CAROLYN DULANEY v. 44902 ANDALE AVE PROPERTY, et al.

The party must seek such relief "within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Code Civ. Proc., Sec. 473, subd. (b).)

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IV.

Discussion

Application - Zemel states that PennyMac, lender for the mortgage, responded to this case in March of 2026 and confirmed the foreclosure sale of the Property could proceed due to Plaintiffs' non-payment of the mortgage for a number of years, and argues that Plaintiffs' family member borrowed funds for home improvements via a second loan, which Zemel then purchased by Assignment of Trust Deed from a licensed mortgage broker for additional retirement income. (Motion, p. 1:18-24.)

Zemel asserts this loan subsequently foreclosed due to non-payment and he was required to pay Plaintiffs' real estate taxes, insurance, and money to PennyMac, while Plaintiffs continuously delayed proceedings, including filing denied bankruptcy filings while failing to tender payment, resulting in Zemel losing his retirement income in the amount of $63,000 from the second loan despite never having any contact or contractual agreement with Plaintiffs. (Motion, p. 1:24-2:3.)

Zemel requests that the entry of default of attorney's fees and process services be dismissed and that the action as a whole be dismissed as a nuisance case, abuse of process, and vexatious litigation. (2:4-5.)

The Court notes that from the moving papers, it is unclear exactly what relief is sought and what legal basis underlies the request. However, as to Zemel's request to set aside entry of default, Zemel's motion is procedurally deficient and fails to set forth the facts warranting relief from entry of default as required by Code of Civil Procedure section 473, subdivision (b).

Zemel has set forth no facts or argument that his default was the result of mistake, inadvertence, surprise, or excusable neglect. The motion is also not accompanied by a copy of the proposed answer to be filed as required. (Code Civ. Proc., Sec. 473, subd. (b).)

Furthermore, the application for this relief must be filed within a reasonable time, in no case exceeding six months after default was entered. (Code Civ. Proc., Sec. 473, subd. (b).)

In an action to determine ownership or right to possession of real property, such as the present quiet title action, when a written notice of entry of default is personally served within California upon the party against whom default is entered and the notice states that any rights the party has to apply for relief shall expire 90 days after service of the notice, the party must apply for relief under the provisions of Section 473 within 90 days after service of the notice. (Code Civ. Proc., Sec. 473, subd. (b).)

Here, the record does not establish the date or method of service of the order granting entry of default on Zemel, and the Court cannot determine whether the shortened 90-day limit for application for relief from default applies.

However, under the general framework for relief under Section 473, Zemel's motion does not establish that he has moved for relief within a reasonable time. The request for default states that it was served on Zemel on January 8, 2026 via mail, and default was entered as requested on January 29, 2026.

Zemel does not contend he was not served with the notice of entry of default or put forth any facts speaking to his delay in appearing in this case or as to his failure to move for relief from entry of default for over five months. Accordingly, Zemel's motion to set aside default is DENIED.

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V.

Conclusion

Defendant James Zemel's Motion to Set Aside Entry of Default is DENIED.

Case Number: 26AVCV00258 Hearing Date: September 3, 2026 Dept: A14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTH DISTRICT CAROLYN DULANEY, Plaintiff, v. 44902 ANDALE AVE PROPERTY; LBD HOLDINGS LLC; and DOES 1 through 20, inclusive, Defendants.

| Case Number 26AVCV00258 [TENTATIVE] STATEMENT OF DECISION Date of Hearing: September 3, 2026 Dept. A-14 Judge William H. Forman |

I.

Background

This is a personal injury action arising from allegedly unhabitable, unhealthy, and unsanitary conditions of an apartment. Defendants 44902 Andale Ave Property (Andale) and LBD Holdings LLC (LBD) (together Defendants) move to strike portions of Plaintiff's complaint.

