Motion to Strike Initial Pleading in KHALIL MSALAM, et al vs. ARIA SARBELAND, et al| Trellis.Law

On May 10, 2019 a Motion-Secondary was filed involving a dispute between Msalam, Andrew, Msalam, Ghassan, Msalam, Jamie, Msalam, Jamilah, Msalam, Jimilah, Msalam, Jonathan, Msalam, Julnar, Msalam, Khalil, and Arellano, Fred, Arellano, Freddie A., Jr, Aria Sarbeland Trust, Does 4-20 Individually And In Their Official Capacities, Does 7-20, Individually And In Their Official Capacities, Gonzalez, Miguel, Martha Fabiola Sarbeland Trust, Sarbeland, Aria, Sarbeland, Martha, Sarbeland Trust, for (26) Unlimited Other Real Property in the District Court of San Mateo County.

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L.M. PARMENTER, STATE BAR NO.176196
1 PARMENTER LAW OFFICES
501 ‘B’ Street, Suite 200
2 San Rafael, CA 94901-3846
T: 415-738-7901 - LMPARMENTER@LAWPAR.COM 5/2/2022
3
MANUEL A. JUAREZ, STATE BAR NO.200706
4 LAW OFFICES OF MANUEL A. JUAREZ
2143 Cedar Street, Suite 200
5 Berkeley, CA 94709
T: 510-841-6164 - BAYLAW1@YAHOO.COM
6
Attorneys for Plaintiffs
7 KHALIL MSALAM, ET AL.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN MATEO
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LAW OFFICES OF MANUEL A. JUAREZ

11 KHALIL MSALAM, JULNAR MSALAM, Case No.: 19-CIV-02602
PARMENTER LAW OFFICES

JAMILAH MSALAM, GHASSAN MSALAM,
12 JAMIE MSALAM, JONATHAN MSALAM] The Hon. Robert D. Foiles
ANDREW MSALAM by his Guardian ad
13 Litem Jimilah Msalam, PLAINTIFFS’ OPPOSITION TO
DEFENDANTS ARIA SARBELAND AND
14 Plaintiffs, MARTHA SARBELAND’S MOTION TO
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vs. STRIKE PLAINTIFFS’ THIRD
15 AMENDED COMPLAINT
ARIA SARBELAND, individually, in his
16 official capacity and as Trustee of the Aria [Concurrently filed with 1.] Plaintiffs’
Sarbeland Trust, the Martha Fabiola Sarbeland Opposition to Demurrer; and
17 Trust, and the Sarbeland Trust; MARTHA 2.] Plaintiffs’ Motion to Strike the Defendants’
SARBELAND, individually, in her official Impropere Jointly Filed Demurrer and Motion to
18 capacity and as Trustee of the Aria Sarbeland Strike]
Trust, the Martha Fabiola Sarbeland Trust, and
19 the Sarbeland Trust; FREDDIE A. Date: May 13, 2022
ARELLANO, JR. individually, in his official Time: 9:00 a.m.
20 capacity, and DOES 4-20 individually and in Dept.: 21
their official capacities.
21 Action Filed: May 10, 2019
Defendants. Trial Date: Not Set
22
23
24 * As set forth in the Plaintiffs’ Motion to Strike the
Defendants' jointly filed Demurrer – Motion to Strike – it is
25 extremely confusing, if not impossible, for the Plaintiffs to
ascertain if the Defendants are seeking to demur, or if they are
26
seeking to strike an allegation. We respectfully ask the Court that
27 any incorrect assertion made by the Plaintiffs be strictly construed
against the Defendants for their having improperly jointly filed the
28 Demurrer and the Motion to Strike in one document.

