Case Name: Suhas Kulkarni, et al. v. The Sobrato Organization, LLC, et al.
Case No.: 17-CV-314348

Currently before the Court is the motion by defendant Woodmont Real Estate Services (“Woodmont”) to strike the request for punitive damages from the complaint of plaintiffs Suhas Kulkarni and Chaitali Prabhune (collectively, “Plaintiffs”).

Factual and Procedural Background

This is a wrongful death action brought by the parents of decedent Krish Kulkarni against defendants The Sobrato Organization, LLC, SI XVII, LLC, BKB Construction, LP, BKB Construction Management, Inc., and Woodmont (collectively, “Defendants”). (Complaint, ¶ 12.) Decedent, who was 20-months old, lived with his parents and seven-year old sister in a third floor apartment unit at the Water’s Edge Apartment building located at 1200 E. Hillsdale Blvd., Foster City, California. (Id. at ¶ GN-1(5).) On August 11, 2016, decedent fell through an open third-story window in the hallway just outside of Plaintiffs’ apartment. (Id. at ¶¶ GN-1(5), Prem.L-1, Ex-2(3)-(4), and p. 8:10-17.) The window was large and located only a few inches from the floor. (Id. at ¶ Ex-2(3)-(4).) The screen on the window was unable to support decedent’s weight. (Id. at ¶ Ex-2(4).) Decedent initially survived the fall, but ultimately succumbed to his severe injuries. (Id. at ¶¶ GN-1(5) and Ex-2(4).)

The subject window was allegedly unsecured and unreasonably dangerous. (Complaint, ¶ GN-1(5).) Defendants were the alleged owners, operators, and managers of the Water’s Edge Apartment building and/or installed defective and unsafe windows. (Id. at ¶¶ GN-1(6)-(7) and Prem. L-2.) Plaintiffs allege that Defendants “negligently owned, operated, leased, maintained, designed, supervised, controlled, inspected, constructed, replaced, and managed the apartment complex” and “the windows of the individual units at [the apartment complex] in such a manner so as to cause the windows and the apartments to be unreasonably dangerous to tenants.” (Id. at ¶ GN-1(8).) “Such negligent conduct included … [D]efendants’ placement of large windows only inches from the apartment floor in common areas and units, failure to install safety latches to windows that could not be manipulated or overridden, failure to properly secure screens to windows, failure to install windows with fixed bottoms to guard against inadvertent falls, and failure to install adequate safety features on the windows so as to prevent persons from falling through them.” (Ibid.)

Defendants allegedly “knew about the dangerous windows before the accident, and knew especially and specifically about the dangers posed to babies and children by the large windows placed inches from the floor in common areas where anyone could open the window without notifying other tenants.” (Complaint, ¶ Ex-2(5).) Plaintiffs allege that Defendants “owned, managed and installed windows in thousands of apartment units and were specifically aware of the dangers posed by low sill windows especially those in common areas where the windows could be opened by anyone walking through the hallways and without knowledge of tenants who lived in close proximity to the common windows with low sills.” (Ibid.)

“However, as a cost saving decision, Defendants made no efforts to improve the safety of the windows or mitigate the risk to babies and children.” (Complaint, ¶ Ex-2(5)-(6).) In 2014, Defendants allegedly made significant renovations to the apartment building, but failed to repair or mitigate the danger posed by the unsafe windows. (Id. at ¶¶ GN-1(8)-(9) and Ex-2(6).) Additionally, Defendants did not warn tenants of the dangers posed by the windows prior to the incident. (Id. at ¶ Ex-2(5).)

Based on the foregoing, Plaintiffs filed a complaint against Defendants, alleging causes of action for: (1) general negligence; (2) premises liability; and (3) negligent infliction of emotional distress.

On October 12, 2017, Woodmont filed the instant motion to strike. Plaintiffs filed papers in opposition to the motion on January 11, 2018. On January 18, 2018, Woodmont filed a reply.

Discussion

Pursuant to Code of Civil Procedure section 436, Woodmont moves to strike Plaintiffs’ request for punitive damages from the complaint.

I. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

II. Punitive Damages

Woodmont argues that the Court should strike Plaintiffs’ request for punitive damages from the complaint because Plaintiffs do not plead sufficient facts demonstrating that it acted in conscious disregard of the rights or safety of its tenants. Woodmont contends that the allegations regarding its knowledge of the danger posed by the window are insufficient and the complaint merely sounds in negligence. Woodmont further argues that the Court should strike Plaintiffs’ request for punitive damages from the complaint because Plaintiffs do not plead facts demonstrating that its alleged conduct was despicable.

In opposition, Plaintiffs argue that the complaint sets forth sufficient facts to establish malice because they allege that Woodmont had pre-existing knowledge of the alleged safety defect in the window, Woodmont made no effort to repair or replace the window, and Woodmont took no action “for the purpose of monetary profit.” (Opp’n., p. 6:13-18.)

Punitive damages are recoverable when “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a); see also Tomaselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287, quoting Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Insurance Co. (1986) 185 Cal.App.3d 1149, 1154 [“ ‘Punitive damages are appropriate if defendant’s acts are reprehensible, fraudulent or in blatant violation of public policy.’ ”].) The ultimate facts underlying a claim for punitive damages must be specifically alleged. (Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

As Plaintiffs acknowledge in their opposition papers, the punitive damages allegations against Woodmont are framed in terms of malice. “ ‘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).) Thus, “in cases involving conduct performed without intent to harm, a finding of ‘malice’ for punitive purposes requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to ‘despicable conduct’ and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Super. Ct. (1994) 8 Cal.4th 704 (College Hospital).)

To plead a “willful and conscious disregard of the rights of others,” a plaintiff must allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) Moreover, “ ‘[d]espicable conduct’ has been described as conduct which 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.’ ” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.)

Punitive damages may be based on a cause of action for negligence so long as the plaintiff has otherwise alleged malice as set forth in Civil Code section 3294. (See Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895-96; see also College Hospital, supra, 8 Cal.4th at p. 721; Peterson v. Super. Ct. (1982) 31 Cal.3d 147, 158 [“Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.”].)

Here, the Court finds that Plaintiffs adequately alleged facts showing that Woodmont was aware of the probable dangerous consequences of its conduct, and that it willfully and deliberately failed to avoid those consequences. Additionally, it appears to the Court that a reasonable jury could find Woodmont’s alleged conduct to be despicable.

Accordingly, Woodmont’s motion to strike the request for punitive damages is DENIED.