97235Motio02f06d May 02, 2024

On February 22, 2024 a No Value was filed involving a dispute between and in the District Court of Santa Barbara County.

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1 JODY STEINBERG, ESQ., SBN 144564
WHITNEY L. BOST, ESQ., SBN 253999
2 TYLIN J. SCHEPPER, ESQ., SBN 353354
HANGER, STEINBERG, SHAPIRO & ASH
3 A Law Corporation
21031 Ventura Blvd., Suite 800
4 Woodland Hills, CA 91364-6512
(818)226-1222 Fax (818)226-1215
5 js@hssalaw.com; wlb@hssalaw.com; tjs@hssalaw.com
6 Attorneys for Defendants
KCG PROPERTY HOLDINGS, LLC; TIMOTHY KARMAN; YVETTE KARMAN;
7 JUSTIN COCHRANE, erroneously sued as JUSTINE COCHRANE dba 805
PROPERTY MANAGEMENT
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SANTA BARBARA
10

11 JAMES TORRES; LINDA TORRES, CASE NO. 24CV00998
(Assigned for all purposes to
12 Plaintiffs, Judge Colleen K. Sterne, Dept. 5)

13 vs. DEFENDANTS’ NOTICE OF MOTION
AND MOTION TO STRIKE PORTIONS
14 KCG PROPERTY HOLDINGS, LLC, a OF PLAINTIFFS’ COMPLAINT;
California Limited Liability Company; MEMORANDUM OF POINTS AND
15 TIMOTHY KARMAN, an individual; AUTHORITIES; DECLARATION OF
YVETTE KARMAN, an individual; TYLIN J. SCHEPPER IN SUPPORT
16 JUSTINE COCHRANE dba 805 THEREOF
PROPERTY MANAGEMENT; and DOES 1
17 through 50, inclusive, [[Proposed] Order filed concurrently
herewith ]
18 Defendants.
Date: July 22, 2024
19 Time: 10:00 a.m.
Dept: 5
20
FSC Date: None
21 Trial Date: None
22

23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

24 PLEASE TAKE NOTICE that on July 22, 2024 at 10:00 a.m. in Department “5” of

25 the above-entitled Court, Defendants KCG PROPERTY HOLDINGS, LLC, TIMOTHY

26 KARMAN, YVETTE KARMAN, and JUSTIN COCHRANE dba 805 PROPERTY

27 MANAGEMENT, (hereinafter “Defendants”) will and hereby does move the Court to

28 strike portions of the Complaint as follows:
1
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 1. Pages 14-15, paragraph 55, “Defendants’ conduct above was willful, wanton
2 intentional, despicable, malicious, and initiated with malice and with the intent to
3 knowingly take advantage of, oppress, and injure Plaintiff’s. Defendants at all
4 times acted with a willful and conscious disregard of the rights of safety of
5 Plaintiffs and the building’s other tenants. Defendants were at all times aware that
6 there was a high probability that their intentional and/or negligent failure to repair
7 and maintain the Subject Property would injure Plaintiffs and cause them
8 personal injury, emotional distress, and property damage. Plaintiffs are therefore
9 entitled to an award of punitive and exemplary damages under and pursuant to
10 Civil Code, Section 3294 and Taylor v. Superior Court (1979) 24 Cal.3d 890.”
11 2. Page 19, Prayer for Relief, paragraph 4, “For exemplary and punitive damages
12 according to proof.”
13 This Motion is brought pursuant to Code of Civil Procedure, §§435 and 436, on
14 grounds that the above-referenced language constitutes irrelevant, false, or improper
15 matter, conclusions of law and/or is not supported by the facts.
16 This Motion will be based upon this Notice, the Memorandum of Points and
17 Authorities, the Declaration of Tylin J. Schepper attached hereto, all papers filed in this
18 action, and upon such oral and documentary evidence as may be received at the time
19 of hearing.
20 DATED: May 2, 2024 HANGER, STEINBERG, SHAPIRO & ASH
21

