Case Name: Khoa Dang Le, et al. v. Afroditi Andrews, et al.
Case No.: 18CV322781

I. Background

This case brought by Khoa Dang Le (“Mr. Le”) individually and as successor in interest to Yvonne Mai Le, Thuong Xuan Le, and Lingh My Thi Nguyen (collectively “Plaintiffs”) against Afroditi Andrews individually and as trustee of the James and Afroditi Andrews Family Trust (collectively “Defendants”) arises from a fire in a residential apartment.

According to the allegations of the First Amended Complaint (“FAC”), Plaintiffs were a family of residential tenants living in an apartment located 583 South 9th Street in the City of San Jose, County of Santa Clara, State of California (“the Subject Property”). Defendants rented the Subject Property to Plaintiffs, and represented that it was habitable. The Subject Property was in fact uninhabitable because it lacked smoke detectors. Defendants were aware the Subject Property lacked smoke detectors, and they knew this presented a grave risk of injury or death to occupants. Nevertheless, they rented the Subject Property.

On the morning of November 18, 2017 a fire started in the kitchen of the Subject Property. The fire spread through the apartment undetected; Plaintiffs received no warning. As a result of the fire Mr. Lee was severely injured, and the other Plaintiffs died.

Based on the forgoing allegations Plaintiffs assert the following causes of action against Defendants: (1) negligence; (2) wrongful death sounding in negligence; and (3) survival action. Before the Court is Defendants motion to strike punitive damage allegations from the FAC and the prayer for punitive damages.

II. Procedural Issues

Defendants’ papers have several procedural deficiencies.

Prior to filing a motion to strike, the moving party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., § 435.5, subd. (a).) If an agreement cannot be reached and a motion to strike is filed, the moving party must file a declaration stating the means by which he or she met and conferred with the party who filed the pleading. (Code Civ. Proc., § 435.5, subd. (a)(3).)

Here, Defendants did not file a meet and confer declaration with their motion to strike. As such, the Court cannot ascertain whether they attempted to meet and confer or did not engage in any such efforts. In either case, they failed to file the required declaration. Thus, they did not comply with Code of Civil Procedure section 435.5. With that said, an insufficient meet and confer process is not a basis for denial of a motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).) Accordingly, the Court will consider the merits of the motion despite this procedural defect. Defendants are admonished to comply with Code of Civil Procedure section 435.5 in the future.

Next, in their notice of motion and motion Defendants do not identify the portions of the FAC they wish to strike. This is problematic because “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken” or, if directed to an entire paragraph, identify that paragraph. (Cal. Rules of Court, rule 3.1322(a); see also Cal. Rules of Court, rule 3.1112(d).)

In their memorandum of points and authorities they identify the allegations they seek to strike as “the entire request for punitive damages and the prayer for punitive damages.” (Mem. Pts. & Auths. ISO MTS, p. 2:7-8.) The Court construes this as referring to paragraphs 61 through 68 of the FAC, which appear under the heading “PUNITIVE DAMAGES” (FAC, ¶¶ 61-68) and the prayer for punitive damages which reads “Punitive damages to Plaintiffs, according to proof” (FAC, p. 15:6). Defendants are admonished to comply with California Rules of Court, rule 3.1322(a) in the future.

In addition, Defendants do not precisely identify the ground or grounds of their motion. Defendants state in their notice of motion and motion: “The motion is made on the grounds that the complaint is for negligence, and the facts alleged do not give rise to ‘malice’ as defined in California case law, which is required to maintain a request for punitive damages.” (Mtn. to Strike, p. 2:1-3.)

Defendants mistake arguments for grounds. The statutory grounds for a motion to strike are listed in Code of Civil Procedure section 436. (Code Civ. Proc., § 436.) Defendants do not actually identify a ground in their motion or cite any particular subdivision of Code of Civil Procedure section 436.

Nevertheless, it is clear Defendants attempt to strike punitive damage allegations. A claim for punitive damages that is inadequately plead can be challenged by a motion to strike because it is an “irrelevant matter.” (Code Civ. Proc., § 431.10, subds. (b), (c); Code Civ. Proc., § 436, subd. (a); see generally, Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) Thus, the Court construes the motion as brought on the ground of Code of Civil Procedure section 436, subdivision (a).

III. Discussion

While not clearly articulated, Defendants assert Plaintiffs have not alleged facts supporting malice either through intentional action or deliberately ignoring a risk.

The standard for alleging punitive damages is well established. “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) To support punitive or exemplary damages, a pleading “must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 (Spinks).) Punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud. (Civ. Code, § 3294, subd. (a).)

