Case Number: BC699575 Hearing Date: November 27, 2018 Dept: 4

MOVING PARTY: Defendants Dana Carl Dentzel, Paul Dentzel, and Mark Guardinieri

RESPONDING PARTY: Plaintiff Louise Holland

Motion to Strike Portions of Complaint

The court considered the moving, opposition, and reply papers.

Background

On March 26, 2018, Plaintiff Louise Holland filed a complaint against Defendants Dana Carl Dentzel, Paul Dentzel, and Mark Guardinieri for, inter alia, tortious interruption and termination of electricity and water utilities and disruption of the implied covenant of quiet enjoyment.

Trial is set for September 26, 2019.

Legal Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP §436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP §436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP §436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894-95, stated:

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“Malice” is defined in Civil Code §3294 to mean “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.” Civil Code §3294(c)(1). As the Court noted in College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 713, section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

DISCUSSION

Defendants request that the court strike paragraphs 16, 23, 28, 47, 53, and 58 as well as the prayer for relief’s claims for punitive damages.

In the complaint, Plaintiff alleges nine causes of action: (1) tortious interruption and termination of electricity utility, (2) tortious interruption and termination of water utility, (3) tortious violation of Civil Code section 789.3(b), (4) violation of Civil Code section 1940.2, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) trespass, (8) conversion, and (9) breach of implied covenant.

First, Second, and Third Causes of Action

As to Plaintiff’s first, second, and third causes of action, Plaintiff alleges that they entered into an oral month-to-month lease with respect to residential real property owned by Defendants Dana Carl Dentzel and Paul Dentzel (“Dentzels”). (Compl. ¶7.) Plaintiff alleges that on April 27, 2017, the Dentzels willfully and maliciously interrupted and terminated Plaintiff’s electricity utility service and water utility service to Plaintiff’s leased real property. (Compl. ¶¶ 10, 19.) Plaintiff alleges that on May 1, 2017, Defendants willfully and maliciously removed Plaintiff’s personal property, including a generator and toolbox from the property. (Compl. ¶25.)

As to Plaintiff’s fourth cause of action, Plaintiff alleges that beginning April 27, 2017, Defendants willfully and maliciously interfered with her quiet enjoyment of the property by engaging in threats and menacing conduct towards her. (Compl. ¶30.) Plaintiff notes, for instance, that on May 2, 2017, Defendant Guardinieri knocked on her door and, when she answered the door, called her “a criminal trespasser and vagrant” that would “be arrested for her criminal actions.” (Compl. ¶31.)

Defendants argue that Plaintiff’s first four causes of action are improper because Civil Code section 789.3 upon which the first three causes of action rely and Civil Code section 1940.2 upon which the fourth cause of action relies provide for specified damages for the alleged violations, none of which are punitive damages.

Civil Code section 789.3(c) states in pertinent part: “Any landlord who violates this section shall be liable to the tenant in a civil action for all of the following: (1) Actual damages of the tenant. (2) An amount not to exceed one hundred dollars ($100) for each day or part thereof the landlord remains in violation of this section.” Civil Code section 789.3(d) states in pertinent part: “The remedy provided by this section is not exclusive and shall not preclude the tenant from pursuing any other remedy which the tenant may have under any other provision of law.”

Civil Code section 1940.2(b) states: “A tenant who prevails in a civil action, including an action in small claims court, to enforce his or her rights under this section is entitled to a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each violation.”

Defendants’ argument is not well-taken. Remedies under Civil Code section 789 are “not exclusive” and do not “preclude the tenant from pursuing any other remedy which the tenant may have.” Accordingly, punitive damages are available. Fernandes v. Singh (2017) 16 Cal.App.5th 932, 944. As to Civil Code section 1940.2, the California Supreme Court has expressly ruled that “punitive damages may be awarded in an action by a residential tenant based on the landlord’s interference with peaceful possession.” Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055. Thus, Plaintiff’s Civil Code section 1940.2 claim premised on interference with her quiet enjoyment of the premises serves as a viable basis to be awarded punitive damages.

All Causes of Action Seeking Punitive Damages

Defendants also argue that Plaintiffs have not alleged facts showing that they acted with malice, oppression, or fraud within the meaning of Civil Code section 3294.

In order to state a prima facie claim for punitive damages, a complaint must set forth allegations that the defendant has been guilty of oppression, fraud, or malice in accordance with Civil Code section 3294. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) Conclusory allegations that defendant’s conduct was intentional, willful, and fraudulent are a patently insufficient statement of oppression, fraud, or malice. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

The court agrees with Defendant in part. Plaintiff’s allegations supporting malice, fraud, oppression in her first three causes of action are conclusory. In these first three causes of action, Plaintiff alleges without support that Defendants acted “willfully and maliciously” to terminate her water and electricity utilities and remove her generator and toolbox. (Compl. ¶¶ 10, 19, 25.) This is improper and the allegations are therefore stricken. However, the court reaches a different conclusion as to Plaintiff’s fourth, fifth, seventh, and eighth causes of action. In support of these other causes of action, Plaintiff specifically alleges that Defendant Guardinieri called her “a criminal trespasser and vagrant” and noted that would “be arrested for her criminal actions.” (Compl. ¶ 31.) Plaintiff alleges that, subsequently, Guardinieri interrupted Plaintiff by “banging” on the walls of her rental unit and yelling that “the police were wrong, nothing has changed, and you [Plaintiff] are still a criminal.” (Compl. ¶34.) Plaintiff also alleges that Guardinieri instructed an unknown female to haul away Plaintiff’s personal property from the premises as according to Guardinieri, “no one lived at the Premises” anymore even though Guardinieri knew this not to be true. (Compl. ¶38.) The court finds that these allegations are sufficiently particularized and supportive of Plaintiff’s punitive damages claim.

CONCLUSION

The motion is GRANTED WITH LEAVE TO AMEND only as to Plaintiff’s first, second, and third causes of action. Plaintiff is granted 20 days from the date of this order to file an amended complaint alleging a valid basis for punitive damages as to her first three causes of action.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: November 27, 2018

_____________________________

Christopher K. Lui

Judge of the Superior Court