22 BY: __________________________
JODY STEINBERG, ESQ.
23 WHITNEY L. BOST, ESQ.
TYLIN J. SCHEPPER, ESQ.
24 Attorneys for Defendants
25 KCG PROPERTY HOLDINGS, LLC;
TIMOTHY KARMAN; YVETTE
26 KARMAN; JUSTIN COCHRANE,
erroneously sued as JUSTINE
27 COCHRANE dba 805 PROPERTY
270.2335 MANAGEMENT
28
2
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs claim to have suffered damages as tenants of a residential property located
4 at 407 E. Chapel Street, Apt. C, Santa Barbara, CA 93454 which Plaintiffs allege were
5 owned and managed by Defendants.
6 On or around February 22, 2024 Plaintiffs filed the Subject Complaint against
7 Defendants for (1) Breach of Contract/Covenant of Quiet Enjoyment/Warranty of
8 Habitability; (2) Tortious Breach of the Implied Warranty of Habitability; (3) Negligence;
9 (4) Violation of Unfair Business Practices; (5) Tenant Harassment; and (6) Wrongful
10 Eviction.
11 As will be set forth more fully below, Plaintiffs fail to allege sufficient facts to support
12 claims for punitive damages and are thus improper. Therefore, these claims and prayer
13 should be stricken from the Complaint.
14 II. A COURT MAY STRIKE PORTIONS OF A COMPLAINT WHERE SUCH
15 CLAIMS LACK FACTUAL SUPPORT OR ARE IMPROPER
16 Code of Civil Procedure, §436 permits a party to serve and file a motion to strike
17 any part of a complaint, and states:
18 “The court may, upon a motion made pursuant to §435, … and upon
terms it deems proper: (a) Strike out any irrelevant, false, or improper
19 matter inserted in any pleading. (b) Strike out all or any part of any
20 pleading not drawn or filed in conformity with the laws of this state, a
court rule, or any order of the court.”
21

