for the loss. (Complaint, ¶¶32 – 36.)

The Court does not find the allegations conclusory, but also does not find that they rise to the level of malice to support a claim for punitive damages. “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.) The allegations make clear that there was a severe leak problem in the roof such that there was severe water damage to the bedrooms, especially the master bedroom, and the creation of a mold problem. However, the allegations also state that Defendants sent a handyman to deal with the issues after Defendants were notified. The fact that they did not send anyone to do any follow up inspections does not show malice. Further, the Complaint does not allege that Plaintiff indicated to Defendants that it was not corrected at that time. Moreover, the Complaint alleges that Defendants conducted a nine month remediation project of the property. The fact that they did not pay to relocate Plaintiff does not support punitive damages. Further, the fact that there is still a mold issue even after the project does not show despicable conduct and a willful failure to remediate the issues and avoid the injury. The Complaint shows a clear intention to try to remediate the issues.

The Court also notes that the allegations regarding use of the backyard does not rise to level of malice, i.e., despicable conduct, for punitive damages. There are also no allegations of fraud.

Accordingly, the motion is GRANTED with leave to amend.

*IF ALL PARTIES SUBMIT ON THE COURT’S TENTATIVE RULING, PLEASE CALL 213-633-0655*