Nature of Proceedings: Motion Strike 3rd Amended Complaint

CASE:

Alfred Pirjanians, et al. v. Windsor Capital Group, Inc., Case No. 16CV03797 (Judge Sterne)

HEARING DATE:                April 9, 2018

MATTER:

Motion to Strike Portions of Plaintiffs’ Third Amended Complaint without Leave to Amend

ATTORNEYS:

Gor Mnatsakanyan for Plaintiffs Alfred Pirjanians, Arusyak Pirjanians, and Aidan Pirjanians

Zojeila I. Flores for Defendant Windsor Capital Group, Inc.

TENTATIVE RULING:        Defendant’s motion to strike the punitive damages allegations in plaintiffs’ third amended complaint is granted without leave to amend. Paragraphs 25, 44, 52, 53, 54, 55, 56, 70, 77, 87, and 103, as well as the prayer at page 23:25, are ordered stricken.

BACKGROUND:

This action arises out of a fall that occurred on November 22, 2015 at the Embassy Suites Hotel in Lompoc, California. At the time of the incident, plaintiff Alfred Pirjanians was a guest at the hotel along with his wife, plaintiff Arusyak Pirjanians, and their two year old son, plaintiff Aidan Pirjanians. The hotel is owned by defendant Windsor Capital Group, Inc. The room where the Pirjanianses were staying was advertised as ADA compliant and included a shower that was equipped with a fold-down seat attached to the shower wall. Plaintiff Alfred Pirjanians alleges that when he sat down on the seat and was preparing to take a shower while holding his son in his lap, the seat suddenly collapsed, causing him and his son to fall to the tile floor and sustain severe injuries. Plaintiffs’ third amended complaint, filed on January 25, 2018, alleges causes of action for (1) premises liability, (2) negligence, (3) negligence per se, (4) negligent infliction of emotional distress, and (5) loss of consortium. Punitive damages are sought as part of the premises liability and loss of consortium claims.

 

Defendant now moves to strike the punitive damages allegations on the ground that insufficient facts are alleged that defendant acted with the requisite malice, oppression, or fraud to support such a claim.

 

ANALYSIS:

 

“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.” Code Civ. Proc. §435, subd. (b)(1). A motion to strike may be brought to strike out “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.” Code Civ. Proc. §436, subd. (b). A motion to strike may also be brought to strike out “any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436, subd. (a). “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” Code Civ. Proc. §431.10, subds. (b)(3) and (c).

 

In the present case, defendant moves the court for an order striking the allegations and prayer for punitive damages. In order to state a claim for punitive damages, the plaintiff must allege facts which, if proven, demonstrate that the defendant acted with malice, oppression, or fraud. Civ. Code §3294; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721. “Malice” means “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.” Civ. Code §3294, subd. (c)(1). “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civ. Code §3294, subd. (c)(2). “Fraud” means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Civ. Code §3294, subd. (c)(3). Defendant argues that no such facts are alleged in the third amended complaint. The court agrees.

 

A plaintiff seeking punitive damages is required to allege specific evidentiary facts to support the allegations of malice, oppression, or fraud. Clauson v. Los Angeles Superior Court (1998) 67 Cal.App.4th 1253, 1255.   “[The] conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement . . . [for] section 3294.” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Lehto v. Underground Construction Company (1977) 69 Cal.App.3d 933, 944 (“’It is essential that the facts and circumstances which constitute the [claim for punitive damages] be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation [for the claim].”). Where the plaintiff has failed to allege specific facts showing that the defendant acted with malice, oppression, or fraud, the court is empowered to strike the punitive damages claim. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.

 

The only facts alleged in the third amended complaint to support an award of punitive damages are the following:

 

● “[G]uests and invitees of the SUBJECT PREMISES for several years have filed numerous complaints, through HILTON’s ‘Guest Assistance Case’ program, and through various consumer review websites, reporting about long existing dilapidated and deteriorated condition of the SUBJECT PREMISES.”

 

● “HILTON conducted semi-annual EVALUATIONS of the SUBJECT PREMISES on December 19, 2013, June 13, 2014 and December 22, 2014 wherein the SUBJECT PREMISES were graded as ‘UNACCEPTABLE.’”

