Judge: Michael E. Whitaker, Case: 22STCV25565, Date: 2023-02-08 Tentative Ruling

Case Number: 22STCV25565    Hearing Date: February 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

February 8, 2023–Continued from January 26, 2023

CASE NUMBER

22STCV25565

MOTIONS

Demurrer to First Amended Complaint; Motion to Strike Punitive Damages

MOVING PARTY

Defendants Avalonbay Communities, Inc. and ASN Woodland Hills East, LLC

OPPOSING PARTY

Plaintiff Jaclyn Gutierrez, individually, and as Successor-in-Interest and Personal Representative of the Estate of Christopher Pearson

 

MOTION

 

Plaintiff Jaclyn Gutierrez (Plaintiff), individually, and as Successor-in-Interest and Personal Representative of the Estate of Christopher Pearson (Decedent) sued Defendants Avalonbay Communities, Inc., ASN Woodland Hills East, LLC, Universal Protection Service, LP, and Allied Universal Executive Protection and Intelligence Services, Inc. (collectively, Defendants) based on a violent attack on Decedent which resulted in his death. 

 

Defendants Avalonbay Communities, Inc. and ASN Woodland Hills East, LLC (Demurring Defendants) demur generally and specially to the third cause of action in Plaintiff’s first amended complaint (FAC) for concealment.  Further, Demurring Defendants move to strike Plaintiff’s prayer for punitive damages and related portions of the FAC.  Plaintiff opposes the demurrer and motion to strike.  Demurring Defendants reply. 

 

ANALYSIS

 

  1. DEMURRER

     

    “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

     

    Demurring Defendants demur to the third cause of action for concealment for failure to state facts sufficient to constitute a cause of action. 

     

    A plaintiff must allege fraud with particularity. “This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect.” (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.)

     

The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

 

            Demurring Defendants argue the concealment claim is based on general and conclusory allegations which do not satisfy the heightened pleading standard for a cause of action based on fraud.  In particular, Demurring Defendants highlight Plaintiff’s allegation that there was an “unusually and unreasonably high rate of crime” in and around the Subject Property, and despite their knowledge of this dangerous condition, Defendants failed to warn Decedent of this material fact.  (See FAC, ¶ 49.)  Demurring Defendants argue that this allegation is too general without citing to any specific criminal acts, statistics, or any other relevant information regarding the rate of crime around the subject property.  Further, Demurring Defendants contend that the Plaintiff fails to state with specificity how, when, where, to whom, and by what means the high rate of crime was concealed from Decedent which is vital to the cause of action.

 

            In opposition, Plaintiff argues that it is unnecessary to include a list of crimes in the area to meet the heightened pleading standard in alleging an “unusually and unreasonably high rate of crime.”  Further, Plaintiff argues that the FAC alleges that Defendants knew that security measures that Defendants purportedly employed were not functional.  The FAC pleads the following concerning to the alleged lack of security measures on the subject premises:

 

The Court finds Plaintiff’s allegations related to the third cause of action fail to meet the requisite heightened pleading standard.  Plaintiff’s allegations are plead as conclusions rather than facts with sufficient particularity to constitute a cause of action for concealment.  For example, the third cause of action alleges the following, “Despite knowing that the SUBJECT PREMISES were in a dangerous condition prior to MR. PEARSON signing a lease, and prior to and during MR. PEARSON’s tenancy, on dates and times that are known to LANDLORD DEFENDANTS or their agents and not readily available to GUTIERREZ, the LANDLORD DEFENDANTS, through their agents, managing agents, and/or officers and directors, consciously chose not to warn MR. PEARSON of the dangerous condition.”  (FAC, ¶ 50.) 

 

Equally important, Plaintiff’s allegations based on information and belief are lacking.  Plaintiff does not assert predicate facts supporting those assertions grounded on information and belief including (1) Defendants concealed the fact that the subject premises was unreasonably dangerous with abnormally high instances of crime; (2) Defendants withheld information from residents and visitors; and (3) Defendants did not equip the subject premises with adequate security measures and crime prevention devices.  (See, e.g., Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [“a pleading that did no more than assert boilerplate allegations that defendants knew or were on notice of the [defendant’s] conduct would not be sufficient nor would allegations of information and belief that merely asserted the facts so alleged without alleging such information that leads the plaintiff to believe that the allegations are true”] [cleaned up].) 

 

  1. MOTION TO STRIKE

     

    Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

     

    In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code,

     

    “Malice” means 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. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means 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.

     

    (Civ. Code, § 3294, subd. (c)(1)-(3).)

     

    Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“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”].)

     

    In addition, “[t]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

     

    Based upon the heightened pleading requirements pertaining to claims for punitive damages, the Court finds that Plaintiff has failed to allege facts sufficient to support a claim for punitive damages against Defendants.  

     

    Plaintiff’s allegations of Defendants “leading current/potential residents to believe that the SUBJECT PREMISES was a safer place to live than it really was and/or not alerting current/potential residents that the SUBJECT PREMISES was not safe area/was dangerous” without pleading facts as to how Defendants were misleading residents such as decedent, amount to ultimate facts which do not reach the heightened pleading requirements of a punitive damages claim.  (See FAC, ¶ 19.)  Further, Plaintiff’s claims that Defendants failed to maintain or keep adequate safety measures on the subject property amount to at most negligent and reckless conduct rather than despicable conduct with a willful and conscious disregard of the rights or safety of others.  

     

  2. LEAVE TO AMEND

     

    A plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action.  (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim.  (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her  burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) 

     

    Here, Plaintiff has failed to meet her burden.  Plaintiff’s opposition to the demurrer merely requests leave to amend “so that she may address any deficiencies that the Court may identify.”  Without more, Plaintiff’s request is insufficient for the Court to grant Plaintiff leave to amend the first amended complaint. 

     

    CONCLUSION AND ORDER

     

    Therefore, the Court sustains Defendants’ demurrer to the third cause of action in the FAC without leave to amend, and grants Defendants’ motion to strike Plaintiff’s claim and prayer for punitive damages without leave to amend.

     

    Defendants shall provide notice of the Court’s ruling and file a proof of service of such.