Judge: Upinder S. Kalra, Case: 23STCV22810, Date: 2024-07-22 Tentative Ruling

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Case Number: 23STCV22810    Hearing Date: July 22, 2024    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   July 22, 2024                                     

CASE NAME:           Mario Rogelio Bautista v. MF Buildings, et al.

CASE NO.:                23STCV22810

MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

MOVING PARTY:  Defendants MF Buildings, Peter A. Federov, Oleh Mulyar, and Mike Zwi Frohlich

RESPONDING PARTY(S): Plaintiff Mario Rogelio Bautista

REQUESTED RELIEF:

1.      An Order Striking Various Portions of the First Amended Complaint pertaining to punitive damages, attorney’s fees, and references to improperly pled avenues of recovery.

TENTATIVE RULING:

1.      Motion to Strike is GRANTED as to the Prayer for Relief No. 14, Page 27, lines 6-7: “A restitution order requiring Defendants to pay improperly charged and retained rent to PLAINTIFF and similarly situated current and former tenants of Defendants.” and the Prayer for Relief No. 15, Page 27, lines 8-12: “An order requiring Defendants to notify Defendants current and former tenants, who are not parties to this action, of their right to make a claim for restitution, establish a reasonable lime (sic) within such claims must be made to defendants, and retain jurisdiction to adjudicate any disputes over entitlement to, and the amount of restitution to be paid.”

2.      Motion to Strike is DENIED as to remaining items.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On September 21, 2023, Plaintiff Mario Rogelio Bautista (Plaintiff) filed a Complaint against Defendants MF Buildings, Peter A. Federoz, Oleh Mulyar, and Mike Zwi Frohlich (Defendants) with nine causes of action.

On April 18, 2024, Plaintiff filed the operative First Amended Complaint (FAC) against the same Defendants with nine causes of action for: (1) Breach of Implied Covenant of Good Faith and Fair Dealing; (2) Damages for Breach of Implied Covenant of Quiet Enjoyment; (3) Breach of the Implied Contractual Warranty of Habitability; (4) Tortious Breach of Warranty of Habitability; (5) Damages for Violation of Civil Code §§ 1941 and 1941.1; (6) Rental of Substandard Dwelling in Violation of Civil Code § 1942.4; (7) Damages for Nuisance; (8) Damages for Violation of Business and Professions Code § 17200 et seq; and (9) Damages for Negligence.

According to the FAC, Plaintiff has been a tenant of a triplex located at 702 W. 56^th Street, Los Angeles, California 90037 (the Property) since about November 1, 2020. Plaintiff alleges there were various defects at the Property of which he notified Defendants who did nothing over a two-year span.  

On May 21, 2024, Defendants filed the instant Motion to Strike Portions of the FAC. On July 9, 2024, Plaintiff filed an opposition. Defendants filed a reply on July 15, 2024.

LEGAL STANDARD:

Meet and Confer¿ 

¿ 

Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. (CCP) §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to CCP §430.41(a)(2) & (3).¿The meet and confer requirement also applies to motions to strike. (CCP § 435.5.) Here, Defendants send a meet and confer email to Plaintiff on May 16, 2024. (Page Decl. ¶ 12, Exhibit H.) This emailed letter called for a response four days later. (Ibid.) The court is not persuaded that this satisfies the meet and confer requirement. Still, failure to meet and confer is not a sufficient ground to overrule or sustain a demurrer. (CCP § 430.41(a)(4).) 

