Judge: Stephen Morgan, Case: 20AVCV00788, Date: 2022-07-26 Tentative Ruling
Case Number: 20AVCV00788-2 Hearing Date: July 26, 2022 Dept: A14
Background
This is a premises liability action. Plaintiffs Cherise Frazier, Alexander Frazier, and Aldiez Frazier (collectively “Plaintiffs”) allege that on November 2017 signed a lease at Defendant Town Square Apartment (“Town Square Apartment”) for unit 1-135 and, subsequently, on or about October 13, 2018, Plaintiffs grew concerned as the felt discomfort and itchiness and received bite marks on their bodies. Plaintiffs allege further that on or about the first week of November 2018, they discovered bed bugs in the sheets of their beds, confirming that the bite marks from October had been a result of being bitten by bed bugs. Plaintiffs contend that on or about February 20, 2019, Plaintiff Cherise Frazier notified Town Square Apartment of the bed bug situation, the landlord came to inspect the apartment and found bed bug eggs, and the landlord refused to help treat the unit and demanded Plaintiffs pay $1,600.00 for treatment. Plaintiffs present the following subsequent events: (1) Dewey Pest Control came to inspect the apartment unit on March 1, 2019 and discovered bed bugs; (2) Plaintiffs noticed other tenants were throwing out their mattresses; (3) Plaintiff Cherise Frazier spoke to Town Square Apartment Management on March 12, 2019, regarding documentation of proof that no other units in the apartment complex had a bed bug infestation and the manager stated that Plaintiff Cherise Frazier was being insulting; (4) on or about March 20, 2019, Plaintiffs received a 60-day eviction notice; (5) on March 28, 2019 the apartment unit was treated for bed bugs and Plaintiffs were charged for the treatment as $1,600.00 was deducted from Plaintiffs’ security deposit until Plaintiffs complained; (6) despite treatment, Plaintiffs continued to be bitten and saw bed bugs; (7) On April 02, 2019, Plaintiffs gave Town Square Apartment management their 30-day notice; (8) on or about May 1, 2019 Plaintiff Cherise Frazier spoke with her neighbor and confirmed that her neighbor had a bed bug issue; (9) Plaintiff Cherise Frazier reviewed her lease and confirmed that it did not have a statement regarding bed bugs, but her neighbors did; and (10) on May 02, 2019, Plaintiffs moved out of their apartment. Plaintiffs allege that, as a result of the ongoing bed bug situation, they sought medical treatment and now have physical and mental scarring and require a service dog for their anxiety as a result of the incident.
On November 09, 2020, Plaintiffs filed their Complaint alleging eight causes of action for: (1) Battery, (2) Negligence, (3) Intentional Infliction of Emotional Distress (“IIED”), (4) Breach of Implied Warranty of Habitability, (5) Breach of Covenant of Quiet Enjoyment, (6) Violation of Cal. Civ. Code § 1942.4, (7) Private Nuisance, and (8) Public Nuisance.
On May 04, 2022, counsel for Defendant The Cannon Management Company (“Cannon Management”); 43300 Gadsen Avenue, LLC; Defendant Stacey Holifield (“Holifield”); and John Chih Chiu (“Chiu”) filed a declaration regarding meet and confer attempts and an extension of responsive pleading deadline.
On June 03, 2022, Cannon Management; 44330 Gadsen Avenue, LLC; Holifield; and Chiu (collectively “Defendants”) filed their Motion to Strike.
On June 15, 2022, counsel for Defendants filed a notice of errata regarding the Motion to Strike, informing the Court and the parties that the previous Motion to Strike was incomplete and had incorrect party names. The notice of errata included the correct version of the Motion to Strike.
On June 28, 2022, a hearing was held on the matter. The parties stipulated to a continuance and the Court continued the hearing to July 26, 2022.
On July 13, 2022, Plaintiffs filed their Opposition.
On July 19, 2022, Defendants filed their Reply.
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Analysis
Standard for 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. (Cal. 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 or 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.)¿¿
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Meet and Confer Requirement – Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. §430.41 and §435.5.) The Court notes that the requirement has been met. (Decl. Jennifer Volcy, ¶ 3.)
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Discussion
Defendant moves the Court to strike allegations in the Complaint and the prayer for punitive damages.
Punitive damages in an action for a breach of duty not arising from contract occur only when a defendant has been guilty of oppression, fraud, or malice, the plaintiff for the sake of example or by way of punishing the defendant. (Code Civ. Proc § 3294(a).) They are defined as:
“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. (Code Civ. Proc. § 3294(c)(1).)
“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Code Civ. Proc. § 3294(c)(2).)
“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. (Code Civ. Proc. § 3294(c)(3).)
The California appellate courts give a standard to distinguish negligence from malice:
“‘The standard applied is external, and the words malice, intent and negligence, as used in this connection, refer to an external standard. If the manifest probability of harm is very great, and the harm follows, we say that it is done maliciously or intentionally; if not so great, but still considerable, we say that the harm is done negligently; if there is no apparent danger, we call it mischance.’ (Selected Essays on the Law of Torts, p. 162.)”
