Kabilka, et al., v. Shores Barrington LLC, et al.

CASE NO.: 21SMCV00944 MOTION: Motion to Strike the Second Amended Complaint HEARING DATE: 8/24/2026

LEGAL STANDARD 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. (CCP Sec. 435(b)(1); Cal. Rules of Court, Rule 3.1322(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. (CCP Sec.Sec. 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 ["Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded"].)

"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.)

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. (Coll. Hosp., 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. Civil Code section 3294 defines malice 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." (Id.)

Despicable is a powerful term used to describe circumstances that are "base," "vile," or "contemptible." (Coll. Hosp., supra, 9 Cal.4th at 726.) 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." (Id.)

"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 Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

"Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿ in what manner ¿plaintiff can amend the complaint, and¿ how ¿that amendment will change the legal effect of the pleading.¿(Id.)

ANALYSIS Defendants Shores Barrington LLC and Douglas Emmett Management LLC move to strike portions of Plaintiffs Lenka Kabilka, Oliver Kabilka, and Phillip Kabilka's Second Amended Complaint ("SAC").

Irrelevant, False or Improper Allegations Defendant argues that paragraphs 73-77 are irrelevant to Plaintiffs' FEHA claims. The SAC alleges that in July 2021, Defendants' corporate counsel emailed Plaintiffs' counsel that he had immediately reached out to Defendant's head of residential leasing in an effort to find a reasonable accommodation and was giving the matter "a high priority" and should know more by the end of the week. (SAC P. 73.)

Shortly thereafter, Plaintiffs' counsel was contacted by Defendants' litigation counsel who advised him that there were no units available to consider as a reasonable accommodation. (Id., P. 74.) For two years thereafter, Plaintiffs' counsel heard absolutely nothing from Defendants or Defendants' counsel about two-bedroom units which had become vacant which could have been provided to Plaintiffs as a reasonable accommodation and no reasonable accommodation units were offered to Plaintiffs. (Id., P. 75.)

During the course of this litigation, Plaintiffs counsel made repeated attempts through discovery to discover how many two-bedroom units had become available which could have been provided to Plaintiffs as an accommodation, but Defendants repeatedly obstructed the discovery of that information. (Id., P. 76.) It was not until April 3, 2026, that Defendants finally produced an excel spreadsheet which indicated that from January 1, 2021 through June 2023 there were a total of seventy (70) two-bedroom units which had become available for use as an accommodation to Plaintiffs which had never been offered to the Plaintiffs. (Id. P. 77.)

The above allegations are not irrelevant, false or improper. The availability of a reasonable accommodation and the willful refusal to accommodate, despite the availability of a reasonable accommodation, supports the FEHA housing discrimination and punitive damages claims. (See Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1592 ["In order to establish discrimination based on a refusal to provide reasonable accommodations, a party must establish that he or she (1) suffers from a disability as defined in FEHA, (2) the discriminating party knew of, or should have known of, the disability, (3) accommodation is necessary to afford an equal opportunity to use and enjoy the dwelling, and (4) the discriminating party refused to make this accommodation."].)

An unreasonable delay in providing an accommodation may amount to a refusal to provide an accommodation under FEHA. (Id., at 1599.)

However, the Court will strike the improper allegation that "Defendants repeatedly obstructed discovery." (SAC P. 76.) This contention does not support any claim. Plaintiffs can rely on the ultimate facts that Defendants had reasonable accommodations available from January 2021 through June 2023, but refused to provide them, without getting into the specifics of the discovery process. Accordingly, the motion is GRANTED, in part, as to these paragraphs.

Punitive Damages Defendants argue that the above allegations do not warranty imposition of punitive damages. However, Defendants read those allegations in isolation. The above allegations are not the only factual allegations supporting the imposition of punitive damages. The claim for punitive damages arises from the allegations of an intentional nuisance and FEHA housing discrimination. (SAC P.P. 48, 82, 85.)

Punitive damages are available for an intentionally maintained nuisance. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) The SAC alleges an intentionally maintained nuisance. Defendants installed and maintained certain high frequency telecommunications equipment directly above Plaintiffs' unit starting in 2020. (SAC P.P. 9-18.) Plaintiffs informed Defendants that the equipment emitted a constant high-pitched sound and complained that the equipment was causing headaches, dizziness, and fatigue. (Id., P.P. 19-22.) Despite these complaints, Defendants did nothing to address the conditions. (Id., P. 23.) This forced Plaintiffs to move out of the apartment in April 2021. (Id., P. 24.)

Defendants also were notified by the City of Santa Monica that the equipment was in violation of local ordinances in October 2021, informing Defendants that they were maintaining a public nuisance. (Id., P.P. 25-26.) The City gave a second notice in February 2022. (id., P. 27.) Again, Defendants did nothing to address these issues. (id., P. 29.) It was not until June 30, 2023, when bankruptcy Trustee in Starry's bankruptcy terminated the License, that some of the equipment was removed. (Id., P. 30.) However, Defendants still permitted some of the equipment to remain. (Id.)

The SAC alleges Defendants permitted this unreasonable nuisance. (Id., P.P. 34-36.) Defendants failure to remedy the nuisance, despite notice from Plaintiffs and the City, was intentional and unreasonable. (Id., P. 37.) In maintaining the nuisance, Defendants acted with full knowledge of the consequences and damage being caused to Plaintiffs. (Id., P. 48.) The SAC accordingly alleges that the conduct was willful, oppressive, malicious and despicable. (Id., P.P. 48-49.) Thus, the claim for punitive damages states that Defendants maintained an intentional nuisance, in conscious disregard of Plaintiffs' rights and safety. Defendants do not address these allegations of malice in connection with the nuisance claim.

Punitive damages may also be available for discrimination claims under FEHA. (Commodore Home Systems, Inc. v. Sup. Ct. (1982) 32 Cal.3d 211, 221.) The SAC alleges that Defendants' failure to accommodate was discriminatory, despicable, and malicious. The SAC alleges that Ms. Kabilka suffers from a number of disabilities, including EHS (electro-hyper- sensitivity) and EMS (electromagnetic-sensitivity). (SAC P. 68.) These disabilities impede one or more bodily systems and limit major life activities. (Id., P. 69.) Defendants were repeatedly made aware of this disability in the fact that Plaintiffs had, for months, been notifying, and complaining to them that the equipment installed on the rooftop in November 2020 was causing severe adverse effects to Plaintiffs. (Id. P. 71.)

As a result, a reasonable accommodation was necessary to afford an equal opportunity to Plaintiffs to use and enjoy their dwelling unit. (Id., P. 72.) Defendants failed and/or refused to make that accommodation. (Id.) As noted, Defendants initially claimed to be looking for an accommodation in July 2021. (Id., P. 73.) However, Defendants did not provide such an accommodation. Plaintiffs later discovered that Defendants had 70 other comparable units available from 2021 through 2023, but Defendants never offered said units as an accommodation. (Id., P. 77.) These facts support the conclusion that Defendants' conduct was despicable, malicious and oppressive, and carried out with a willful and conscious disregard for Plaintiff's rights and safety. (Id., P.P. 82, 85.) Accordingly, the motion is DENIED.

Case Number: 24SMCV03656 Hearing Date: August 24, 2026 Dept: M CASE NAME: Pink, et al., v. Pink