Case Name: Moss v. MacLeod, et al.

Case No.: 1-13-CV-253947

Defendant Kay Stewart (‘Stewart”) demurs to the complaint (“Complaint”) filed by plaintiff Shari Moss (“Plaintiff”) and moves to strike portions contained therein.

This is an action for negligence and premises liability.  According to the allegations of the Complaint, on October 2, 2011, Plaintiff was severely injured after falling through an open trap door in the floor of laundry room at a home listed for sale during an open house.  Plaintiff alleges that there was no indication or warning to anyone entering the room either that a trap door existed or that it was open.  Stewart is alleged to be one of the owners of the property.  Plaintiff filed her Complaint on October 1, 2013.

On August 6, 2014, Stewart filed the instant demurrer to the Complaint on the ground of failure to state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)  Stewart also filed a motion to strike.  (Code Civ. Proc., §§ 436 and 437.)

Stewart’s demurrer to the Complaint on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.  The basis of Stewart’s demurrer is that the Complaint fails to state a cause of action for punitive damages, however, punitive damages are not a cause of action and thus not subject to a demurrer.  (See Code Civ. Proc., § 430.10, subd. (e).)

Stewart’s motion to strike Plaintiff’s request for punitive damages and allegations relating thereto is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.  Stewart’s assertion that Plaintiff has failed to plead facts sufficient to support an award of such damages against her specifically is well-taken.  Pursuant to Civil Code section 3294, punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud.  For pleading purposes, merely alleging that a defendant acted with malice, oppression, or fraud in a conclusory manner is insufficient to support a claim for punitive damages.  (See Blengen v. Superior Court (1981) 125 Cal.App.3d 959, 963.)  Ultimate facts supporting a claim for punitive damages must be specifically pleaded.  (See Clausen v. Superior Court (1998) 67 Cal.App.4^th 1253, 1255.)  Here, there are no allegations that Stewart was present at the open house or had any knowledge that the door had been or would be left open or unattended at that time.