Judge: Marcella O. Mclaughlin, Case: 37-2023-00017866-CU-WE-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - January 25, 2024

01/26/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Wrongful Eviction Demurrer / Motion to Strike 37-2023-00017866-CU-WE-CTL MCGUINNESS VS SAIKATENDU [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/21/2023

A. The demurrer to the FAC is SUSTAINED with leave to amend.

'The elements of civil battery are: (1) defendant intentionally performed an act that resulted in a harmful or offensive contact with the plaintiff's person; (2) plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to plaintiff.' Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526-27.

Here, plaintiff alleges that defendants failed to repair water damage in the hallway bathroom and under the sink, which caused mold in the residence to grow 'unabated.' (FAC at ¶¶ 114-115.) Even if true, such facts do not show that defendants intentionally performed an act that resulted in harmful or offensive contact with plaintiff's person. See Rest.2d Torts, § 14 ('To make the actor liable for a battery, the harmful bodily contact must be caused by an act done by the person whose liability is in question.'); see also Rest.3d Torts, Intentional Torts to Persons (Tent. Draft No. 1, April 8, 2015) § 101, com. c.

('[B]oth battery and assault liability require affirmative conduct, i.e., an act or course of activity. A mere omission is insufficient for liability.'). Plaintiff has not cited any authority holding that a cause of action for battery can be premised upon an omission or failure to act. Accordingly, plaintiff has failed to state a claim for civil battery.

B. The motion to strike portions of the FAC is GRANTED with leave to amend.

In order to state a prima facie claim for punitive damages, a complaint must 'include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious[.]' Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193. As relevant here, 'malice' is defined as 'conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.' Civ. Code § 3294(c)(1). 'Oppression' is defined as 'despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.' Civ. Code § 3294(c)(2). 'Despicable conduct' is conduct that is 'so vile, base, or contemptible that it would be looked down on and despised by reasonable people.' CACI 3940. A person acts with conscious disregard when 'the person is aware of the probable dangerous consequences of the person's conduct and deliberately fails to avoid those consequences.' Id. In this case, plaintiff alleges that defendants 'allowed mold to grow unabated in the residence in callous disregard for the comfort, safety, health and well-being of [p]laintiff' and 'discouraged [p]laintiff from reporting the defective conditions through their threatened use of the Repairs Clause.' (FAC at ¶¶ Calendar No.: Event ID:  TENTATIVE RULINGS

3069917  31 CASE NUMBER: CASE TITLE:  MCGUINNESS VS SAIKATENDU [IMAGED]  37-2023-00017866-CU-WE-CTL 145-146.) These facts are insufficient to show 'malice' or 'oppression' under Code of Civil Procedure section 3294.

C. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Thus, plaintiff is granted leave to amend count 1 and his claim for punitive damages. Plaintiff must file and serve the second amended complaint by February 5, 2024. Defendants' request for monetary sanctions is denied.

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