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This case was last updated from Los Angeles County Superior Courts on 06/02/2019 at 01:03:24 (UTC).

MORIS SAKHAI VS ZIPORA ATWAIN

Case Summary

On 10/28/2016 MORIS SAKHAI filed a Personal Injury - Other Personal Injury lawsuit against ZIPORA ATWAIN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA JESSNER and JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8584

  • Filing Date:

    10/28/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

SAMANTHA JESSNER

JON R. TAKASUGI

 

Party Details

Plaintiffs and Petitioners

AZADEGAN NAZYAR

SAKHAI BRIGITTE

SAKHAI NICOLE

SAKHAI MORIS

Defendants and Respondents

RAYN ASI

DOES 1 TO 20

ATWAIN ZIPORA

Attorney/Law Firm Details

Defendant Attorney

DUNN BRIAN C.

 

Court Documents

NOTICE RE: CONTINUANCE OF HEARING

2/26/2018: NOTICE RE: CONTINUANCE OF HEARING

Minute Order

8/7/2018: Minute Order

Minute Order

11/14/2018: Minute Order

Motion to Strike (not initial pleading)

2/11/2019: Motion to Strike (not initial pleading)

Demurrer - with Motion to Strike

2/11/2019: Demurrer - with Motion to Strike

Opposition

3/20/2019: Opposition

Unknown

3/25/2019: Unknown

Minute Order

3/25/2019: Minute Order

Reply

3/26/2019: Reply

Minute Order

4/2/2019: Minute Order

Notice

4/11/2019: Notice

Case Management Statement

5/9/2019: Case Management Statement

Order

5/13/2019: Order

Minute Order

5/13/2019: Minute Order

Minute Order

5/13/2019: Minute Order

Order

5/23/2019: Order

Order

5/23/2019: Order

SUMMONS

10/28/2016: SUMMONS

18 More Documents Available

 

Docket Entries

  • 05/23/2019
  • Order (re Demurrer)

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  • 05/23/2019
  • Order (Order re Motion to Strike); Filed by Zipora Atwain (Defendant); Asi Rayn (Defendant)

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  • 05/13/2019
  • at 08:30 AM in Department 78; Court Order

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  • 05/13/2019
  • at 08:30 AM in Department 78; Case Management Conference - Held - Continued

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  • 05/13/2019
  • at 08:30 AM in Department 78; Hearing on Demurrer - with Motion to Strike (CCP 430.10) (- to pltf's 1st amended complaint) - Held

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  • 05/13/2019
  • Order (Re Motion to Strike)

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  • 05/13/2019
  • Minute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10) - to...)); Filed by Clerk

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  • 05/13/2019
  • Order (Order re Dumurrer); Filed by Zipora Atwain (Defendant); Asi Rayn (Defendant)

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  • 05/13/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 05/13/2019
  • Certificate of Mailing for (Minute Order (Court Order) of 05/13/2019); Filed by Clerk

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34 More Docket Entries
  • 04/30/2018
  • at 08:30 AM in Department 3; Jury Trial - Not Held - Advanced and Vacated

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  • 04/30/2018
  • Minute order entered: 2018-04-30 00:00:00; Filed by Clerk

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  • 04/18/2018
  • at 08:30 AM in Department 3; Final Status Conference (Final Status Conference; Off Calendar) -

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  • 04/18/2018
  • Minute order entered: 2018-04-18 00:00:00; Filed by Clerk

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  • 02/26/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 02/26/2018
  • NOTICE RE: CONTINUANCE OF HEARING

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  • 02/26/2018
  • Notice Re: Continuance of Hearing and Order; Filed by Clerk

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  • 10/28/2016
  • Complaint; Filed by Moris Sakhai (Plaintiff); Nazyar Azadegan (Plaintiff); Nicole Sakhai (Plaintiff) et al.

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  • 10/28/2016
  • SUMMONS

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  • 10/28/2016
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC638584    Hearing Date: October 14, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MORIS SAKHAI;

Plaintiff,

vs.

zipora atwain, et al.;

Defendants.

Case No.:

BC638584

Hearing Date:

October 14, 2020

[TENTATIVE] RULING RE:

Defendants Zipora Atwain and Asi Rayn’s demurrer and Motion to Strike Portions of the second Amended Complaint

Defendants Zipora Atwain and Asi Rayn’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendants Zipora Atwain and Asi Rayn’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Factual Background

This is an action for negligence. The Second Amended Complaint (“SAC”) alleges as follows. Defendants Zipora Atwain (“Atwain”) and Asi Rayn (“Rayn”) negligently or intentionally caused water damage to Plaintiff Moris Sakhai’s (“Sakhai”) condominium unit by not promptly stopping water to flow excessively from their condominium unit to Sakhai’s unit. (SAC ¶¶ GN-1, IT-1.)

procedural history

Sakhai filed the original Complaint on October 28, 2016, alleging five causes of action:

  1. Negligence

  2. Trespass

  3. Intentional Emotional Distress

  4. Breach of Contract

  5. Tortious Breach of Contract

Sakhai filed the First Amended Complaint (“FAC”) on January 1, 2019, alleging the same causes of action.

