Case Name:   Aziziankia v. Midpen Housing Corporation

Case No.:       1-14-CV-268446
The complaint alleges that in October 2013, plaintiff Shokat Aziziankia (“Plaintiff”) was a tenant at property owned by defendant Midpen Housing Corporation (“Defendant”) and tripped and fell on the carpet in the apartment, resulting in bruising on her legs.  (See complaint, ¶¶ 5, 11.)  Defendant’s local property manager saw the post-fall bruising, and Plaintiff asserted that the cause of the fall was the transition between the carpet and hard flooring of the apartment, which Plaintiff found difficult to move with her walker.  (See complaint, ¶¶ 10, 12.)  On October 22, 2013, Plaintiff’s physician, Dr. Evaleen Jones, requested Defendant to remove the carpet from her living room and hallway in her apartment, citing “severe ambulation concerns and is a high fall risk.”  (See complaint, ¶ 13.)  On November 26, 2013, Defendant informed Plaintiff that her request was approved.  (See complaint, ¶ 14.)  On January 1, 2014, Plaintiff again tripped and fell on the transition, suffering a right medial malleolar fracture.  (See complaint, ¶ 15.)  On February 13, 2014, Plaintiff again tripped and fell on the transition, suffering a right proximal tibia and right medial malleolar fracture.  (See complaint, ¶ 17.)  On April 16, 2014, Defendant started to replace the flooring as it had agreed to do more than four months earlier and proper installation was completed on April 17, 2014.  (See complaint, ¶ 18.)  Plaintiff asserts that similar accommodations have been provided to other tenants but substantially more promptly than said accommodations were provided for Plaintiff.  (See complaint, ¶ 20.)  On July 24, 2014, Plaintiff filed a complaint against Defendant, asserting causes of action for: negligence; violation of FEHA; and, violation of the Unruh Act.

Defendant moves to strike the final sentence of paragraph 32 alleging that Defendant’s conduct was “oppressive, fraudulent, and malicious,” and paragraph c from the prayer seeking punitive damages, asserting that there are no facts pled to substantiate punitive damages.

Defendant argues that there are no facts to support the alleged reasoning for the failure to provide the requested accommodation…, let alone facts suggesting there was improper motivation.  The FEHA cause of action alleges “that defendant’s failure to timely provide the requested accommodation to Plaintiff was because of Plaintiff’s race, national origin, ancestry, disability status and/or another protected characteristic.”  (Complaint, ¶ 31.)  To the extent that the claim is based on “another protected characteristic,” Plaintiff must specify what that is since this is a statutory cause of action.  (See Covenant Care, Inc. v. Super. Ct. (Inclan) (2004) 32 Cal. 4^th 771, 790 (stating that “the general rule [is] that statutory causes of action must be pleaded with particularity”).)  To the extent that the claim is premised on her “disability status,” although other disabled tenants may have received a similar accommodation in a more timely fashion (see complaint, ¶¶ 18 (alleging that other residents for whom accommodations were made were “similarly situated”), 20 (alleging that “similar accommodations have been provided to other tenants of the Property”), Defendant’s tardiness with regards to Plaintiff’s situation cannot be due to disability since every other person who received a similar disability accommodation was similarly disabled.  Plaintiff alleges that those other disabled individuals “have different disability status.”  However, this contradicts the earlier allegations that state that the other residents were similarly situated and received similar accommodations.  Here, it does not appear that the second cause of action can be predicated on disability status, and Plaintiff has not suggested how she might be able to state facts sufficient to constitute a viable claim based on such status.  Nevertheless, the second cause of action does allege a failure to provide the accommodation based on race and national origin.  (See complaint, ¶ 31.)

Defendant also contends that there are no allegations that show Defendant was made aware of the January 2014 injuries prior to the February 2014 fall.  In opposition, Plaintiff notes that the complaint indeed alleges that “Defendant was put on notice of the January 1, 2014 fall” (see Pl.’s opposition to motion to strike (“Opposition”), p.5:9); however, there is no allegation as to whether such notice was provided prior to the February 2014 fall.  Defendant’s motion to strike is GRANTED with 10 days leave to amend.  (See Civ. Code § 3294; see also Grieves v. Super. Ct. (Fox) (1984) 157 Cal.App.3d 159, 166 (stating that “[n]ot only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim”); see also Taylor v. Super. Ct. (Stille) (1979) 24 Cal.3d 890, 896 (stating that “[i]n order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences”); see also G. D. Searle & Co. v. Super. Ct. (Seaton) (1975) 49 Cal.App.3d 22, 29 (stating that “[w]hen nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice”).)

Accordingly, the sentence “Said conduct, as well as other conduct that will be the focus of discovery was oppressive, fraudulent, and malicious” of paragraph 32 on lines 25 and 26 of page 6, and paragraph c from the prayer are hereby stricken.

The Court will prepare the Order.  The parties are reminded of the case management conference scheduled for November 18, 2014 at 1:30 p.m.