On February 23, 2026, Plaintiff Carolyn Dulaney (Plaintiff) filed a complaint against Defendants and DOEs 1 through 20, asserting 13 causes of action for (1) battery, (2) negligence, (3) intentional infliction of emotional distress, (4) statutory breach of the warranty of habitability (Civ. Code, Sec.Sec. 1941, 1941.1), (5) tortious breach of the implied warranty of habitability, (6) violation of Business and Professions Code Sec. 17200 et seq., (7) breach of the covenant of quiet enjoyment, (8) violation of Civil Code Sec. 1941.3, (9) violation of Civil Code Sec. 1942.4, (10) negligent violation of statutory duty to maintain habitable conditions, (11) breach of contract, (12) private nuisance, and (13) public nuisance.

Plaintiff alleges that on May 1, 2018, she moved into the subject property located at 44902 Andale Ave, Lancaster, CA 93535 (the Property), which is owned, operated, and managed by LBD, doing business as Andale. (Compl., P.P. 4-5, 10.)

In April 2022, Plaintiff asserts she first discovered mold in the ceiling and roof due to an extended leak, and upon reporting the issue, patchwork repairs were completed but Defendants failed to remediate the mold, refused to pay for proper mold remediation services, failed to provide Plaintiff with receipts or documentation related to inspections of the issue, and as a result, Plaintiff suffered ongoing health symptoms from ongoing mold exposure. (Compl., P.P. 11-19.)

Plaintiff alleges that Defendants deliberately and recklessly chose not to inspect or ensure the Property was free of mold and other conditions, willfully disregarded knowledge of pre-existing unhabitable and unhealthy conditions including mold, and failed to eradicate or eliminate known conditions including mold, asbestos, and insect infestations. (Compl., P.P. 21-22.)

On July 20, 2026, Defendants filed the present motion to strike portions of Plaintiff's complaint. On August 21, 2026, Plaintiff filed an opposition. On August 25, 2026, Defendants filed a reply.

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II.

Preliminary Procedural Issues

Defendants' Supplemental Meet and Confer Declaration - Before filing a motion to strike, the moving party is required to meet and confer at least five days before the date the responsive pleading is due in person, by telephone, or by video conference, with the party who filed the pleading for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike. (Code Civ. Proc., Sec. 435.5, subd. (a).)

The moving party shall file and serve with the motion to strike a declaration stating the means by which the parties met and conferred and that the parties did not reach an agreement to resolve the issues raised, or that the party who filed the pleading objected to failed to respond or otherwise failed to meet and confer in good faith. (Id at Sec. 435.5, subd. (a)(3).)

Here, Defendants provide the Declaration of Defense counsel Douglas D. Guy, in which he declares that counsel received the file for the present case relatively late, and therefore did not have sufficient time to engage in extensive met and confer efforts, and filed the present motion after having sent only one meet and confer letter shortly before filing. (Guy Decl., P. 3.)

Defense counsel sent a meet and confer letter on July 17, 2026 to Plaintiff's counsel informing them of the specific issues raised in the motion to strike, and requested a response as soon as possible noting the impending deadline to file a motion to strike, but received no response from Plaintiff's counsel. (Guy Decl., P.P. 4-5, Ex. A.)

Counsel then filed a supplemental declaration, asserting that immediately after the filing of the motion, Plaintiff's counsel responded that they would grant a 30-day extension, after which they acknowledged that the motion to strike had already been filed, and Defense counsel requested Plaintiff's position on the motion. (Guy Supp. Decl., P. 4, Ex. B.)

Defense counsel followed up regarding Plaintiff's position on the motion to strike on July 28, 2026 and August 14, 2026, which went unanswered. (Guy Supp. Decl., P.P. 5-7, Ex. C.)

Plaintiff raises no objection to Defendants' meet and confer efforts, and the Court finds this requirement has been satisfied.

Plaintiff's Opposition - The Court notes that Plaintiff's opposition lacks consecutive page numbers as required by California Rules of Court rule 2.109. The Court will assign traditional numeric page numbers to the opposition in referencing the opposition herein, with the caption page assigned page number one, and the signature page assigned page number 13.

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III.

