Judge: Michael E. Whitaker, Case: 22STCV25565, Date: 2023-04-27 Tentative Ruling

Case Number: 22STCV25565    Hearing Date: April 27, 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

MOTIONS

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 first, second, and third causes of action in Plaintiff’s second amended complaint (SAC) for negligence–survival action, negligence–wrongful death, and concealment.  Further, Demurring Defendants move to strike Plaintiff’s prayer for punitive damages and related portions of the SAC.  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.) 

a.      First and Second Causes of Action

Demurring Defendants first demur to the first and second causes of action for negligence–survival action, and negligence–wrongful death.

Code of Civil Procedure section 377.60 establishes a statutory cause of action in favor of specified heirs of a person who dies as a result of the wrongful act or neglect of another. (See Code Civ. Proc., § 377.60.) Under a wrongful death cause of action, the specified heirs are entitled to recover damages on their own behalf for the loss they have sustained by the reason of the bodily injury victim’s death. (See Corder v. Corder (2007) 41 Cal.4th 644, 651.) The elements of a wrongful death action are (1) a tort such as negligence or another wrongful act, (2) resulting death, and (3) loss/damage suffered by the heirs. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

Damages in a survival cause of action are limited to loss or damage the decedent sustained or incurred before death and do not include damages for pain, suffering, or disfigurement. (Code Civ. Proc., § 377.34; Mega Life and Health Insurance Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1525, fn.3.)

Demurring Defendants specifically argue that Plaintiff has failed to allege facts in the SAC sufficient to establish Demurring Defendants owed Decedent a duty of care.  Demurring Defendants thus conclude that Plaintiff’s first and second causes of action based in negligence fail.

In opposition, Plaintiff contends that Demurring Defendants attack on the first and second causes of action in the SAC are barred by Code of Civil Procedure section 430.41, subdivision (b).  Under Code of Civil Procedure section 430.41, subdivision (b), “[a] party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” 

Here, Demurring Defendants have previously demurred to both the Complaint and the First Amended Complaint (FAC).  However, in their previous demurrers, Demurring Defendants failed to raise arguments attacking the first and second causes of action and only placed at issue the sufficiency of the allegations in the third cause of action for concealment.  (See Defendants’ Demurrer – with Motion to Strike to Plaintiff’s Complaint Filed 10/17/2022; see also Defendants’ Demurrer – with Motion to Strike to Plaintiff’s First Amended Complaint Filed 12/15/2022.)

Plaintiff argues that because she has not made material amendments to the first and second causes of action in her SAC, and Demurring Defendants could have raised their instant arguments against the first and second causes of action in their previous demurrers, Demurring Defendants are barred from bringing a demurrer to the first and second causes of action under Code of Civil Procedure section 430.41, subdivision (b).

In reply, Demurring Defendants contend that the added factual allegations in the SAC, which were not included in the FAC, materially alter Plaintiff’s general allegations, making the first and second causes of action susceptible to demurrer.  Demurring Defendants highlight the following new allegations which they argue raise new grounds for demurrer:

• The SAC revises many allegations to refer to both Plaintiff and Christopher Pearson (“Decedent”), instead of just Mr. Pearson as alleged in the FAC.
• [T]he SAC now alleges that (1) Defendants provided rehabilitation housing for ex-convicts and drug addicts, and (2) Defendants knew of high occurrences of crime through direct complaints from residents, complaints posted online, reports by the Los Angeles Police Department, 911 calls, and various witnesses.

(Demurring Defendants’ Reply, p. 2:5-7, 9-12.) 

However, the Court finds Demurring Defendants’ arguments unavailing.  First the Court notes that Demurring Defendants fail to identify particular paragraphs in the SAC which now refer to both Plaintiff and Decedent, and further fail to explain why the addition of references to Plaintiff materially alter the first and second causes of action.  Second, the new allegations which Demurring Defendants reference were added only to the third cause of action for concealment.  Allegations within the “General Allegations” section, and the sections for first and second causes of action in the SAC have not been altered from the FAC.  Third, Demurring Defendants fail to sufficiently explain why there were unable to challenge the first and second causes of action in their previous demurrers, and how the new allegations facilitated them to raise their arguments in the demurrer to the SAC.  Finally, the Court notes that Demurring Defendants even concede in their reply that they “may have been able to attack the First and Second Causes of Action for Negligence” in their previous demurrers.  (See Demurring Defendants’ Reply, p. 2:12-13.)

