Judge: Teresa A. Beaudet, Case: 19STCV42167, Date: 2023-01-06 Tentative Ruling

Case Number: 19STCV42167    Hearing Date: January 6, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Kevin Keenan (“Keenan”) filed this action on November 22, 2019 against Defendants Peter Thiel and Lorien Sunset LLC (“Lorien Sunset”) (jointly, “Defendants”). The Complaint asserts causes of action for (1) negligence, (2) nuisance, (3) trespass, (4) breach of contract, and (5) negligence per se. 

In the Complaint, Keenan alleges that Lorien Sunset holds title to property at 8600 Metz Place (aka 8635 Metz Place and 8550 Hedges Place) in Los Angeles. (Compl., ¶ 1.) In February 2019, a landslide emanating from Lorien Sunset’s property buried a substantial portion of Keenan’s home at 1383 Miller Drive in Los Angeles up to the roofline. (Compl., ¶ 1.) Keenan alleges that Defendants failed to stabilize Lorien Sunset’s property such that it remains a threat to health and safety of persons at Keenan’s property. (Compl., ¶ 1.)

On December 13, 2019, Lorien Sunset filed a Cross-Complaint against Keenan. On June 2, 2022, Lorien Sunset filed the operative First Amended Cross-Complaint (“FACC”) against Keenan. The FACC asserts causes of action for (1) negligence, (2) private nuisance, (3) failure to provide lateral and subjacent support, and (4) declaratory relief.

In the FACC, Lorien Sunset alleges that it is the owner of the real property located

at 8635 Metz Place in Los Angeles, California (the “Metz Property”). (FACC, ¶ 2.) Keenan is the owner of the real property located at 1383 Miller Drive in Los Angeles, California (the “Keenan Property”). (FACC, ¶ 1.) Lorien Sunset alleges that Keenan hired a geologist, Geoplan, Inc., to conduct a “limited reconnaissance geologic examination” of the Keenan Property “to identify, analyze and discuss conditions that may affect [the] long term safety and stability of the cut slope which rises steeply above the rear of [the Keenan Property].” (FACC, ¶ 10.) The Geoplan report recommended an “engineered retaining wall” be built which “would serve better to contain debris and would be less susceptible to damage/deterioration from rockfall or hydrostatic pressure of contained debris.” (FACC, ¶ 13.) Lorien Sunset alleges that Keenan never followed the recommendation, and instead built several make-shift, unpermitted walls on the slope and at the toe of the slope, which had the impact of destabilizing the hillside, which contributed to the massive failure in February 2019. (FACC, ¶ 14.) Lorien Sunset alleges that failure occurred on both the Keenan Property and the Metz Property. (FACC, ¶ 17.)[1]

Keenan now moves to strike the punitive damages allegations from the FACC. Lorien Sunset opposes.

Discussion

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” ((Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Keenan moves to strike Lorien Sunset’s request for punitive damages from the FACC. Lorien Sunset seeks punitive damages in connection with its second cause of action for private nuisance and its third cause of action for failure to provide lateral and subjacent support.

A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. ((Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “‘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.” ((Civ. Code, § 3294, subd. (c)(1).) “Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as having the character of outrage frequently associated with crime.” ((Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332-333 [internal quotations omitted].)

Keenan argues that the allegations of the FACC do not demonstrate the “malice” “oppression” or “fraud” necessary to support an award of punitive damages. In the second and third causes of action, Lorien Sunset alleges that “Keenan acted with malice” by, among other things, “(i) failing to maintain and support the portion of the hillside on his property despite knowledge of the obvious danger of the hillside; (ii) taking affirmative steps that destabilized the hillside, including performing unpermitted construction on the slope and at the toe of the slope; and (iii) failing to notify Lorien Sunset (or any prior owner of the Metz Property) of the numerous failures on the hillside, as detailed above. Such conduct by Keenan was carried out willfully and with a conscious disregard of the rights and safety of Lorien Sunset and to otherwise deprive Lorien Sunset of its use and enjoyment of its property. Lorien Sunset is therefore entitled to an award of punitive and exemplary damages against Keenan in an amount to be proven at trial.” (FACC, ¶¶ 40, 46.)

First, Keenan asserts that the allegation that Keenan “[failed] to maintain and support the portion of the hillside on his property despite knowledge of the obvious danger of the hillside” amounts to nothing more than a claim that Keenan negligently maintained his portion of the subject slope. Keenan notes that “[t]he malice required implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient; and mere negligence, even gross negligence is not sufficient to justify an award of punitive damages.” ((Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894 [internal emphasis omitted].)

Keenan also cites to McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 297, where the plaintiffs “sought damages allegedly caused by water entering their store because of defects in the roof and roof drains, portions of the building reserved to the defendant lessor and under her sole control.” The Court of Appeal found that “[t]he gist of the first part of the count (that which deals with actual damages) is that defendant, aware of the defective condition of the roof and drains and knowing they could cause damage, refused to repair them. Those facts do not spell an intentional tort (a conscious, deliberate intent to injure the plaintiffs) or conduct so recklessly disregardful of the rights of others (sometimes characterized as wanton or wilful misconduct) as would show the ‘malice’ in fact which the statute (Civil Code section 3294) requires as a predicate for punitive in addition to actual damages.” (Id. at p. 299 [emphasis omitted].) Keenan argues that here too, the allegations of the FACC do not establish malicious conduct. 

Lorien Sunset counters that the allegations are sufficient to show that Keenan’s conduct was not just negligent, but rather that he acted with a conscious disregard for the safety of Lorien Sunset. Lorien Sunset notes that the FACC alleges that Keenan did not follow the recommendation of his geologist to build an “engineered retaining wall” and instead “built several make-shift, unpermitted walls on the slope and at the toe of the slope, which had the impact of destabilizing the hillside.” (FACC, ¶¶ 13, 14.)

Keenan asserts that the allegation of Keenan “taking affirmative steps that destabilized the hillside, including performing unpermitted construction on the slope and at the toe of the slope” does not demonstrate that Keenan intended to cause injury to Lorien Sunset, or show that Keenan acted with a willful and conscious disregard of the rights or safety of others. Keenan contends that he “(allegedly) built protective walls with the intent to protect his own property, not with the requisite intent to harm Lorien, Thiel, or anyone else.” (Mot. at p. 6:14-15.) 

Lastly, Keenan asserts that the allegation of Keenan “failing to notify Lorien Sunset (or any prior owner of the Metz Property) of the numerous failures on the hillside” is not sufficient to support an award of punitive damages.[2] Keenan asserts that this claim fails to allege an intentional or deliberate act. Keenan also asserts that Lorien Sunset fails to allege why Keenan has any duty to “notify” Lorien Sunset of past slope failures. Lorien Sunset does not respond to this point in the opposition.

Based on a consideration on the arguments presented, the Court does not find that Lorien Sunset has alleged facts sufficient to demonstrate malice on the part of Keenan.

Conclusion

Based on the foregoing, Keenan’s motion to strike is granted.

Keenan is ordered to give notice of this ruling.

DATED:  January 6, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court