Case Number: BC531401    Hearing Date: September 30, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

JOSEPH DANIELS, et al.,

Plaintiff(s),
v.

EVELYN WALTON, et al.,

Defendant(s).
Case No.: BC531401

Hearing Date: September 30, 2014

[TENTATIVE] RULING RE:
DEFENDANT EVELYN WALTON’S MOTION TO STRIKE PORTIONS OF COMPLAINT

Defendant Evelyn Walton’s Motion to Strike Portions of Complaint is GRANTED with 20 days’ leave to amend as to the request for punitive damages and prayer for general damages at paragraph 4, and without leave to amend as to the request for attorneys’ fees.

Background

Defendant moves to strike the allegations in support of Plaintiffs’ request for 1) punitive damages, 2) general damages decedent would have recovered had she lived, and 3) attorneys’ fees. Defendant argues that the alleged conduct is not “despicable” such that it warrants and award of punitive damages, that there is no statutory or contractual basis alleged for attorneys’ fees, and that damages for pain and suffering are not available in a survival action.

Discussion

Allegations in the Complaint

Plaintiffs allege that Decedent rented an apartment from Defendant, in which the patio was accessible through a screen door and glass door. (Complaint ¶¶8-9.) The Complaint alleges further:

Prior to and on June 3, 2013, the glass and screen door at the apartment of decedent Viola L. Fudge was malfunctioning, was not properly operating, was in a dangerous condition, and was not properly maintained by the owner and manager of the building. The glass and screen door were off the track that contained and guided the doors as required for proper and safe operation of the doors.

Prior to June 3, 2013, decedent Viola L. Fudge and others had notified defendants, including defendant Evelyn Walton, that the screen and glass door were not properly or safely functioning.

At all relevant times prior to June 3, 2013 and on June 3, 2013, defendants, including defendant Evelyn Walton, knew or should have known that the screen and glass door at the apartment of decedent Viola L. Fudge were not properly or safely functioning.

Despite being aware, or having should have been aware, of the condition of the screen and glass doors, and despite being aware, or having should have been aware, of the dangerous condition of the malfunction of the screen and glass doors, at all relevant times defendants, including defendant Evelyn Walton, willfully failed to and refused to properly maintain and repair the screen and glass doors.

The failure and refusal to properly maintain and repair the screen and glass doors was part of a course of willful conduct by defendants, including defendant Evelyn Walton, to refuse to properly maintain and repair the property at 865 West Beach Avenue, Inglewood, California in a manner consistent with the standard of care and their legal obligations, such that the property fell into a state of disrepair and there were numerous safety hazards and code violations.

Defendants, including Evelyn Walton, had a duty to maintain and repair screen and glass doors in the apartment of decedent Viola L. Fudge and had a duty to ensure the safe operation of those screen and glass doors.

On or about June 3, 2013, decedent Viola L. Fudge attempted to open the screen and glass doors in her apartment. At that time, the screen and glass doors fell onto decedent Viola L. Fudge, hitting decedent Viola L. Fudge on and about the body and head and knocking her to the ground on the patio of the apartment.

(Complaint ¶¶10-16.)

It is further alleged that Decedent died on June 8, 2013, as a result of injuries suffered when the doors fell on her. (Complaint ¶¶17-18.) With respect to the claim for punitive damages, Plaintiffs allege:

Defendants, including Evelyn Walton, engaged in conduct that evidenced a willful and knowing disregard of decedent’s safety, while ignoring the probable dangerous consequences of the failure to repair or maintain the property and screen and glass doors, despite defendants’ individual and collective awareness of the risks of such conduct. Such conduct was despicable and so vile, base or contemptible that it would be looked down upon and despised by reasonable people. Specifically, defendants, including Evelyn Walton, were informed at least once, and, in fact, on multiple occasions, of the dangerous condition of the screen and glass door in decedent’s apartment. Defendants, including Evelyn Walton, deliberately ignored the fact of the dangerous condition and deliberately ignored requests for repair, including requests made by decedent.

(Complaint ¶39.)

Punitive Damages

Civil Code Section 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . . ” Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

Defendant argues that the above allegations do not demonstrate despicable or malicious conduct. Defendant points to McDonnell v. American Trust Co. (1955) 130 Cal.App.2d 296, 297-99, in which the plaintiffs “sought damages allegedly caused by water entering their store because of defects in the roof and roof drains” and specifically alleged that the “defendants were ‘guilty of wilful misconduct in their wilful and wanton neglect for the safety and health of the plaintiffs,’ and were also ‘guilty of a conscious disregard to the persons, rights and property of the plaintiffs by continually failing and refusing to repair the defective conditions as aforesaid.’”
The Court in McDonnell held that the gravamen of the claim was negligence, and the facts alleged did not “spell an intentional tort (a conscious, deliberate intent to injure the plaintiffs) or conduct so recklessly disregardful of the rights of others (sometimes characterized as wanton or wilful misconduct) as would show the ‘malice’ in fact.” (Id. at 299.) The facts of McDonnell are quite analogous to the instant case, as both involve a failure to repair of a dangerous condition on the defendant’s property, despite the defendant’s knowledge of the condition.