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
TO THIS HONORABLE COURT, ALL PARTIES AND THEIR RESPECTIVE
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COUNSEL OF RECORD, PLEASE TAKE NOTICE PLAINTIFFS Khalil Msalam, Julnar
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Msalam, Jamilah Msalam, Ghassan Msalam, Jamie Msalam, Jonathan Msalam, and Andrew
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Msalam by his Guardian ad Litem Jimilah Msalam (collectively “Plaintiffs”), through their
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attorneys of record, file their Opposition to Defendants Aria Sarbeland and Martha Sarbeland’s
5 (“Defendants”) Motion to Strike the Third Amended Complaint (“TAC” or “Complaint”).
6 Plaintiffs’ Opposition to Defendants’ Demurrer -which has been improperly filed jointly
7 with the Motion to Strike, is opposed in a concurrently filed Opposition to Defendants’ Demurrer.
8 Plaintiffs have also concurrently filed a Motion to Strike the Defendants’ improper jointly filed
9 Demurrer and Motion to Strike the TAC.

10 Plaintiffs submit the following Memorandum of Points and Authorities in Opposition
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to Defendants Aria Sarbeland and Martha Sarbeland’s Motion to Strike Plaintiffs’ Third
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Amended Complaint. Plaintiffs’ Opposition is based upon this Memorandum of Points and
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Authorities, and any further oral argument received by this Court at the hearing of this matter .
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Dated this 2 nd day of May 2022. Respectfully submitted,
15
PARMENTER LAW OFFICES
16
17 By:
18 L.M. Parmenter
Attorney for Plaintiffs
19 KHALIL MSALAM, ET AL.
20
21 LAW OFFICES OF MANUEL A. JUAREZ

22
23 By:

24 Manuel A. Juarez
Attorney for Plaintiffs
25 KHALIL MSALAM, ET AL.

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Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................1
3 II. STATEMENT OF FACTS ...............................................................................................1
4 III. LEGAL ARGUMENT ......................................................................................................2
5 A. DEFENDANTS’ MOTION TO STRIKE IS IMPROPER AND SHOULD BE
6 DENIED BASED ON THE ALLEGATIONS WHICH HAVE BEEN PLED IN
7 PLAINTIFFS’ THIRD AMENDED COMPLAINT ...............................................2
8 B. PLAINTIFFS’ ALLEGATION IN SUPPORT OF PUNITIVE DAMAGES
9 AGAINST DEFENDANTS ARE SUFFICIENTLY SUPPORTED IN
10 PLAINTIFFS’ TAC .................................................................................................3
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11 1. PLAINTIFFS SUFFICIENTLY PLED FACTS DEMONSTRATING
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12 DEFENDANTS ENGAGED IN DESPICABLE CONDUCT .......................4
13 2. PLAINTIFFS’ PUNITIVE DAMAGES ALLEGATIONS ALSO MEET
14 THE REQUIREMENTS OF CIVIL CODE SECTION 3294 – WITHIN
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15 THE LANDLORD – TENANT CONTEXT ..................................................7
16 C. ATTORNEY FEES ARE PROPERLY PLED IN THE PLAINTIFFS’ TAC .........8
17 1. PLAINTIFFS MAY ALSO SEEK ATTORNEY FEES UNDER THE
18 THEORY OF A ‘TORT OF ANOTHER’ ......................................................8
19 D. THE TRUSTS NAMES IN THE PLAINTIFFS’ TAC ARE THE ALTER EGOS
20 OF THE DEFENDANTS AND MUST BE A PART OF THIS ACTION .............8
21 E. DISGORGEMENT HAS BEEN PROPERLY PLED BY THE PLAINTIFFS IN
22 THE TAC ...............................................................................................................10
23 F. PLAINTIFFS ARE ENTITLED TO ALLEGE CLAIMS FOR PREJUDGMENT
24 INTEREST .............................................................................................................11
25 IV. IF THE RELIEF SOUGHT IN THE TAC IS DEFECTIVE, LEAVE TO AMEND
26 SHOULD BE GRANTED. .............................................................................................11
27 V. CONCLUSION ...............................................................................................................12
28

