Judge Malcolm Mackey, Case Number: 22STCV31142, Date: 2023-07-24 Tentative Ruling

Judge: Malcolm Mackey, Case: 22STCV31142, Date: 2023-07-24 Tentative Ruling

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

GEDDEN v, DIAMOND ESTATE REALTORS 22STCV31142

Hearing Date: 7/24/23, Dept. 55

#5: MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT.

Notice: Okay

Opposed

MP: Defendants DIAMOND ESTATE REALTORS and PATRICK OKWANDU

RP: Plaintiff JULIE GEDDEN

Summary

On 9/26/22, Plaintiff JULIE GEDDEN filed this lawsuit against Defendants DIAMOND ESTATE REALTORS and PATRICK OKWANDU.

On 3/24/23, defendants’ prior motion to strike was granted with leave to amend.

On 3/24/23, Plaintiff filed a First Amended Complaint, alleging defendants leased residential property to Plaintiff, which had uninhabitable conditions including ongoing rainwater intrusion, faulty plumbing, mold, faulty weather protection, dropping ceiling debris, dangerous electrical wiring, and defendants breached promises to remediate these issues by long ignoring Plaintiff’s maintenance requests.

The Causes of Action are:

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)

6) RETALIATORY ACTS (VIOLATION OF CALIFORNIA CIVIL CODE § 1942.5).

MP Positions

Defendants move to strike punitive damages from the complaint, on bases including the following:

· The allegations state that DIAMOND ESTATE sent a handyman to deal with issues after being put on notice. The fact that DIAMOND ESTATE did not send anyone to do any follow up inspections does not show malice.

· Plaintiff also alleges that DIAMOND ESTATE did not pay for relocation fees. This fact does not support punitive damages.

· The fact that there is still a mold issue even after the project does not show despicable conduct and willful failure to remediate the issues and avoid the injury.

· Plaintiff also alleges issues involving the use of the backyard, but such facts do not rise to the level of malice requisite for punitive damages.

· Plaintiff further alleges a retaliatory eviction, but relies on conclusory language that the protected act amounted to malice, oppression, or fraud.

· Plaintiff relies on some conclusory language.

RP Positions

Plaintiff advocates denying the motion, or leave to amend, for reasons including the following:

· Plaintiff plainly pleads that Defendants callously refused to remedy any of the habitability defects that Plaintiff brought to their attention.

· Defendants not only refused to make needed repairs to the atrocious conditions, but lied and gaslit Plaintiff, in an attempt to make her believe there was no need for repairs.

· Defendants proceeded to file a baseless unlawful detainer action, hoping to further deprive Plaintiff of her rights in furtherance of this scheme and in direct retaliation for her assertion of the ongoing need for repairs in her unit. (FAC ¶ 89).

Tentative Ruling

The motion is denied.

The First Amended Complaint well alleges ultimate facts of uninhabitable conditions likely to cause personal injuries, which defendants willfully refused to correct, and a retaliatory unlawful detainer based upon exercising tenant rights (e.g., F.A.C., ¶¶ 12 – 29).

“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.

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 2023) §3:102 (citing, e.g., Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 916–917, 922; 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.”); and Erlach v. Sierra Asset Servicing, LLC (2014) 226 CA4th 1281, 1299 (tortious violation of breach of warranty of habitability against former landlord that cut off all utilities.)).

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).

“A tenant who is wrongfully evicted by his landlord before the expiration of the lease term may maintain a wrongful eviction action for tort damages and punitive damages, if appropriate.” Nativi v. Deutsche Bank Nat'l Tr. Co. (2014) 223 Cal. App. 4th 261, 294.