Legal Standard

Standard for Motion to Strike - A motion to strike lies where either (1) there is "irrelevant, false or improper matter inserted in any pleading," or (2) where a pleading or part thereof is "not drawn or filed in conformity with the laws of this state, a court rule or order of court." (Code Civ. Proc., Sec. 436.)

When the pleadings are defective, "the defect may be raised by demurrer or motion to strike, or by motion for judgment on the pleadings." (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.)

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., Sec. 437, subd. (a).)

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.)

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IV.

Discussion

Application - Defendants move to strike the following portions of Plaintiff's complaint pursuant to Civil Code section 3294 and Code of Civil Procedure section 435 and 436:

1. From P.P. 46, 63, 70, 92, 108, 128 - "Plaintiffs are informed and believe, and thereon allege, that the aforesaid conduct of Defendants, and DOES 1 through 20, inclusive, was carried out with a willful and conscious disregard of Plaintiff's right to be free from such tortious behavior, such as to constitute oppression, fraud or malice pursuant to California Civil Code Section 3294, and that an officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the wrongful acts of employees of Defendants, and DOES 1 through 20, entitling Plaintiff to punitive damages in an amount appropriate to punish and set an example of all Defendants."

2. From P.P. 93, 109 - "Defendants individually and in concert, acted with recklessness and conscious disregard of the rights of Plaintiff. Defendants and DOES 1 through 20, conduct in tortuously putting the Property into an unfitting condition has been negligent, malicious and oppressive, thereby entitling Plaintiff to punitive damages in an amount to be determined at trial." (Motion, p. 1:27-4:5.)

Defendants' motion rests on the argument that Plaintiff has not satisfied the pleading requirements to support a punitive damages claim against Defendants because the factual allegations do not establish malice, oppression, or fraud, and can only be characterized as unreasonable, negligent, grossly negligent, or reckless conduct, which does not satisfy the high standard for a punitive damages claim. (Motion, p. 7:21-8:2.)

Defendant also argues that Plaintiff's complaint asserts conclusory and boilerplate language without supporting facts, and there is no indication that Defendants caused Plaintiff's injury or knew it would occur, amounting to no more than negligence for which punitive damages are unavailable. (Motion, p. 8:1-8.)

Finally, Defendants argue Plaintiff's request for punitive damages is unsupported because the complaint fails to allege facts required to establish punitive damages are recoverable against a corporate defendant. (Motion, p. 9:20-25.)

In opposition, Plaintiff argues her complaint states facts sufficient to support her request for punitive damages, as California courts consistently hold that non-intentional torts can give rise to punitive damages if the complaint alleges sufficient facts to show the defendant was aware of the probable consequences of its decision yet chose the dangerous course of action despite the risk, and Plaintiff's complaint alleges facts establishing an extreme indifference and conscious disregard by Defendants of the serious risk of harm to Plaintiff in exposing her to a mold infestation. (Opp., p. 6:6-9, 9:6-15.)

Plaintiff also argues she has pled sufficient facts to support a claim for punitive damages against Defendants as corporations, as proof of malice may be inferred from the circumstances and the complaint sets forth allegations of intentional and egregious conduct. (Opp., p. 10:24-11:19.)

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, Sec. 3294, subd. (a).)

"Malice" is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.)

"Oppression" means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person's rights. (Ibid.)

"Fraud" is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal. App. 4th 1217, 1228-1229.)

"Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences." (Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).)

Plaintiff's complaint does not plead factual allegations sufficient to support a claim for punitive damages against Defendants. It is well established in California that a request for punitive damages must be supported by specific facts at the pleading stage and not based merely on conclusory statements or recitation of the standard in general terms.

"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." (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

"In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. [Citation.] Punitive damages may not be pleaded generally." (Today's IV v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal. App. 5th 1137, 1193.)

"Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim." (Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166.)

Furthermore, pursuant to Civil Code section 3294, subdivision (b), and per College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 721, the availability of punitive damages against corporate entities like Defendants must be based on (1) the wrongful act being committed by an officer/managing agent, (2) advanced knowledge of the employee's unfitness by an officer/managing agent, (3) an officer/managing agent authorized the wrongful act, or (4) an officer/managing agent ratified the wrongful act.