Here, both parties focus exclusively on malice in their memoranda of points and authorities. There is no allegation or argument regarding fraud in the FAC, and only a conclusory allegation that Defendants acted with oppression. However, this allegation is not within the section of the FAC at issue in this motion to strike. Nor does either party present any argument regarding oppression. Accordingly, the Court construes the instant motion as addressing only the issue of malice.

Malice is conduct intended by a defendant to cause injury to the plaintiff, or despicable conduct by a defendant done with a willful and conscious disregard of the rights and safety of others. (Civ. Code, § 3294, subd. (c)(1).) Despicable conduct is defined as conduct so vile, base, or loathsome it would be looked down upon by ordinary people. (Mock v. Miller’s Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Such conduct is described as having the character of outrage frequently associated with a crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

Defendants argue in their memorandum “[t]here is no allegation that Defendants intentionally harm [sic] Plaintiff. Therefore, in order to sufficiently plead malice, Plaintiffs, they must plead that Defendants intentionally performed an act from which Defendants know, [sic] or should know, [sic] it is highly probable that harm will result. In the First Amended Complaint, Plaintiffs do not allege that Defendants engaged in conduct they knew or should have known would harm Plaintiff.” (Mem. Pts. & Auths. ISO MTS, p. 4:5-10.)

Defendants are generally correct that conduct which is merely negligent does not support punitive damages, but Defendants’ argument overstates this principle. (See Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) As the California Supreme Court has acknowledged, “punitive damages sometimes may be assessed in unintentional tort actions under Civil Code section 3294 … .” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.) Punitive damages “may also be supported by showing ‘despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ (Citation.) ‘To establish conscious disregard, the plaintiff must show “that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” ’ (Citation.)” (Spinks, supra, 171 Cal.App.4th at p. 1055.)

Here, the FAC states Plaintiffs’ apartment was not equipped with smoke detectors as required by law. According to the FAC, Defendants did not intentionally start any fires, or cause harm to Plaintiffs. But they knew sometime before the subject fire they were placing Plaintiffs’ lives at risk by not installing smoke detectors. Specifically Defendants knew that “the structure of the SUBJECT PROPERTY would facilitate a rapid spread of fire throughout the structure” which if undetected would pose “a grave risk of injury or death to occupants.” (FAC, ¶ 26(b).) Despite this knowledge Defendants chose not to install smoke detectors. This allowed them to save money and increase profits.

The probable dangerous consequence of not installing and maintaining a smoke detector is obvious; if a fire starts the people nearby may be unaware of it. This lack of knowledge could conceivably allow the fire to cause more harm to persons and property before it is contained. Plaintiffs allege that Defendants were aware of this risk and had the power to minimize it, but chose not to. Thus, Plaintiffs sufficiently allege Defendants consciously disregarded a probable danger to others.

Moreover, a knowing choice not to install or maintain smoke detectors as required by law is conduct that could be considered by a reasonable person knowledge and conduct that could meet the statutory definition of malice. Failure to install a smoke detector or fire alarm potentially endangers not only that particular room, apartment, home, or structure, but also everyone nearby. The reasoning behind laws requiring working smoke detectors is obvious – the particular danger of a rapidly spreading fire makes the absence of a smoke detector in any location a potentially serious danger to the surrounding area. The alleged motive for Defendants’ actions—to save money and increase profit—is not in itself vile, base, or loathsome. However, deliberately ignoring the danger a rapidly spreading fire poses to their tenants and the surrounding community in an effort to cut costs could be considered so by a reasonable jury.

Accordingly, Plaintiffs’ have alleged ultimate facts sufficient to support malice.

Defendants’ arguments in reply do not alter this result. In reply, Defendants assert that the cases cited by Plaintiffs are distinguishable either because they were decided prior to 1988, when despicable conduct was not required, or on their facts.

This argument is odd in that Defendants’ own memorandum in support of the motion includes multiple citations discussing malice which were decided prior to 1988, including Ford Motor Co. Home Ins. Co. (1981) 116 Cal.App. 3d 374, and G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 28.) Regardless, Defendants do not explain why all case law prior to the amendments should be completely disregarded based on the new standard. The Court is aware of the despicable conduct requirement. With respect to factual distinctions, the cases are generally not cited for the facts, and these factual distinctions are not pertinent to the Court’s analysis.

In addition, for the first time on reply, Defendants argue the allegations do not show the despicable conduct element required for punitive damages. The Court will not ordinarily not consider points raised for the first time on reply for due process reasons. (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.)

Defendants mention despicable conduct twice in their memorandum. Read in context, these two references cannot reasonably be construed to support an argument the FAC does not include sufficient allegations of despicable conduct. Thus, Defendants’ argument regarding despicable conduct are not persuasive.

Accordingly, the motion to strike the punitive damages allegations and the prayer for punitive damages is DENIED.