Case Number: BC693504 Hearing Date: June 07, 2018 Dept: 3

MARCUS MULLINS,

Plaintiff(s),

vs.

EGL PROPERTIES, INC., ET AL.,

Defendant(s).

Case No.: BC693504

[TENATATIVE] ORDER GRANTING DEFENDANT’S MOTION TO STRIKE

Dept. 3

1:30 p.m.

June 6, 2018

Plaintiff, Marcus Mullins filed this action against Defendants, EGL Properties, Inc., et al. for damages arising out of a fall on Defendants’ stairs. Plaintiff’s complaint includes a prayer for punitive damages and related allegations against Defendants. Specifically, Plaintiff alleges that, on 2/01/17, he was using an exterior staircase when a defect in the staircase caused a stair to break off, and he sustained injuries. He alleges he reported the incident to Defendants, and they chose to take no action or inappropriate action, which choice was motivated for their own desire to make a profit over their concern for the safety and wellbeing of others. Plaintiff alleges that, on 7/11/17, he was using the same stairway, and another step broke in the same place, causing him to injure himself again.

At this time Defendant, Jacob Vaakhil moves to strike the prayer for punitive damages and the related allegations from the complaint at this time.

Civil Code §3294 permits imposition of punitive damages in cases involving fraud, malice, or oppression. Plaintiff argues his complaint adequately shows malice because it alleges Defendant knew the subject stairway was dangerous and chose, for financially motivated reasons, not to fix it.

Neither party cites a case directly on point, McDonnell v. American Trust Co. (1955) 130 Cal.App.2d 296, 300, wherein the court therein held that allegations that a defendant building owner knew his building was leaking and in a defective condition and refused to repair it thus causing injury to plaintiff who slipped in pooled water were not enough to support a prayer for punitive damages.

In McDonnell, the court of appeals found the following allegations insufficient to state a claim for punitive damages:

Plaintiffs were lessees of one of the ground floor stores of a multistoried building owned by defendant who had sole operation and control of the roof and roof drains, including the sole right of access to make repairs. Defendant knew of the defective condition of the premises and of the roof and the roof drains in January, 1952, and was notified of said defective condition by plaintiffs in April and May and by the city building inspector in October; plaintiffs, in November, 1952, again demanded that defendant remedy said defective conditions. Although defendant knew “that said defective conditions could cause damage and injury to the property and persons of the tenants,” she “refused to remedy said defective conditions.” December 1, 1952, “by reason of the wilful failure of the defendant to repair the premises as aforesaid, knowing that said defective conditions could cause damage and injury to the property and persons of the tenants therein,” water gathered on the floor of plaintiffs’ store “due to the defective condition of the premises as aforesaid” and plaintiff Irene McDonell, while carefully walking, slipped upon the floor. “Due to the recklessness and wilful acts” of defendant, “as hereinabove particularly alleged,” plaintiff was injured and has suffered damages in the sum of $1,500.

Notably, McDonnell was decided in 1955, prior to the amendment of §3294 in 1987 to add the requirement that conduct in conscious disregard of the health and safety of others be “despicable” in order to support a claim for punitive damages; thus, the standard today is higher than it was when McDonnell was decided.

In Woolstrum v. Mailloux (1983) 141 Cal.App.3dSupp. 1, 5, the court articulated the standard for imposition of punitive damages. It noted, “In order to justify punitive damages in such cases, the evidence must show that the defendant (1) knew of the (2) probable injurious consequences of his conduct and (3) deliberately failed to avoid them.” Plaintiff herein failed to allege that the fall was sufficiently probable and/or that Defendant’s acts were sufficiently deliberate to justify imposition of punitive damages. Of note, the Woolstrum Court discussed at length the types of cases that support imposition of punitive damages, and they are all cases where injury was virtually inevitable, and where the defendant made a concerted and specific determination that the potential profit to be gained from failing to remedy the problem outweighed the cost to deal with the inevitable injuries.

Defendant’s motion to strike is therefore granted.

A plaintiff may not amend as a matter of right, and in order to be in a position to complain upon appeal of an abuse of discretion in sustaining a demurrer without leave to amend, he must ask permission to amend, unless it is made to appear that he had no opportunity to ask such permission. Williams v. Hinckley (1930) 109 Cal.App. 574, 576. Leave to amend will only be granted if Plaintiff makes a sufficient offer of proof as to how he could amend to properly plead for punitive damages.

The Court notes that Co-Defendants, EGL Properties and Michal Vaakil have a substantially similar motion to strike on calendar 8/01/18. The Court advances their motion to strike to today’s hearing date and grants it on the same grounds discussed above. Moving Defendant is ordered to give notice.