Case Name: Department of Fair Employment and Housing et al. v. Gayl Hynek
Case No: 18CV332885

I. Background

This is an action for housing discrimination originally filed by the Department of Fair Employment and Housing (“DFEH”) on behalf of Ana Encinas against Gayl Hynek, individually, as executor of the estate of Bryan Hynek, and as trustee of the Hynek Family Trust (“Defendants”). Ms. Encinas and Project Sentinel (“Intervenors”) intervened in the action.

According to the allegations of the complaint in intervention (“Complaint”), for seven years Ms. Encinas rented a home from Ms. Hynek and her husband, Bryan Hynek, who is now deceased. (Complaint, ¶¶ 21, 31.) During the tenancy, Mr. Hynek was the main point of contact for Ms. Encinas in matters related to the lease. (Complaint, ¶ 22.)

Two years into the tenancy, Ms. Encinas separated from her husband, and Mr. Hynek began calling and texting her with unwelcome comments about her physical appearance and requests that she date him. (Complaint, ¶ 24.) At times Ms. Encinas observed Mr. Hynek peering through her windows in the evening and at other times he showed up at the property, unannounced and made inappropriate and suggestive comments to her. (Complaint, ¶ ¶ 24, 25.) He also harassed her boyfriend when he visited the home, and on multiple occasions told Ms. Encinas that her boyfriend could not visit because he was not on the lease. (Complaint, ¶ 30.) Ms. Encinas also had reason to believe that Mr. Hynek entered her home on several different occasions over the years, which was confirmed when she changed the locks and each time shortly thereafter he would request a new key, without having told her he had entered the property. (Complaint, ¶¶ 26, 27, 28.)

In June of 2016, Ms. Encinas gave notice of her intent to vacate the property. (Complaint, ¶ 31.) Soon thereafter, Mr. Hynek escalated his harassment by leaving several detailed and explicit voicemail about her body, his fantasies about her, and inviting her to a motel. (Complaint, ¶¶34, 35.) Ms. Encinas contacted Ms. Hynek and told her that she did not feel comfortable having contact with Mr. Hynek, and requested that all future communication regarding the lease be handled directly by her. (Complaint, ¶ 36.)

At the end of her lease, the Hyneks withheld Ms. Encinas’ security deposit, first by failing to return it, and then by making unmerited deductions. (Complaint, ¶ 38.) Ms. Encinas sought assistance from Project Sentinel, a nonprofit that assists individuals with housing problems, including housing discrimination. (Complaint, ¶¶ 5, 41.) Project Sentinel helped her file an administrative complaint with DFEH and represented her in two mediations, which were unsuccessful. (Complaint, ¶ 41)

Mr. Hynek died shortly thereafter. (Complaint, ¶ 8.) Ms. Hynek petitioned the court to initiate probate proceedings for his estate. (Complaint, ¶ 8.) Intervenors filed creditor’s claims in the probate case, which were rejected pursuant to Probate Code section 9256. (Complaint, ¶ 9.) At that time they filed their motion to intervene. (Ibid.)

Intervenors bring six causes of action for: (1) violation of the Fair Housing Act; (2) violation of the Fair Employment and Housing Act; (3) violation of the Unruh Civil Rights Act; (4) breach of the covenant of quiet use and enjoyment; (5) invasion of privacy; (6) negligent supervision; and (7) constructive eviction.

Before the Court is Defendants’ motion to strike allegations relevant to punitive damages, and the prayer for punitive damages.

II. Motion To Strike

Defendants’ motion to strike is made pursuant to Code of Civil Procedure section 436 subdivision (a) which allows a court in its discretion to strike any irrelevant, false, or improper matter inserted in any pleading. The grounds for a motion to strike shall appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (§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. (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.)

A. Motion to strike paragraph 47

Defendants first take issue with the allegations at paragraph 47, which state in relevant part, “Defendants acted with oppression, malice, or conscious or reckless disregard of Intervenors’ fair housing rights. Accordingly, Intervenors are entitled to recover punitive damages.” Defendants argue that this an improper, bare conclusion of law that cannot support the punitive damages claim and should be stricken.

A complaint must contain a statement of facts constituting a cause of action, and pleading conclusions of law will not suffice. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; § 425.10, subd. (a).) However, courts have permitted allegations which include conclusions of law, provided the complaint as a whole contains sufficient facts to apprise the defendant the basis upon which relief is being sought. (Ibid.)

