A A A 

Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Alfred Pirjanians, et al. v. Windsor Capital Group, Inc.

Case No: 16CV03797
Hearing Date: Mon Jan 08, 2018 9:30

Nature of Proceedings: Motion Strike


Alfred Pirjanians, et al., v. Windsor Capital Group, Inc.,

Case  #16CV03797, Judge Sterne


Hearing Date:                January 8, 2018



Motion to Strike Portions of Second Amended Complaint Without Leave to Amend



For Plaintiffs: Gor Mnatsakanyan (Gor & Assoc. – Los Angeles)

For Defendant: James W. Gates (Law Ofcs of Wolf & O’Connor – Woodland Hills)


Tentative Ruling: The court grants defendant Windsor Capital Group, Inc.’s motion to strike portions of plaintiffs’ second amended complaint that are identified in the notice of motion, with leave to amend on or before January 25, 2018.


Background: This action arises out of a fall on November 22, 2015, in a “handicapped equipped” or “ADA” suite in a Lompoc hotel where a retractable chair attached to a shower wall broke. Plaintiffs are Alfred Pirjanians, Arusyak Pirjanians, and Aidan Pirjanians. Defendant is Windsor Capital Group, Inc. The operative complaint is the second amended complaint (“SAC”). The causes of action in the SAC are 1) premises liability, 2) negligence, 3) negligence per se, 4) negligent infliction of emotional distress, and 5) loss of consortium.


Motion to Strike: Defendant moves to strike from the SAC allegations regarding and the prayer for punitive and exemplary damages. Plaintiffs oppose the motion.


1. Scope of Motion: In a notice of motion to strike, a party “must 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.” CRC 3.1322(a). In their notice, plaintiffs move to strike “any and all of those certain portions of Plaintiffs’ Second Amended Complaint in and/or by which Plaintiffs seek and/or allege punitive damages, including, but not limited to, the following specific allegations, claims, or prayers which are irrelevant, false, and improper” and then quotes specific paragraphs or portions thereof (¶¶55, 6, 63, 75, 89 and prayer paragraph 4).


The motion necessarily addresses these specifically quoted portions of the SAC only. The reference to “any and all” portions of the complaint seeking or alleging punitive damages is of no effect. The court will not seek to divine which other portions of the SAC defendant thinks alleges punitive damages.


2. Sufficiency of Allegations for Punitive Damages: Civil Code § 3294(a) provides that a plaintiff may recover punitive damages if he proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “‘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.” Civil Code § 3294(c)(1). “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code § 3294(c)(2).” Civil Code § 3294(c)(3).


“Despicable conduct” refers to circumstances that are “base,” “vile,” or “contemptible.” College Hospital v. Superior Court, 8 Cal.4th 704, 725 (1994). Conduct must be “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” American Airlines v. Sheppard, Mullin, Richter & Hampton, 96 Cal.App.4th 1017, 1050 (2002). “The wrongdoer must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff's rights. Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” Lackner v. North, 135 Cal.App.4th 1188, 1210 (2006) [internal quotations and citations omitted].


“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” Monge v. Superior Court,176 Cal.App.3d 503, 510 (1986).


A pleading devoid of any factual assertions supporting a conclusion that defendants acted with oppression, fraud or malice is insufficient to state a claim for punitive damages. Smith v. Superior Court, 10 Cal.App.4th 1033, 1042 (1992). While a general allegation of malice or oppression is not sufficient, a general allegation of the intent or despicable conduct constituting malice is sufficient. Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 317. Pleading conclusions of law is not sufficient, but the “distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” Perkins v. Superior Court, 117 Cal.App.3d 1, 6 (1981). “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” Id.


Plaintiffs allege: “[T]he mounting device of the seat broke off the wall in both flanges. All six bolts or screws that were supposed to keep the seat attached securely to the wall, came out of the wall.” [SAC ¶16] Plaintiffs are informed and believe that the seat was defectively installed approximately 29 years ago. [SAC ¶24] “The bolts or screws and the plastic anchors thereon used for attaching to the wall one of the flanges of the seat were significantly shorter than the size recommended by the manufacturer of the seat.” [SAC ¶24] Reviews of the hotel state that it is old and outdated. [SAC ¶20] Defendant “negligently created the dangerous condition and/or negligently and knowingly … allowed the dangerous condition to remain for a sufficiently long period of time during which a reasonable person would have had ample opportunity to discover and take corrective action….” [SAC ¶29] The proximity to Vandenberg Air Force Base and Hilton promotions aimed at military personnel and their families drive increased occupancy rates for the hotel. [SAC ¶38] “Defendants, relying on the increased and/or assured occupancy rates, and acting with overriding concern for a minimum-expense operation, made a calculated preference of paying liability claims to those injured, over upgrading its old and depreciated SUBJECT PREMISES, knowing that it portended hazards for the guests….” [SAC ¶39]


Plaintiffs insist that their allegations are sufficient to allege a conscious disregard for their safety and constitute despicable conduct. The court does not agree. While plaintiffs allege careless or even reckless maintenance of an older hotel, they do not allege any conscious behavior relative to the danger posed by the shower seat in question.


Plaintiffs say they have since received information in discovery that defendant received prior express warnings that literally spelled out the imminent danger of injury to individuals using the seat in Suite 104 that ultimately injured plaintiffs. They even address specific evidence in this regard. But this newly discovered information does not save the allegations of the SAC. The court will grant the motion to strike.


3. Leave to Amend: As with a demurrer, it is the plaintiff’s burden to demonstrate the manner in which the complaint might be amended. Hendy v. Losse, 54 Cal.3d 723, 742 (1991). “It is not up to the judge to figure that out.” Lee v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 848, 854 (2003). The plaintiff has the burden “to show what facts he or she could plead to cure the existing defects in the complaint.” McClain v. Octagon Plaza, LLC, 159 Cal.App.4th 784, 792 (2008).


The court finds plaintiffs’ discussion of reports addressing the condition of the shower seat and deposition testimony adequately demonstrates how the SAC could be amended to state a claim for punitive damages. The court will give plaintiffs another opportunity to amend the complaint.


4. Order: The court grants defendant Windsor Capital Group, Inc.’s motion to strike portions of plaintiffs’ second amended complaint that are identified in the notice of motion, with leave to amend on or before January 25, 2018.

© Superior Court of the County of Santa Barbara
Locations & Contact Info | Court Security | Human Resources | Privacy Policy | ADA