Judge: William A. Crowfoot, Case: 21STCV09665, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV09665    Hearing Date: December 7, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

          On March 11, 2021, Plaintiffs Andrew Howerton, Lydia Howerton, Rosemary Howerton, and Vivien Howerton (collectively, “Plaintiffs”) filed this habitability action against defendants Nicholas Frank and Marsha Frank (collectively, “Defendants”).  Plaintiffs allege that they were tenants of a three-bedroom detached house which “had numerous substandard, non-code-compliant and unhealthy conditions which included, but were not limited to, ineffective waterproofing and weather protection, major water leaks and water intrusion, and defective and substandard plumbing.”  (Compl., ¶¶ 6-7/) 

          On October 25, 2022, Defendants filed this motion to strike the following:

Paragraph 14, lines 21-27, Paragraph 17, Paragraph 24, lines 13-18, Paragraph 28, lines 8-16, Item 6 of Plaintiffs’ prayer for relief, and all references of intentional and malicious conduct or punitive damages.   

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)

Defendants submitted a declaration from their counsel, Sandra L. Block, which shows that the meet and confer requirement is satisfied.  Counsel declares that they met and conferred with Plaintiffs’ counsel on October 14, 2022 on the telephone but did not reach a resolution.  (Block Decl., ¶ 3.) 

Plaintiffs alleged that Defendants were informed multiple times of the various health and safety hazards, including ineffective waterproofing and weather protection, major water leaks and water intrusion, and defective and substandard plumbing, but failed and refused to remedy the conditions or have repairs performed adequately, causing the presence of mold and mildew which rendered the premises uninhabitable.  (Compl., ¶ 7.)  This allegation is not specific enough to show that punitive damages are appropriate.  Plaintiffs do not allege specifically how Defendants knew of the alleged defects, how long they knew of them, or when they were informed.  (Penner v. Falk (1984) 153 Cal.App.3d 858, 867 [“The pleadings sufficiently allege facts setting forth long existing physical conditions of the premises which portend danger for the tenants. The pleadings 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. If proven, these allegations would support an award of punitive damages.”]) 

However, because Plaintiffs’ opposition lists additional facts showing that amendment is possible, Defendants’ motion to strike is GRANTED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.