Case Number: BC540232    Hearing Date: July 15, 2014    Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Tuesday, July 15, 2014
Calendar No.: 8
Case Name: Hendizadeh, et al. v. Migdal, et al.
Case No.: BC540232
Motion: Demurrer and Motion to Strike
Moving Party: Defendants Jeanette Migdal and Jeanette Migal Trust (erroneously sued as Migdal TR Trust)
Responding Party: Plaintiffs Nicole Hendizadeh, Salar Hendizadeh, Morris Hendizadeh, and Shala Hendizadeh
Notice: OK

Tentative Ruling: Demurrer is overruled. Motion to strike is granted as to the clam for attorney fees without prejudice and is otherwise denied. Defendants to answer within 10 days.

Background –
On 3/21/14, Plaintiffs Nicole Hendizadeh, Salar Hendizadeh, Morris Hendizadeh, and Shala Hendizadeh filed this action against Defendants Jeanette Migdal and Migdal TR Trust arising out of alleged uninhabitable conditions at 340 S. Elm Drive, Beverly Hills, CA 90212. Plaintiffs assert causes of action for (1) breach of implied warranty of habitability, (2) breach of contract, (3) negligence, and (4) private nuisance. Migdal and Jeanette Migal Trust (erroneously sued as Migdal TR Trust) have filed a demurrer and a motion to strike.

Demurrer –
Defendants demur to the Complaint on the ground that it is uncertain. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.

Defendants correctly note the following confusing references in the Complaint: to a verified Complaint (Complaint p. 1:11) which is not verified; to Defendants as the plaintiff (Complaint ¶ 1); and to an attachment of a Lease Agreement which is not attached (Complaint ¶ 20(d)). However, these confusing references are not so deficient to render the Complaint insufficient to apprise Defendants of the nature of the claims.

Defendants argue that the Complaint fails to allege the basis for which Plaintiffs are bringing the claims. However, this misreads the Complaint. Notably, Plaintiffs allege that Morris entered into the rental agreement (Complaint ¶ 9) and that all Plaintiffs were tenants of the premises (id. ¶ 3). Though the Complaint is not a model of clear pleading, Defendants fail to establish that the Complaint is so uncertain that Defendants cannot respond to the claims. The demurrer is overruled.

Motion to Strike –
Defendants move to strike Plaintiffs’ claim for punitive damages and attorney fees.

1. Attorney Fees
As to attorney fees, Plaintiffs do not oppose the motion to strike without prejudice. Opp’n [Strike] p. 3:16-20. Plaintiff fails to allege any facts to demonstrate a potential basis for recovery of attorney fees (see CCP § 1021; Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 404) where Plaintiffs notably rely on an attached lease agreement that is not attached (Complaint ¶ 20(d)). The motion to strike is granted as to Plaintiffs’ claim for attorney fees without prejudice.

2. Punitive Damages
As to punitive damages, Plaintiffs do not oppose the motion to strike to the extent based on Plaintiffs’ contract claims. Opp’n [Strike] p. 2:1-6). However, Plaintiffs argue that sufficient facts have been alleged to support malice and oppression. The Court notes that Plaintiffs’ claim for punitive damages does not indicate that it is being sought on the contract claims. See Complaint p. 13:19. Therefore, Defendants fail to establish that Plaintiffs’ claim for punitive damages is improperly based on the contract claims. See, e.g., Frazier v. Metropolitan Life Ins. Co. (1985) 169 Cal.App.3d 90, 106-7.

Additionally, Plaintiffs allege uninhabitable conditions of which they made Defendants aware and which Defendants refuse to remedy (Complaint ¶¶ 10, 19) and allege that Defendants attempted to force Plaintiff into paying for abatement of nuisances and attempted to force Plaintiffs to vacate the premises (id. ¶ 36). At the pleading stage, this is sufficient to support both malice and oppression. See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (malice); Civil Code § 3294(c)(2) (oppression); Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331 (despicable conduct). The motion to strike is denied as to the claim for punitive damages.