Demurrer & Motion to Strike (Judge Theodore C. Zayner)


Case Name:??? Prater v. Sanchez

Case No.: ?????? 16-CV-297663

This is a personal injury case brought by plaintiff Christopher Prater (?Plaintiff?) against defendant Mark Sanchez doing business as Sanchez Properties (?Defendant?), who apparently owns and/or operates the property where Plaintiff resides.

Plaintiff alleges Defendant engaged in the following wrongful conduct during his tenancy: (1) Defendant let a real estate agent into his apartment without permission or 24 hours advance notice; (2) Defendant stated he was getting on Defendant?s nerves because he brought up a concern about leaving rent checks in the office; (3) Defendant refused to fix his air conditioning and heater unit; (4) Defendant had a noisy garage sale that disturbed his Sunday morning; and (5) Defendant?s maintenance employee damaged his front door in an attempt to burglarize it.

Plaintiff asserts the following causes of action against Defendant: (1) Negligence; (2) Duty of Care; (3) Breach of Duty of Care; (4) Willful Misconduct; and (5) Damages/Injury. Plaintiff seeks compensatory damages, mental duress damages, punitive damages, and an order to not be retaliated against for filing this action.

Defendant demurs to the second, third, fourth, and fifth causes of action on the grounds of uncertainty and failure to state sufficient facts to constitute a cause of action. Defendant additionally moves to strike various allegations from the pleading on the grounds they are irrelevant or improper. Plaintiff opposes both the demurrer and motion to strike.

  1. Demurrer

?A demurrer tests only the legal sufficiency of the pleading.? (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) When ruling on a demurrer on the ground of failure to state sufficient facts, courts treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The complaint must contain ?a statement of facts constituting the cause of action, in ordinary and concise language.? (Code Civ. Pro., ? 425.10, subd. (a).) In order to survive a demurrer on the ground of failure to state sufficient facts, a complaint must allege sufficient facts for each essential element that makes up a cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872; see also Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at pp. 57-61.)

To avoid a demurrer for uncertainty, the plaintiff must ??set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.? [Citations.]? ?(Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) ?A demurrer for uncertainty should only be sustained when the complaint is so unclear that a defendant cannot reasonably respond. (Khoury v. Maly?s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.)

  1. Second, Third, and Fifth Causes of Action

Defendant argues the second, third, and fifth causes of action are defective because they appear to be the elements of the first cause of action for negligence and not separate causes of action. In opposition, Plaintiff does not directly respond to Defendant?s arguments. He merely recites facts not present in the Complaint and general principles of law. Plaintiff emphasizes he asserts a cause of action for negligence, but Defendant does not demur to that cause of action in the first instance.

Defendant?s arguments about the sufficiency and clarity of these particular causes of action are meritorious. Here, Plaintiff?s second, third, and fifth causes of action for duty of care, breach of duty, and injury are, separately, merely elements of a negligence claim. (See McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Plaintiff?s allegations are merely statements of law and he does not incorporate any other preceding allegations. In his second cause of action, he merely cites a general principle for distinguishing between passive negligence and negligent omission. In his third cause of action, Plaintiff alleges Defendant had a legal duty to exercise due care. He also includes general principles pertaining to negligence and the duty to exercise due care. In his fifth cause of action, he asserts the general principle of liability in a negligence claim. He also includes a statement of law for when a landlord can be charged with responsibility for a defective condition on the premises. There are no factual allegations whatsoever in these causes of action, let alone facts resembling any particular cause of action. And once again, a negligence cause of action is already asserted and not being challenged on demurrer. Thus, Plaintiff?s second, third, and fifth causes of action fail to state any viable claim. They are also fatally uncertain because Defendant cannot reasonably ascertain the nature, scope, and extent of the claims.

Accordingly, the demurrer to the second, third, and fifth causes of action on the grounds of uncertainty and failure to state sufficient facts is SUSTAINED without leave to amend. Plaintiff fails to demonstrate how he can cure the defects in those claims to state any independent cause of action. (See 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?].)

?

  1. Fourth Cause of Action

Defendant contends that Plaintiff?s fourth cause of action for willful misconduct is unclear and factually deficient because Plaintiff fails to allege what the willful misconduct is. Once again, Plaintiff does not directly respond to Defendant?s arguments.

