Judge: Ronald F. Frank, Case: 19STCV28087, Date: 2023-02-02 Tentative Ruling
Case Number: 19STCV28087 Hearing Date: February 2, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: February 2, 2023¿¿
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CASE NUMBER: 19STCV28087
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CASE NAME: Jessica
Zazueta v. Wyndham Worldwide Corporation, et al
.¿¿¿
MOVING PARTY: Defendants, LAX Hotel Investment Company, Inc. dba Wingate
by Wyndham LAX
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RESPONDING PARTY: Plaintiff,
Jessica Zazueta
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TRIAL DATE: None set¿
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MOTION:¿ (1) Demurrer¿ to First Amended Complaint
(2)
Motion to Strike
¿
Tentative Rulings: (1) Defendant’s Demurrer is OVERRULED
in part and SUSTAINED in part.
(2)
Defendant’s Motion to Strike is GRANTED in part and DENIED in part.
¿¿
¿
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
On August 7, 2019, Plaintiff first
filed a complaint in this case. On June 7, 2022, Plaintiff, Jessica Zazueta (“Plaintiff”) filed her First Amended Complaint (“FAC”)
against Defendants, Wyndham Worldwide Corporation; Wyndham Destinations, Inc.;
Wingate by Wyndham LAX; LAX Hotel Investment Company, Inc.; Linda Oh; Korey
Small, and DOES 1 through 20 (collectively “Defendants”). On July 20, 2022,
Plaintiff filed a First Amended Complaint (“FAC”) alleging a cause of action for:
(1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress;
(4) Fraudulent Concealment; (5) Private Nuisance; and (6) Public Nuisance.
¿
B. Procedural¿¿
¿
On August 9, 2022, Defendant, LAX Investment Company, Inc. dba
Wingate by Wyndham LAX (“LAX”) filed a demurrer and motion to strike. On January
20, 2023, Plaintiff filed an opposition. On January 26, 2023, LAX filed a reply
brief as to opposition to Motion to Strike, but no reply brief has been filed
to the opposition to demurrer.
¿II. MOVING PARTY’S GROUNDS
FOR THE DEMURRER¿& MOTION TO STRIKE¿
¿
¿¿Defendant
demurs to Plaintiff’s FAC on the following grounds: (1) The First, Third,
Fourth, Fifth, and Sixth causes of action fail to state facts sufficient to
constitute a cause of action against Defendant LAX; (2) The Fourth Cause of
action fails to meet the heightened specificity standard for maintaining a
fraud cause of action; (3) The Court
does not have jurisdiction of the Fifth and Sixth Causes of action
because Plaintiff does not have standing to bring them before this Court.
Defendant’s
Motion to Strike is based on striking any language eluding to, or referencing
punitive damages. Defendant further requests that this Court strike paragraphs
40 and 81 of the FAC because it argues that the allegations contained therein
regarding other lawsuits allegedly filed against Wyndham hotels are uncertain
and irrelevant.
¿¿
¿III. ANALYSIS¿¿
¿¿
A. Demurrer
¿¿
A demurrer can be used only to challenge defects that
appear on the face of the pleading under attack or from matters outside the
pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
¿¿¿
A pleading is uncertain if it is ambiguous or
unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for
uncertainty may lie if the failure to label the parties and claims renders the
complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿
Battery:
Sustained with Leave to Amend
Defendant first demurs to
the first cause of action for battery. The elements of civil battery are (1) defendant
intentionally performed an act that resulted in a harmful or offensive contact
with the plaintiff’s person; (2) plaintiff did not consent to the contact; and
(3) the harmful or offensive contact caused injury, damage, loss or harm to
plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526.)
Defendant
argues that there are no material facts to allege that Defendant touched or
caused Plaintiff to be touched, or that Defendant LAX intended to
cause Plaintiff harm. While that is correct, a battery does not require a direct “touching” of the
plaintiff by the defendant. For example, a battery may be committed by inducing
the plaintiff to consume a poison. (U.S. v. Castleman (2014) 134 U.S.
1405, 1414-1415.)
Plaintiff argues in her opposition that “[i]t is well settled that
an awareness of a condition that is known to cause harm in such a manner,
absent any effort to stop such contact from occurring, constitutes battery.”