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
1 TABLE OF AUTHORITIES
2 CASES
3 Angie M. v. Superior Court
4 (1995) 37 Cal.App.4th 1217 ............................................................................................... 4
5 Bank of the West v. Superior Court
6 (1992) 2 Cal. 4 th 1254 ...................................................................................................... 10
7 Bell v. Sharp Cabrillo Hospital
8 (1989) 212 Cal. App.3d 1034 ............................................................................................ 5
9 First Nationwide Savings v. Perry
10 (1992) 11 Cal.App.4th 1657 ............................................................................................. 10
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11 Grieves v. Sup. Ct.
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12 (1984) 157 CA 3d 159 ...................................................................................................... 11
13 Grimshaw v. Ford Motor Co.
14 (1981) 119 Cal. App.3d 757 .............................................................................................. 5
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15 Hilliard v. AH. Robins Co.
16 (1983) 148 Cal.App.374 ..................................................................................................... 5
17 Howard v. American Nat'l Fire Ins. Co.
18 (2010) 187 Cal 4 th 498 ..................................................................................................... 11
19 Khoury v. Maly's of California, Inc.
20 (1993) 1 Cal.App.4th 612 ................................................................................................... 3
21 Lakin v. Watkins Associated Industries
22 (1993) 6 Cal 4th 644 ....................................................................................................... 11
23 Lectrodryer v. Seoulbank
24 (2000) 77 Cal.App.4th 723 ............................................................................................... 10
25 Levy-Zentner Co. v. Southern Pac. Transp. Co.
26 (1977) 74 Cal 3d 762 ....................................................................................................... 11
27 //
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Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
1 Newby v. Alto Riviera Apartments
2 (1976) 60 Cal.App. 3d 288 ................................................................................................ 7
3 Penner v. Falk
4 (1984) 153 Cal.App.3d 858 ................................................................................................ 3
5 People ex rel. Kennedy Beaumont Inv., Ltd.
6 (2003) 111 Cal.App.4th 102 ............................................................................................. 10
7 Perkins v. Superior Court
8 (1981) 117 Cal. App.3d 1 ................................................................................................... 3
9 Peterson v. Superior Court
10 (1982) 31 Cal.3 d 147 ........................................................................................................ 4
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11 Pistorius v. Prudential Ins. Co. of America
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12 (1981) 123 Cal.App.3d 541 ............................................................................................... 4
13 Prentice v. North Am. Title Guaranty Corp., Alameda Division
14 (1963) 59 Cal.2d 618 ......................................................................................................... 8
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15 Ramona Manor Convalescent Hosp. v. Car Enterprises
16 (1986) 177 Cal. App.3d 1120 ............................................................................................ 5
17 Richardson v. Employers Liab. Assur. Corp.
18 (1972) 25 Cal.App.3d 232 ................................................................................................. 4
19 Rivera v. Sassoon
20 (1995) 39 Cal.App.4th 1045 ............................................................................................... 3
21 SK_F Farms v. Superior Court
22 (1984) 153 Cal.App.3d 902 ................................................................................................ 4
23 Smith v. David
24 (1981) 120 Cal.App.3d 101 ............................................................................................... 3
25 Stoiber v. Honeychuck
26 (1980) 101 Cal.App.3d 903 ............................................................................................ 3, 7
27 //
28

iii

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
1 Taylor v. Superior Court
2 (1979) 24 Cal.3d 890 ..................................................................................................... 4, 5
3 Triodyne, Inc. v. Superior Court
4 (1966) 240 Cal.App.2d 53…………………………………………………………………….2
5 West v. Johnson & Johnson Products, Inc.
6 (1985) 174 Cal.App.3d 831 ................................................................................................ 4
7 STATUTES
8 Business and Professions Code § 17200 ................................................................................ 10
9 Business and Professions Code § 17202 ................................................................................ 10
10 Civil Code § 1941 ............................................................................................................... 3, 7
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11 Civil Code § 3294 ................................................................................................................... 3
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12 Civil Code § 3294(a) ............................................................................................................... 3
13 Civil Code § 3294(c) ............................................................................................................... 4
14 Civil Code § 3294(c)(2) .......................................................................................................... 4
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15 Code of Civil Procedure § 435 ................................................................................................ 2
16 Code of Civil Procedure § 436 ................................................................................................ 2
17 Code of Civil Procedure § 437 ................................................................................................ 2
18 Code of Civil Procedure § 452. ............................................................................................... 3
19 Code of Civil Procedure § 576 .............................................................................................. 11
20 OTHER AUTHORITIES
21 Rest.3d Restitution and Unjust Enrichment ........................................................................... 10
22 FEDERAL AUTHORITIES
23 S.E.C. v. Hufman (5th Cir. 1993) 996 F.2d 800, 802 ............................................................. 10
24 U.S. v. Philip Morris USA (D.C. 2004) 310 F.Supp.2d 58 ..................................................... 10
25 TREATISES
26 Rest.3d Restitution and Unjust Enrichment § 1 ..................................................................... 10
27 Weil & Brown, California Practice Guide. Civil Procedure Before Trial (The Rutte r Group)
28