The Court determines Demurring Defendants had the ability to raise their arguments on the purported deficiencies of Plaintiff’s first and second causes of action in their previous demurrers and did not.  Thus the Court finds Demurring Defendants’ are now barred from demurring to the first and second causes of action under Code of Civil Procedure section 430.41, subdivision (b).

b.      Third Cause of Action

Demurring Defendants next 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 in 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, Demurring Defendants failed to warn Decedent of this material fact.  (See SAC, ¶¶ 50-55.)  Demurring Defendants argue Plaintiff’s allegations of numerous 911 calls reporting purported violent crimes on the subject premises, and one eye witness account of a burglary on the subject premises, does not establish an “unusually and unreasonably high rate of crime.”  (See SAC, ¶¶ 51, 53.)  Demurring Defendants next contend that even if it were true Demurring Defendants failed to disclose a purported rehabilitation program at the subject property, Plaintiff fails to allege that Demurring Defendants had duty to inform residents that such a program existed.  (See SAC, ¶ 51.)  Finally Demurring Defendants aver that Plaintiff failed to allege with sufficient particularity how Demurring Defendants concealed the high rate of crime or rehabilitation program from Decedent.

            In opposition Plaintiff contends that the following allegations within the SAC adequately plead (1) the material facts regarding the dangerous condition which existed on the subject premises and which Demurring Defendants intentionally concealed from Decedent and Plaintiff; and (2) Demurring Defendants duty to disclose said material facts to Decedent and Plaintiff as their landlord.

·         AVALONBAY, ASN, and DOES 1 to 50 (hereinafter referred to as “LANDLORD DEFENDANTS”) were landlords, property owners, and/or property managers so as to have a duty to disclose to tenants, including PLAINTIFFS, and all invitees the existence and/or nature of any dangerous conditions at and around the SUBJECT PREMISES that would not be apparent to a tenant or invitee in PLAINTIFFS position.

·         LANDLORD DEFENDANTS had a special relationship with PLAINTIFFS arising out of their landlord-tenant relationship, such that LANDLORD DEFENDANTS had a duty to take reasonable measures to secure areas under the LANDLORD DEFENDANTS’ control against foreseeable criminal acts of third parties.

·         Before PLAINTIFFS signed a lease and/or lease renewal at the SUBJECT PREMISES, and at the time of the signing of the lease and/or lease renewal, and prior to the start of PLAINTIFFS’ tenancy or renewal of tenancy, on dates and times that are known to the LANDLORD DEDENANTS, the LANDLORD DEFENDANTS knew or should have known that there existed a dangerous condition on the premises that was not apparent or known to PLAINTIFFS.

·         Such dangerous condition(s) included that there was an unusually and unreasonably high rate of crime in and around the SUBJECT PREMISES, there was a risk that tenants such as PLAINTIFFS would be harmed by criminal acts of third parties that was foreseeable to LANDLORD DEFENDANTS, that what appeared to tenants and invitees to be security measures on the SUBJECT PREMISES were not functional and/or did not reasonably serve the purpose which a tenant or invitee would reasonably believe them to serve, and that tenants and invitees on the SUBJECT PREMISES were exposed to an unreasonable risk of being victimized by criminals as a result of LANDLORD DEFENDANTS’ failures to properly maintain the premises and failures to take adequate security measures that LANDLORD DEFENDANTS knew or should have known were reasonably necessary to meet LANDLORD DEFENDANTS’ duties as property owners, landlords, and/or property managers.

·         Specifically, LANDLORD DEFENDANTS knowingly provided rehabilitation housing for ex- convicts and drug addicts at the SUBJECT PREMISES and knew about abnormally high occurrences of crime through numerous direct complaints from residents, numerous complaints from current and former residents on Yelp, Google, and Apartment Ratings, and numerous visits, investigations, and reports by the Los Angeles Police Department (LAPD). For the five years prior to MR. PEARSON’S murder alone, the LAPD were called to the SUBJECT PREMISES 162 times, including for reports of: assaults; batteries; assaults with deadly weapons; rape; individuals with knives and guns; narcotics; trespassing; grand theft; criminal threats; threats with intent to terrorize; sodomy against children; disturbing the peace; and suspicious activity. Out of those 162 calls to the LAPD, 51 were for violent crimes (rape, assault, battery, assault with deadly weapon).