Plaintiffs point to an appellate court case from the Seventh Circuit, Mathias
v. Accor Econ. Lodging, Inc. (7th Cir. Ill. 2003) 347 F.3d 6721, which also involved allegations of a bedbug infestation
at a hotel or motel. The facts in that
case were alleged which much greater detail and specificity than what is
alleged here, where the traveler was relocated from a first room to a second
room to a third one, and where it was alleged that the motel acknowledged that
it had a “major problem with bed bugs” and that all that was being done about
it was “chasing them from room to room.” As noted in Defendant’s Reply, the
Opposition brief argues a number of purported facts that are not alleged in the
First Amended Complaint. To the extent that
Plaintiff believes these additional allegations should be considered by the Court,
the Court will allow leave to amend the battery cause of action.
Accordingly, the demurrer to
the first cause of action for battery is Sustained with 20 days leave to amend.
Intentional
Infliction of Emotional Distress: Sustained with leave to amend.
Defendant
argues that Plaintiff has not stated sufficient facts for a claim of
Intentional Infliction of Emotional Distress (“IIED”). “The
elements of a prima facie case for the tort of intentional infliction of
emotional distress are: (1) extreme and outrageous conduct by the defendant
with the intention of causing, or reckless disregard of the probability of
causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct. Conduct to be outrageous must
be so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Wilson v. Hynek (2012)
207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
Here,
Plaintiff’s FAC asserts that “[a]lthough Defendants, and DOES 1 through 20, had
prior knowledge of bedbug infestations in their hotel, Defendants, and DOES 1
through 20, failed to eradicate such infestations, including an infestation in
the room that Plaintiff were provided” and that “Defendants, and DOES 1 through
20, knew that their hotel had a prior bedbug infestation. Defendants, and DOES
1 through 20, deliberately and recklessly chose not to inspect or ensure that
Plaintiff’s room was free of Cimex lectularius immediately prior to
Plaintiff’s stay.” (FAC, ¶ 74.) The FAC also asserts that as a result,
“Plaintiff suffered severe emotional distress that has caused Plaintiff to
sustain sever, serious and permanent injuries to her person, all to Plaintiff’s
damage in a sum to be shown according to proof and within the jurisdiction of
the Superior Court. (FAC, ¶ 84.)
Plaintiff’s
FAC does not allege extreme and/or outrageous conduct on behalf of Defendant
LAX. Given the number of defendants and
the pleading requirements for an IIED cause of action, the Court finds that Plaintiff’s
FAC fails to allege sufficient facts to support an IIED claim against the Demurring
Defendant and thus the Demurrer is sustained.
The Court will grant 20 days leave to amend to include specific facts as
against Defendant LAX if Plaintiff intends to pursue an IIED cause of action against
the demurring defendant.
Fraudulent
Concealment: Sustained with leave to amend.
Defendant argues that Plaintiff has not stated sufficient
facts for a claim of Fraudulent Concealment. “The elements of a cause of action
for fraudulent concealment are: (1) concealment of a material fact; (2) by a defendant
with a duty to disclose; (3) the defendant intended to defraud by failing to
disclose; (4) plaintiff was unaware of the fact and would not have acted as it
did had it known the fact; and (5) damages.” (Butler America, LLC v.
Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136, 144.) The facts
constituting the alleged fraud must be alleged factually and specifically as to
every element of fraud, as the policy of “liberal construction” of the
pleadings will not ordinarily be invoked. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud
against a corporation, the plaintiffs must plead the names of the persons
allegedly making the false representations, their authority to speak, to whom
they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co.
(1991) 2 Cal.App.4th 153, 157.)
Here, Plaintiff’s FAC alleges that “[f]ront desk
personnel intentionally did not disclose the material fact of the Cimex
lectularius “bedbug” infestation, during check-in, a fact known to those
employees and agents and which their employees and agents, knew Plaintiff would
not discover on her own prior to renting the hotel room.” (FAC, ¶ 32.)
Plaintiff claims that “[f]ront desk personnel intentionally did not disclose
the material fact of the Cimex lectularius “bedbug” infestation, during
check-in, a fact known to those employees and agents, and which their employees
and agents, knew Plaintiff would not discover on her own prior to renting the
hotel room.” (FAC, ¶ 94.) Additionally,
Plaintiff alleges that “Defendants, and DOES 1 through 20, and her employees
and agents intentionally failed to disclose the material fact of the Cimex
lectularius infestation” and “intended to deceive Plaintiff and take advantage
of Plaintiff’s lack of knowledge of the infestation in order to turn a profit
on a night’s stay at her hotel.” (FAC, ¶¶ 96, 98.) Plaintiff’s FAC
alleges that as a result of Defendants breaches of duty, “Plaintiff was
compelled to and did employ the services of hospitals, physicians and surgeons,
nurses, and the like, to care for and treat Plaintiff’s injuries, and did incur
hospital, medical, professional, and incidental expenses.” (FAC, ¶ 104.)