In response, Plaintiffs point to Stoiber v. Honeychuck (1980) 10 Cal.App.3d 903, 911, in which the plaintiffs sought “damages resulting from the dilapidated and unsafe condition of the rented premises.” In contrast to the facts here and in McDonnell, the Stoiber plaintiffs alleged causes of action for breach of warranty of habitability, nuisance, intentional infliction of emotional distress, negligent violation of statutory duty, constructive eviction, and injunctive relief from unlawful business practices. (Id.)

In Stoiber, the plaintiffs alleged:

[N]umerous defective and dangerous conditions were in existence, including, but not limited to leaking of sewage from the bathroom plumbing; defective and dangerous electrical wiring; structural weaknesses in the walls; deteriorated flooring; falling ceiling; leaking roof; dilapidated doors; broken windows; and other unsafe and dangerous conditions .. . . .

Also attached to the complaint was a copy of the Kern County Health Department’s notice to vacate and demolish the subject premises which listed the following violations among others: heavy cockroach infestation, broken interior walls, broken deteriorated flooring on front porch, falling ceiling, deteriorated, overfused electrical wiring, lack of proper plumbing connection to sewage system in bathroom, sewage under bathroom floor, leaking roof, broken windows, and fire hazard.

(Id. at 912.)

The Court held that the punitive damages claim could proceed on a nuisance theory. (Id. at 920.) The allegations of the state of the property in Stoiber differ dramatically from the allegations in the instant Complaint. The numerous defective conditions itemized in Stoiber demonstrate that the defendants possessed a degree of disregard for the safety of the tenants’ safety that rises to the level of despicable conduct. Allowing the tenants’ apartments to fall into such a state of disrepair that the health department issued a notice to vacate and demolish the premises goes well beyond failing to repair a screen door and glass door.

Although Plaintiffs make the conclusory allegation that the subject property fell into a state of disrepair and there were numerous safety hazards and code violations, there are no facts alleged to support this claim.

Similarly, the facts of Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 288, also relied on by Defendant, demonstrate a level of disregard to the risk of harm to others that is not present in this case. In Nolin, the plaintiff fell on spilled gasoline at the defendant’s gas station, under the following circumstances:

At the subject store where plaintiff’s accident occurred, two self-service gasoline pumps had been installed in December 1973. A problem of maintenance developed within the four- or five-month period before plaintiff fell due to the defective condition of a nozzle on one of the pumps. When in use, the nozzle would overflow, spilling gasoline on the pump apron and sometimes on customers filling their tanks. Defendant’s mechanical maintenance supervisor denied at trial that he had ever been informed of this problem, although store employees declared that they had requested repairs of the nozzle many times.

Defendant’s district representative, Watson, charged with responsibility for the smooth operation of defendant’s stores in the area, often visited the premises and admitted in his deposition that he was aware of the overflowing nozzle, having been informed of it many times.

The manager of the subject store, Larson, was concerned about the overflowing gasoline because of the fire hazard and the danger of slips and falls by patrons. Larson mentioned to supervisor Watson that there had been two separate incidents where people had fallen around the pumps prior to plaintiff’s accident in November 1974. Watson, according to Larson, had dismissed the possibility of successful negligence suits against defendant by stating that “the store didn’t have anything to worry about because they had a team of lawyers that would tie it up in court for years.” Company invoices introduced at trial established that an attempt had been made to repair the nozzle in July 1974; but that attempt was apparently unsuccessful, as the pump continued to malfunction even after plaintiff’s accident.

(Id. at 283.)

The conduct of the defendant in Nolin was so callous, despite being aware of the risk of harm, as to be described as despicable. Unlike the instant case, the defendant in Nolin was aware of two prior incidents where customers had fallen but had no regard for those incidents or the possibility of future harm. The instant Complaint does not allege analogous facts. Therefore, the Motion to strike the prayer for punitive damages is granted.

However, because Plaintiff has not yet amended the complaint in response to a motion to strike or demurrer, and it is possible that Plaintiff may be able to allege sufficient facts to support a punitive damages claim, the Court grants leave to amend. (See Grieves, supra, 157 Cal.App.3d at 168 (“An amendment should be allowed where the defect, though one of substance, may possibly be cured by supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so ….”)(emphasis in original).)

Attorneys’ Fees

CCP Section 1021 provides: “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” The Complaint does not state a statutory or contractual basis for the requested attorneys’ fees, nor do Plaintiffs oppose the request to strike them. Therefore, the motion to strike the request for attorneys’ fees is also granted, but without leave to amend.

General Survival Damages

Lastly, Defendant moves to strike the request for “[a]ll damages that decedent would have been able to recover from defendants had she lived, according to proof.” (Complaint, Prayer ¶4.) Damages in a survival action “are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34 (emphasis added).) Therefore, this request for damages, which exceeds those permitted by CCP Section 377.34, is improper under the law, and the motion to strike the allegation is granted. However, because Plaintiffs can allege other damages that decedent would have been able to recover, consistent with Section 377.34, leave to amend is granted.

Defendant is ordered to give notice of this Order.

DATED: September 30, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court