This case was last updated from Los Angeles County Superior Courts on 01/02/2021 at 10:53:20 (UTC).

MARLENE DERMER VS ASBURY APARTMENTS ET AL

Case Summary

On 04/16/2018 MARLENE DERMER filed a Personal Injury - Other Personal Injury lawsuit against ASBURY APARTMENTS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1971

  • Filing Date:

    04/16/2018

  • 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

CHRISTOPHER K. LUI

DANIEL M. CROWLEY

 

Party Details

Plaintiff and Petitioner

DERMER MARLENE

Defendants and Respondents

BOSS EDWARD

LOS ANGELES CITY OF

BARKER MANAGEMENT INC

ASBURY APARTMENTS

LOS ANGELES HOUSING PARTNERSHIP

DOES 1 TO 50

CITY OF LOS ANGELES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SPITZE DANIEL A.

SPITZER DANIEL ALLEN

 

Court Documents

Request for Refund / Order

9/25/2019: Request for Refund / Order

Notice - NOTICE DEFENDANT BARKER MANAGEMENT, INC.S NOTICE RESETTING HEARING ON ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT

7/8/2020: Notice - NOTICE DEFENDANT BARKER MANAGEMENT, INC.S NOTICE RESETTING HEARING ON ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT

Notice - NOTICE DEFENDANT BARKER MANAGEMENT, INC.S NOTICE RESETTING HEARING ON ITS DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

7/8/2020: Notice - NOTICE DEFENDANT BARKER MANAGEMENT, INC.S NOTICE RESETTING HEARING ON ITS DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

Notice - NOTICE DEFENDANT ASBURY APARTMENTS, LPS NOTICE RESETTING HEARING ON ITS DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

7/8/2020: Notice - NOTICE DEFENDANT ASBURY APARTMENTS, LPS NOTICE RESETTING HEARING ON ITS DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT

Notice - NOTICE DEFENDANT ASBURY APARTMENTS, LPS NOTICE RESETTING HEARING ON ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT

7/8/2020: Notice - NOTICE DEFENDANT ASBURY APARTMENTS, LPS NOTICE RESETTING HEARING ON ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS FIRST AMENDED COMPLAINT

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/24/2020

4/24/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/24/2020

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEMURRER OF ASBURY APARTMENTS, LP AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

4/8/2020: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEMURRER OF ASBURY APARTMENTS, LP AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Minute Order - MINUTE ORDER (COURT ORDER)

3/18/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/18/2020

3/18/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/18/2020

Notice - NOTICE DEFENDANT ASBURY APARTMENTS, LPS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT; STATEMENT OF DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF O.

3/20/2020: Notice - NOTICE DEFENDANT ASBURY APARTMENTS, LPS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS FIRST AMENDED COMPLAINT; STATEMENT OF DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF O.

Notice of Motion

3/20/2020: Notice of Motion

Notice of Motion

3/20/2020: Notice of Motion

Proof of Mailing (Substituted Service)

10/21/2019: Proof of Mailing (Substituted Service)

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

9/26/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Request for Dismissal

9/11/2019: Request for Dismissal

Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION AND (PROPOSED) ORDER RE: DISMISSAL OF THE CITY OF LOS ANGELES WITHOUT PREJUDICE

9/13/2019: Stipulation and Order - STIPULATION AND ORDER JOINT STIPULATION AND (PROPOSED) ORDER RE: DISMISSAL OF THE CITY OF LOS ANGELES WITHOUT PREJUDICE

SUMMONS -

4/16/2018: SUMMONS -

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

4/16/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

20 More Documents Available

 

Docket Entries

  • 08/11/2021
  • Hearing08/11/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 07/28/2021
  • Hearing07/28/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/03/2020
  • DocketNotice of Ruling; Filed by Asbury Apartments (Defendant); Barker Management Inc (Defendant)

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  • 12/01/2020
  • Docketat 3:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held - Motion Granted

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  • 12/01/2020
  • Docketat 3:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held - Motion Granted

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  • 12/01/2020
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Strike (Motion to Strike First Amended Complaint) - Held - Motion Granted

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  • 12/01/2020
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Strike (Motion to Strike First Amended Complaint) - Held - Motion Granted

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  • 12/01/2020
  • DocketMinute Order ( (Defendants Barker Management and Ashbury Apartments, LP's Dem...)); Filed by Clerk

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  • 10/07/2020
  • Docketat 10:30 AM in Department 28, Daniel M. Crowley, Presiding; Trial Setting Conference - Held

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  • 10/07/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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32 More Docket Entries
  • 10/16/2019
  • Docketat 08:30 AM in Department 4A; Jury Trial - Not Held - Continued - Stipulation

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  • 09/30/2019
  • Docketat 10:00 AM in Department 4A; Final Status Conference - Not Held - Continued - Stipulation

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  • 09/26/2019
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Marlene Dermer (Plaintiff)