Defendant’s demurrer argues that fraud must be plead with
specificity and that Plaintiff has failed to state which representations she
alleged were fraudulent; why and how these representations were fraudulent; and
how these representations were the decisive motivating factor for Plaintiff to
obtain services from defendants.
The Court notes that what
this claim is dealing with is allegation of negligent concealment.
Indeed, “[h]ow does one show ‘how’ and ‘by what means' something didn't happen,
or ‘when’ it never happened, or ‘where it never happened?” (Alfaro v.
Community Housing Improvement System & Planning Association (2009) 171
Cal.App.4th 1356, 1384.) A plaintiff asserting fraud on a concealment theory
will “not be able to specify the time, place, and specific content of an
omission as precisely as would a plaintiff in a false representation claim.”
Such a claim “can succeed without the same level of specificity required by a
normal fraud claim.” (Falk v. General Motors Corporation (N.D. Cal.
2007) 496 F.Supp.2d 1088, 1098-99.) It would be counterintuitive to require
Plaintiff to name specific people who failed to say something. The specificity
requirements for fraud are more strictly applicable to cases where affirmative
fraudulent actions or representations are being alleged. On the contrary, what
is at issue here are facts that were fraudulently never revealed.
Moreover, the case Tarmann
v. State Farm Mutual Automobile Insurance Company (1991) 2 Cal.App.4th 153
makes clear the longstanding California rule that the specificity requirement
is relaxed when the allegations indicate that “the defendant necessarily
possess full information concerning the facts of the controversy” or “where the
facts lie more in the knowledge of the opposite party.” (Id. at p. 157;
see, also Turner v. Milstein (1951) 103 Cal. App. 2d 651, 658 [“Even
under the strict rules of common law pleading, one of the canons was that less
particularity is required when the facts lie more in the knowledge of the
opposite party than of the party pleading.”].) The facts regarding the knowledge
and concealment of the bedbug infestation are arguably more within the
knowledge of Defendant. In light of the
above authorities, the Court concludes that Plaintiffs cannot reasonable be
required to comply with the specificity rule for pleading fraud in the
strictest sense of the rule.
Nevertheless, the Court does
agree with Defendant that more specific facts could and should have been
provided. Plaintiff should at least have been able to provide facts regarding
what was said during check-in, whether Plaintiff inquired about the room’s
condition, what the “front desk personnel” allegedly knew at check in time, what
was said and who they interacted when Plaintiff first brought up the bedbug
issue and checked out of her room, etc. The failure to do so subjects the fraudulent
concealment cause of action to demurrer.
Accordingly, Defendant’s
demurrer to the fourth cause of action for fraudulent concealment is SUSTAINED,
with 20 days leave to amend.
Private
Nuisance: Sustained without leave to amend
Plaintiff’s
FAC alleges that “[t]he Cimex lectularius infestation that Defendants, and DOES
1 through 20, negligently and intentionally caused to exist in Plaintiff’s
hotel, and specifically Plaintiff’s room, constitutes a nuisance within, but
not limited to the meaning of Civil Code Section 3479 and California Health
& Safety Code Section 17920.3, in that said infestation was injurious to
the health and safety of Plaintiff, indecent and offensive to the senses of
Plaintiff, and interfered substantially with Plaintiff’s comfortable enjoyment
of their hotel room.” (FAC, ¶ 108.) Plaintiff’s FAC also alleges that the
“nuisance has caused, and will continue to cause in the future, Plaintiff to
suffer general and special damages.” (FAC, ¶ 109.)
Defendant
argues that Plaintiff fails to allege any interference with the use and
enjoyment of her property or show that Defendant’s conduct was intentional or
reckless or a result of an abnormally dangerous activity. Additionally, the
Demurrer argues that the FAC fails to state any specific facts to show that
this Defendant’s conduct is a substantial factor in causing Plaintiff’s alleged
harm.
Even
though not raised by either party, this Court notes that a private nuisance claims
requires a plaintiff to show inference with the use or enjoyment of a property
interest. ‘‘[A]ny interest sufficient to be dignified as a property right’
will support an action based on a private nuisance…’” (Orange County Water
Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 416, citing Venuto v.
Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125.) However, “‘Guests in a hotel,
boarders in a boarding house, and roomers or lodgers, so called, are generally
mere licensees and not tenants. They have only a personal contract, and acquire no interest in the realty.’” (Sloan
v. Court Hotel (1945) 72 Cal.App.2d 308, 314.) A property right sufficient to bring a claim
based on private nuisance “does not inure in favor of a licensee, lodger or
employee.” (Venuto, supra, 22 Cal.App.3d at p. 125.) As such, Plaintiff,
as a “lodger” has not alleged a sufficient property interest to bring a claim
for private nuisance.