22 Code of Civil Procedure, §437(a) further provides, in pertinent part:

23 “The grounds for a motion to strike shall appear on the face of the
challenged pleading or from any matter of which the court is required
24 to take judicial notice.”
25 Furthermore, Code of Civil Procedure, §431.10 states in pertinent part:
26 (b) An immaterial allegation in a pleading is any of the following:
* * *
27 (3) A demand for judgment requesting relief not supported by the
allegations of the complaint or cross-complaint.
28
3
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
(a) An “immaterial allegation” means “irrelevant matter” as that term
1
is used in §436.
2
It is the position of moving Defendants that the allegations in Plaintiffs’ Complaint, as
3
further discussed below, do not state sufficient facts to entitle Plaintiffs to punitive
4
damages. Thus, such claims are improper here and therefore must be stricken.
5
III. PLAINTIFF’S CLAIMS AND PRAYER FOR PUNITIVE DAMAGES MUST
6
BE STRICKEN FROM THE COMPLAINT AS SUCH CLAIMS LACK
7
FACTUAL SUPPORT AND ARE IMPROPER
8
Regarding punitive damages, “[t]he universally recognized principle [is] that ‘[t]he
9
law does not favor punitive damages and they should be granted with the greatest
10
caution.’” Dyna-Med, Inc. v. Fair Employment & Housing Commission, (1987) 43 Cal.3d
11
1379, 1392 (citation omitted). Punitive damages should only be allowed in the “clearest
12
of cases.” Henderson v. Security National Bank, (1977) 72 Cal.App.3d 764, 771. Here,
13
Plaintiffs’ claim for punitive damages as alleged in Plaintiff’s Second Cause of Action for
14
Tortious Breach of The Implied Warranty of Habitability is subject to a Motion to Strike
15
because Plaintiff’s Complaint lacks the specific facts necessary to support such a claim.
16
Under California Civil Code § 3924, punitive damages may only be recovered
17
when a Plaintiff can show clear and convincing evidence that a defendant is guilty of
18
oppression, malice, or fraud. Those terms are further defined in § 3924(c):
19
1. “Malice” means conduct which is intended by the defendant to cause injury to the
20
plaintiff or despicable conduct which is carried on by the defendant with a willful
21
and conscious disregard of the rights or safety of others.
22
2. “Oppression” means despicable conduct that subjects a person to cruel and
23
unjust hardship in conscious disregard of that person's rights.
24
3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a
25
material fact known to the defendant with the intention on the part of the
26
defendant of thereby depriving a person of property or legal rights or otherwise
27
causing injury.
28
4
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 Plaintiff’s asserted basis for punitive damages appears to arise from the
2 “Conscious disregard” theory of liability. In Taylor v. Superior Court, (1979) 24 Cal.3d
3 890, 894-95 the California Supreme Court held a claim for punitive damages based upon
4 the theory one “acted in conscious regard of Plaintiff's safety” required proof of
5 “something more than mere commission of a tort... There must be circumstances of
6 aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part
7 of defendant, or such a conscious and deliberate disregard of the interests of others that
8 his conduct may be called willful or wonton.” id. at 894-895.
9 Facts supporting punitive damages must be specifically plead. G.D. Searle & Co.,
10 (1975) 49 Cal.App.3d 22, 32. Here Plaintiffs have not specifically pled facts in their
11 Complaint to show malice, fraud or oppression. Plaintiffs’ repeatedly allege that
12 Defendants had notice of defects in the property and that Defendants failed or delayed
13 in making repairs to the subject property. Plaintiffs further allege that such conduct was
14 “intentional and designed to extract rent from Plaintiffs in derogation of Plaintiffs’ rights.”
15 However, no additional facts are pled to support this.
16 In Taylor, Plaintiffs provided more than just conclusory allegations. In that case,
17 which concerned the assessment of punitive damages in a drunk driving case, Plaintiffs
18 specifically pled: “Defendant’s history of alcoholism, his prior arrests and convictions for
19 drunk driving, his prior accident attributable to his intoxication, and his acceptance of
20 employment involving the transportation of alcoholic beverages.” Taylor, supra 24
21 Cal.3d 890, 896.
22 Furthermore, “[f]or plaintiffs attempting to prove malice by showing a “conscious
23 disregard” of their rights as opposed to an actual intent to harm, the [1987 Reform] Act
24 imposed additional requirements of “despicable” and “willful” defense conduct.” College
25 Hospital Inc. v. Superior Court, (1994) 8 Cal.4th 704, 713. As the court in College
26 Hospital further outlined:
27 “despicable” conduct seems to represent a new substantive limitation on punitive
28 damage awards. Used in its ordinary sense, the adjective “despicable” is a
5
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 powerful term that refers to circumstances that are “base,” “vile,” or
2 “contemptible.” (4 Oxford English Dict. (2d ed. 1989) p. 529.) As amended to
3 include this word, the statute plainly indicates that absent an intent to injure the
4 plaintiff, “malice” requires more than a “willful and conscious” disregard of the
5 plaintiffs' interests. The additional component of “despicable conduct” must be
6 found. Id. at 725.
7 Plaintiffs’ Complaint is devoid of any specific facts showing that Defendants conduct
8 was “despicable,” “vile,” or “contemptible.” At most, Plaintiffs’ Complaint outlining
9 allegations that Defendants failed or delayed in making repairs to the subject property
10 could show negligence. However, negligence, even gross negligence is insufficient to
11 support an award of punitive damages. Ebaugh v. Rabkin (1972), 22 Cal.App. 3d 891,
12 894.
13 Courts have previously found that mere negligent failure to make repairs is an
14 insufficient basis to award punitive damages. In McDonell v. American Trust Co., (1955)
15 130 Cal.App.2d 296, allegations that a defendant was aware of a defective condition on
16 rented premises that could cause injury to tenants, and refused to repair the conditions,
17 was not enough to support punitive damages. There, plaintiffs alleged that defendant
18 was notified of defective conditions in the roof by both plaintiffs and the city building
19 inspector and that defendant refused to make repairs. However, the court held that such
20 allegations “do not spell an intentional tort (a conscious, deliberate intent to injure the
21 plaintiffs) or conduct so recklessly disregardful of the rights of others (sometimes
22 characterized as wanton or willful misconduct) as would show the “malice” in fact which
23 the statute (Civ. Code §3294) requires as a predicate for punitive…damages.” Id., at
24 299. Further, the court held that the conclusory allegations of “willful misconduct,” “willful
25 and wanton neglect” and “conscious disregard,” do not add anything of significance and
26 “are mere labels pinned on by the pleader,” and that at most, the allegations sound in
27 negligence. Id. Here, Plaintiffs’ allegations that Defendants repeatedly failed to remedy
28 and abate defective conditions at the subject property are similar to those described in
6
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 McDonell.
2 Given the above, Plaintiff does not provide sufficient facts to support a punitive
3 damages claim. Therefore, Plaintiffs’ claim and prayer for punitive damages should be
4 stricken from the Complaint.
5 IV. CONCLUSION
6 Based on the foregoing, moving Defendants respectfully request that the Court
7 grant the herein Motion to Strike Portions of Plaintiffs’ Complaint without leave to
8 amend.
9