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. (CCP § 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 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, 76

ANALYSIS:

Defendants seek an order striking the following portions of the FAC:

1.      Prayer for Relief No. 5, Page 26, line 17: “Reasonably Attorney’s Fees”;

2.      Prayer for Relief No. 7, Page 26, line 21: “Reasonable Attorney’s Fees”;

3.      Prayer for Relief No. 8, Page 26, line 22: “Punitive Damages”;

4.      Prayer for Relief No. 10, Page 26, line 26: “Reasonable Attorney’s Fees”;

5.      Prayer for Relief No. 12, Page 27, line 4: “Reasonable Attorney’s Fees”;

6.      Prayer for Relief No. 13, Page 27, line 3: “Reasonable Attorney’s Fees”;

7.      Prayer for Relief No. 14, Page 27, lines 6-7: “A restitution order requiring Defendants to pay improperly charged and retained rent to PLAINTIFF and similarly situated current and former tenants of Defendants.”;

8.      Prayer for Relief No. 15, Page 27, lines 8-12: “An order requiring Defendants to notify Defendants current and former tenants, who are not parties to this action, of their right to make a claim for restitution, establish a reasonable lime (sic) within such claims must be made to defendants, and retain jurisdiction to adjudicate any disputes over entitlement to, and the amount of restitution to be paid.”;

9.      Prayer for Relief No. 17, Page 27, line 17: “Costs of suit incurred in this action.”;

10.  Page 16, Lines 10-12: “The Lease provides for the payment of attorney’s fees in the event litigation is commenced between the parties, and therefore PLAINTIFF is entitled to reasonable attorney’s fees for Defendant’s breaches of the implied covenant of good faith and fair dealing.”;

11.  Page 17, lines 2-4: “The Lease provides for the payment of attorney’s fees in the event litigation is commenced between the parties, and therefore PLAINTIFF are entitled to reasonable attorney’s fees.”;

12.  Page 17, lines 3-5: “The Lease provides for the payment of attorney’s fees in the event litigation is commenced between the parties, and therefore PLAINTIFF is entitled to reasonable attorney’s fees for Defendant’s breaches of the implied warranty of habitability.”;

13.  Page 17, lines 21-27: “Defendants’ failure to put the PROPERTY and the UNIT into a condition fit for human occupation at any time during Plaintiff’s occupancy, together with Defendants’ failure to repair the defective and dangerous conditions, or to have them repaired within a reasonable time, as alleged above, were oppressive and malicious within the meaning of Civ. Code § 3294 in that they subjected PLAINTIFF’s rights and safety, thereby entitling PLAINTIFF to an award of punitive damages.”; and

14.  Page 24, lines 4-6: “Plaintiff are entitled to recover attorney’s fees pursuant to Code of Civ. Pro § 1021.5 because obtaining court prohibition of Defendant’s conduct, as alleged hereinabove will result in the enforcement of an important right affecting the public interest.”

Punitive Damages

Defendants contend that Plaintiff failed to sufficiently plead facts supporting punitive damages. Plaintiff argues he has. Specifically, Plaintiff argues that he complained about rats, roaches, broken vents, broken plumbing, which Defendants responded to via eviction proceedings and threatened him via his immigration status.

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages.¿ (See¿Hilliard v. A.H. Robins Co.¿(1983) 148 Cal.App.3d 374, 391-92.)¿ In addition,¿punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”¿ (Civ. Code, § 3294,¿subd. (a).)¿ Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.)¿¿¿ 

¿¿¿ 

Further, Civil Code § 3294(c) provides the definition of malice, oppression, and fraud. Malice is “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.” Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Fraud is “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.”¿¿ 

Upon reviewing the FAC, Plaintiff has sufficiently alleged facts warranting punitive damages. Plaintiff alleges that the Property Manager told him “You don’t have [immigration] papers, so we can evict you just like that!” (FAC ¶ 58.) Uttering this in response to a tenant’s asking why their landlord began eviction proceedings while believing they had an agreement about paying delinquent rent is “loathsome [conduct] that . . . would be looked down upon and despised by ordinary decent people.” (Scott, supra, 175 Cal.App.4th at p. 715.) Defendants’ argument that the facts alleged are false is unpersuasive. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Accordingly, the court DENIES Defendants’ motion to strike as to punitive damages.

Attorney’s Fees

Defendants contend that Plaintiff’s attorney’s fees are capped by the lease agreement and are not otherwise provided for via statute. Defendants additionally contend that CCP § 1021.5 do not authorize the attorney’s fees that Plaintiff seeks because Plaintiff is not seeking to enforce a right or benefit conferred on the general public or a large class of persons.  

