Judge: Michael E. Whitaker, Case: 23SMCV01553, Date: 2023-10-17 Tentative Ruling

Case Number: 23SMCV01553    Hearing Date: October 17, 2023    Dept: 207

TENTATIVE RULING

MOTIONS

This case arises from a dispute concerning the living conditions and habitability in the apartment building where Plaintiff Carrie Miller (“Plaintiff”) resides. 

Plaintiff’s complaint alleges six causes of action: (1) tortious and contractual breach of the warranty of habitability; (2) private nuisance; (3) negligence; (4) breach of the implied covenant of quiet enjoyment; (5) violation of Santa Monica Municipal Code section 4.56.020 et seq.; and (6) violation of California Business and Professions Code section 17200 et seq. (unfair competition). 

Defendants Seasun Real Estate LLC and Yueer Xu (“Defendants”) demur to the second cause of action for private nuisance and move to strike all references to punitive damages from the complaint.  Plaintiff opposes the demurrer and motion.  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.) 

Defendants demur to the second cause of action for private nuisance, for failure to state a cause of action pursuant to Code of Civil Procedure section 431.10, subd. (e).  Defendants argue that the second cause of action fails because it is based upon the same set of facts as Plaintiff’s third cause of action for negligence.  In support of their argument, Defendants rely on Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 (hereafter Melton) and El Escorial Owners’ Assn. v. DLC Plastering, Inc.(2007) 154 Cal.App.4th 1337 (hereafter El Escorial).

Melton does not stand for the proposition that when a cause of action for private nuisance is based on the same set of facts as a cause of action for negligence, the complaint fails to state a cause of action for private nuisance.  Rather, in Melton, the appellate court noted that both private nuisance and negligence contain a duty and a causation element, so when nuisance and negligence causes of action are based upon the same facts, the claims “stand[] or fall[]” together.  In Melton, because there was no proximate cause, both causes of action failed.

And in El Escorial, the appellate court remarked that the complaint merely alleged negligent construction, which resulted in an asbestos contamination.  In holding plaintiff failed to state a cause of action for private nuisance, the court of appeal noted case law indicating that asbestos products liability cases should not be litigated as a nuisance, and that in support of the nuisance cause of action, the plaintiff had provided only conclusory allegations that mirrored the negligence allegations.  The El Escorial court did note, however “that courts have allowed plaintiffs to litigate nuisance causes of action in cases involving housing conditions” including “uninhabitable conditions,” and “whether a [nuisance] cause of action is viable depends on the facts of each case.”  (El Escorial, supra, 154 Cal.App.4th at p. 1349.)

Here, Plaintiff alleges that “Defendants began engaging in construction activities in all of the empty apartments at the Property[,]” that the “workers constantly smoked and threw items off of the balconies into the dumpsters below Plaintiff’s home” causing “high levels of dust and noise” and Defendants’ installation of “a washer and dryer in the rental unit immediately above Plaintiff’s Rental Unit result[ed] in Plaintiff being unable to sleep and being awoken from her sleep when the machines are in use.”  (Complaint ¶ 21.) 

Plaintiff also alleged that “In August 2019, part of the ceiling in the master bedroom and bathroom collapsed” (Complaint ¶ 22); “In October 2019, water was found in the ceiling in the guest room, bathroom, and hallway (Complaint ¶ 23); “In November 2019, the Rental Unit flooded from the pipes above the Rental Unit” (Complaint ¶ 24); and “In June 2020, the carpeting in the Rental Unit ripped up as a result of the flooding” (Complaint ¶ 25.)  Plaintiff further contends, “Defendants have continued to engage in construction activities that interfere with Plaintiff’s quiet enjoyment of her home every time a tenant vacates a rental unit in the Property.”  (Complaint ¶ 26.)

Therefore, Plaintiff has alleged specific facts that Defendants’ construction activities directly caused the continuing adverse conditions on the property sufficient to support the private nuisance cause of action.

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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  Here, Defendants moves to strike from the complaint, references to and claims for punitive damages.    

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”].) 

Here, the only allegations supporting a claim for punitive damages are “Defendants’ conduct has been willful, oppressive, and malicious, and carried out with a conscious disregard of Plaintiff’s rights as tenants of the Rental Unit.  At all relevant times, Defendant had notice of the substandard conditions of the Rental Unit, had the means, opportunity, and ability to abate the substandard conditions, and failed to do so in spite of knowledge regarding their impact and effect on the tenant residing therein.  Accordingly, Plaintiff is entitled to punitive damages.”  (Complaint ¶¶ 34, 39, 45, 51) and “Defendants’ conduct was outrageous and manifested an intent to violate the moral code recognized by civilized persons.  As such an award of punitive or exemplary damages is necessary to deter Defendants and others from similar wrongful conduct in the future.” (Complaint ¶ 60.)

But Plaintiff has not pleaded with specific facts about the notice Defendants were given, that they allegedly willfully disregarded.  The only allegations with respect to any such notice are “Plaintiff was forced to constantly ask Defendants to close the doors because of the high levels of dust and noise they caused.”  (Complaint ¶ 21.)  But the Complaint does not allege any specifics regarding when Defendants were given notice of the substandard conditions, how that notice was given, who specifically gave Defendants that notice, to whom such notice was given, or the specific contents of that notice.  Nor has Plaintiff provided any specific facts demonstrating Defendants’ “intent to violate the moral code recognized by civilized persons.” 

Therefore, the Court grants Defendants’ motion to strike references to punitive damages from the Complaint.

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 this burden as the Opposition does not address whether leave should be granted if either the demurrer is sustained or the motion to strike is granted. 

CONCLUSION AND ORDER

For the reasons stated, the Court overrules Defendants’ Demurrer to the Second Cause of Action for Private Nuisance.

Further, the Court grants Defendants’ Motion to Strike in its entirety, and orders all references to punitive damages stricken from the Complaint without leave to amend.

Further, the Court orders Defendants to file an Answer to the Complaint on or before October 31, 2023. 

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

DATED:  October 17, 2023                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court