Judge: Theresa M. Traber, Case: 23STCV16201, Date: 2025-04-21 Tentative Ruling
Case Number: 23STCV16201 Hearing Date: April 21, 2025 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: April 21, 2025 TRIAL
DATE: NOT SET
CASE: Avishai Kohanzad v. Crown Towers
Homeowners’ Association
CASE NO.: 23STCV16201 
DEMURRER
TO COMPLAINT AND MOTION TO STRIKE
MOVING PARTY: Defendant Crown Towers Homeowners’ Association
RESPONDING PARTY(S): Plaintiff Avishaid
Kohanzad
CASE
HISTORY:
·
07/12/23: Complaint filed.
·
10/14/24: First Amended Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for negligence and breach of contract. Plaintiff is a
homeowner of a condominium in a multifamily residential building, who alleges
that Defendant failed to maintain the water heater for the building, depriving
Plaintiff of hot water in his home.
Defendant Crown Towers Homeowners’
Association demurs to the fourth and fifth causes of action in the First
Amended Complaint. Defendant also moves to strike allegations pertaining to
punitive damages and attorney’s fees, and for the accompanying prayers for
relief.
TENTATIVE RULING:
Defendant Crown Towers HOA’s
Demurrer to the First Amended Complaint is OVERRULED.
Defendant’s Motion to
Strike is GRANTED IN PART with respect to paragraph 80 and prayers for relief
Nos. 7, 16 and 19.
//
//
DISCUSSION:
Requests for Judicial Notice
Defendant
requests, in support of its demurrer and motion to strike, that the Court take
judicial notice of (1) the March 18, 2024 Minute Order ruling on Defendant’s
previous demurrer and motion to strike; (2) Defendant’s Answer to the original
Complaint; (3) the Parties’ Stipulation and Order for Amendment of the
Complaint filed October 3, 2024; (4) the Notice of Ruling regarding the
stipulation; and (5) the First Amended Complaint in this action. Defendant’s
requests are GRANTED pursuant to Evidence Code section 452(d) (court records).
Demurrer to First Amended Complaint
Defendant
Crown Towers HOA demurs to the fourth and fifth causes of action in the First
Amended Complaint.
Legal Standard
A demurrer tests whether the
complaint states a cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “This rule of liberal construction means that the
reviewing court draws inferences favorable to the plaintiff, not the
defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
Procedural Posture
On March
18, 2024, the Court sustained this Defendant’s Demurrer to the original
complaint as to the fifth cause of action for intentional misrepresentation;
sixth cause of action for negligent misrepresentation; seventh cause of action
for false promise, and eighth cause of action for fraudulent concealment, all
for failure to state facts sufficient to constitute a cause of action. (March
18, 2024 Minute Order; Defendant’s RJN Exh. A.) That order denied Defendant’s
simultaneous motion to strike as moot, and granted Plaintiff 30 days leave to
amend the Complaint. (Id.) No amendment to the Complaint was filed
within the time allotted by the Court’s order. However, the parties
subsequently stipulated on October 3, 2024 to allow Plaintiff leave to amend
the fifth through eighth causes of action as to the individual Defendants only.
(RJN Exh. C.) Plaintiff’s First Amended Complaint was filed on October 14,
2024. (See generally FAC.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The Declaration of Melissa Saracyan
in support of this motion states that she met and conferred with Plaintiff’s
counsel electronically on November 6, 2024 and November 19, 2024. (Declaration
of Melissa Saracyan ISO Demurrer. ¶¶ ¶¶ 10-11.) A mere exchange of emails
declaring each party’s position is not a satisfactory meet-and-confer effort.
The plain language of section 430.41 requires that the parties meet and confer in
person or by telephone to attempt to resolve the dispute. (Code Civ.
Proc. § 430.41(a).) Nevertheless, the Court will address Defendant’s demurrer
on the merits.
