Judge Theresa M. Traber, Case 22STCV25449 2023-01-09 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV25449, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV25449 Hearing Date: January 9, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 10, 2023 TRIAL DATE: NOT SET

CASE: Alexandria Garcia et al. v. 670 Ximeno LLC, et al.

CASE NO.: 22STCV25549

MOTION TO STRIKE

MOVING PARTY: Defendants 670 Ximeno LLC and Nick Mazkoori

RESPONDING PARTY(S): Plaintiffs Alexandria Garcia and Eric Garcia

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a landlord-tenant action that was filed on August 8, 2022. Plaintiffs, who are tenants in apartments owned by Defendants, allege that Defendants refused to repair numerous serious habitability defects on the subject premises, and retaliated against them for reporting the defects to the housing authority.

Defendants move to strike allegations relating to punitive damages, and to strike the seventh and tenth causes of action in their entirety.

TENTATIVE RULING:

Defendants’ Motion to Strike is DENIED.

DISCUSSION:

Defendants move to strike allegations relating to punitive damages, and to strike the seventh and tenth causes of action in their entirety.

Legal Standard

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 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. “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. A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders. Code Civ. Proc., § 436(b). This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed." Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original).

Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 435.5(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike. (Code Civ. Proc., § 435.5(a)(4).)

The Declaration of Lindsay Joachim states that Defendants’ counsel sent a meet and confer letter to Plaintiffs’ counsel on November 1, 2022, and never received a response. (Declaration of Lindsay Joachim ISO Mot. ¶¶ 3-4, Exh. B.) Defendants have therefore complied with their statutory meet-and-confer obligations.

Timing

Plaintiffs object to this motion as untimely because it was filed on the same day as Defendants’ answer to the Complaint. A motion to strike under Code of Civil Procedure section 435 must be filed within the time to respond to a pleading, and is not available after the answer has been filed. (Code Civ. Proc. § 435(b)(1); City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 [motion to strike complaint under section 435 not available when filed well after answer had been filed].) As Defendants state in reply, however, the Court may strike any irrelevant, false, or improper matter under Code of Civil Procedure section 436(a). Here, Defendants have moved to strike portions of the Complaint under both sections 435 and 436 of the Code of Civil Procedure. The timing of the filing of this motion is therefore not a barrier to the Court’s consideration of the motion on its merits.

Punitive Damages

Defendants contend that Plaintiffs have not properly set forth facts supporting a claim for punitive damages.

Generally, punitive damages may be awarded only when the trier of fact finds, by clear and convincing evidence, that the defendant acted with malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) As nonintentional torts support punitive damages when the defendant's conduct “involves conscious disregard of the rights or safety of others,” our focus is on malice and oppression. (Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1341, 1361 [74 Cal. Rptr. 2d 663].) As defined in the punitive damages statute, “[m]alice” encompasses “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights and safety of others,” and “[o]ppression” 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)(1), (2).) The term “‘despicable,’” though not defined in the statute, is applicable to “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [34 Cal. Rptr. 2d 898, 882 P.2d 894], quoting 4 Oxford English Dict. (2d ed. 1989) p. 529.)

Under the statute, “malice does not require actual intent to harm. [Citation.] Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. [Citation.] Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences. [Citation.]” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [44 Cal. Rptr. 2d 197].)

(Pfeifer v. John Crane, Inc., (2013) 220 Cal.App.4th 1270, 1299 (bold emphasis added).)

Civil Code § 3294(a) provides:

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Civil Code § 3294(c) defines malice, oppression and fraud:

(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.

(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) ‘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.

(Bold emphasis added.)

To withstand a motion to strike punitive damages allegations, the complaint must set forth facts supporting a claim for punitive damages:

The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Citation omitted.) 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. Superior Court (Fox) (1984) 157 Cal.App.3d 159, 166 (emphasis added).)

Defendants contend that the allegations are inadequate because the Complaint only makes conclusory allegations that Defendants’ conduct constituted oppression or malice. However, a review of the substantive allegations of the Complaint belies Defendants’ contentions. Plaintiffs allege that Defendants were aware of numerous habitability defects on the subject property, including mold, lack of heating, and a cockroach infestation. (Complaint ¶¶ 25-27, 28, 30.) Plaintiffs allege Defendants have refused to properly remedy the defects, instead resorting to measures such as painting over mold rather than treating it. (See Complaint ¶ 26.) Plaintiffs also allege that, when the defects were reported to the housing authority, Defendants retaliated against Plaintiffs by threatening them with eviction. (Complaint ¶ 44.) Construing the pleadings in the light most favorable to Plaintiffs, as required on a motion such as this, the Court cannot say that these allegations are insufficient to support the contention that Defendants’ conduct was malicious or oppressive.

Seventh Cause of Action: Intentional Infliction of Emotional Distress

Defendants contend that the seventh cause of action for intentional infliction of emotional distress should be stricken.

“The elements of 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.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.”

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-875.) The defendant’s conduct must be “directed primarily” at the plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.)

Defendants argue that Plaintiffs have not sufficiently pled extreme and outrageous conduct with intention to cause or reckless disregard of the probability of causing emotional distress. Defendants are incorrect.

To be “extreme and outrageous,” conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 [quoting KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028].) Although there is no bright-line standard for what constitutes extreme and outrageous conduct, the “appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Cochran, supra, 65 Cal.App.4th at 494.) In making this determination, it is “not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Id. at 496.) Rather, “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Ibid.)

Here, Plaintiffs allege that Defendants’ conduct in in permitting multiple hazardous conditions at the property and refusing to repair them, including visible mold, lack of heat, and a cockroach infestation, among other issues, was “extreme and outrageous.” (Complaint ¶¶ 25-27, 28, 30, 130.) Plaintiffs also allege that, when the defects were reported to the housing authority, Defendants retaliated against Plaintiffs by threatening them with eviction. (Complaint ¶ 44.) Taken as true, as required at this stage, those actions could certainly be considered utterly intolerable in a civilized society. Plaintiff also sufficiently alleges intent by alleging that Defendants’ refusal to remedy the conditions at the property was intentional and willful, and done with reckless disregard to the likelihood of inflicting emotional distress on Plaintiffs. (Complaint ¶ 49.) For example, Plaintiffs allege that Defendants have refused to properly remedy the defects, instead resorting to measures such as painting over mold rather than treating it. (See Complaint ¶ 26.)

Defendants have therefore failed to demonstrate that the seventh cause of action should be stricken as improper.

Tenth Cause of Action: Intentional Influence to Vacate

Defendants move to strike the tenth cause of action for intentional influence to vacate in violation of Civil Code section 1942.5. However, although Defendants raised this issue in the notice of motion, Defendants do not address this cause of action in their brief. Defendants are therefore not entitled to an order striking this cause of action.

CONCLUSION:

Accordingly, Defendants’ Motion to Strike is DENIED.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: January 10, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.