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  • 09/25/2019
  • DocketRequest for Refund / Order; Filed by Marlene Dermer (Plaintiff)

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  • 09/16/2019
  • DocketProof of Service by Substituted Service; Filed by Marlene Dermer (Plaintiff)

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  • 09/13/2019
  • DocketStipulation and Order (JOINT STIPULATION AND (PROPOSED) ORDER RE: DISMISSAL OF THE CITY OF LOS ANGELES WITHOUT PREJUDICE); Filed by Marlene Dermer (Plaintiff)

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  • 09/11/2019
  • DocketRequest for Dismissal; Filed by Marlene Dermer (Plaintiff)

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  • 04/16/2018
  • DocketComplaint; Filed by Marlene Dermer (Plaintiff)

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  • 04/16/2018
  • DocketSUMMONS

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  • 04/16/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC701971    Hearing Date: December 01, 2020    Dept: 28

CORRECTED

Demurrer with Motion to Strike

Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 16, 2018, Plaintiff Marlene Dermer (“Plaintiff”) filed a complaint against Defendants Asbury Apartments, LP, Barker Management, Inc., Los Angeles Housing Partnership, Edward Boss, and City of Los Angeles.  Plaintiff alleges negligence, premises liability, negligent infliction of emotional distress, and a breach of covenant of quiet enjoyment related to an incident that occurred on February 19, 2017.

On February 18, 2020, Plaintiff filed a first amended complaint (“FAC”) to, in part, name Defendant Marel Smith and allege a cause of action for a breach of the implied warranty of habitability.

On March 20, 2020, Defendants Barker Management, Inc. and Asbury Apartments, LP filed demurrers pursuant to California Code of Civil Procedure section 430.10 and motions to strike pursuant to California Code of Civil Procedure section 435.

Trial is set for August 11, 2021.

PARTIES REQUESTS

Defendants Barker Management and Asbury Apartments, LP ask the Court to sustain their demurrer to Plaintiff’s breach of warranty of habitability and breach of covenant of quiet enjoyment causes of action because Plaintiff has not alleged specific enough facts to state these causes of action.

Defendants Barker Management and Asbury Apartments, LP also asks the Court to strike punitive damages because insufficient facts have been alleged to state a prima facie case for punitive damages.

LEGAL STANDARD

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to or stricken, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike.¿ (See Code Civ. Proc. §§ 430.41, 435.5.)

JUDICIAL NOTICE

Defendant Barker Management asks the Court to take judicial notice of the Rental Agreement attached to Plaintiff’s initial complaint filed in this action. This request is GRANTED pursuant to California Evidence Code section 452, subdivision (d)(1). However, the Court DENIES any request to take judicial notice of the truth of the matters asserted within this document(See C.R. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “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.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].)  

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, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

DISCUSSION

Meet and Confer

The Court finds Defendants Barker Management and Asbury Apartments, LP have filed code-compliant meet and confer declarations. (Weaton Declarations, 3.)

Demurrer Breach of Warranty of Habitability

A breach of the implied warranty of habitability is present when five elements are satisfied.  (Quevedo v. Braga 1977 72 Cal.App.3d Supp. 1, 7-8 [overruled on other grounds].)  First, a materially defective condition exists that affects habitability.  (Ibid.)  Second, the tenant did not know of the defective condition at the time of occupancy.  (Ibid.)  Third, the defective condition’s effect on habitability was not apparent from a reasonable inspection.  (Ibid.)  Fourth, The landlord was given notice of the defective condition within a reasonable time after the tenant either discovery or should have discovered the defective condition.  (Ibid.)  And fifth, the landlord had a reasonable amount of time to correct the defect while remaining in possession of the property.  (Ibid.)

Plaintiff alleges the following in the FAC.  Defendants Barker Management and Asbury Apartments, LP owned, managed and/or controlled property that Plaintiff resided in.  (FAC, ¶¶ 3-4, 12.)  Since 2016, Plaintiff had repeatedly notified Defendants Barker Management and Asbury Apartments, LP of security, access control, and safety issues, including prior instances of assault against Plaintiff and roof access problems that allowed individuals to enter the property.  (FAC, 13.)  On February 19, 2017, Plaintiff exited her apartment and entered the elevator on the twelfth floor to go to the ground floor.  (FAC, 14.)  The elevator stopped on the eleventh floor and Defendant Marel Smith entered the elevator.  (Ibid.Defendant Marel Smith, again, attacked Plaintiff in the common area hallway of the tenth floor.  (FAC, 15.)  Defendants Barker Management and Asbury Apartments, LP failed to use video camera, entry control systems, locks, and properly trained security staff, which caused Plaintiff’s injuries.  (FAC, ¶¶ 37, 42.)