On April 4, 2019, this case was transferred from Department 3 to Department 78.

On May 13, 2019, the Court sustained with leave to amend Atwain and Rayn’s Demurrer to the Fourth Cause of Action in the FAC. The Court also granted with leave to amend the Motion to Strike as to the prayer for punitive damages and the FAC’s mention of claims for breach of contract and tortious breach of contract, and denied as to the mention of “Personal Injury” in the complaint’s label.

On July 18, 2019, Sakha filed the SAC, alleging four causes of action:

  1. Negligence

  2. Intentional Tort (property damage)

  3. Trespass

  4. Intentional Infliction of Emotional Distress

On March 26, 2020 (and again on March 27, 2020), Defendants filed the instant Demurrer and Motion to Strike.

No Opposition has been filed.

Discussion

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action.¿(See id.¿§ 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”¿(Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”) 

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Defendants demur to the Fourth Cause of Action.

  1. Fourth Cause of Action – Intentional Infliction of Emotional Distress

    “A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007, review denied (Dec. 11, 2019).)

    Defendants argue that the SAC has not corrected the errors in the FAC, and that the SAC continues to not plead sufficient facts to establish a cause of action for IIED. (Motion at pp. 5-6.)

    The SAC for the Fourth Cause of Action pleads as follows: “Defendants’ intentional conduct by delaying their efforts to cut off the water flowing from their unit causing substantial damage to the plaintiff’s property, was deliberate, malicious and callos (sic) proximately causing the plaintiffs intentional infliction of Emotional Distress.” (SAC, ¶ IT-1, p. 7.)

    For a claim to successfully plead a cause of action for IIED, it must plead extreme and outrageous conduct: “A defendant's conduct is considered to be outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Crouch v. Trinity Christian Center of Santa Ana, Inc., supra, 39 Cal.App.5th at 1007.) A “The defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) Further, for the “severe emotional distress” element, the “court has set a high bar[,]” “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Id.)

    Here, the SAC does not allege that the Defendants intended to cause injury. (SAC, ¶ IT-1, p. 7.) However, the SAC does allege that the Defendants waited several hours to attempt to stop the flooding. (SAC, ¶ IT-1, p. 5.)

    Generally, acts of omission, are insufficient to establish a claim for IIED. (See, Spackman v. Good (1966) 245 Cal.App.2d 518, 531.) However, allegations that the defendants should have known that their omission would likely cause injury can support a claim for IIED. (Id.) In this case the allegation that Defendants waited several hours before even attempting to stop the flooding, in a multi-unit building with other occupants, the Defendants created a situation where it was likely that a neighbor in another unit could be injured by the flooding waters including drowning/death/injury/emotional distress due to fear of drowning/death/injury/destruction of personal property.

    At the hearing for this motion on August 26, 2020, Defendants reiterated the same arguments found in their Opposition. Citing Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, Defendants contend that the SAC does not allege a cause of action for emotional distress. Christensen held that conduct must be directed towards a particular individual. (Id. at 903.) However, more recent case law has disavowed this narrow requirement for IIED. As already discussed above, where a Defendant acts in “reckless disregard of the probability of causing, severe emotional distress,” a claim for IIED may be found. (Crouch, supra, 39 Cal.App.5th 995, 1011.) There is not a heightened pleading standard for IIED. Here, because the SAC alleges that Defendants’ waited several hours to begin to stop the flow of water from their unit, while residing in a multi-unit building, caused Plaintiffs to suffer emotional distress, the SAC sufficiently alleges a cause of action for IIED. Any assessment of whether Defendants may be liable under this cause of action is a factual determination not appropriate on demurrer.

    Accordingly, the Demurrer to the Fourth Cause of Action in the SAC is OVERRULED.

  1. MOTION TO STRIKE

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(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike the prayer for punitive damages from the SAC. (Motion at p. 1.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “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.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713.)

Here, the SAC alleges only commission of a tort. However, the SAC also allege that Defendants waited several hours to “attempt to avert the flooding” in a multi-unit building with other occupants. These allegations satisfy the requirement that the Defendants acted in “conscious disregard” of the potential dangers to others. (SAC, ¶ IT-1, p. 5.) This supports a prayer for punitive damages.

Accordingly, Defendants’ Motion to Strike is DENIED.