?Willful misconduct is an aggravated form of negligence. [Citation.] Three essential elements must be present to raise a negligent act to the level of wil[l]ful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citation.]? (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 895 [internal quotation marks ommitted].) A claim of willful misconduct can only be stated by alleging the specific act or omission that caused the injury. (Snider v. Whitson (1960) 184 Cal.App.2d 211, 215.)

The only material facts Plaintiff states in his fourth cause of action are: (1) Defendant was aware of his actions; (2) Defendant failed to take necessary precautions to keep him safe; (3) he was the only African American male in the apartment building; and (4) the other tenants were Mexican Americans, and aliens. (Complaint, p. 6:22-27.) Plaintiff does not specifically identify the actions by Defendant that form the basis for this claim, and he did not even incorporate any preceding allegations into the fourth cause of action. Furthermore, given the surrounding allegations, the nature and source of the cause of action is uncertain.

Accordingly, the demurrer to the fourth cause of action on the grounds of uncertainty and failure to state sufficient facts is SUSTAINED with 10 days? leave to amend.

  1. Motion to Strike

Defendant moves to strike various portions of Plaintiff?s Complaint pursuant to Code of Civil Procedure sections 435 and 436. On a motion to strike portions of a pleading under Code of Civil Procedure section 435, a court may strike out any improper or irrelevant matter, including improper damages. (Code Civ. Proc., ? 436, subd. (a); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.)

First, a number of allegations Defendant moves to strike directly relate solely and exclusively to the second through fifth causes of actions, specifically page 5, paragraph 12; pages 5 through 6, paragraphs 13 through 15; pages 6 through 7, paragraphs 16 through 17; page 7, paragraphs 18 through 19; and page 8, line 10. In light of the Court?s ruling on Defendant?s demurrer, the motion to strike these allegations is moot.

The remaining allegations consist of page 3, paragraph 11(g); page 2, paragraph 4; page 3, paragraph 14(a)(2); and page 8, lines 7 through 8. The sole argument advanced in support of the motion to strike these allegations is that Plaintiff fails to set forth sufficient facts to support the recovery of punitive damages. However, most of these do not appear to be allegations for punitive damages in the first instance. In paragraph 4 at page 2, Plaintiff asserts the Court has original jurisdiction over this action pursuant to Code of Civil Procedure section 1008 and California Rule of Court, rule 8.128. At page 8, lines 7 and 8, Plaintiff prays ?[t]o not be retaliated against by defendant for filing this claim, and being evicted from his residence.? In paragraph 11(g) at page 3, Plaintiff asserts he suffered ?other? damages and, in support, alleges that: ?Mr. Sanchez was well aware of his actions and failed to take the necessary precautions to keep plaintiff safe. Plaintiff was the only African American male in the apartment bldg. The other tenant Mexican American, and plaintiff felt the racial tension within the unit.? Defendant does not say how or why these allegations, which are not patently part of a claim for punitive damages, are improper or irrelevant. Thus, the motion to strike these allegations is unsubstantiated. (See Cal. Rules of Court, rule 3.1113(b) [memorandum must contain statement of law, arguments relied on, and discussion of law cited in support of position advanced].)

The only allegation Defendant moves to strike that relates to punitive damages is at page 3, paragraph 14(a)(2), where Plaintiff checks a box on the form complaint indicating he seeks punitive damages. Defendant argues there are no facts supporting a claim for punitive damages. Specifically, he contends Plaintiff failed to allege his conduct was despicable, a necessary element required for an award of punitive damages. He also argues that punitive damages cannot be claimed on a negligence cause of action alone.

Punitive damages are recoverable when a defendant engages in acts of oppression, fraud, or malice. (Code Civ. Proc., ? 3294, subd. (a).) A complaint must set forth specific facts to support a claim for punitive damages. (Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 962?963.) While a plaintiff can claim punitive damages for willful misconduct, he or she cannot claim punitive damages for general negligence. (See Johns-Manville Sales Corp. v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 930-931; see also Donnelly v. Southern Pac. Co. (1941) 18 Cal.2d 863, 869?870.) Because Plaintiff?s only surviving cause of action after the Court?s ruling on demurrer is the first cause of action for negligence, and a negligence cause of action does not support a claim for punitive damages, the motion to strike his claim for punitive damages is warranted.

 

Accordingly, the motion to strike the request for punitive damages at page 3, paragraph 14(a)(2) is GRANTED with 10 days? leave to amend; DENIED as to the allegations at page 2, paragraph 4, page 3, paragraph 11(g), and page 8, lines 7 and 8; and MOOT as to the balance of the motion.