Sham Pleading
Defendant
first demurs to the entire First Amended Complaint on the grounds that the
First Amended Complaint is a sham pleading. Leaving aside the absence of a
separate Statement of Grounds for Demurrer (discussed below), this assertion is
not a valid basis for a demurrer to a complaint. (See Code Civ. Proc. §
430.10.) Rather, the sham pleading doctrine is a judicial rule of
construction whereby the Court, in ruling on a demurrer, may disregard allegations
in a current pleading which contradict unfavorable or adverse allegations in a
previous pleading, take judicial notice of the prior allegations, and rule upon
the sufficiency of the amended pleading using the previous allegations. (Cantu
v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.) Put differently,
the sham pleading doctrine is the means by which a defendant may demonstrate,
for example, that an amended complaint does not plead fact sufficient to
constitute a claim, (Code Civ. Proc. § 430.10(e),) or that the person filing
the amended pleading does not have capacity to sue (Id. subd. (b).) The
doctrine is not a freestanding basis for Defendant’s demurrer.
Deficient Statement of Grounds for Demurrer
A demurrer
“shall distinctly specify the grounds upon which any of the objections to the
complaint . . . are taken. Unless it does so, it may be disregarded.” (Code
Civ. Proc. § 430.60.) Pursuant to this statute, the Rules of Court require that
each grounds for a demurrer be stated in a separate paragraph. (Cal. Rules of
Court Rule 3.1320(a).)
Here,
Defendant’s Notice of Motion does not include a separate Statement of Grounds
for the Demurrer. To the extent that the Notice of Motion may be construed as a
Statement of Grounds, the Notice remains defective with respect to the
challenge to the fourth and fifth causes of action. Specifically, Defendant challenges
the fourth cause of action for breach of fiduciary duty and fifth cause of
action for private nuisance on the grounds that these claims “fail[] to state
facts sufficient to constitute a cause of action and [are] uncertain.”
(Demurrer p. 2-3-8.) “[W]here such separate grounds of demurrer are conjoined,
the complaint must be defective on each, or the demurrer must be overruled.” (Wilhoit
v. Cunningham (1891) 87 Cal. 453, 459; see also Kraner v. Halsey (1889)
82 Cal.209, 212; Butler v. Wyman (1933) 128 Cal.App.736, 740.) Thus, if
the demurrer for uncertainty is deficient as to these causes of action, the
demurrer must be overruled with respect to those claims.
Uncertainty
Demurrers¿for uncertainty are disfavored,
because discovery can be used for clarification, and they apply only where
defendants cannot reasonably determine what issues or claims are stated.¿(Chen
v. Berenjian (2019) 33 Cal.App.5th 811, 822; Khoury v. Maly's of Cal.,
Inc.¿(1993) 14 Cal.App.4th 612, 616.) If the complaint is sufficiently
comprehensible that Defendant can reasonably respond, the complaint is not
uncertain. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14
Cal.App.5th 841, 848 n.3.)
Defendant does not address the
purported uncertainty of the pleadings beyond the bare assertion that they are
so, instead arguing the merits of the various causes of action. The objection
of uncertainty does not go to the failure to allege sufficient facts.” (Brea
v. McGlashan (1934) 3 Cal.App.2d 454, 459.) Moreover, Defendant’s own
demurrer plainly demonstrates that the First Amended Complaint is sufficiently
comprehensible that Defendant could—and did—respond. The fourth and fifth
causes of action in the Complaint are not uncertain.
Conclusion
Accordingly,
Defendant’s Demurrer to the First Amended Complaint is OVERRULED.
Motion to Strike First Amended Complaint
Defendant
also moves to strike paragraphs 50, 72, and 80 in the First Amended Complaint,
prayers for punitive damages as to the first, second, fourth, and seventh
causes of action, and prayers for attorney’s fees as to the second, fifth, and
sixth causes of action.