 

● “On September 30, 2015, a certified access specialist (‘CASp’), Paul A Joelson, conducted an Accessibility Compliance Audit and issued a report (‘REPORT’), which states that the installation of wall-mounted folding shower seat in the guestroom number 104 ‘is not compliant . . . with California Building Code (‘CBC’), and expressly warns [defendant] that in his experience ‘this has been the cause of numerous accidents and injuries.’”

 

● “[T]he REPORT and follow-up CASp reports were provided to Defendant WINDSOR CAPITAL GROUP, INC.’s Vice President of Engineering and Construction, Jose Vanavidas, however they were concealed from the hotel’s Chief Engineer Manuel Villagomez, who also runs the Safety Committee.”

 

● “Plaintiffs are informed and believe, and thereon allege that inspection of the wall-mounted shower seats, including the seat in guestroom number 104 was not a part of [defendant’s] quarterly preventive maintenance inspection.”

 

● “The SEAT in the ADA SUITE was installed approximately 29 years ago and was in [defendant’s] possession and control since 1996, approximately 19 years prior to the incident that is the subject of this lawsuit.”

 

● “The screws used for attaching to the wall one of the flanges of the SEAT were significantly shorter than the screws of the other flange. One flange of the SEAT was mounted with plastic anchors used with the shorter screws, while the other flange was mounted with longer screws but without plastic anchors.”

 

● “[T]he three plastic anchors used for tightening the shorter screws were different compared to one another, as to their color and type/shape. Only one of the plastic anchors has a ribbing designed to create a stronger hold in drywall. In addition, the longer screws were significantly older and rusted compared to the shorter screws used together with the plastic anchors.”

 

● “[T]he size of the screws used for mounting one of the flanges of the SEAT were not long enough to reach the stud or in-wall enforcement/backing of the shower room wall for securely fastening the SEAT. . . . A reasonable person would have recognized the hazard of the SEAT’s collapse and the probability of an injury resulting from such collapse.”

 

● “[T]he SEAT was not compliant with the applicable requirements and standards of CBC, as herein further alleged, and was in unsafe condition.”

 

● “[Defendant was] on actual notice of the unsafe condition of the SEAT through the acts of [its] managing agents and/or employees . . . [who] mounted the SEAT to the wall using screws of a size a reasonable person would consider insufficient for securely fastening the SEAT.”

 

● “At all relevant times, the hotel’s managing agents, including but not limited to its General Manager Golda Escalante, ratified [defendant’s] employees’ willful and conscious concealment of the unsafe conditions existing in handicap accessible suites of the SUBJECT PREMISES, including the ADA SUITE.”

 

(TAC, ¶¶ 19, 20, 23, 25, 27, 29, 30, 31, 37, 38, 40, 44.)

 

Under the heading “PUNITIVE DAMAGES ALLEGATIONS,” plaintiffs allege:

 

● “[Defendant] abandoned [its] duty to implement regular preventive maintenance inspections of the handicap accessible shower seats and failed to conduct adequate inspection of the SEAT for any damage, deterioration or other safety problems.”

 

● “Despite numerous and continuous guest complaints, and despite its franchisor HILTON’s repeated grading of the SUBJECT PREMISES as ‘UNACCEPTABLE,’ [defendant] . . . acting with overriding concern for a minimum-expense operation, [has] not taken available, feasible, and inexpensive measures to repair, refurbish or upgrade deteriorated and dilapidated fixtures, furnishings and equipment of the SUBJECT PREMISES, including the SEAT, for ensuring the safety of its intended users, including Plaintiffs.”

 

● “[Defendant was] on actual and/or constructive notice that the SEAT was dangerous for its intended use and that it would most likely fail under the weight of a user, even if the weight is lower than the minimum required by the applicable law. Yet [defendant] intentionally acted with extreme indifference to the rights and safety of [its] guests, including Plaintiffs, by making calculated preference for paying liability claims to those injured on the SUBJECT PREMISES over incurring expenses for the repair or replacement of the SEAT.”

 

● “[Defendant], acting in complete disregard of guests’ reliance upon implicit representations of safety of the SEAT, [has] unsafely, with inadequate materials and in disregard of the SEAT’s manufacturer, reinstalled the SEAT, concealing the records of past reinstallations.”

 

● “[Defendant] displayed despicable conduct in the context to the situation, exposing Plaintiff Aidan, a two-year-old child, to the risk of injury, knowing that the injury incident scenario described above was probable after repeated failures of the SEAT.”

