Judge Ronald F. Frank, Case Number: 23TRCV03934, Date: 2024-03-27 Tentative Ruling

On November 27, 2023, Plaintiff, Leorna Shevorna Johnson filed a Complaint against Defendants, Herbert H. Buehler, an individual and Trustee of the Buehler Family Trust dated February 6, 2015, Rosemarie Buehler, an Individual and Trustee of the Rosemarie Buehler Family Trust dated April 9, 2022, and Lois Brown, and DOES 1 through 50. The complaint alleges causes of action for: (1) Negligence; (2) Intentional Infliction of Emotional Distress; (3) Breach of the Implied Warranty of Habitability; (4) Tortious Breach of Implied Warranty of Habitability; (5) Private Nuisance; (6) Breach of Covenant of Quiet Enjoyment; and (7) Violation of the UCL.

Plaintiff’s Complaint is based on the allegations that in September 2020, Plaintiff entered into a written lease agreement with Defendants for the occupancy of Apt. 11A on the 500 block of Avenue G in Redondo Beach. (Complaint, ¶¶ 3, 17.) Plaintiff alleges that Defendants owned and/or managed the Property and authorized and ratified the tortious and wrongful conduct alleged through its actions, omissions, or through its employees and that Defendants are liable for negligent and wrongful acts. (Complaint, ¶ 20.) At all relevant times, Plaintiffs contend that Defendants had non-waivable and nondelegable common law and statutory duties to maintain the premises in habitable conditions for human occupancy and to engage in fair business practices, but failed to do so. (Complaint, ¶ 22.) Plaintiff asserts that Defendants engaged in the wrongful conduct including: intentionally and/or negligently failing to make repairs to the Property, the common areas, and to maintain the habitability of Apt. 11A and the Property throughout Plaintiff’s tenancy. (Complaint, ¶ 22.) In fact, Plaintiff alleges that at all relevant times during her tenancy, Apt. 11A was unsafe, unsanitary, unhealthy, and uninhabitable and subject to conditions of severe mold, mildew, and a foul and/or musty odor. (Complaint, ¶ 24.)

Defendants now file a Motion to Strike portions of Plaintiff’s Complaint relating to Punitive Damages.

On February 13, 2024, Defendants, filed a Motion to Strike. On March 14, 2024, Plaintiff filed an opposition. On March 20, 2024, Defendants filed a reply brief.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Here, Defendants seek to strike the punitive damages allegations in the Complaint and in the prayer for relief on the grounds that they argue the Complaint lacks the requisite factual allegations to support her claims for punitive damages against moving defendants.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules Court, rule 3.1322, subd. (b).) The Court may, upon motion, or at any time in its discretion and upon terms it deems proper: (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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court, (1979) 99 Cal.App.3d 568, 575.) A motion to strike must be accompanied by a meet and confer declaration showing an effort to informally resolve each issue raised by the motion. (Code Civ. Proc., § 435.5, subd. (a).)¿Civil Code section 3294, subdivision (a) authorizes punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice. Pursuant to Civil Code section 3294, subdivision (c)(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.”

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Ct. (1998) 67 Cal.App.4th 1253, 1255.) “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.” (Grieves v. Sup. Ct. (1984) 157 Cal.App.3d 159, 166.

“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. Sup. Ct. (1979) 24 Cal.3d 890, 894.) “To support an award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