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
1 7:197, p.7-63 ....................................................................................................................... 3
2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group),
3 3:260-3:264.5, p. 3-132.30-p.3-137 ..................................................................................... 4
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Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
MEMORANDUM OF POINTS AND AUTHORITIES
1
2
I. INTRODUCTION
3
Defendants Aria Sarbeland and Martha Sarbeland’s (collectively, “Defendants”)
4
motion to strike (“MTS”) lacks merit factually and legally. As set forth below, the punitive
5 damages claims, attorney’s fees claims, the prayers for prejudgment interest and
6 disgorgement, and allegations about the alter ego trusts of the Defendants, are all factually
7 supported in the TAC. Thus, Defendants’ MTS should be denied in its entirety.
8 Meet and Confer: Shortly after the filing of the TAC, an email was received from
9 Defendants’ counsel stating Defendants’ intention to move to challenge the TAC. That email

10 contained no information, case law, statutory law or argument as to why the Defendants
LAW OFFICES OF MANUEL A. JUAREZ

would be seeking to challenge the TAC. After very careful further review and consi deration
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and further extensive research, an email was returned to Defendants’ counsel informing him
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that the Plaintiffs would not be willing to amend their TAC. Contrary to Defendants’
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assertions in their jointly filed demurrer and MTS, there was never any refusal on the part of
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the Plaintiffs to engage in a meet an confer process.
15 II. STATEMENT OF FACTS
16 The events giving rise to this action occurred during the tenancy relationship between the
17 Plaintiffs and the Defendant landlords at 24 Ottawa Street, San Mateo, California 94401
18 (hereinafter “subject property” or “premises”). At all relevant times herein, Plaintiffs were the
19 tenants of the Defendants for a period of 8 years from August 2010, until the Plaintiffs were

20 constructively evicted, on or about January 2018. Plaintiffs complied with all of their duties
pursuant to law and the lease agreement – including the timely payment of rent each month to the
21
Defendants.
22
During Plaintiffs’ tenancy, Plaintiffs suffered from Defendants’ neglect, malicious
23
behavior, and reckless behavior - as it pertained to the Premises. This included, but was not
24
limited to: leaking plumbing /sewer discharge and pools of human feces below home, sewer
25 backup, constant disruptive and trespassory construction and remodeling work conducted by
26 unlicensed day laborers at the home including weekends and holidays, this, inter alia, created
27 constant toxic dust and particulates and other exposures to hazardous industrial/construction
28

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
materials on a constant basis, rodent infestations, nuisance, etc. All in violation of California
1
Health & Safety Code sections 17920.3 &17920.10.
2
Plaintiffs informed Defendants about the defective conditions in their dwelling and the
3
subject property as a whole and demanded that Defendant make repairs to their dwelling. Rather
4
than make the necessary repairs and correct the nuisance problems, Plaintiffs’ many complaints
5 were completely ignored, and Plaintiffs were informed to fix whatever repairs were needed at their
6 own expense which they did.
7 As way of example, Defendants demanded that Plaintiffs pay them $3,000.00 in order to
8 rectify the under the under the home human feces discharge problem. At the time, Defendant
9 Martha Sarbeland claimed she had no money and was too poor to fix up her own home. Plaintiffs