 

(TAC, ¶¶ 50, 53, 54, 55, 56.)

 

Plaintiffs also allege, in conclusory fashion:

 

● “Intentional and calculated misconduct by Defendant qualifies as malicious, in conscious disregard of the rights and safety of the intended users of the SEAT, including Plaintiffs.”

 

● “[Defendant’s] conduct was such as to constitute oppression, fraud, or malice under Civil Code Section 3294, entitling Plaintiffs to punitive damages in an amount appropriate to punish or set an example of [defendant].”

 

● “[Defendant] acted with conscious disregard of the rights and safety of others, including but not limited to the Plaintiffs herein so as to warrant the imposition of punitive damages pursuant to California Civil Code Section 3294.”

 

● “[Defendant] breached one or more of the duties established by CBC acting with willful and conscious disregard of the rights and safety of others, as alleged herein, including but not limited to the Plaintiffs, so as to warrant the imposition of punitive damages pursuant to California Civil Code Section 3294.”

 

● “[Defendant’s] conduct described herein was done with a conscious disregard of Plaintiffs’ safety and displays despicable conduct such as to constitute oppression, fraud, or malice under Civil Code Section 3294, entitling Plaintiffs to punitive damages in an amount appropriate to punish or set an example of [defendant].”

 

(TAC, ¶¶ 52, 70, 77, 87, 103.)

 

Finally, the prayer to the third amended complaint requests “punitive damages and exemplary damages according to proof.” (TAC, p. 23:25.)

 

These allegations do not meet the standards of malice, oppression, or fraud required by Civil Code Section 3294. The CASp report referenced in paragraph 23 states that the wall-mounted shower seats are not compliant with the California Building Code or ADA and warns that “this has been the cause of numerous accidents and injuries,” but the problem may have been that the seats were too high, too low, too narrow, or in the wrong place and not easily accessible by disabled persons and not that the seats were likely to collapse because of poor maintenance. The section of the report that is quoted in the third amended complaint does not state that the seats are dangerous because of the types of screws used or because the seats are in need of repair. In paragraph 25, plaintiffs allege that the CASp report was “concealed” from the hotel’s chief engineer and the safety committee. However, again, the alleged non-compliance issues raised in the report may have had nothing to do with the cause of the subject incident. Plaintiffs allege in paragraph 56 that defendant knew that an injury incident was probable “after repeated failures of the SEAT,” but no other failures are alleged. Not a single complaint regarding the subject seat is identified.

 

Plaintiffs have also failed to plead specific facts in support of their contention that defendant had actual or constructive notice that the subject seat was dangerous and that defendant acted “intentionally” and “with extreme indifference” to the rights and safety of its guests in preferring to pay liability claims of those injured rather than incurring expenses for the repair or replacement of the seat. (TAC, ¶54.) Plaintiffs have merely alleged that defendant was warned that the subject seat was non-compliant (for whatever reason) with the ADA and that the seat created a peril for its guests. (TAC, ¶¶ 40, 46.) Such broad and unsubstantiated allegations amount to little more than conjecture and fail to meet the strict requirements for punitive damages.

 

Plaintiffs argue that the third amended complaint adequately pleads malice because the facts alleged demonstrate that defendant acted with a “willful and conscious disregard of the rights or safety” of its guests, including plaintiffs. However, more than a “willful and conscious disregard of the rights or safety” of others must be alleged to support a claim for punitive damages. As the California Supreme Court explained in College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th 704, 725:

 

“[T]he statute’s reference to ‘despicable’ conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ (4 Oxford English Dict. (2d ed. 1989) p. 529.) As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiff’s interests. The additional component of ‘despicable conduct’ must be found.”

 

Here, the third amended complaint does not allege facts amounting to “despicable conduct” on the part of defendant. While plaintiffs allege careless, or even reckless, maintenance of an older hotel (TAC, ¶¶ 19, 20, 30, 31, 37), these allegations are insufficient to support a claim for punitive damages.

 

Based on the foregoing, the court will grant defendant’s motion to strike the punitive damages allegations in the third amended complaint. Paragraphs 25, 44, 52, 53, 54, 55, 56, 70, 77, 87, and 103, as well as the prayer at page 23:25, are ordered stricken. Because this was plaintiffs’ third attempt at stating a claim for punitive damages, the motion to strike is granted without leave to amend.

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