Plaintiff argues that the clause purportedly limiting attorney’s fees in the lease is void as contrary to public policy pursuant to Civ. Code § 1953(a)(4) and (5), Civ. Code § 3513, and Civ. Code § 1942.5. Plaintiff additionally argues that attorney’s fees are warranted under Bus. & Prof. Code § 17200 et seq. because he has a public purpose in bringing this action.  

Unless a contract or statute provides otherwise, each party to a lawsuit must pay its own attorney fees. (CCP § 1021; Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 818.) 

Upon reviewing the FAC, Plaintiff has sufficiently alleged facts warranting attorney’s fees. As noted above, the factual allegations of the FAC are taken as true. (Clauson, supra, 67 Cal.App.4th at 1255.) Here, Plaintiff alleges that the “Lease provides for the payment of attorneys’ fees in the event litigation is commenced between the parties . . . .” (FAC ¶ 80.) The lease is not attached to the FAC and Defendants have not requested judicial notice of the lease. Therefore, Defendants’ argument that essentially asks the court to interpret the lease is improper via this motion to strike.[1]

Defendants’ argument against attorney’s fees pursuant to CCP § 1021.5 is similarly premature.

CCP § 1021.5 states: “Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest” subject to three conditions. (CCP § 1021.5.)

Here, Plaintiff alleges entitlement to attorney’s fees pursuant to § 1021.5 but whether he is actually entitled to them occurs after he is deemed a “successful party” and meets the other requirements of that section. Defendants cite no authority that striking this request is appropriate at this time.

Accordingly, the court DENIES Defendants’ motion to strike as to attorney’s fees.

Costs

A prevailing party is entitled to costs. (CCP § 1021.) Therefore, the court will not strike the portion of the Prayer that seeks costs of suit. 

Accordingly, the court DENIES Defendants’ motion to strike as to costs.

Statutory Damages

Defendants contend that there are no statutory damages for nuisance. Plaintiff did not provide argument as to this point.

The court notes that Defendants did not identify the language they wish to strike pertaining to statutory damages and nuisance from the FAC.

Accordingly, the court DENIES Defendants’ motion to strike as to statutory damages for nuisance.

Restitution

Defendants contend that Plaintiff’s request for restitution is improper because the instant action is not a civil action to enforce a criminal conviction. Defendants further contend that Plaintiff cannot seek restitution on behalf of unnamed parties not part of the instant action. Plaintiff did not provide argument as to this point.

Upon reviewing the FAC, the court agrees with Defendants. Plaintiff has insufficiently alleged a claim for restitution.

Accordingly, the court GRANTS Defendants’ motion to strike the Prayer for Relief No. 14, Page 27, lines 6-7: “A restitution order requiring Defendants to pay improperly charged and retained rent to PLAINTIFF and similarly situated current and former tenants of Defendants.” and the Prayer for Relief No. 15, Page 27, lines 8-12: “An order requiring Defendants to notify Defendants current and former tenants, who are not parties to this action, of their right to make a claim for restitution, establish a reasonable lime (sic) within such claims must be made to defendants, and retain jurisdiction to adjudicate any disputes over entitlement to, and the amount of restitution to be paid.”

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

1.      Motion to Strike is GRANTED as to the Prayer for Relief No. 14, Page 27, lines 6-7: “A restitution order requiring Defendants to pay improperly charged and retained rent to PLAINTIFF and similarly situated current and former tenants of Defendants.” and the Prayer for Relief No. 15, Page 27, lines 8-12: “An order requiring Defendants to notify Defendants current and former tenants, who are not parties to this action, of their right to make a claim for restitution, establish a reasonable lime (sic) within such claims must be made to defendants, and retain jurisdiction to adjudicate any disputes over entitlement to, and the amount of restitution to be paid.”

2.      Motion to Strike is DENIED as to remaining items.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             July 22, 2024                          __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court