Accordingly, the demurrer is
SUSTAINED as to the fifth cause of action for private nuisance without leave to
amend.
Public
Nuisance: Overruled.
A nuisance is statutorily
defined as anything “injurious to health” or “indecent, or offensive to the
senses, or an obstruction to the free use of property” that interferes “with
the comfortable enjoyment of life or property…” (Civ. Code, § 3479.) “A public
nuisance is one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code, §
3480.) “[P]ublic nuisances are
offenses against, or interferences with, the exercise of rights common to the public.”
(People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103) “Of course,
not every interference with collective social interests constitutes a public
nuisance. To qualify, and thus be enjoinable [or abatable], the interference must be both substantial
and unreasonable.” (Id. at p. 1105.) It is substantial if it causes
significant harm and unreasonable if its social utility is outweighed by the
gravity of the harm inflicted. (Ibid.)
The elements “of a cause of
action for public nuisance include the existence of a duty and causation.” (In
re Firearm Cases (2005) 126 Cal.App.4th 959, 988.) Public nuisance
liability “does not hinge on whether the defendant owns, possesses or controls
the property, nor on whether he is in a position to abate the nuisance; the
critical question is whether the defendant created or assisted in the creation
of the nuisance.” (City of Modesto Redevelopment Agency v. Superior Court
(2004) 119 Cal.App.4th 28, 38.)
Defendant contends that
Plaintiff cannot allege facts sufficient to support a public nuisance claim;
specifically, Plaintiff only alleges that she was exposed to bedbugs during her
stay and does not allege that the bedbug infestation affected any other people.
Defendant contends that Plaintiffs cannot sustain an action for public nuisance
because they have not alleged facts to demonstrate that the purported bedbugs
in their room affected anyone beyond themselves.
The elements of public
nuisance are: (1) a nuisance that served as an obstruction of the free use of
property so as to interfere with the comfortable enjoyment of life or property;
(2) the nuisance affected a substantial number of people; (3) an ordinary
person would be unreasonably annoyed or disturbed by the nuisance; (4) the
seriousness of the harm occasioned by the nuisance outweighed its social
utility; (5) plaintiffs did not consent to the nuisance; (6) plaintiffs
suffered harm as a result of the nuisance that was different from the type of
harm suffered by the general public; and (7) the nuisance was a substantial
factor in causing the plaintiffs’ harm. (Department of Fish & Game v.
Superior Court (2011) 17 Cal.App.4th 1323, 1352.)
On a claim for public
nuisance, the plaintiffs must “prove a substantial number of people were harmed
and the plaintiffs suffered harm that was different from that suffered by the
general public.” (Ibid.)
In opposition, Plaintiff argues that
the community at large may be affected by bedbugs as they are likely to spread
into the community amongst other hotel guests. (See Birke
v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548)(allegations were
sufficient where it plaintiff alleged that “the condition impacts all guests of
the apartment complex” in a secondhand tobacco smoke case.) Paragraphs
115 and 116 of the FAC allege that the bedbug infestation affected the community
at large and the general public. Accordingly,
the demurrer to the sixth cause of action for public nuisance is OVERRULED.
¿¿¿
B. Motion to Strike¿¿
¿
The court may,
upon a motion, or at any time in its discretion, and upon terms it deems proper,
strike any irrelevant, false, or improper matter inserted in any pleading.¿ (Code
Civ. Proc., § 436(a).)¿ The court may also strike all or any part of any
pleading not drawn or filed in conformity with the laws of this state, a court
rule, or an order of the court.¿ (Id., § 436(b).)¿ The grounds for a
motion to strike are that the pleading has irrelevant, false improper matter,
or has not been drawn or filed in conformity with laws.¿ (Id., § 436.)¿
The grounds for moving to strike must appear on the face of the pleading or by
way of judicial notice.¿ (Id., § 437.)¿ “When the defect which justifies
striking a complaint is capable of cure, the court should allow leave to
amend.”¿ (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)¿ ¿
¿
Here, Defendant
moves to strike the following in Plaintiff’s complaint:
1. Paragraph
40 of Plaintiffs F AC, on page 6, which states: "Multiple lawsuits have
been filed against multiple Wyndham Worldwide Corporation and Wyndham
Destinations, Inc. properties, showing a repetitive lack of care by Defendant,
and DOES 1 through 20, in setting up adequate or proper policies and procedures
for the elimination or control of bed bugs or bed bug infestations at their
establishments." GRANT.