DATED: October 14, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC638584    Hearing Date: August 26, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MORIS SAKHAI;

Plaintiff,

vs.

zipora atwain, et al.;

Defendants.

Case No.:

BC638584

Hearing Date:

August 26, 2020

[TENTATIVE] RULING RE:

Defendants Zipora Atwain and Asi Rayn’s demurrer and Motion to Strike Portions of the second Amended Complaint

Defendants Zipora Atwain and Asi Rayn’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendants Zipora Atwain and Asi Rayn’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Factual Background

This is an action for negligence. The Second Amended Complaint (“SAC”) alleges as follows. Defendants Zipora Atwain (“Atwain”) and Asi Rayn (“Rayn”) negligently or intentionally caused water damage to Plaintiff Moris Sakhai’s (“Sakhai”) condominium unit by not promptly stopping water to flow excessively from their condominium unit to Sakhai’s unit. (SAC ¶¶ GN-1, IT-1.)

procedural history

Sakhai filed the original Complaint on October 28, 2016, alleging five causes of action:

  1. Negligence

  2. Trespass

  3. Intentional Emotional Distress

  4. Breach of Contract

  5. Tortious Breach of Contract

Sakhai filed the First Amended Complaint (“FAC”) on January 1, 2019, alleging the same causes of action.

On April 4, 2019, this case was transferred from Department 3 to Department 78.

On May 13, 2019, the Court sustained with leave to amend Atwain and Rayn’s Demurrer to the Fourth Cause of Action in the FAC. The Court also granted with leave to amend the Motion to Strike as to the prayer for punitive damages and the FAC’s mention of claims for breach of contract and tortious breach of contract, and denied as to the mention of “Personal Injury” in the complaint’s label.

On July 18, 2019, Sakha filed the SAC, alleging four causes of action:

  1. Negligence

  2. Intentional Tort (property damage)

  3. Trespass

  4. Intentional Infliction of Emotional Distress

On March 26, 2020 (and again on March 27, 2020), Defendants filed the instant Demurrer and Motion to Strike.

No Opposition has been filed.

Discussion

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action.¿(See id.¿§ 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”¿(Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”) 

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Defendants demur to the Fourth Cause of Action.

  1. Fourth Cause of Action – Intentional Infliction of Emotional Distress

    “A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007, review denied (Dec. 11, 2019).)

    Defendants argue that the SAC has not corrected the errors in the FAC, and that the SAC continues to not plead sufficient facts to establish a cause of action for IIED. (Motion at pp. 5-6.)

    The SAC for the Fourth Cause of Action pleads as follows: “Defendants’ intentional conduct by delaying their efforts to cut off the water flowing from their unit causing substantial damage to the plaintiff’s property, was deliberate, malicious and callos (sic) proximately causing the plaintiffs intentional infliction of Emotional Distress.” (SAC, ¶ IT-1, p. 7.)

    For a claim to successfully plead a cause of action for IIED, it must plead extreme and outrageous conduct: “A defendant's conduct is considered to be outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Crouch v. Trinity Christian Center of Santa Ana, Inc., supra, 39 Cal.App.5th at 1007.) A “The defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) Further, for the “severe emotional distress” element, the “court has set a high bar[,]” “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Id.)

    Here, the SAC does not allege that the Defendants intended to cause injury. (SAC, ¶ IT-1, p. 7.) However, the SAC does allege that the Defendants waited several hours to attempt to stop the flooding. (SAC, ¶ IT-1, p. 5.)

    Generally, acts of omission, are insufficient to establish a claim for IIED. (See, Spackman v. Good (1966) 245 Cal.App.2d 518, 531.) However, allegations, where that the defendants should have known that their omission would likely cause injury, can support a claim for IIED. (Id.) In this case, the allegation that Defendants waited several hours before even attempting to stop the flooding, in a multi-unit building with other occupants, as a result of which the Defendants created a situation where it was likely that a neighbor in another unit could be injured by the flooding waters including drowning/death/injury/emotional distress due to fear of drowning/death/injury/destruction of personal property is sufficient for purposes of demurrer.

    Accordingly, the Demurrer to the Fourth Cause of Action in the SAC is OVERRULED.

  1. MOTION TO STRIKE

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(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike the prayer for punitive damages from the SAC. (Motion at p. 1.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “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.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713.)

Here, the SAC alleges the commission of a tort. However, the SAC also allege that Defendants waited several hours to “attempt to avert the flooding” in a multi-unit building with other occupants. These allegations satisfy the requirement that the Defendants acted in “conscious disregard” of the potential dangers to others. (SAC, ¶ IT-1, p. 5.) This supports a prayer for punitive damages.

Accordingly, Defendants’ Motion to Strike is DENIED.

DATED: August 26, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC638584    Hearing Date: August 24, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

MORIS SAKHAI;

Plaintiff,

vs.

zipora atwain, et al.;

Defendants.

