Judge: Michael E. Whitaker, Case: 23SMCV02962, Date: 2023-09-13 Tentative Ruling

Case Number: 23SMCV02962    Hearing Date: September 13, 2023    Dept: 207

TENTATIVE RULING

MOTION

Plaintiff Cynthia Solano (“Plaintiff”) brings this action against Defendant C&S Enterprises #3 L.P. (“Defendant”), stemming from problems Plaintiff encountered with the apartment Defendant leased to her.    

Defendant move to strike from the complaint, paragraphs 32, 49, and Request for Relief paragraph 4, representing allegations that Defendant’s conduct was willful, oppressive, and malicious, and Plaintiff’s request for punitive damages.  Plaintiff opposes and Defendant has replied.

ANALYSIS

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,

(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”].) 

            Moreover, “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.”  (Civ. Code, § 3294, subd. (b).)

Here, Defendant argues Plaintiff fails to meet the heightened pleading standards of Section 3294 to substantiate her request for punitive damages against Defendant.   

            The Complaint alleges that Plaintiff moved into the apartment in question on October 11, 2021.  (Complaint ¶ 7.)  Four months later, in February 2022, “Plaintiff began experiencing symptoms of asthma, sinus issues, bad headaches, anxiety, and concentration challenges.”  (Complaint ¶ 8.)  On June 17, 2022, Defendant notified Plaintiff of a water leak coming from Plaintiff’s restroom.  (Complaint ¶ 9.)  Around July 8, 2022, Defendant began work on Plaintiff’s restroom.  (Complaint ¶ 10.)  Plaintiff’s physical symptoms worsened, and Plaintiff went to the hospital for tests.  (Complaint ¶¶ 11-12.)  A neighbor subsequently informed Plaintiff that the property manager, Elliot, said “they found mold under Plaintiff’s restroom plumbing.”  (Complaint ¶ 13.)  Plaintiff then contacted the other property manager, Piper, who is Elliot’s wife, about the mold, to which Piper responded that they did find mold and apologized for not informing Plaintiff about the mold.  (Ibid.)  In September, Plaintiff alleges she “contacted Defendant to inquire about plans to conduct mold remediation to which the Defendant responded by telling Plaintiff to provide a 30-day notice to vacate and file a lawsuit.”  (Complaint ¶ 15.)  “On or about October 10, 2022, Defendant ordered a mold inspection to be conducted on the Subject Property.  Defendant refused to disclose the results of the mold inspection to Plaintiff and did not immediately order any remediation [….]”  (Complaint ¶ 16.)  “On or about January 27, 2023, Defendant ordered a second mold inspection for the Subject Property but did not inspect the hallway.”  (Complaint ¶ 18.)  “Approximately two weeks later, Defendant told Plaintiff that no mold was present in the Subject Property but refused to provide a mold remediation certificate.”  (Ibid.)  Plaintiff subsequently “ordered a second mold inspection which found mold still present in the hallway.” (Complaint ¶ 20.)  In March 2023, “Defendant served a three-day notice to pay rent or quit.”  (Complaint ¶ 21.)

            While Plaintiff alleges that the property managers Elliot and Piper knew about the mold but failed to inform her until August, after she directly asked Piper about it, Plaintiff does not allege specific facts supporting allegations of oppression, fraud, or malice on the part of a partner, officer, director, or managing agent of Defendant.  In particular, there is no allegation in the  Complaint that Elliot or Piper are either partners, officers, directors or managing agents of Defendant.  Equally important, Plaintiff does not allege that Piper or Elliot are even Defendant’s employees. 

            Even if the Court were to infer that Piper and Elliot are employees of Defendant, Plaintiff has not alleged that Defendant had advanced knowledge of the unfitness of Piper or Elliot to manage the subject property, but nevertheless, Defendant employed them with a conscious disregard of the rights or safety of others.  Further, Plaintiff does not assert that Defendant authorized or ratified alleged the wrongful conduct of either Piper or Elliot. 

            Other than references to Piper and Elliot, Plaintiff does not allege that any other partner, officer, director, managing agent or employee of Defendant acted with malice, oppression or fraud to support a claim for punitive damages. 

            Plaintiff argues in opposition that Defendants have a non-delegable duty to maintain their property and cannot escape vicarious liability for the poor conditions of the property.  (Opposition at pp. 7:19-8-24.)  While Plaintiff’s assertion may be correct, it does not affect the Court’s analysis of whether Plaintiff has pled her claim for punitive damages with requisite particularity.

2. 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.)  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 asserts in opposition “It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action” and “requests the Court grant Plaintiff leave to amend as Plaintiff believes any purported defect is reasonably capable of cure.”  (Opposition at p. 9.)   Without more, Plaintiff has not met her burden of showing in what manner the complaint could be amended or the additional factual allegations she could add to save her claim for punitive damages. 

CONCLUSION AND ORDER

Because Plaintiff has failed to plead with requisite particularity a claim for punitive damages against Defendant, the Court grants Defendant’s Motion to Strike and strikes paragraphs 32, 49 of the Complaint and paragraph 4 of the Complaint’s prayer for damages, without leave to amend. 

Further, Defendant shall file and serve an Answer to the complaint on or before October 4, 2023,

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

DATED:  September 13, 2023                                               ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court