Case Name:   Chen v. Wang, et al.

Case No.:       1-14-CV-261745

 

This is a wrongful death action.  Yong Li Zhang (“Decedent”) was a guest at defendants Victor Wang and Mu Jing’s (collectively, “Defendants”) vacation home in Clear Lake on August 3, 2013.  (See first amended complaint (“FAC”), ¶ 10.)  Decedent went down an exterior stairway from the vacation home’s deck that Decedent believed connected to a floating dock.  (See FAC, ¶ 12.)  However, the stairway did not connect to the floating dock and Decedent fell into the neighboring lagoon and drowned.  (See FAC, ¶ 12.)  On May 19, 2014, plaintiffs Hong Sheng Chen, Jing Zhang, and Wei Zhang (collectively, “Plaintiffs”) filed the FAC against Defendants, asserting causes of action for: negligence and negligence per se; premises liability; and, exemplary and punitive damages.

 

Defendants move to strike allegations supporting negligence per se; the claim for punitive damages, the claim in the prayer for attorney’s fees, and the paragraph of the prayer for costs of suit.

 

Punitive damages

 

In opposition to the motion to strike the claim for punitive damages, Plaintiffs contend that the “allegations sufficiently demonstrate a conscious disregard for the safety of the decedent… [as t]he case most closely analogous to the case at hand is Penner v. Falk (1984) 153 Cal.App.3d 858, 867.  (Pls.’ opposition to the motion to strike (“Opposition”), pp.4:23-28, 5:1-28, 6:1-28, 7:1.)  However, it is entirely unclear as to how this case is “most closely analogous” to Penner.  In Penner, a tenant sued his landlord for his injuries from an assault that occurred in the common hallway of the apartment building.  (Penner, supra, 153 Cal.App.3d at pp.860-861.)  His injuries would have been prevented had the landlord made efforts to secure the area, but the landlord failed to do so, despite his knowledge that crimes had occurred on the property, crimes had been encouraged and permitted on the property due to the condition of the property, tenants reports of crime to the landlord, tenants’ complaints of the insecure and inadequate conditions on the property that permitted free access to the property and said criminal activity, express requests by tenants to repair and take corrective measures to secure the premises, and, the landlord’s knowledge that the neighborhood presented a particularized risk of harm for criminal activity requiring the landlord to take appropriate measures for the protection of the landlord’s tenants.  (Id. at pp.863-864.)  The FAC here contains no suggestion of similar allegations justifying the imposition of punitive damages.  Accordingly, the motion to strike the allegations supporting punitive damages

is GRANTED with 10 days leave to amend.

 

Attorney’s fees

 

Code of Civil Procedure section 1021 states that attorney’s fees are not recoverable unless a contract or statute authorizes such fees as an award.  (See Code Civ. Proc. § 1021.)  Plaintiffs do not allege such a contract or statute.  Rather, in opposition, citing section 2033..420 of the Discovery Act, Plaintiffs state that “[i]n a civil action, if a party denies a request for admission, and the party requesting the admission thereafter proves the truth of the matter, the party requesting the admission may move the court for an order awarding the reasonable attorneys’ fees incurred in proving the matter.”  (Opposition, p.8:11-13.)  Here, Plaintiffs are confused.  The “requests for admission” to which Plaintiffs refer are discovery requests, and there is no issue regarding discovery requests alleged by the FAC.  The motion to strike the request for attorney’s fees in paragraph 4 of the prayer is GRANTED without leave to amend.

 

Costs of suit

 

Code of Civil Procedure section 1032 provides that a prevailing party is entitled to costs of suit.  Defendant’s motion to strike costs of suit as to Estate is completely without merit.  Defendants’ motion to strike paragraph 5 of the prayer seeking costs of suit is DENIED.

 

Negligence per se language

 

Defendants seek to strike certain allegations regarding negligence per se, asserting that “negligence per se is not a separate cause of action… [but rather] creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.”  (Defs.’ memorandum of points and authorities in support of motion to strike, p.8:2-6.)  Here, Defendants do not identify why such allegations are improper.  The allegations of negligence per se are contained within the first cause of action for negligence, so there is no indication that the allegations are purporting to be “a separate cause of action.”  Defendants’ motion to strike the allegations supporting negligence per se is DENIED.

 

Accordingly, in light of the above ruling, the Court hereby strikes the following portions from the FAC:

 

• paragraphs 32-42 of the FAC;
• lines 21-25 on page 7 of the FAC; and,
• paragraph 4 of the prayer of the FAC.