Case No.:

BC638584

Hearing Date:

August 26, 2020

[TENTATIVE] RULING RE:

Defendants Zipora Atwain and Asi Rayn’s demurrer and Motion to Strike Portions of the second Amended Complaint

Defendants Zipora Atwain and Asi Rayn’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendants Zipora Atwain and Asi Rayn’s Motion to Strike Portions of the First Amended Complaint is DENIED.

Factual Background

This is an action for negligence. The Second Amended Complaint (“SAC”) alleges as follows. Defendants Zipora Atwain (“Atwain”) and Asi Rayn (“Rayn”) negligently or intentionally caused water damage to Plaintiff Moris Sakhai’s (“Sakhai”) condominium unit by not promptly stopping water to flow excessively from their condominium unit to Sakhai’s unit. (SAC ¶¶ GN-1, IT-1.)

procedural history

Sakhai filed the original Complaint on October 28, 2016, alleging five causes of action:

  1. Negligence

  2. Trespass

  3. Intentional Emotional Distress

  4. Breach of Contract

  5. Tortious Breach of Contract

Sakhai filed the First Amended Complaint (“FAC”) on January 1, 2019, alleging the same causes of action.

On April 4, 2019, this case was transferred from Department 3 to Department 78.

On May 13, 2019, the Court sustained with leave to amend Atwain and Rayn’s Demurrer to the Fourth Cause of Action in the FAC. The Court also granted with leave to amend the Motion to Strike as to the prayer for punitive damages and the FAC’s mention of claims for breach of contract and tortious breach of contract, and denied as to the mention of “Personal Injury” in the complaint’s label.

On July 18, 2019, Sakha filed the SAC, alleging four causes of action:

  1. Negligence

  2. Intentional Tort (property damage)

  3. Trespass

  4. Intentional Infliction of Emotional Distress

On March 26, 2020 (and again on March 27, 2020), Defendants filed the instant Demurrer and Motion to Strike.

No Opposition has been filed.

Discussion

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action.¿(See id.¿§ 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”¿(Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”) 

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Defendants demur to the Fourth Cause of Action.

  1. Fourth Cause of Action – Intentional Infliction of Emotional Distress

    “A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007, review denied (Dec. 11, 2019).)

    Defendants argue that the SAC has not corrected the errors in the FAC, and that the SAC continues to not plead sufficient facts to establish a cause of action for IIED. (Motion at pp. 5-6.)

    The SAC for the Fourth Cause of Action pleads as follows: “Defendants’ intentional conduct by delaying their efforts to cut off the water flowing from their unit causing substantial damage to the plaintiff’s property, was deliberate, malicious and callos (sic) proximately causing the plaintiffs intentional infliction of Emotional Distress.” (SAC, ¶ IT-1, p. 7.)

    For a claim to successfully plead a cause of action for IIED, it must plead extreme and outrageous conduct: “A defendant's conduct is considered to be outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Crouch v. Trinity Christian Center of Santa Ana, Inc., supra, 39 Cal.App.5th at 1007.) A “The defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051.) Further, for the “severe emotional distress” element, the “court has set a high bar[,]” “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Id.)

    Here, the SAC does not allege that the Defendants intended to cause injury. (SAC, ¶ IT-1, p. 7.) However, the SAC does allege that the Defendants waited several hours to attempt to stop the flooding. (SAC, ¶ IT-1, p. 5.)

    Generally, acts of omission, are insufficient to establish a claim for IIED. (See, Spackman v. Good (1966) 245 Cal.App.2d 518, 531.) However, allegations, where that the defendants should have known that their omission would likely cause injury, can support a claim for IIED. (Id.) In this case, the allegation that Defendants waited several hours before even attempting to stop the flooding, in a multi-unit building with other occupants, as a result of which the Defendants created a situation where it was likely that a neighbor in another unit could be injured by the flooding waters including drowning/death/injury/emotional distress due to fear of drowning/death/injury/destruction of personal property is sufficient for purposes of demurrer.

    Accordingly, the Demurrer to the Fourth Cause of Action in the SAC is OVERRULED.

  1. MOTION TO STRIKE

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(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike the prayer for punitive damages from the SAC. (Motion at p. 1.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

  1. “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.

  2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

  3. “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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713.)

Here, the SAC alleges the commission of a tort. However, the SAC also allege that Defendants waited several hours to “attempt to avert the flooding” in a multi-unit building with other occupants. These allegations satisfy the requirement that the Defendants acted in “conscious disregard” of the potential dangers to others. (SAC, ¶ IT-1, p. 5.) This supports a prayer for punitive damages.

Accordingly, Defendants’ Motion to Strike is DENIED.

DATED: August 26, 2020

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

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