·         LANDLORD DEFENDANTS had actual knowledge of the high rate of crime, high rate of trespassers, and inadequate security measures on the SUBJECT PREMISES through direct complaints from residents, including from Matthew Greenwald, Preeti Chamber, and Robert Trepany, and by at least 20 complaints on Yelp, Google, and Apartment Ratings. LANDLORD DEFENDANTS consistently monitored the complaints and reviews on at least Yelp as evidenced by a customer care company named Valo and individuals named “Alex”, “Jane S.”, “Greg”, “Elisa” responding to complaints on behalf of LANDLORD DEFENDANTS. 

·         On multiple occasions from 2019 through 2021, residents Matthew Greenwald, Preeti Chamber, and Robert Trepany complained to LANDLORD DEFENDANTS’ property management personnel that: (1) the main entry gate to the SUBJECT PREMISES was usually broken, (2) that the broken gate allowed for transients to get into the complex, (3) that they often encountered trespassers on the SUBJECT PREMISES, that there were a lot of transients/trespassers within the SUBJECT PREMISES, (4) that they often saw transients by the pool, elevator, and in the laundry room, (5) that they often saw “sketchy” transients on the SUBJECT PREMISES, and that they did not feel safe living at the SUBJECT PREMISES, (6) that security personnel were unavailable and unresponsive, and (7) that they were victims of crime on the property on multiple occasions, including burglary.

·         Despite knowing that the SUBJECT PREMISES were in a dangerous condition prior to an during PLAINTIFFS’ 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 PLAINTIFFS of the dangerous condition, consciously chose not to make repairs to the SUBJECT PREMISES, and consciously chose not to take reasonable measures that they had a duty to take to place the SUBJECT PREMISES in a reasonably safe condition or to eliminate or mitigate the risk of harm to tenants such as PLAINTIFFS.

·         Despite the LANDLORD DEFENDANTS (1) knowing about the high rate of crime on the SUBJECT PREMISES, (2) offering rehabilitation programs on the SUBJECT PREMISES to ex-convicts and drug addicts, and (3) knowing that the security measures at the SUBJECT PREMISES, such surveillance cameras, entry gates, and security guards, were inadequate, broken, and non-functional, LANDLORD DEFENDANTS, through and by their property managers and leasing agents, knowingly and intentionally kept/hid these facts from prospective and current tenants, including PLAINTIFFS at all times, including at lease signing and tenancy renewal, and lied to prospective tenants, including PLAINTIFFS by indicating to them that the SUBJECT PREMISES were safe. These omissions were made by LANDLORD DEFENDANTS’ property managers and leasing agents for financial gain from rent and commissions/bonuses.

·         Further, while LANDLORD DEFENDANTS disclosed to PLAINTIFFS that there were security cameras, security gates, and security guards to protect the residents and visitors at the SUBJECT PREMISES, LANDLORD DEFENDANTS intentionally withheld and concealed the following facts: the rate of crime on the SUBJECT PREMISES was high, LANDLORD DEFENDANTS ran, operated, or permitted a rehabilitation programs for ex-convicts and drug addicts on the SUBJECT PREMISES and provided housing for ex-convicts and drug addicts on the SUBJECT PREMISES, the security cameras did not function, the security gates did not function, and the security guards were negligent and inadequate as evidenced by the high rate of crime and slow response times, and overall lack of response.

(SAC, ¶¶ 47-56.)  In response to Demurring Defendants’ argument that Plaintiff has failed to allege “how, when, where, to whom, and by what means” the material facts were concealed, Plaintiff argues these specifics are not required when alleging a claim for concealment. 

            Unlike with fraud based on misrepresentation, the specificity requirements do not apply to actions for fraud based on omission or concealment.  (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 (hereafter Alfaro) [“This statement of the rule reveals that it is intended to apply to affirmative misrepresentations. . . .   As plaintiffs accurately respond, it is harder to apply this rule to a case of simple nondisclosure.  How does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?”]; see also Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198-1199.)  Plaintiff thus concludes she has sufficiently alleged the elements of concealment even without identifying which specific agents of Demurring Defendants concealed the material facts, and how they did so.

            In reply, Demurring Defendants contend Plaintiff’s reliance on Alfaro is misplaced.  Demurring Defendants attempt to distinguish the allegations at issue in the instant motion to those at issue in the court’s analysis in Alfaro, arguing that the material fact alleged to be concealed in Alfaro was more concrete and well-defined then the material facts alleged to be concealed here.

