Judge Michael T. Smyth, Case 37-2020-00044995-CU-PO-CTL 2024-03-15 Tentative Ruling

Judge: Michael T. Smyth, Case: 37-2020-00044995-CU-PO-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2020-00044995-CU-PO-CTL HERMIZ VS 655 GREYSTONE VILLAGE LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 10/03/2023

Defendants 655 Greystone Village, LLC, Laurie Ann Victoria as Trustee of the Conrad Prebys Trust, and Progress Management Company's Motion to Strike is GRANTED without leave to amend. First, Plaintiff did not oppose Defendant's request to strike the second cause of action. Accordingly, that motion is granted as to that cause of action. Second, the court finds that the allegations do not rise to the level of punitive damages.

'In order to survive a motion to strike against alleged punitive damages, the ultimate facts showing an entitlement to such relief must be plead by a plaintiff.' (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) 'Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.' (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895; see id. at 899-900 ['ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages'].) A defendant's conduct must be 'despicable' and 'willful.' (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [quoting College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713].) A claim for punitive damages cannot be plead generally. 'Pleading in the language of the statute is acceptable provided that sufficient facts are pleaded to support the allegations.' (Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) Thus, a plaintiff must set out clearly, concisely, and with sufficient particularity, those facts and circumstances which constitute fraud, malice, or oppression.

(Lehto v. Underground Construction Company (1977) 69 19 Cal.App.3d 933, 944.) In other words, to prove punitive damages there must be facts in the complaint that, if proven, allow a finder of fact to determine 'by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice[.]' (Civ. Code, § 3294(a).) If insufficient facts are pled to support a punitive damages claim, then that claim is properly stricken from the complaint. (See Grieves v. Superior Court (1984) 157 Call.App.3d 159, 166.) Punitive damages are especially disfavored for nonintentional torts. A plaintiff may recover an 'award of punitive damages for a nonintentional tort where defendant's conduct which causes injury is of such severity or shocking character that it warrants the same treatment as that accorded to willful misconduct-conduct in which the defendant intends to cause harm[.]' (Nolin v. Nat'l Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286 [punitive damages upheld against where there was willful mishandling of repeated gas and oils spills at a gas station, including having knowledge of several prior accidents, failing to implement clean-up procedures, affirmatively instructing employees to not clean up Calendar No.: Event ID: TENTATIVE RULINGS

3092176 8 CASE NUMBER: CASE TITLE: HERMIZ VS 655 GREYSTONE VILLAGE LLC [IMAGED] 37-2020-00044995-CU-PO-CTL spills and to stop warning customers about those spills, and failing to install adequate lighting]; see also Penner v. Falk (1984) 153 Cal.App.3d 858, 866 [punitive damages could attach to landlords who did not limit access to property despite knowing that criminal activity could occur].) Notably, in Nolin, the defendant had prior notice of slip-and-falls related to the leak and had been repeatedly informed of the risk to personal safety presented by the leak. (Id. at 284 ['prior to plaintiff's accident, two members of the public had fallen there as well as several of defendant's own employees']; id. at 288 ['employees who observed the danger daily communicated it upward to supervisory personnel, but to no avail'].) Similarly, in Penner, the defendant had notice of the criminal activity occurring at the property because there had been '16 acts of theft or vandalism' in the three years prior to the alleged incident. (Penner, supra, 153 Cal.App.3d at 866.) Under these cases, the bar for punitive damages in cases of nonintentional torts is high. Moreover, Nolin and Penner were decided prior to the requirement of 'despicable conduct' being added to the punitive damages statute. Even so, no case or authority has held punitive damages are categorically unavailable in such cases and there remains the possibility of punitive damages in extraordinary cases.

Based on the FAC, this not such an extraordinary case. The most specific of Plaintiff's allegations state that Defendants knew of the alleged hazard for 'at least two years,' 'knew that the subject pothole was a safety hazard for tenants and guests on their premises, knew that probable serious injuries would result if said safety hazard was not immediately corrected or fixed, had actual notice of the long-existing dangerous condition posed by the subject pothole, but repeatedly failed and refused to remedy the dangerous condition,' and that Defendants 'had more than sufficient funds to correct and remedy the dangerous condition, but deliberately chose to keep and maintain the subject premises in a dilapidated condition with more potholes at this location than any other property in Defendants' portfolio, under the pretext of budgetary restrictions.' (ROA 69 [FAC].) As Defendants point out, none of these allegations state that there were any prior incidents or any prior knowledge of the actual danger posed by the condition. Without such allegations, the case is distinguishable from either Nolin or Penner.

The motion is granted.

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