Judge: Stephen I. Goorvitch, Case: 21STCV19537, Date: 2023-04-10 Tentative Ruling

Case Number: 21STCV19537    Hearing Date: April 10, 2023    Dept: 39

Michael Laporta, et al. v. Beverly Hills Properties, et al.

Case No. 21STCV19537

Motion for Judgment on the Pleadings

            Plaintiffs assert causes of action for breach of the warranty of habitability, negligence, nuisance, breach of contract, and breach of the covenant of quiet enjoyment.  Defendants move for a judgment on the pleadings, arguing that the third cause of action is invalid because it is predicated upon Civil Code section 1924.4, which does not exist.  Plaintiff’s counsel represents that he made a typographical error, and this cause of action is predicated upon Civil Code section 1942.4, which is noted on the first page of the complaint and Paragraph #37.  The Court grants the motion with leave to amend to file a revised complaint. 

Defendants also move for a judgment on the pleadings with respect to punitive damages and attorneys’ fees.  Defendant cannot move for judgment on the pleadings on a remedy because a motion for a judgment on the pleadings is a function equivalent of a demurrer, not a motion to strike.  (See Fire Ins. Exch. v. Superior Court (2004) 116 Cal.App.4th 446, 451.)  The Court shall construe this motion as a motion to strike.  The Court has discretion to consider a motion to strike at any stage of the litigation, per Code of Civil Procedure section 436(a).

Defendants argue: “Finally, the law recognizes that a claim for breach of warranty of habitability is not grounds for an award of punitive damages.  See Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 896 (an action for breach of warranty of habitability is based in contract, punitive damages are not available).  Plaintiffs have not and cannot state a valid claim for punitive damages—the claim should be dismissed as a matter of law.”  (Defendants’ Motion, p. 3:25-28.)  The case cited by Defendants—Ginsburg v. Gamson—holds only that punitive damages are not available for breach of the covenant of quiet enjoyment because it is a contractual claim.  Nowhere does this case address claims for breach of the warranty of habitability.  The law is clear that punitive damages are available for such claims because they are tort claims.  (See Smith v. David (1981) 120 Cal.App.3d 101, 112 fn. 3, citations omitted; see also Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)  They also are available for nuisance claims.  (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.)    

Defendants also move to strike the claim for attorneys’ fees.  Plaintiff’s counsel seeks attorney’s fees under Civil Code sections 1924.4, 1941.4, 1717, and 1021.5.  Presumably, Plaintiff’s counsel made the same typographical error and meant to seek attorney’s fees under Civil Code section 1942.4(b)(2).  The Court strikes the claim to the extent it is based on the remaining sections.  Section 1941.4 does not afford attorney’s fees.  The contract, a copy of which is attached to the complaint, states that “each party shall bear its own attorney fees,” so fees are not available under Civil Code section 1717.  Finally, the complaint does not allege facts sufficient to seek attorney’s fees under section 1021.5, as there is no public benefit at issue.  The Court will reconsider the issue of attorney’s fees under section 1021.5 if the evidence at trial suggests that Plaintiff’s counsel would qualify for fees. 

Based upon the foregoing, the Court orders as follows:

1.         The motion is granted with respect to the third cause of action.  The Court grants leave to amend to make clear this cause of action is based on Civil Code section 1942.4.

2.         The motion is denied with respect to the claim for punitive damages.

3.         The motion is granted with respect to the claim for attorney’s fees.  The Court grants leave to amend to make clear this request is based on Civil Code section 1942.4.  The Court denies leave to amend in all other respects.

4.         Plaintiff shall file an amended complaint within ten (10) days. 

5.         Defendants’ counsel shall provide notice and file proof of such with the Court.