In order to state a claim for punitive damages, a complaint must set forth the elements of the general punitive damages statute, Civil Code section 3294, and allege that the defendant acted with “oppression, fraud, or malice.” (Turman v. Turning Point of Central California, supra, 191 Cal.App.4th 53, 63.) Malice is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ Code § 3294, subd. (c)(1); see College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).

While the paragraph appears in isolation to be an unsupported conclusion of law, the analysis turns on whether there are other facts in support of oppression or malice, which there are. Intervenors have alleged despicable conduct on the part of Mr. Hynek. Specifically, it alleges he texted Ms. Encinas comments about her body, and asking if she would date him; he visited her unannounced and told her she is “beautiful” and has a “sexy body;” he left her an explicit voicemail commenting on her body and said he “fantasized about” her and invited her to his motel to “just touch her gorgeous breasts.” (Complaint, ¶¶ 24, 34.) He also entered the property without giving her notice, and would show up at the property at night to peer at her through the windows. (Complaint, ¶¶ 25, 26, 27.) This all occurred while he was the owner and landlord overseeing the property in which she lived, in violation of the many rights afforded tenants in lease agreements. (Complaint, ¶¶ 21, 22, 24-34.)

Therefore, Intervenors have alleged facts to show oppression as alleged in paragraph 47, so it is not an improper or bare conclusion of law susceptible to a motion to strike.

Consequently, the motion to strike paragraph 47 of the complaint is DENIED.

B. Motion to Strike Prayer for Punitive Damages

Defendants further argue that the prayer for punitive damages should be stricken as the Complaint alleges no actions directed at Project Sentinel by Defendants, or that Ms. Hynek or the estate can be liable for Mr. Hynek’s behavior.

In order to survive a motion to strike punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255, citations omitted.) Defendants take specific issue with the sufficiency of the pleading of oppression or malice. While Ms. Encinas has pleaded facts in support of oppression towards her, Project Sentinel has no similar facts in support of a punitive damages claim in the state statutory and common law claims.

However, Intervenors argue that a federal fair housing claim may subject a defendant to liability for punitive damages. A plaintiff fair housing organization may seek punitive damages in a fair housing case. (Southern California Housing Rights Center v. Krug (2007) 564 F.Supp.2d 1138, 1153.) Thus, the cause of action based on the Fair Housing Act supports a claim of punitive damages, and it is not an improper matter subject to a motion to strike.

Defendants also argue that the Intervenors have failed to state specific facts showing that the estate or Ms. Hynek acted with malice or intent to oppress, since the facts alleged were taken by Mr. Hynek, who is deceased. Therefore, they move to strike the prayer for punitive damages as to them. This presents two separate issues: (1) the liability of the estate for the wrongful action of decedent, and (2) Ms. Hynek’s liability as a co-owner and co-lessee of the property.

A claim for damages against an estate may be based on the liability of the decedent, whether arising in contract, tort, or otherwise. (Prob. Code, § 9000, subd. (a).) So long as a claim was first filed with the probate court, and denied by the executor, an action for tort based on personal injury caused by decedent is properly brought against an estate. (See Bilups v. Tiernan (1970) 11 Cal.App.3d 372, 377.) Intervenors allege that the claims presentation requirement in the probate action was satisfied. (Complaint, ¶ 9.) Therefore, to the extent that Mr. Hynek incurred tort liability prior to his death, the estate is a proper defendant in the action and may be liable for damages caused by him.

As to Ms. Hynek’s individual liability, Intervenors argue that she is vicariously and directly liable for punitive damages because she was a co-lessor, who co-owned the subject property and/or was a co-trustee of the Hynek Family Trust in which the property was held. (Complaint, ¶ 7.) They cite case law regarding federal claims of housing discrimination under the FHA. Indeed, under the federal Fair Housing Act, the duty of a landlord to not discriminate in leasing of property may not be delegated to the landlord’s agent. (Alexander v. Riga (2000) 208 F.3d 419, 433, [holding that there may be liability for fair housing claims against a co-owner spouse who left the offending spouse in charge of the property, unless he or she can prove he engaged in “active anti-discrimination efforts”].) Therefore, the federal cause of action supports liability for punitive damages by Ms. Hynek as an individual, and is not improperly pleaded as to her.

Consequently, the motion to strike the prayer for punitive damages is DENIED.