2. Paragraph
55 of Plaintiff's FAC, on page 9, which states: "Plaintiff is informed and
believes, and thereon alleges, that the aforesaid conduct of Defendants, an
DOES 1 through 20, was carried out with a willful and conscious disregard of
Plaintiff's right to be free from such tortious behavior, such as to constitute
oppression, fraud of malice pursuant to California Civil Code Section 3294, and
that an officer, director, or managing agent of Defendants, and DOES 1 through
20, authorized or ratified the wrongful acts of the employees and Defendants,
and DOES 1 through 20, entitling Plaintiff to punitive damages in an amount
appropriate to punish and set an example of Defendants, and DOES 1 through
20." DENY.
3. Paragraph
72 of Plaintiffs F AC, on page 14, which states: "Plaintiff is informed
and believes, and thereon alleges, that the aforesaid conduct of Defendants, an
DOES 1 through 20, was carried out with a willful and conscious disregard of
Plaintiff's right to be free from such tortious behavior, such as to constitute
oppression, fraud of malice pursuant to California Civil Code Section 3294, and
that an officer, director, or managing agent of Defendants, and DOES 1 through
20, authorized or ratified the wrongful acts of the employees and Defendants,
an DOES 1 through 20, entitling Plaintiff to punitive damages in an amount
appropriate to punish and set an example of Defendants, and DOES 1 through
20." DENY.
4. Paragraph
81 of Plaintiff's FAC, on pages 15-16, which states: "Multiple lawsuits
have been filed against multiple Wyndham Worldwide Corporation and Wyndham
Destinations, Inc. properties, showing a repetitive lack of care by Defendant,
and DOES 1 through 20, in setting up adequate or proper policies and procedures
for the elimination or control of bed bugs or bed bug infestations at their
establishments." GRANT.
5. Paragraph
86 Plaintiff's FAC, on page 17, which states: "Plaintiff is informed and
believes, and thereon alleges, that the aforesaid conduct of Defendants, an
DOES 1 through 20, was carried out with a willful and conscious disregard of
Plaintiff's right to be free from such tortious behavior, such as to constitute
oppression, fraud of malice pursuant to California Civil Code Section 3294, and
that an officer, director, or managing agent of Defendants, and DOES 1 through
20, authorized or ratified the wrongful acts of the employees and Defendants,
and DOES 1 through 20, entitling Plaintiff to punitive damages in an amount
appropriate to punish and set an example of Defendants, and DOES 1 through
20." DENY
6. Paragraph
105 of Plaintiff's FAC, on pages 19-20, which states: "Plaintiff is
informed and believes, and thereon alleges, that the aforesaid conduct of
Defendants, an DOES 1 through 20, was carried out with a willful and conscious
disregard of Plaintiff's right to be free from such tortious behavior, such as
to constitute oppression, fraud of malice pursuant to California Civil Code
Section 3294, and that an officer, director, or managing agent of Defendants,
and DOES 1 through 20, authorized or ratified the wrongful acts of the
employees and Defendants, and DOES 1 through 20, entitling Plaintiff to
punitive damages in an amount appropriate to punish and set an example of
Defendants, and DOES 1 through 20."
GRANT.
7. Plaintiff’s
Prayer for Relief on Page 21, where it states: “For punitive damages in an
amount to be determined at trial. DENY
Allegations
of Prior Lawsuits
Defendants request this Court strike
paragraphs 40 and 81 of the FAC, which allege, tat multiple lawsuits have been
filed against Wyndham hotels and that this allegedly shows that a repetitive
lack of care by Defendants. The mere fact that a lawsuit has been filed is not
an evidentiary fact which, if proven, bears of the allegations of entitlement to
punitive damages. Without any argument
as to why Plaintiff has included the multiple lawsuits in its FAC, this Court
GRANTS Defendant’s Motion to Strike as to the alleged lawsuits.
Punitive
Damages
Civil Code section 3294, subdivision (a) authorizes
punitive damages in non-contract cases “where the defendant has been guilty of
oppression, fraud, or malice.”
“Malice [is defined as] 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 for the
rights and safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression”
means “despicable conduct that subjects a person to cruel and unjust hardship
in conscious disregard of that person's rights.” (Civ. Code, § 3294, subd.
(c)(2).) “Fraud” is “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)(3).) The Plaintiff has alleged sufficient facts which, if proven
could entitle Plaintiff to establish the malice prong of Civil Code section
3294.
For the foregoing reasons,
the Court DENIES the motion to strike the allegation and prayer for punitive
damages.