(Pelletti v. Membrilia (1965) 234 Cal.App.2d 606, 611.)
The Pelletti Court goes further to state that when conduct falls sufficiently below the acceptable norm to become grossly deficient, it is characterized as imbued with “wilful [sic] misconduct” and a malicious state of mind is attributed to the actor irrespective of any actual specific intent. (Id.) This idea has been reiterated in more recent cases where courts have found that, in order to be liable for punitive damages, a defendant’s harm to the plaintiff need not be intentional. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808.) However, to raise negligence to the level of willful misconduct, the defendant must have: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689-690.) The New court further clarified that willful misconduct may be inferred from the actor’s conduct:
If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his actual concern for the rights of others, we call it wilflul [sic] misconduct, and apply to it the consequences and legal rules which we use in the field of intended torts.
(New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 690.)
Defendants argue that Plaintiffs’ Complaint fails to allege specificity to establish a showing of maliciousness and that Plaintiffs have not alleged any facts showing outrageous conduct on the part of any moving Defendants.
Plaintiffs argue that punitive damages are proper in this instant action as they are allowed where “a knowing and deliberate state of mind from which a conscious, disregard of petitioner’s rights may be inferred.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Plaintiffs cite Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 (“Taylor”); G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32 (“G.D. Searle”); and Penner v. Falk (1984) 153 Cal.App.3d 858, 867 (“Penner”) to show that punitive damages are proper in a non-intentional tort case where a defendant consciously exposes others to a known safety risk. Plaintiffs also present that they have complied with Cal. Civ. Code § 3294(B) which allows damages for punishment in an action for breach of obligation not arising from contract.
Defendants’ Reply reiterates that punitive damages are inappropriate in this instant action. Specifically, Defendants highlight that Cal. Code Civ. Proc. § 1033.4(a)(10) allows attorneys’ fees to be recoverable only when authorized by contract, statute, or other law.
This instant action is distinguished for Taylor as Taylor focuses on driving under the influence and the defendant’s intoxication was found to show a conscious disregard of the risks associated with drunk driving. (See Taylor, supra, 24 Cal. 3d 890.) This instant action is also distinguished from G.D. Searle as G.D. Searle discussed pathological effects caused by the use of oral contraceptives manufactured by petitioner drug manufacturer and the appellate court held that punitive damages were not plead as the allegations were conclusory (the pleadings alleged that Searle knew that its products “ ‘could safely do the jobs[]’ ”). (See G.D. Searle, supra, 49 Cal. App. 3d 22, 32.) Finally, Penner is also distinguished from this instant action. Though Penner focused on a tenant-landowner relationship, the premise of the case was an assault between the tenant and non-tenant intruders. In that case, the pleadings sufficiently allege facts setting forth long existing physical conditions of the premises which portend danger for the tenants and also set out that respondents knew of those conditions for up to two years, had power to make changes, but failed to take corrective and curative measures. (See Penner, supra, 153 Cal. App. 3d 858 at 867.) The Court discusses the timeline in this instant action, infra.
Here, Plaintiffs’ claims for punitive damages are premised on Defendants’ lack of response to the bed bug infestation. However, as alleged in the Complaint and provided by Defendants, Plaintiffs’ unit was treated for bed bugs on March 28, 2019, approximately one month and eight days after first being informed of the potential issue in Plaintiffs' unit. (Complaint ¶ 27.) Unfortunately for both parties, the treatment did not resolve the issue and Plaintiffs continued to see bed bugs and get bit. (Ibid.) Plaintiffs do not allege that they informed Defendants that the bed bug infestation persisted after the treatment.
The timeline is such that on February 20, 2019 Defendants, or at least some of the Defendants, had (1) actual or constructive knowledge of the peril to be apprehended and (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger. After knowledge of the bed bug situation in the unit, two alleged things occurred: (1) the landlord (unnamed) demanded payment for treatment and (2) treatment occurred on March 28, 2019. After this, the alleged actions taken by Plaintiffs are as follows: Plaintiffs complained about the deduction to their security deposit (Complaint ¶ 27), Plaintiffs continued to see and be bitten by bed bugs (ibid.), Plaintiffs gave Town Square Apartment their 30-day notice (id., ¶ 28), and Plaintiff Cherise Frazier talked to her neighbor about the bed bug situation (id., ¶ 29).
After the initial treatment, it appears that Defendants did not have actual or constructive knowledge of the remaining bed bugs. Under the New standard, Defendants negligence does not rise to the level to constitute willful misconduct and, therefore, does not amount to malice.
Accordingly, the Motion to Strike is GRANTED.
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Conclusion
Defendant The Cannon Management Company; 44330 Gadsen Avenue, LLC; Stacy Holifield; and John Chih Chiu’s Motion to Strike is GRANTED.