2017-00214099-CU-PO

Patrice Brown vs. Lamia Merced Fityan

Nature of Proceeding: Motion to Strike Portions of the 1st Amended Complaint

Filed By: Lau, Wilson

Defendants’ Motion to Strike the Specified Portions of the Plaintiff’s First Amended Complaint is DENIED. C.C.P., secs. 435(b)(1); 436

A motion to strike is appropriate to strike out any irrelevant, false, or improper matter, 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. Code Civil Procedure sections 435, 436, California Rules of Court, Rule 3.1322.

On Dec. 20, 2017, this Court previously granted the motion to strike the claim for punitive damages, with leave to amend.

On Jan. 11, 2018, Plaintiffs filed their FAC.

Defendants move under Code of Civil Procedure, §435 (b) (1) to strike “any irrelevant, false or improper matter inserted in any pleading.” (Code of Civil Procedure section 436(a).) It also may be used to “strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state.” (Code of Civil Procedure section 436(b).) A Motion to Strike is the proper method to challenge an improper request for punitive damages. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) 7:185, p: 7(l)-69; Caliber Bodyworks. Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385.)

Plaintiffs allege causes of action for Negligence, Breach of Implied Warranty of Habitability, and Negligent Maintenance of Premises and Nuisance arising out of their tenancy. Defendant Fityan is the landlord and defendant Loffman is the property manager.

Plaintiffs allege that they were tenants of an apartment that defendants Lamia Merced Fityan and Debra K. Loffman owned, operated, maintained, and controlled, located at 2955 Portsmouth Drive, #3, Rancho Cordova, CA, 95670, Sacramento County.

Plaintiffs moved into the residence on or about June, 2015, and have lived there continuously until the present.

Plaintiffs allege that defendants failed to exercise ordinary care in the management of 2955 Portsmouth Drive, #3 by allowing a cockroach infestation; no screens on windows, with a wasp nest outside; junk, rubbish and trash throughout the common areas; overgrown weeds in commons areas; loose toilet; no light in hallway; inoperable plug in bathroom; no smoke detectors or carbon monoxide detectors.

It is alleged that commencing on or about June, 2015, and continuing until the present, and thereafter, plaintiff, and/or code enforcement, and/or others, repeatedly notified defendants both orally and in writing of the defective and dangerous conditions described in this complaint and requested that defendants have them repaired or corrected, but defendants failed and refused to repair them, or any of them, or to have them or any of them repaired or corrected, within a reasonable time or at all, or if they did attempt to repair or correct made inadequate efforts. (FAC ¶ ¶ 4, 5, 6, 13)

Here moving parties move to strike only the prayer for punitive damages, on the grounds that it is not supported by any of the allegations of the FAC for negligence, breach of implied warranty of habitability, negligent maintenance of the premises, nuisance or unlawful business practice. C.C.P., sec. 3249 (a)

In opposition, plaintiffs contend that punitive damages are requested only for the 4th cause of action for maintenance of a nuisance. (FAC ¶ 30)

Appellant’s tenancy is a sufficient property interest to give her standing to bring an action based on nuisance. A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable. (Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 321.) In maintaining a nuisance, acting with full

knowledge of the consequences thereof and the damage being caused to plaintiff, one may conclude that their conduct was willful, oppressive and malicious. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.)

Here, plaintiffs alleged that defendant had actual knowledge of defective conditions in the premises including cockroach infestation; no screens on windows, with a wasp nest outside; junk, rubbish and trash throughout the common areas; overgrown weeds in commons areas; loose toilet; no light in hallway; inoperable plug in bathroom; no smoke detectors or carbon monoxide detectors.

Civil Code § 3294(a), allows recovery only if a plaintiff proves, by clear and convincing evidence, “that the defendant has been guilty of oppression, fraud, or malice.” Additionally, it is a universally-recognized principle that ‘[t]he law does not favor punitive damages and they should be granted with the greatest caution.'” (Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1392.) California courts require that specific facts be pled in support of punitive damage allegations; mere conclusions are not enough. (Hilliard v. A.H. Robbins (1983) 148 Cal.App.3d 374, 391; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7; Grieves v. Superior Court, supra, 157 Cal.App.3d at 166.)

To establish malice, a plaintiff must demonstrate that the defendant acted not just with a conscious disregard of the rights or safety of others, but also that the defendant willfully engaged in despicable conduct. (Civil Code section 3294(c)(1); College Hospital, Inc., supra, 8 Cal.4th at p. 713.) As the Supreme Court noted in College Hospital, the reference to “despicable” conduct is a substantive limitation on punitive damage awards because the term refers to circumstances which are base, vile or contemptible. (8 Cal.4th at p. 725.) Likewise, oppression requires “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard” of another’s rights. (Civil Code, section 3294(c)(2).) In other words, the bar for recovery of punitive damages under Civil Code section 3294 is quite high.

Defendant contends plaintiffs fail to state specific facts which show that defendant acted with malice because no facts are alleged that support the conclusory allegation that defendants had knowledge the defective conditions and intentionally left the conditions unabated.

In opposition, plaintiffs rely on the case of Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 which discussed the availability of punitive damages in an action for intentional nuisance. [“A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable.” (citation omitted)] Thus, even though plaintiffs have not alleged intentional nuisance, they contend the pleading is sufficient to state a claim for punitive damages in connection with the nuisance action. In Stoiber, the court concluded that the plaintiff had pleaded sufficient facts to support her claim for exemplary damages where she alleged “that defendant had actual knowledge of defective conditions in the premises including leading sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions…[and] also alleged that defendants ‘In maintaining said nuisance,…acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.’” (Id. at p.920.)

In response to the court’s ruling on the first motion to strike the original complaint,

Plaintiffs have amended the allegations at paragraph 30, page 6, to allege the oppressiveness and maliciousness of the defendants that is shown by defendants’ actions in having plaintiffs’ car towed even though it was properly parked, operable, and registered. Also in June, 2017, after the Rancho Cordova Code Enforcement Division issued its Notice and Order of May 5, 2017, declaring the subject property to be a nuisance with a correction date of June 2017, the defendants caused a 60 day notice of termination of tenancy to be served on plaintiffs in retaliation for their cooperation with the code enforcement division.”

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 are devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice. Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041. Non-intentional conduct can only support a punitive damage award if the defendant intentionally performs an act, and that act is of such severity and shocking character that it warrants the same treatment as that accorded willful misconduct. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279.)

Plaintiff asserts that these are circumstances that are “despicable” under the holding of College Hospital. Inc. v. Superior Ct. (1994) 8 Cal4th 704, 725, in that the conduct is “base, vile, or contemptible.” The elements of punitive damages “may be proven directly or by implication.” (Colonial Life & Accident Ins. Co. v. Superior Court (1982)

31 Cal.3d 785, 792.)

The defendants’ retaliation against plaintiffs for her complaints about a nuisance, and her cooperation with the Rancho Cordova Enforcement Division was intentional, and therefore may be found to be both oppressive and malicious within the meaning of Civil Code Section 3294 in that it subjected plaintiff to cruel and unjust hardship in willful and conscious disregard of plaintiff’s rights and safety, thereby entitling plaintiff to an award of punitive damages.” (FAC ¶ 30)

Defendants’ shall file and serve their Answer to the FAC, as modified, not later than Monday, March 26, 2018.