10 DATED: May 2, 2024 HANGER, STEINBERG, SHAPIRO & ASH
11

12 BY: __________________________
JODY STEINBERG, ESQ.
13 WHITNEY L. BOST, ESQ.
TYLIN J. SCHEPPER, ESQ.
14 Attorneys for Defendants
15 KCG PROPERTY HOLDINGS, LLC;
TIMOTHY KARMAN; YVETTE
16 KARMAN; JUSTIN COCHRANE,
erroneously sued as JUSTINE
17 COCHRANE dba 805 PROPERTY
MANAGEMENT
18

20
270.2335
21

25
26

28
7
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 DECLARATION OF TYLIN J. SCHEPPER
2 I, TYLIN J. SCHEPPER, declare as follows:
3 1. I am an attorney at law duly licensed to practice law before all the Courts
4 of the State of California, and am an associate of the law firm Hanger, Steinberg, Shapiro
5 & Ash, attorneys of record for Defendants KCG PROPERTY HOLDINGS, LLC,
6 TIMOTHY KARMAN, YVETTE KARMAN, and JUSTIN COCHRANE dba 805
7 PROPERTY MANAGEMENT.
8 2. If called upon to testify as to the matters herein related, I could and would
9 competently do so based upon my review of the litigation file herein and my personal
10 participation as one of the attorneys of record herein.
11 3. Plaintiffs claim to have suffered damages as tenants of a residential
12 property located at 407 E. Chapel Street, Apt. C, Santa Barbara, CA 93454 which
13 Plaintiffs allege were owned and managed by Defendants.
14 4. On or around February 22, 2024 Plaintiffs filed the Subject Complaint
15 against Defendants for (1) Breach of Contract/Covenant of Quiet Enjoyment/Warranty
16 of Habitability; (2) Tortious Breach of the Implied Warranty of Habitability; (3)
17 Negligence; (4) Violation of Unfair Business Practices; (5) Tenant Harassment; and (6)
18 Wrongful Eviction.
19 5. Prior to filing the instant Motion, our office met and conferred with Plaintiff’s
20 counsel.
21 6. On March 22, 2024, our office emailed Plaintiff’s counsel a written meet
22 and confer requesting to meet and confer with Plaintiff’s counsel telephonically
23 regarding our intention to file a Motion to Strike Portions of Plaintiffs’ Complaint, filed
24 concurrently herewith, and Demurrer to Plaintiff’s Tenant Harassment and Wrongful
25 Eviction Causes of Action.
26 7. Subsequently, on March 26, 2024, I met and conferred with Plaintiff’s
27 counsel Christina Mills over telephone regarding the Motion to Strike and Demurrer. It
28 was requested at that meet and confer that our office provide case law supporting our
8
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 position, I stated that our office would comply. Plaintiff’s counsel extended our time for
2 filing responsive pleadings.
3 8. On April 17, 2024, our office emailed Plaintiffs’ counsel an additional
4 written meet and confer which further outlined Defendants’ position regarding a Motion
5 to Strike Portions of Plaintiffs’ Complaint and Demurrer to Plaintiffs’ Tenant Harassment
6 and Wrongful Eviction Causes of Action and cited case law per Plaintiffs’ Counsel’s
7 request.
8 9. On April 18, 2024, our office provided Plaintiff’s counsel with copies of the
9 prior Unlawful Detainer Action, Case No. 22CV02638 papers which are herewith
10 concurrently filed with Defendants’ Request for Judicial Notice.
11 10. On April 22, 2024, I made two attempts to contact Plaintiffs’ counsel by
12 phone to further discuss the Motion to Strike and Demurrer to the Tenant Harassment
13 and Wrongful Eviction Causes of Action. Following those attempts, I sent Plaintiff’s
14 counsel another email requesting response that same April 22, 2024.
15 11. That same April 22, 2024, Plaintiff’s counsel sent email correspondence
16 to our office stating that their office needed to confer with their client first and granted us
17 a one-week extension on our responsive pleading.
18 12. On April 29, 2024, our office sent Plaintiff’s counsel further email
19 correspondence requesting Plaintiff let us know their position on our office filing a Motion
20 to Strike portions of Plaintiffs’ Complaint by April 30, 2024. Our office received an Auto-
21 Reply email from Plaintiff’s Counsel’s law firm stating that the firm was closed from April
22 29, 2024 through April 30, 2024.
23 13. On May 1, 2024, our office received email correspondence from Plaintiff’s
24 counsel that they disagreed with Defendants’ position and that our office was free to file
25 the instant Motion.
26 ///
27 ///
28 ///
9
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 I declare under penalty of perjury under the laws of the State of California that
2 the foregoing is true and correct.
3 Executed on May 2, 2024 at Woodland Hills, California.
4