Defendants argue that Plaintiff has failed to plead facts in the Complaint sufficient to demonstrate by clear and convincing evidence that any defendant is guilty of oppression, fraud, or malice. Instead, Defendants contend that the Complaint only makes broad and conclusory statements that the property suffered from alleged mold and/or mildew that plaintiff requested repairs, that the repairs performed were insufficient, and that defendants then suggested plaintiff move out of the subject property. Defendants rely on McDonell v. American Trust Company (1955) 130 Cal.App.2d 296 in arguing that the alleged failure to timely or properly maintain a premises, without more, is insufficient to show any reprehensible or despicable conduct. McDonell involved circumstances in which plaintiffs sued for damages incurred after allegedly slipping due to a leak that resulted from the defendant’s failure to correct a known defect in the roofing and roof drains.¿ (McDonell, 130 Cal.App.2d at p. 297.)¿ The Court of Appeal held that the allegedly knowing failure of the defendant to affirmatively repair the roof and drain wells did not constitute conduct “so recklessly disregardful of the rights of others (sometimes characterized as wanton or willful misconduct) as would show ‘malice’ in fact which the statute (Civ. Code, § 3294) requires as a predicate for punitive in addition to actual damages.” (McDonell, 130 Cal.App.2d at p. 299, emphasis in original.)

Here, the Complaint alleges that Defendants had actual and/or constructive notice of the alleged defects yet failed to take timely or reasonable steps to abate and/or remedy the defects. (Complaint, ¶ 25.) Instead, Plaintiff alleges that any repairs that were undertaken by Defendants were inadequate and/or exacerbated the subject problem (i.e., painting over mold), that the failure to repair the claimed defects at Apt. 11A was done to save money and increase Defendants’ cash flow and net income. (Complaint, ¶ 25.) More specifically, Plaintiff alleges that her apartment has been subject to persistent mold growth and humid conditions, and that it has been the subject of poor ventilation system which has caused mold growth. (Complaint, ¶ 26.) The Complaint alleges the overgrowth damaged the apartment and Plaintiff’s personal property (noting almost all of her clothes were damaged by the mold) and interfered with Plaintiffs’ use and enjoyment of the premises. (Complaint, ¶ 26.) Plaintiff contends that she repeatedly informed Defendant and/or their agents of the defects outlined in the Complaint, but that they repeatedly failed or delayed making adequate repairs to do so. (Complaint, ¶ 63.) Further, Plaintiff alleges that Defendants had actual knowledge of the defective conditions in the premises, including the mold growth, and other unsafe and dangerous conditions, and failed and refused to adequately remediate the conditions even though legally obligated to do so. (Complaint, ¶ 75.) Moreover, Plaintiff alleges that Defendant regularly failed to repair and maintain the property they owned and controlled, engaged in conduct designed to cover up and hide illegal defects (i.e., painting over mold), misleading housing and health inspectors to avoid the issuance or further prosecution of Code violations, and failed to post required notices. (Complaint, ¶ 91.)

To provide a basis for seeking punitive damages, a civil complaint must allege malice, oppression, or fraud, and must provide facts upon which the allegation of misconduct is predicated. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) In the Court’s view, “as pled in this complaint, [the alleged] facts do not rise to the level of malice, oppression or fraud necessary under Civ.Code, section 3294 to state a claim for punitive damages.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) To plead a “willful and conscious disregard of the rights of others,” a plaintiff need only allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) However, the definition of malice also requires that the conduct be despicable. “'Despicable conduct' has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as '[having] the character of outrage frequently associated with crime.”' (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) In cases involving conduct performed without intent to harm, a finding of malice requires proof by clear and convincing evidence that defendant's tortious wrong amounted to despicable conduct and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

Plaintiff’s allegations regarding Defendants’ conduct prior to and after the notice of mold overgrowth of Plaintiff’s unit are not sufficient in the Court’s view to constitute conduct so recklessly disregardful of Plaintiff’s rights as to constitute malice or oppression under Civil Code, section 3294.¿ In the Court’s view, the allegations in the Complaint are of the “garden variety” habitability claims by a tenant against a landlord, and fail to allege a claim for punitive damages with the requisite specificity or with sufficient facts to justify “despicable conduct.” The Court does not believe the mere notice of knowledge of a defective condition and alleged failure to remedy or cure mold prior accident at the same location raises to the level of punitive damages culpability, although it may be sufficient evidence if proven to show actual or constructive notice of a dangerous condition.