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 Melissa Saracyan
in support of this motion states that she met and conferred with Plaintiff’s
counsel electronically on November 6, 2024 and November 19, 2024. (Declaration
of Melissa Saracyan ISO Mot. ¶¶ ¶¶ 10-11.) A mere exchange of emails declaring
each party’s position is not a satisfactory meet-and-confer effort. The plain
language of section 435.5 requires that the parties meet and confer in
person or by telephone to attempt to resolve the dispute. (Code Civ.
Proc. § 435.5(a).) Nevertheless, the Court will address Defendant’s motion on
the merits.
Punitive Damages Allegations
Defendant
moves to strike paragraphs 50, 72, and 80 in the First Amended Complaint, which
allege that Defendant acted with malice, fraud, or oppression with respect to
the first, fourth, and fifth causes of action such that punitive damages are
authorized. (FAC ¶¶ 50, 72, 80.) Defendant also moves to strike Plaintiff’s
prayers for relief seeking punitive damages in connection with the first, second,
fourth, and seventh causes of action.
With
respect to the fifth cause of action for “private nuisance” that claim was not
present in the original Complaint to which Defendant’s demurrer was sustained.
(See Complaint; March 18, 2024 Minute Order.) As Plaintiff did not amend the
Complaint within the time allowed by the Court’s order, the only permissible
amendments were those authorized by the parties’ stipulation. (RJN Exh. C.)
That stipulation expressly limited leave to amend to claims asserted against
the individual Defendants, and not the HOA Defendant. Plaintiff’s
request for punitive damages is therefore improper with respect to the fifth
cause of action.
As to the
prayer for punitive damages with respect to the seventh cause of action for
concealment, this cause of action is not asserted against the moving Defendant.
Consequently, Defendant has no standing to challenge the propriety of that
prayer for relief.
As to the
remaining allegations and prayers for relief, Defendant contends that Plaintiff
has not adequately pled a basis 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.”
Subdivision (b) defines liability for an employer
for the malicious, fraudulent, or oppressive conduct of its employees:
An employer shall not be
liable for damages pursuant to subdivision (a), based upon acts of an employee
of the employer, unless the employer had advance knowledge of the unfitness of
the employee and employed him or her with a conscious disregard of the rights
or safety of others or authorized or ratified the wrongful conduct for which
the damages are awarded or was personally guilty of oppression, fraud, or
malice. With respect to a corporate employer, the advance knowledge and
conscious disregard, authorization, ratification or act of oppression, fraud,
or malice must be on the part of an officer, director, or managing agent of the
corporation.
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).)
Defendant
asserts, without explanation or elaboration, that the allegations in the First
Amended Complaint are insufficient because they do not rise to the level of
malicious, oppressive, or fraudulent conduct. Defendant fails to reckon with
the substantial factual allegations set forth in the pleadings describing
Defendant’s repeated failures to repair the hot water to Plaintiff’s unit and
resistance to investigating the true origin of the defect. (FAC ¶¶ 19-40.) The
mere fact that the torts asserted against Defendant do not require
intent does not preclude a finding that Defendant’s conduct rises to the level of
malice or oppression. Construed in the light most favorable to Plaintiff, as
required on a motion of this nature, Defendant’s bare conclusion is not
sufficient to demonstrate the insufficiency of these allegations in this
respect.
Attorney’s Fees
Defendant
also moves to strike the prayers for relief seeking attorney’s fees in
connection with the second, fifth, and sixth causes of action. Plaintiff
concedes that these prayers for relief are inappropriate and must be stricken.
Thus, there appears to be no dispute between the parties on this point.
Conclusion
Accordingly,
Defendant’s Motion to Strike is GRANTED IN PART with respect to paragraph 80
and prayers for relief Nos. 7, 16 and 19.
CONCLUSION:
Accordingly, Defendant Crown
Towers HOA’s Demurrer to the First Amended Complaint is OVERRULED.
Defendant’s Motion to
Strike is GRANTED IN PART with respect to paragraph 80 and prayers for relief
Nos. 7, 16 and 19.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: April 21, 2025 ___________________________________
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.