2013-00151290-CU-PO

Mykael Morgan vs. Al Aguirre

Nature of Proceeding:     Hearing on Demurrer to Complaint

Filed By:   Mackey, Stephen J.

Defendant Aguirre Family Trust’s (“Trust”) demurrer to the complaint of Plaintiffs
Mykael Morgan and Donna Sanders, as well as minor-Plaintiffs Christian Morgan and
Joshua Morgan, by and through their guardian ad litem Mykael Morgan, (collectively
“Plaintiffs”) is SUSTAINED without leave to amend.

Plaintiffs concede that the Trust is not a legal person and may not be sued.  Plaintiffs
request leave to amend and pursue named defendants Al Aguirre and Kathryn Aguirre             both individually and in their capacities as trustees.  That request is GRANTED.

The Trust is DISMISSED from the lawsuit.

No later than July 14, 2014, Plaintiffs may file and serve a first amended complaint
(“FAC”) that identifies the individual defendants as trustees; the individual defendants
to file and serve their responsive pleading(s) within 10 days thereafter, 15 days if the
FAC is served by mail.  (Although not required by any statute or rule of court, Plaintiffs
are requested to attach a copy of the instant minute order to the FAC to facilitate the
filing of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.

Item   9    2013-00151290-CU-PO

Mykael Morgan vs. Al Aguirre

Nature of Proceeding:    Motion to Strike Punitive Damages Claims

Filed By:   Mackey, Stephen J.

The motion of the Aguirre Family Trust (“Trust”) is DROPPED as moot in light of the
court’s concurrent order sustaining the Trust’s demurrer without leave to amend.

The motion of Al Aguirre and Kathryn Aguirre (collectively “Defendants”) to strike
claims for punitive damages in the complaint of Plaintiffs Mykael Morgan and Donna
Sanders, as well as minor-Plaintiffs Christian Morgan and Joshua Morgan, by and
through their guardian ad litem Mykael Morgan, (collectively “Plaintiffs”) is GRANTED
with leave to amend.

This case presents a landlord/tenant dispute.  Plaintiffs allege that, pursuant to a
written lease agreement, they rented a home from Defendants.  According to Plaintiffs,
the home was uninhabitable in several respects, including due to toxic mold.
Defendants allegedly failed to make adequate repairs, if any.  Plaintiffs allege that they
suffered personal injuries as a result of the home’s condition.

The complaint contains eight causes of action against Defendants for Violation of
Statutory Duty–Negligence Per Se, General Negligence, Breach of the Implied
Warranty of Habitability, Private Nuisance, Fraudulent Concealment/Failure to
Disclose, Intentional Misrepresentation, Negligent Misrepresentation, and Constructive
Wrongful Eviction.  Defendants now move to strike the punitive damages allegations
accompanying the Fourth Cause of Action for Private Nuisance and the Fifth Cause of
Action for Fraudulent Concealment/Failure to Disclose.  (Notice of Mot. at 1:24-2:8.)
Defendants also moves to strike the corresponding prayer for punitive damages.  (Id.
at 2:9-10.)

The punitive damages allegations supporting the fourth and fifth causes of action are
STRICKEN.            In order to establish the malice or oppression needed to support an award of punitive
damages against a landlord who fails to repair defective premises, the plaintiff must
allege that the landlord failed to make the repairs knowing that, to a high degree of
probability, the failure would result in harm.  (McDonell v. American Trust Co. (1955)
130 Cal.App.2d 296, 299-300.)  It is not enough to allege that the landlord was aware
that harm could have resulted from the failure to repair.  (Id. at 300.)

Plaintiffs’ current allegations provide that there was a foreseeable risk of harm due to
the premises’ state of disrepair, but there is no allegation Defendants knew to a high
degree of probability that harm would result.  The court grants Plaintiffs leave to
amend to allege the requisite knowledge.

In granting the motion, the court is aware of Plaintiffs’ further allegations that (1)
Defendants were aware that toxic mold and other alleged defects in the premises were
dangerous and (2) that Defendants were aware of dangerous consequences in relation
to Plaintiffs’ health.  (See Compl., ¶¶ 52, 54, 57.)  Nonetheless, without further alleging
that Defendants knew to a high degree of probability that such consequences would
actually work harm upon Plaintiffs, the allegations are insufficient to support an award
of punitive damages.

Although the court grants the motion for the reasons above, it rejects Defendants’
argument that Plaintiffs may only maintain their punitive damages claims if they comply
with the provisions governing employers in CC § 3294.  The complaint need not be
construed to establish an employment relationship, and thus compliance the
employer/employee provision in CC § 3294 is not required.

Except to the extent Plaintiffs have failed to allege Defendants’ knowledge to a high
degree of probability that the premises would cause harm, the court rejects
Defendants’ argument that the complaint lacks sufficient factual specificity to support a
punitive damages claim.

No later than July 14, 2014, Plaintiffs may file and serve a first amended complaint
(“FAC”) to remedy the defects in their punitive damages allegations; Defendants to file
and serve their responsive pleading(s) within 10 days thereafter, 15 days if the FAC is
served by mail.  (Although not required by any statute or rule of court, Plaintiffs are
requested to attach a copy of the instant minute order to the FAC to facilitate the filing
of the pleading.)

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.