Case Name: Chen v. Wang, et al.
Case No.: 1-14-CV-261745

This is a wrongful death action. Yong Li Zhang (“Decedent”) was a guest at defendants Victor Wang and Mu Jing’s (collectively, “Defendants”) vacation home in Clear Lake on August 3, 2013. (See third amended complaint (“TAC”), ¶ 10.) Decedent went down an exterior stairway from the vacation home’s deck that Decedent believed connected to a floating dock. (See TAC, ¶ 12.) However, the stairway did not connect to the floating dock and Decedent fell into the neighboring lagoon and drowned. (See TAC, ¶ 12.) After Defendants filed a motion to strike similar allegations as to the initial complaint and after the Court previously granted motions to strike portions of the first amended complaint (“FAC”), on November 24, 2014, the Court granted a motion to strike portions of the second amended complaint (“SAC”), stating:
Defendants allegedly knew or should have known that the dangerous condition of the stairs exposed their guests—including elderly persons like Decedent—to grave danger and risk of serious physical harm or death. (Id., ¶ 37.) Plaintiffs further allege that Defendants knew or should have known that the risk could have been prevented by securing the gate leading to the stairs, repairing the dangerous condition, or warning their guests of the dangerous condition, but they “intentionally and/or willfully and/or deliberately and/or consciously failed to do so, thereby demonstrating a wilful [sic] and conscious disregard for the rights and safety of their guests.” (Id., ¶¶ 41-43.) …
To obtain punitive damages, the plaintiff must show that the defendant is guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Malice is “conduct which is 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.” (Id., at subd. (c)(1).) It does not suffice to show that the defendant’s conduct was negligent, grossly negligent, or even reckless. (G.D. Searle & Co. v. Super. Ct. (1975) 49 Cal.App.3d 22, 31-32.) Rather, the defendant must “act with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. Cal. Life Ins. Co. (1974) 11 Cal.3d 452, 462.) With respect to the conscious disregard standard, “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.” (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895-896 [“Taylor”].) At the pleading stage, conclusory allegations that the defendant acted wilfully, maliciously, or with conscious disregard are insufficient. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)
Defendants argue that Plaintiffs have not alleged ultimate facts supporting their conclusion that Defendants acted with malice. “When 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.” (Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1041-1042 [“fairness demands that [the defendant] receive adequate notice of the kind of conduct charged against him”].) While Plaintiffs state that Defendants willfully and deliberately failed to avoid the risk of harm allegedly posed by the condition of the stairway, they do not allege any facts supporting their conclusion. (SAC, ¶¶ 16, 33, 36-37, & 40-49.) Thus, Defendants’ argument is persuasive.
Plaintiffs insist that this case is analogous to the facts in Penner v. Falk (1984) 153 Cal.App.3d 858 (“Penner”). (Plaintiffs’ Opp’n, at pp. 5:21-6:11.) However, it is unclear how this case is supposedly analogous to Penner. In Penner, a tenant sued his landlord for injuries caused by an assault that occurred in a common area of an apartment building. (Penner, supra, at pp. 860-861.) The plaintiff alleged that his injuries would have been prevented had the landlord made efforts to secure the area, and he alleged specific facts showing that the landlord knew of the dangerous condition of the property and deliberately failed to correct it (e.g., tenants had complained to the landlord about the condition of the property and had notified the landlord of prior crimes committed on the property). (Id., at pp. 861-864.) Here, in contrast, Plaintiffs do not allege facts showing how Defendants supposedly knew of the alleged dangerous condition and deliberately failed to correct it. At most, the SAC pleads that Defendants were aware of the dangerous condition and negligently failed to repair or warn of it. Such allegations are insufficient to support a punitive damages claim. (See McDonell v. American Trust Co. (1995) 130 Cal.App.2d 296, 300 [allegation of landlord’s “‘willful’ failure to repair” premises did not serve as basis for punitive damages; “[t]he second count falls considerably short of alleging any such violation of duty when it merely pleads that defendant, aware of the defective condition and that such condition could cause damage, refused to repair”].)
(November 24, 2014 order re: motion to strike portions of the SAC.)

On December 1, 2014, plaintiffs Hong Sheng Chen, Jing Zhang, and Wei Zhang (collectively, “Plaintiffs”) filed the TAC against Defendants, asserting causes of action for: wrongful death; survival action; negligence; premises liability; and, exemplary and punitive damages. Defendants again move to strike the claim for punitive damages.

