Case Number: BC713884 Hearing Date: January 02, 2019 Dept: 24

Defendants Azzurra Homeowners’ Association, and Action Property Management Inc.’s motion to strike is GRANTED with leave to amend.

On July 13, 2018, Plaintiff Kanayo Onyekwuluje filed the instant disability discrimination, alleging two causes of action for violations of California Fair Employment and Housing Act (“FEHA”) and the Unruh Civil Rights Act. On September 25, 2018, Plaintiff filed her First Amended Complaint (“FAC”). Plaintiff alleges that she has been a tenant at the subject property owned and managed by Defendants. Plaintiff suffers from arthritis in her knees and has difficulty with mobility, including maintaining her balance and walking. She requested an accommodation with Defendants to allow her to bring a service animal in the common areas of the property. Plaintiff alleges that Defendants barred Plaintiff from using four out the six elevators at the subject property and from the common areas if she is accompanied by her dog.

On October 29, 2018, Defendants Azzurra Homeowners’ Association, and Action Property Management Inc. (collectively “Defendants”) filed the instant motion to strike punitive damages. On December 18, 2018, Plaintiff filed an opposition.

Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

Meet and Confer

Before filing a motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP § 435.5.) Counsel’s declaration regarding correspondence exchanged between the parties does not satisfy CCP § 435.5(a)’s requirement that the parties meet and confer in person or by telephone. (Heaton Decl. ¶¶ 2-4.) On this occasion, the Court will proceed to address the merits of the motion despite the insufficiency of the meet and confer. The Court cautions the parties that a code-compliant meet and confer effort is required for each demurrer or motion to strike on subsequent pleadings.

Discussion

Plaintiff has not pled sufficient facts to support a claim of punitive damages under Civil Code section 3294. Section 3294 defines malice as conduct “intended by the defendant to cause injury to the plaintiff,” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (See Coll. Hosp., supra, 9 Cal.4th 704, 726.) The statute “plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs’ interests. The additional component of “despicable conduct” must be found.” (Ibid.)

Here, Plaintiff alleges that she is disabled from arthritis and requires her dog to aid her mobility. (FAC ¶¶ 9-10.) She then alleges Defendants, despite knowing of her disability, barred her from using “four out of the six elevators at the subject property and from the common areas if she is accompanied by her dog.” (FAC ¶ 12.) Defendants also threatened her with sanctions, including eviction, apparently if she broke these rules. (Ibid.) However, discrimination allegations alone do not automatically state a punitive damage claim. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64 [mere allegations by female former employee that employer discriminated against her based on her gender, did not sufficiently plead malice as required to state a claim for punitive damages].) Plaintiff’s allegations concerning Defendants’ failure to accommodate do not establish that Defendants intended to harm Plaintiff and do not rise to the level of despicable conduct required for malice.

Excluding the conclusory allegations of intent, these facts do not a basis for Defendants’ intent to cause injury to Plaintiff. Instead, the FAC merely alleges that Defendants violated FEHA by denying her access to certain common areas while with her dog. While this potentially satisfies the underlying requirements for a FEHA violation, this does not establish that Defendants intended to harm Plaintiff by their action. In other words, this is not the same “intentional discrimination” found in Plaintiff’s cited authority. (See Cloud v. Casey (1999) 76 Cal.App.4th 895 [substantial evidence existed supporting punitive damages award where defendants intentionally discriminated by denying plaintiff a promotion based on gender, then attempted to hide the illegal reason for their decision with a false explanation, and that in this, acted in a manner that was base, contemptible or vile].) Unlike the facts in Cloud, here there are no factual allegations supporting discriminatory intent.

Nor does Defendants’ denial of access to some areas, while admittedly keeping other areas open, amounts to “base, contemptible or vile conduct” behavior, even if that act violated FEHA. (FAC ¶ 12.) Such actions do not amount to egregious behavior that courts have held to be despicable for purposes of punitive damages. (See e.g., Angie M., supra, 37 Cal.App.4th at 1221—1222 [finding vile, base, or contemptible conduct in unlawful seduction and sexual abuse when a 48-year-old doctor engaged in sexual intercourse with a minor, plying the minor with drugs and alcohol, and paying the minor to procure illegal substances for him]; Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1280 [finding despicable conduct when a manufacturer “fully understood that asbestos dust endangered workers, but did not issue warnings to customers” until much later and using the products in ways that generated considerable asbestos dust].) Therefore, the factual allegations of the FAC are not sufficient to rise to the level of despicable conduct and malice to support a claim for punitive damages.

Accordingly, Defendants’ motion to strike is GRANTED with 20 days leave to amend.

Moving party is ordered to give notice.