10 obliged only to have the Defendants misappropriate those funds and retain a day laborer to attempt
LAW OFFICES OF MANUEL A. JUAREZ

to rectify the unsafe and unhealthy matter. Defendants pocketed the money and never credited or
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returned the Plaintiffs’ monies. Moreover, at Paragraph 22 of the lease agreement drafted by the
12
Defendants, Defendants certified to the Plaintiffs that they had full insurance to cover problems
13
such as are set forth in this action. Instead, Defendants lied for years to their carrier, the State
14
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Farm Insurance Co., falsely claiming that the Defendants were the owner-occupiers of the
15 Premises when they knew they were renting the Premises to the Plaintiff family. This malicious
16 and reckless insurance fraud on the part of the Defendants, created a situation wherein if the entire
17 Msalam perished in a fire at the dwelling – there would have been no insurance coverage – but
18 there would have been full coverage for the Defendants to re-coup insurance monies for the loss of
19 the home they rented to the Plaintiffs. Further, as alleged in the TAC, had the Plaintiffs known the

20 truth of the matter, they would never have moved into the subject property.
III. LEGAL ARGUMENT
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A. DEFENDANTS’ MOTION TO STRIKE IS IMPROPER AND SHOULD BE
22
DENIED BASED ON THE ALLEGATIONS WHICH HAVE BEEN PLED IN
23
PLAINTIFFS’ THIRD AMENDED COMPLAINT
24
Sections 435 through 437 of the Code of Civil Procedure govern motions to strike. A
25 Motion to Strike may only be granted where the allegation at issue are, among other grounds,
26 “irrelevant, false or improper.” Code of Civ. Proc. § 436. Where a motion to strike is so broad as to
27 include irrelevant matters, the motion should be denied in its entirety. Triodyne, Inc. v. Superior
28 Court (1966) 240 Cal.App.2d 536, 542.

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
Motions to strike are generally disfavored under California Law. See, Weil & Brown,
1
California Practice Guide. Civil Procedure Before Trial (The Rutter Group) 7:197, p.7-63; Code of
2
Civ. Proc.. § 452. It is public policy in California to allow disputes to be resolved on the merits,
3
and pleadings will be construed very liberally. Id. As with a demurrer, the grounds for a motion to
4
strike must appear on the face of the complaint. All allegations must be taken as true and all
5 inferences drawn in favor of Plaintiff. Id.
6 Even conclusory allegations will not be stricken where other portions of the complaint
7 contain factual allegations, which support the conclusions. See, e.g., Perkins v. Superior Court
8 (1981) 117 Cal. App.3d 1, 6. “The distinction between conclusions of law and ultimate facts is not
9 at all clear and involves at most, a matter of degree.” Id. Any uncertainty or ambiguity is a matter

10 to be clarified by discovery, not through attacking the pleadings. See, e.g., Khoury v. Maly's of
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California, Inc. (1993) 1 Cal.App.4th 612, 616.
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As set forth herein, Plaintiffs’ TAC sufficiently alleges facts to support claims for punitive
12
damages, request for attorneys’ fees, disgorgement, prejudgment interest, and prejudgment interest
13
against the moving Defendants
14
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B. PLAINTIFFS’ ALLEGATION IN SUPPORT OF PUNITIVE DAMAGES
15 AGAINST DEFENDANTS ARE SUFFICIENTLY SUPPORTED IN
16 PLAINTIFFS’ TAC
17 Section 3294 of the Civil Code governs when punitive damages are permitted under
18 California Law. California Law has held that a landlord may be liable for punitive damages if the
19 requirements of Civil Code section 3294 are met. See, e.g., Stoiber v. Honeychuck (1980) 101

20 Cal.App.3d 903, 920 (- nuisance, intentional infliction of emotional distress, violation of Section
1941 of the Civil Code, breach of the implied warranty of habitability); Rivera v. Sassoon (1995) 39
21
Cal.App.4th 1045, 1046 (- breach of habitability); Penner v. Falk (1984) 153 Cal.App.3d 858, 867
22
(- long term knowledge of dangerous condition); Smith v. David (1981) 120 Cal.App.3d 101, fn. 3
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(- plaintiffs may seek general and punitive damages for alleged tortious breach of warranty).
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Civil Code section 3294(a) states:
25 In an action for the breach of an obligation not arising
26 from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression,
27 fraud, or malice, the plaintiff, in addition to the actual
damages, may recover damages for the sake of example
28
and by way of punishing the defendant. (emphasis added).

