Case Number: BC698349 Hearing Date: August 31, 2018 Dept: 31

Defendants’ Motion to Strike Portions of Plaintiffs’ Complaint is DENIED in its entirety. Defendant Robert F. Appell, individually and as Trustee of the Robert F. Appell Family Trust dated August 4, 2010’s Motion to Strike Portions of Plaintiffs’ Complaint is DENIED in its entirety. Defendants have ten days to answer the Complaint.

Defendants filed separate motions, which are identical and seek to strike the same portions of the complaint. The oppositions and replies are also identical. Therefore, the court addresses the issues together.

Defendants seek to strike all references to punitive damages in the Complaint as well as all allegations supporting the punitive damages claims.

To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.) For example, the complaint in Brousseau v. Jarrett, which the court held was “a patently insufficient statement of ‘oppression, fraud, or malice, express or implied’”, as it stated:

Defendant engaged in the conduct described in the second count ‘intentionally, wilfully, fraudulently, and with a wanton, reckless disregard for the possible injuries [sic] consequences … and as a result of … said intentional, wilful, wanton, reckless, oppressive, and fraudulent conduct, plaintiff is entitled to exemplary damages. . . .

((1977) 73 Cal.App.3d 864, 869 & 872.)

“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.) “Despicable conduct’ is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) “Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

The court finds the allegations in the Complaint, specifically Defendant’s deliberate failure to correct known and significant defective conditions on the property after complaints from Plaintiffs and other tenants (Compl. ¶¶ 14, 16), as well as government agencies, (Compl. ¶ 60), demonstrates malice within the meaning of Civil Code section 3294 sufficient for the pleading stage of this case. “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.” (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) The motions are DENIED in their entirety.

Plaintiff is ordered to give notice. The court does not need any oral argument of these motions.