Plaintiff also alleges the following in the FAC.  Before February 19, 2017, Defendant Marel Smith had also attacked Plaintiff.  (FAC, 15.)  Plaintiff had warned Defendants Barker Management and Asbury Apartments, LP of Defendant Marel Smith’s initial attack on Plaintiff before the February 19, 2017 incident.  (FAC, 17.)  Plaintiff had also warned Defendants Barker Management and Asbury Apartments, LP of the security and safety issues that allowed the February 19, 2017 attack to occur.  (FAC, 18.)  Defendants Barker Management and Asbury Apartments, LP had failed to provide security at the premises before the February 19, 2017 attack at the premises.  (FAC, 19.)  

The Court finds Plaintiff has not alleged a cause of action for a breach of a warranty of habitability.  The duty to make residential property habitable means “bare living requirements” must be maintained.  (Green v. Superior Court (1974) 10 Cal.3d 616, 637.)  It does not, however, amount to a cause of action when a property owner fails to provide adequate security.  (Penner v. Falk (1984) 153 Cal.App.3d 858, 868 [declining to find Kawaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324 as allowing for a breach of habitability cause of action based on inadequate security.].)  Plaintiff relies on the decision in Kawaitkowski as a basis for Plaintiff’s breach of warranty of habitability cause of action.  As the decision in Penner made clear, Kawaitkowski does not stand for the proposition Plaintiff proposes.  As such, the demurrers are properly sustained as to the breach of warranty of habitability cause of action.

Demurrer – Breach of Covenant of Quiet Enjoyment

A breach of the covenant of quiet enjoyment is present when four elements are present.  (See Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588-590.)  First, the plaintiff and defendant have a lease agreement.  (See id. at p. 588.)  Second, there is no language in the lease agreement abrogating the implied covenant of quiet enjoyment between the plaintiff and defendant.  (Ibid.Third, an act or omission of the landlord, or anyone claiming under the landlord, which substantially interferes with the plaintiff’s right to use and enjoy the premises for purposes contemplated in the lease agreement.  (See id. at pp. 588-590.)  And fourth, Plaintiff remains in possession of the property when Plaintiff sustained damages. id. at p. 590.)

Based on the above facts alleged, Plaintiff has alleged sufficient facts to state a cause of action for a breach of the covenant of quiet enjoyment.  Plaintiff and Defendants Barker Management and Asbury Apartments, LP had an agreement to lease the property where Plaintiff was assaulted.  Both Defendants Barker Management and Asbury Apartments, LP were acting as Plaintiff’s landlords.  Both Defendants Barker Management and Asbury Apartments, LP failed to provide adequate security at Plaintiff’s residence, which caused Plaintiff to become battered and assaulted.  As such, the demurrer cannot be sustained as to Plaintiff’s breach of the covenant of quiet enjoyment cause of action.

The Court finds Plaintiff has not judicially admitted that the lease agreement was only between Plaintiff and Defendant Asbury Apartments, LP.  Plaintiff’s initial complaint that had the judicially noticed lease agreement attached stated both Defendants Barker Management and Asbury Apartments, LP had a lease agreement with Plaintiff.  Defendant Barker Management is not named in the lease agreement attached to the initial complaint.  This omission does not establish by judicial admission that Defendant Barker Management was not also in a landlord-tenant relationship with Plaintiff.  Thus, the demurrer is not properly sustained to Plaintiff’s breach of the covenant of quiet enjoyment cause of action.

Motion to Strike – Punitive Damages

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 of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College. Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.  (Civ. Code, § 3294, subd. (a).) 

“Malice is defined in the statute as conduct 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.” College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, § 3294, subd. (c)(1)].)  A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.  The additional component of ‘despicable conduct’ must be found.”  (College Hospital, Inc., supra, 8 Cal.4th at p. 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid. Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.  [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.  [Citations.]  In ruling on a motion to strike, courts do not read allegations in isolation.  [Citation.]”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  [Citation.]  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.  [Citation.]”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [footnote omitted].)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36. “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders:  the ‘officer[s], director[s], or managing agent[s].’” Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [citation omitted]. As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” Ibid. [citing College Hospital, Inc., supra, 8 Cal.4th at p. 726 [for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character]].)

The Court finds insufficient facts have been alleged to state a prima facie case for punitive damages against either Defendants Barker Management or Asbury Apartments, LP.  At most, the alleged facts show Defendants Barker Management or Asbury Apartments, LP negligently failed to install adequate safety precautions leading up to February 19, 2017.  Their knowledge of Plaintiff’s prior attack does not show that it was foreseeable that another attack would occur.  These omissions cannot be found to be despicable.

CONCLUSION

The demurrer is SUSTAINED as to Plaintiff’s breach of warranty of habitability cause of action without leave to amend.

The demurrer is OVERRULED as to Plaintiff’s breach of the covenant of quiet enjoyment cause of action.

The motion to strike is GRANTED with twenty days leave to amend.

The Court STRIKES paragraph three from Plaintiff’s prayer for damages on page nine of the FAC where Plaintiff seeks punitive damages.

Defendants Barker Management and Asbury Apartments, LP are ordered to give notice of this ruling.

Defendants Barker Management and Asbury Apartments, LP are ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.