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
This statute allows Plaintiffs to recover punitive damages if the jury determines that
1
Defendants’ conduct constitutes “oppression, fraud or malice.” Civil Code § 3294(c). The terms
2
“oppression, fraud or malice” are stated in the disjunctive (“or”) so that punitive damages are
3
allowed if any one of the three types of conduct is present. Pistorius v. Prudential Ins. Co. of
4
America (1981) 123 Cal.App.3d 541, 556.
5 Under Civil Code section 3294, “malice” includes:
6 ...conduct which is intended by the defendant to cause
7 injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious
8 disregard of the rights or safety of others. (emphasis
added).
9
Similarly, “oppression” means “despicable conduct that subjects a person to cruel and
10
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unjust hardship in conscious disregard of that person's rights.” Civil Code § 3294(c)(2), (emphasis
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added); see also Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal.App.3d 232, 246.
12
As demonstrated below, Plaintiffs’ TAC pleads facts that demonstrate that Defendants
13 engaged in “despicable conduct” “with a willful and conscious disregard of the rights or safety of
14 others.”
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15 1. PLAINTIFFS SUFFICIENTLY PLED FACTS DEMONSTRATING
16 DEFENDANTS ENGAGED IN DESPICABLE CONDUCT

17 Longstanding case law recognizes this secund category of punitive damage cases, which

18 may not involve intent to harm, but which do involve "despicable conduct" committed "with a
willful and conscious disregard of” plaintiffs’ health and safety. See Peterson v. Superior Court
19
(1982) 31 Cal.3 d 147, 158-159; West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d
20
831, 867-879; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229. See also, Weil
21
& Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group), 3:260-
22
3:264.5, p. 3-132.30-p.3-137.
23 Punitive damages may be awarded for torts, even where based on negligence, if the
24 defendant’ conduct shows a conscious disregard for the rights or safety of the plaintiff. Peterson,
25 supra, at 58-59 (emphasis added); SK_F Farms v. Superior Court (1984) 153 Cal.App.3d 902,
26 907; Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896. "Where non intentional torts
27 involve conduct performed without intent to harm, punitive damages may be assessed ‘when the

28 conduct constitutes conscious disregard of the rights or safety of others." (emphasis added.) See,

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
e.g., Bell v. Sharp Cabrillo Hospital (1989) 212 Cal. App.3d 1034, 1044 (citations omitted). See
1
also, Grimshaw v. Ford Motor Co. (1981) 119 Cal. App.3d 757, 811.
2
While "vile" or "contemptible" actions often justify, punitive damages, it is not required. In
3
fact, a defendant is not even required to have intended harm or have engaged in an intentional act
4
against particular victim for punitive damages to be justified. See Ramona Manor Convalescent
5 Hosp. v. Car Enterprises (1986) 177 Cal. App.3d 1120; Hilliard v. AH. Robins Co. (1983) 148
6 Cal.App.374, 391-392. It is sufficient that a defendant be aware that their conduct would have
7 injurious consequences to someone. See, e.g., Ramona Manor Convalescent Hosp., supra; Taylor,
8 supra; Hilliard, supra.
9 Here, Defendants chose to ignore this entire category or type of conduct that has been