As currently drafted, the complaint does not provide sufficient facts constituting the basis for the allegations that Defendants acted with malice, oppression, or fraud or facts establishing that Defendants knew or should have known of the presence of mold anywhere on the Property.

The complaint also provides insufficient factual allegations to satisfy the requirements of Civil Code section 3294 for recovery of punitive damages against a corporate entity. The complaint alleges that Plaintiff resided in the Property for approximately four years before discovering mold on the Property, and that the mold was caused by a swamp cooler leak. (Compl., P.P. 10-11.)

It also alleges a number of facts as to the property manager, including that in response to Plaintiff's reporting of the issue, the property manager sent multiple maintenance workers and inspectors to the residence who performed patchwork repairs but failed to remediate the mold, the manager declined to pay for mold remediation services, and did not provide Plaintiff with the receipts or documentations from the inspections conducted in her unit. (Compl., P.P. 14-15, 17.)

As to Defendants, the complaint alleges they deliberately or recklessly chose not to inspect or ensure the unit was free of mold, had knowledge of pre-existing mold and other unsafe conditions but failed to eradicate or eliminate those conditions prior to Plaintiff moving in, deliberately failed to notify Plaintiff of mold, deliberately and recklessly ignored Plaintiff's and other tenants' complaints and reports of said conditions, and kept management in place despite the inadequate maintenance of the Property. (Compl., P.P. 21-26.)

The complaint further alleges that Defendants authorized or ratified the management's conduct at the Property, because Defendants permitted management not to inspect or ensure the units were free from mold and the spread thereof, failed to implement and update adequate policies and procedures to train and inspect units, failed to terminate management and corporate employees, failed to inspect conditions existing prior to Plaintiff residing in the unit, failed to address Plaintiff's complaints, failing to implement or enforce training of management and maintenance employees, failed to repair unsafe conditions, and permitted and tolerated a common practice of indifference by management. (Compl., P. 32.)

The punitive damages claims are essentially predicated on (1) Defendants' knowledge and concealment of the existence of mold and other unsafe conditions, including poor weatherproofing, prior to Plaintiff moving in to the unit, (2) the failure of Defendants to remedy the condition and eliminate the mold after Plaintiff reported the condition, and (3) Defendants' knowledge and approval or ratification of alleged wrongdoing on behalf of the property manager and maintenance staff.

These allegations are insufficient to support a claim of punitive damages against Defendants. There are no factual allegations to support the contention that mold was present prior to Plaintiff's tenancy and no facts establishing when the existence of mold was discovered, who discovered it, who was informed, or where the mold was present on the Property prior to Plaintiff's moving in.

There are also no factual allegations supporting the conclusion that Defendants ever knew of the presence of mold on the Property, mold specifically in Plaintiff's unit, or wrongdoing on behalf of the property manager, as Plaintiff's complaint states she reported the conditions and submitted multiple complaints to the property manager, not to any officer or agent of either Defendant.

The complaint does not allege facts specifying which managing agent or officer ratified or authorized a wrongful act, nor any facts supporting that they did so with knowledge of the probable dangerous consequences of that conduct. The allegations of Defendants' knowledge are pled in, at best, a conclusory and generic fashion.

Penner v. Falk (1984) 153 Cal.App.3d 858 highlights the factual allegations required to support maintenance of a punitive damages claim for non-intentional torts. In Penner, the plaintiff alleged that in the two years before the subject incident, in which plaintiff was attacked at his apartment complex, various crimes had been committed on the premises, in the neighborhood, in the apartments, and in the common areas, including a number of specific, listed crimes committed, that tenants had requested the defendants the entrances to the premises and they failed to do so, that tenants had complained to the defendants that unauthorized persons were often in the building and defendants failed to exclude said persons or prevent access, and tenants notified the defendants numerous times of repeated acts of vandalism and burglary that had occurred and requested further safety measures. (Id. at 862-63.)