5
___________________________________
6 TYLIN J. SCHEPPER, Declarant
7

9 270.2335

25
26

28
10
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
PROOF OF SERVICE
1
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
2
I am employed in the county of Los Angeles, State of California. I am over the age
3 of 18 and not a party to the within action. My business address is 21031 Ventura Boulevard,
Suite 800, Woodland Hills, California 91364-6512.
4
On May 2, 2024, I caused the document(s) described as DEFENDANTS’ NOTICE
5 OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT to
be served on the parties on the attached mailing list as follows:
6
SEE ATTACHED MAILING LIST
7
☐By United States Mail
8 I placed the envelope for collection and mailing following our ordinary business
practices. I am readily familiar with this business’s practice for collecting and processing
9 correspondence for mailing. On the same day that correspondence is placed for collection
and mailing, it is deposited in the ordinary course of business with the United States Postal
10 Service, in a sealed envelope with postage fully prepaid. The envelope or package was
placed in the mail at Woodland Hills, California.
11

12 ☐By Facsimile
I faxed the document(s) to the persons at the fax numbers listed on the attached
13 mailing list from fax number (818) 226-1215.
14 ☐By overnight delivery
I placed the envelope or package for collection and overnight delivery to the
15 addresses listed on the mailing list at an office or a regularly utilized drop box of an
overnight delivery carrier following our ordinary business practices.
16
☐By electronic mail
17 I transmitted the document(s) via email to the email addresses listed on the
attached mailing list.
18
For this case and unless notice to the alternative, please include the following
19 persons on your email service list:
20 Jody Steinberg, Esq. (js@hssalaw.com)
Whitney L. Bost, Esq. (wlb@hssalaw.com)
21 Tylin J. Schepper, Esq. (tjs@hssalaw.com)
Angie Moreno, Assistant (am@hssalaw.com)
22 Robyn Wyner, Assistant (raw@hssalaw.com)
23 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
24
Executed on May 2, 2024, at Woodland Hills, California.
25
26
________________________
27 ANGIE MORENO
Our File No.: 270.2335
28
11
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint
1 JAMES TORRES, et al. v. KCG PROPERTY HOLDINGS, LLC, et al.
Court Case No.: 24CV00998
2

3 MAILING LIST
4

5 Daniel J. Lavi, Esq.
6 Christina Mills, Esq.
THE TENANTS LAW FIRM
7 9454 Wilshire Boulevard, Penthouse Suite
Beverly Hills, CA 90212
8 Phone: 310/432-3200
Cell: 760/917-9454 (Christina)
9 litigation@tenantslawfirm.com
christina@tenantslawfirm.com
10 ATTORNEYS FOR PLAINTIFFS:
JAMES TORRES and LINDA TORRES
11

25
26

28
12
________________________________________________________________________________________
Motion to Strike Portions of Plaintiff’s Complaint

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Document Filed Date

May 02, 2024

Case Filing Date

February 22, 2024

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No Value: 24CV00998

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