Here, the TAC newly alleges that: Defendants affirmatively knew that the subject stairway was constructed in such a way that if the water level of the lagoon, was low, the stairway would not connect with the floating dock; Defendants knew of the presence and existence of the condition since Defendants purchased the property; Defendants knew that other residences were equipped with docks that did not separate from the stairway; by virtue of being the owners of the property for eight years, they had the power and ability to remedy the condition; Defendants knew that guests would have access to the stairway and dock; Defendants intentionally did not repair the dangerous condition despite knowledge that guests would visit the property; the stairway’s termination before the dock was in violation of Building Codes; Defendants “knew or should have known” that the exterior stairway was in a defective, dangerous, hazardous and unsafe condition and in violation of Building Codes, and exposed guests to grave danger of physical harm or death. (See TAC, ¶¶ 36-45.) Defendants “knew or should have known” that a probable consequence of allowing such a dangerous, defective, hazardous, and unsafe condition of the stairway to exist would be to cause serious physical injury and harm or death to persons and “knew or should have known that serious physical injuries and harm, and/or death to guests of their home could have been prevented if Defendants would have secured the gate leading to the stairway… [and] knew or should have known that serious physical injuries and harm, and/or death to guests of their home could have been prevented if Defendants would have provided warning to their guests of the dangerous condition of the stairway… [and] knew or should have known that serious physical injuries and harm, and/or death to guests of their home could have been prevented if Defendants would have repaired the dangerous condition of the stairway.” (TAC, ¶¶ 48-51.)

However, as Defendants argue, the TAC does not allege a factual basis that demonstrates that their negligent conduct warrants punitive damages. Plaintiffs again cite to Penner v. Falk (1984) 153 Cal.App.3d 858; however, the Court has already noted that although Plaintiff has asserted that “[t]he case most closely analogous to the case at hand is Penner… the FAC here contains no suggestion of similar allegations justifying the imposition of punitive damage.” (August 26, 2014 order re: motion to strike portions of the FAC, p.2:10-28.) As to the subsequent motion to strike portions of the SAC, the Court clearly noted that “[w]hile Plaintiffs state that Defendants willfully and deliberately failed to avoid the risk of harm allegedly posed by the condition of the stairway, they do not allege any facts supporting their conclusion.” (November 24, 2014 order re: motion to strike portions of the SAC, p.3:8-11.) As in the Court’s order regarding the motion to strike portions of the FAC, the Court stated “Plaintiffs insist that this case is analogous to the facts in Penner v. Falk… [h]owever, it is unclear how this case is supposedly analogous to Penner.” (Id. at p.3:12-14.) “Here, in contrast [to the situation in Penner], Plaintiffs do not allege facts showing how Defendants supposedly knew of the alleged dangerous condition and deliberately failed to correct it.” (Id. at p.3:20-22.) “At most, the SAC pleads that Defendants were aware of the dangerous condition and negligently failed to repair or warn of it… [and s]uch allegations are insufficient to support a punitive damages claim.” (Id. at p.3:22-28, citing McDonell v. American Trust Co. (1995) 130 Cal.App.2d 296, 300 [allegation of landlord’s “‘willful’ failure to repair” premises did not serve as basis for punitive damages; “[t]he second count falls considerably short of alleging any such violation of duty when it merely pleads that defendant, aware of the defective condition and that such condition could cause damage, refused to repair”].)

The new allegations of the TAC do not remedy the deficiencies pointed out by this Court in its prior orders. Despite clearly instructing Plaintiffs that they were required to allege “facts showing how Defendants supposedly knew of the alleged dangerous condition and deliberately failed to correct it,” and that Plaintiffs failed to “allege any facts supporting their conclusion… that Defendants willfully and deliberately failed to avoid the risk of harm allegedly posed by the condition of the stairway,” Plaintiffs disregarded the Court’s statement, and instead alleged more conclusions rather than any factual bases to support those conclusions. As they have been given multiple opportunities to rectify these deficiencies and have failed to do so, it is clear that Plaintiffs lack a factual basis to support those conclusions. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff… to demonstrate the manner in which the complaint might be amended”).)

Accordingly, the motion to strike the entire third cause of action and paragraph 4 of the prayer of the TAC is GRANTED without leave to amend. Paragraphs 32 through 59 of the TAC and paragraph 4 of the prayer of the TAC are hereby stricken.

The Court will prepare the order.