            In Alfaro, “[t]he second amended complaint alleged that defendants, as sellers of realty and as fiduciaries by virtue in their relationships with plaintiffs, breached an obligation to disclose a fact materially affecting the value of the property, namely the deed restriction.”       (Alfaro, supra, 171 Cal.App.4th at p. 1382.)  Here Demurring Defendants failed to disclose the following to Decedent and Plaintiff: (1) the high rate of crime at the subject premises as established by online reviews of the subject premises, frequent investigations of the subject premises by the Los Angeles Police Department, and the numerous amount of 911 calls reporting criminal activity at the subject premises (see SAC, ¶ 51); (2) the operation of rehabilitation programs for ex-convicts and drug addicts on the subject premises, and provision of housing for ex-convicts and drug addicts on the subject premises (see SAC, ¶ 56); (3) the malfunctioning of the security cameras and security gates installed at the subject premises, as well as the unresponsiveness of the security guards at the subject premises as indicated by tenant complaints (see SAC, ¶ 53).  The Court finds the foregoing purportedly concealed material facts are not conclusory in nature, but are rather sufficiently particularized, like the pleadings in Alfaro alleging defendants concealed from plaintiffs a deed restriction which limited the price at which plaintiffs could sell their homes at.  (Alfaro, supra, 171 Cal.App.4th at p. 1366.)

            Demurring Defendants further attempt to distinguish Alfaro from the facts here, arguing the allegations at issue in Alfaro indicate a time when purportedly undisclosed information should have been disclosed.  However, the court in Alfaro, found that allegations of “each occasion on which an agent of either defendant could have disclosed the restrictive deed” was not required.  (Alfaro, supra, 171 Cal.App.4th at p. 1385.)  Instead, the court concluded that “[t]hose details . . . are properly the subject of discovery, not demurrer.”  (Ibid.)  Notwithstanding, the Court notes that paragraphs 55, 59, 63, and 67 in the SAC indicate that the purportedly concealed material facts at issue should or could have been disclosed to Plaintiff and Decedent at the initial lease signing or at tenancy renewal for the subject property.

            Accordingly, the Court finds Plaintiff has alleged the elements of a concealment cause of action with sufficient particularity to survive a demurrer.

c.       Uncertainty

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

The Court finds Plaintiff’s allegations in the SAC are clear enough that Demurring Defendants can reasonably determine what issues must be admitted or denied, or what claims are directed against them.  Accordingly, on this basis, the Court will overrule the demurrer. 

2.      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,

(1) “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), emphasis added.) 

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 Demurring Defendants.  The Court agrees with Demurring Defendants that Plaintiff has failed to assert with sufficient specificity whether a managing agent, officer or director of each Demurring Defendant authorized, ratified, or knew of and disregarded the above-described conduct.  The SAC’s allegations that “LANDLORD DEFENDANTS, their agents, their managing agents, and/or their officers and directors, whose names and titles are known to LANDLORD DEFENDANTS” knew of the unreasonable risk of harm to tenants, yet did nothing, demonstrate only general notions that someone within each Demurring Defendants’ organization knew of the conduct in question.  However, Cruz v. Home Base and Smith v. Superior Court, read in conjunction, require that pleadings allege with specificity that a managing agent, officer or director authorized, ratified, or knew of the described malicious conduct.  This specificity requirement indicates that the pleadings must identify the managing agent who authorized, ratified, or knew of the described conduct.  As such, Plaintiff’s claim for punitive damages cannot withstand scrutiny. 

3.      LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the 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.)  A 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 motion to strike merely states, "[e]ven if the Court concludes there are no grounds to allow leave to amend, Plaintiff would be free to bring a motion for leave to amend at a later stage to add a punitive damages claim once further information is obtained in discovery." (Opposition, p. 4:8-10.) Without more, Plaintiff’s request is insufficient for the Court to grant Plaintiff leave to amend the SAC. 

CONCLUSION AND ORDER

Therefore, the Court overrules Demurring Defendants’ demurrer to the first, second and third causes of action in the SAC, and grants Demurring Defendants’ motion to strike Plaintiff’s prayer for punitive damages and related portions of the SAC without leave to amend.

Further, the Court orders Demurring Defendants to file and serve an answer to the SAC on or before May 18, 2023.

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