10 recognized to support punitive damages, which perfectly describes the case at bar as pled in
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Plaintiffs’ TAC. Defendants’ Motion to Strike punitive damages should be denied because
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Plaintiffs pled sufficient facts that Defendants were aware of the harm associated with their
12
conduct and Defendants willfully and deliberately failed to avoid those consequences in conscious
13
disregard for Plaintiffs’ health and safety.
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Specifically, Plaintiffs pled the following in their TAC:
15 24. Defendants, and each of them, as below indicated, acted with oppression,
16 fraud and/or malice in that, among other things, they acted with a willful and
conscious disregard for the rights and safety of the Plaintiffs.
17
25. Defendants, and each of them, acted with malice, oppression and/or fraud
18
in that, among other things, they acted with a willful and conscious disregard
19 for the rights and safety of the Plaintiffs despite knowing the risk of serious
injury or death that could likely result from the unsafe and dangerous
20 condition of the Subject Property.
21
26. Defendants, and each of them, knew or should have known that the
22 conditions at the Subject Property were a safety hazard that posed a danger
to human life, including but not limited to:
23 a) Ongoing feces/sewer infestation underneath dwelling with toxic fumes
24 emanating into the Plaintiffs dwelling continuously;
b) Nonfunctioning / inadequate heater at the dwelling with the Plaintiffs
25 suffering continuous frigid temperatures inside their home, especially at
night;
26 c) Ongoing cockroach and ant infestations;
27 d) Water and frigid air intrusion into the dwelling: of the Plaintiffs;
e) Horrific rodent infestation with dead rodent carcasses in the dwelling
28 creating nauseating odors in the Plaintiffs’ dwelling and large swarms of
flies;

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
f) Mold and mildew infestation With associated foul smells;
1
g) Faulty plumbing and raw sewage conditions;
2 h) Harassment and trespass through constant dangerous construction work
and Defendants’ constant at will entry without notice to the Plaintiffs. By
3 way of example of this abusive misconduct, on one such occasion Aria
Sarbeland entered the Plaintiffs’ dwelling to find Julnar Msalam in a state of
4
undress as she had just gotten out of the shower. Based on information and
5 belief this was done to sexually harass the Plaintiff and intimidate her;
i) Unsafely, recklessly and maliciously failing to warn the Plaintiffs of the
6 danger of the Defendants’ unlicensed and unpermitted day laborers/
7 handymen, and workers they picked up off the streets to conduct work upon
the Subject Property, among other dangerous conditions.
8 j) Purposefully and maliciously failing to obtain insurance for the Plaintiffs’
dwelling and maliciously lying to the Plaintiffs, the Authority, and the State
9 Farm Insurance Co., for years regarding the rental of the Subject Premises to
10 the Plaintiff Family. All done to commit fraud upon the Plaintiffs, insurance
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fraud, tax fraud and other forms of fraud. Had the Plaintiffs been informed of
11 the truth with regards to the misrepresentation regarding insurance, they
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would never have leased the Subject Property from the Defendants.
12 k) Unsafely, recklessly and maliciously failing to remove the Plaintiffs from
13 the danger of the Defendants’ unlicensed and unpermitted day laborers/
handymen, and workers they retained off the streets to conduct work,
14 construction, remolding, etc, upon the delipidated Subject Property, among
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other dangerous conditions, by failing to remove Plaintiffs to a safe place,
15 such as a hotel.
16
27. Defendants, and each of them, also had advanced knowledge that the
17 aforementioned could and/or would result in the probability of dangerous,
unsafe and unhealthy conditions, which foreseeably would lead to harm
18
and/or injuries to the health and safety of the Plaintiffs. Defendants, and each
19 of them, intentionally chose not to take reasonable steps to make the Subj ect
Property safe for the Plaintiffs. With respect to those Defendants who
20 presented the Subject Property as being insured, in so presenting, they
engaged in fraudulent conduct intended to deceive the Plaintiffs and others
21
by misrepresenting and concealing the dangerous conditions of the Subject
22 Property and the fact that there was no insurance coverage for the Plaintiffs
for the acts and omissions of the Defendants.
23
24 28. Defendants, by themselves and/or through their employees and/or agents,
acted with malice in that their despicable conduct which was carried on with
25 a willful and conscious disregard of the rights or safety of the Plaintiffs. The
term “malice” includes conduct evincing a conscious disregard of the
26 probability that the Defendants’ conduct will result in injury to others. See
27 Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757. Defendants’
conduct was so vile, base or contemptible that it would be looked down on
28 and despised by reasonable people.