The plaintiff alleged that the defendants were aware of crimes in the apartment building caused by the condition, tenant reports of crime, tenant complaints regarding the conditions, express tenant requests for and the obvious need to repair, and the nature of the neighborhood, including the occurrence of criminal activity, and therefore they knew or should have known that the conditions made it foreseeable that criminals would gain access to and commit crimes on the premises, attack tenants, or otherwise expose tenants to the foreseeable unreasonable risks of harm. (Id. at 863.)

The Court founds these allegations sufficient, as the plaintiff set forth long existing physical conditions of the premises which posed danger, that the defendants knew of those conditions for up to two years, and that the defendants had the power to make changes but failed to take corrective and curative measures. (Id. at 867.)

Here, Plaintiff's complaint is not pled with this specificity. For example, Plaintiff alleges Defendants had knowledge and awareness of the mold in Plaintiff's unit, a claim her punitive damages allegations rest on, but does not put forth any factual allegations supporting this conclusion.

Plaintiff does not allege that she or any other tenant had ever reported the condition to any officer or agent, and does not allege that the property manager reported these conditions to Defendants. Plaintiff also does not put forth any factual allegation supporting that there was mold present before she moved in or that Defendants knew or should have known that Plaintiff would be harmed by those conditions.

Ultimately, the complaint asserts a number of conclusory statements against Defendants without the specific factual support required for a punitive damages claim. Mere conclusory allegations that Defendants acted with malice, oppression, or fraud or that Defendants authorized or ratified wrongful conduct of its employees does not satisfy the specific factual pleading requirement for the maintenance of a punitive damages claim.

Plaintiff must be able to supply the relevant factual basis upon which she is requesting punitive damages. (See G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) If Plaintiff has no factual basis on which to request punitive damages, to do so is inappropriate. If Plaintiff does have a factual basis on which this request is grounded, it is within her ability to so plead such facts, and she must do so to maintain this request.

While Defendants argue the claims against it constitute mere negligence and nothing more, the Court finds there is a reasonable possibility of amendment. For example, Plaintiff alleges that Defendants knew of the mold in her unit and on the Property and actively concealed such conditions with the knowledge that it would cause harm. If this claim can be supported by factual allegations regarding Defendants' knowledge of the conditions, intentional acts to conceal them, and knowledge of the harm it could cause, Plaintiff may well be able to maintain punitive damages against Defendants.

Accordingly, Defendants' motion to strike is GRANTED with leave to amend.

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V.

Conclusion

Defendants 44902 Andale Ave Property and LBD Holdings LLC's Motion to Strike Portions of Plaintiff's Complaint is GRANTED with leave to amend.

Case Number: 26AVUD00060 Hearing Date: September 3, 2026 Dept: A14 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTH DISTRICT DOROTHEA COHEN, Plaintiff, v. DANIEL MCFATE, and DOES 1 through 10, inclusive, Defendants. | Case Number 26AVUD00060 [TENTATIVE] STATEMENT OF DECISION Date of Hearing: September 3, 2026 Dept. A-14 Judge William H. Forman |

I.

Background

This is an unlawful detainer case arising from Defendant Daniel McFate's (Defendant) alleged refusal to exit real property owned by Plaintiff Dorothea Cohen (Plaintiff) and located at 1005 Justin Court, Lancaster, CA 93535 (the Property). Defendant Kaitlin McFate (hereinafter Claimant), wife of Defendant, moves to set aside entry of default and any default judgment entered against her.

On January 13, 2026, Plaintiff filed a complaint against Defendant, asserting four causes of action for (1) forcible detainer, and (2-4) three causes of action for unlawful detainer. Specifically, Plaintiff alleges that in April 2021, Plaintiff, who is disabled, hired Defendant as her caretaker by oral agreement and allowed him in exchange to reside with her on the Property. (Compl., P.P. 11-12.)

On September 12, 2025, Plaintiff terminated Defendant's employment as her caretaker. (Id at P. 13.) On September 22, 2025, Defendant reentered the Property after