Case No.: 19-CIV-02602 PLAINTIFFS’ O PPOSITION TO D EFENDANTS’ MOTION TO S TRIKE
These excerpts are just some examples of facts Plaintiffs have alleged demonstrating that
1
Defendant had knowledge that their tenants, the Msalam family (Plaintiffs), was living on a
2
property with serious substandard conditions and that these substandard conditions existed for
3
several years without any remediating efforts made by Defendants. Ultimately the Plaintiffs were
4
constructively evicted from the Premises due to these ongoing unsafe and unhealthy conditions
5 and constant disruptive behavior. Moreover, Plaintiffs’ injuries and damages were in fact caused
6 by substandard conditions (i.e., feces under the home, rodents, mold, construction debris and dust,
7 ongoing nuisance of construction). A jury could reasonably conclude that Defendants acted
8 despicably and with conscious disregard for Plaintiffs’ health and safety refusing to fix and or stop
9 the dilapidated conditions for several years. Whether the Defendants agree that such facts will

10 persuade a trier of fact that Defendants’ conduct warrants punitive damages is beyond the scope of
LAW OFFICES OF MANUEL A. JUAREZ

this pleading stage.
11
PARMENTER LAW OFFICES

2. PLAINTIFFS’ PUNITIVE DAMAGES ALLEGATIONS ALSO MEET
12
THE REQUIREMENTS OF CIVIL CODE SECTION 3294 – WITHIN
13
THE LANDLORD – TENANT CONTEXT
14
🙵

Not only do Plaintiffs’ punitive damage allegations meet Civil Code section 3294, but there
15 is specific case law affirming the applicability of punitive damages in the landlord-tenant context
16 analogous to the case at bar.
17 In Stoiber, the Court found the allegations that the landlord “had actual knowledge of
18 defective conditions in the premises including... unsafe and dangerous conditions” were sufficient
19 to allow a plaintiff to plead punitive damages. Stoiber at 920. Stoiber is particularly instructive in

20 this case, as it deals with Intentional Infliction of Emotional Distress, violation of Section 1941 of
the Civil Code, and Breach of the Implied Warranty of Habitability, which are three (3) of the
21
causes of action alleged in Plaintiffs’ TAC.
22
Further, Stoiber affirmed that: “Behavior may be considered outrageous if a defendant (1)
23
abuses a relation or position which gives him power to damage the plaintiff's interest... ” Id. at 921
24
(- quoting Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297). Here, Defendants
25 were in a position of power as the landlords-owners, managing and controlling the
26 place that Plaintiff called home fo

Case Info

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Foiles, Robert D Track Judge’s New Case

Case No.

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Document Filed Date

May 02, 2022

Case Filing Date

May 10, 2019

County

Parties

ARELLANO, FRED Defendant
ARELLANO, FREDDIE A., JR Defendant
ARIA SARBELAND TRUST Defendant
DOES 4-20 INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES Defendant
DOES 7-20, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES Defendant
GONZALEZ, MIGUEL Defendant
JABAGCHOURIAN, ARA R. Attorney for the Defendant
MARTHA FABIOLA SARBELAND TRUST Defendant
MSALAM, ANDREW Plaintiff
MSALAM, GHASSAN Plaintiff
MSALAM, JAMIE Plaintiff
MSALAM, JAMILAH Plaintiff
MSALAM, JIMILAH Plaintiff
MSALAM, JONATHAN Plaintiff
MSALAM, JULNAR Plaintiff
MSALAM, KHALIL Plaintiff
PARMENTER, LIGIA M. Attorney for the Plaintiff
SARBELAND, ARIA Defendant
SARBELAND, MARTHA Defendant
SARBELAND TRUST Defendant
Manuel Juarez Attorneys for Plaintiffs
Anthony Rodriguez Attorneys for Plaintiffs
Cynthia Anaya Soto Attorneys for Plaintiffs
Anthony Rodriguez Yao Attorney

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Motion-Secondary: KHALIL MSALAM, et al vs. ARIA SARBELAND, et al

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