Preview
ie SUPERIOR COURT OF CALIFORNIA
RCTS
COUNTY OF SANTA CLARA
Se
MINUTE ORDER
Katherine Gilson vs GS Almaden, LLC. et al Hearing Start Time 9:00 AM
20CV368213 Hearing Type: Motion: Strike
Date of Hearing: 01/26/2021 Comments: Line 3
Heard By: Takaichi, Drew C Location Department 2
Courtroom Reporter: - No Court Reporter Courtroom Clerk Farris Bryant
Court Interpreter:
Court Investigator:
Parties Present: Future Hearings:
Exhibits:
- Portions of the Complaint by Def GS Almaden, LLC (Michelle Perez)
~
No appearance.
No one has contested the Tentative Ruling.
The Tentative Ruling is adopted. See below for ruling.
Calendar Lines 3-4
Case Name: Gilson v. GS Almaden, LLC, et al.
Case No.: 20CV368213
According to the allegations of the complaint, on August 27, 2018, plaintiff Katherine Gilson ( Plaintiff)
entered into a lease agreement with defendant GS Almaden, LLC ( GSA ) for the rental of its property at 925
Foxchase Drive Unit No. 404 in San Jose. (See complaint, 9.) The lease contract lists defendant Avana
Almaden ( Avana ) as the payee and as GSA s agent and defendant Greystar Worldwide, LLC ( Greystar ) as an
interested party of liability insurance. (See complaint, 10-11.)
On December 24, 2018, Plaintiff discovered a puddle of water in her bedroom; she called Avana s emergency
phone number as designated in the lease agreement but the number did not allow her to leave a message.
(See complaint, 12.) On December 25, 2018, Plaintiff again called the emergency line and spoke to a man
who answered the phone. (See complaint, 13.) A supervisor for Avana arrived at Plaintiffs apartment to
inspect the damage and cut a hole in the carpet and the wall. (id.) Plaintiff saw a large amount of mold
inside the wall and repeatedly told the Avana supervisor that she had a mold allergy. (See complaint, 14.)
The supervisor told her that there was no mold in the carpet and returned with commercial blowers to dry
the carpet and wall. (Id.) For the next three days, the commercial blowers blew for 24 hours a day, blowing
mold spores throughout the apartment rendering the bedroom uninhabitable. (See complaint, 15.) Avana
picked up the blowers on December 28, 2018, and then did not contact her until the evening of January 3,
2019 when Avana employee Rebecca instructed Plaintiff that a company was coming to work on the
Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page
1 of 4
ie SUPERIOR COURT OF CALIFORNIA
RCTS
COUNTY OF SANTA CLARA
Se
MINUTE ORDER
apartment the next morning and that Plaintiff needed to remove everything from the bedroom. (See
complaint, 16-18.) On January 4, 2019, Plaintiff was weak, in pain, had swollen eyes, rashes on her face and
arm and was sent home from employment, whereupon she found that no work had actually been performed
at the apartment. (See complaint, 19-20.)
Plaintiff went to Avana s apartment management office and was told that she should contact her rental
insurance since Avana was not responsible and gave Plaintiff the option of moving into an upstairs apartment,
stay in Saratoga, or break the lease. (See complaint, 21.) When Plaintiff continued to suffer a severe
reaction to the mold despite the restoration company s work, she moved into a motel on January 5, 2019 and
left a voicemail for Avana notifying it that she was moving out and staying at a motel. (See complaint, 22-
23.) On January 6, 2019, Olga at Avana left a voicemail for Plaintiff saying that she did not understand
Plaintiff s voicemail, and so, Plaintiff emailed Rebecca to again inform Avana that she was moving out and
requested Avana to compensate her for her damaged belongings, missed work, and medical expenses due to
the excessive mold exposure. (See complaint, 24-25.)
On January 14, 2019, the restoration company picked up five bags of Plaintiffs clothing for dry cleaning, but
returned her clothing missing approximately $1,000 in dresses, jackets and sweaters. (See complaint, 26.)
On January 31, 2019, a mold test was performed and were positive for high concentration of alternaria
(utocladium) fungal spores and particulates, aspergillus/penicillium, ascospores, basidiospores, cladosporium,
and myxomycetes, with patent mold growth. (See complaint, 28.) On February 4, 2019, Avana community
manager Juan Tabares stated that Plaintiff was not responsible for rent after January 31, 2019, nor any fees
associated with terminating the lease. (See complaint, 29.)
In fact, Defendants knew based on prior incidents in the same unit that there was mold throughout the unit:
there were visible cuts and patched holes in the walls in incidents from previous tenants and Defendants
concealed the reason for the cuts and their knowledge of the existence of mold throughout the unit. (See
complaint, 34-36, 41, 54-60.)
On July 9, 2020, Plaintiff filed a complaint against Avana, GSA, and Greystar (collectively, Defendants )
asserting causes of action for:
1) Breach of written contract;
2) Breach of the implied covenant of quiet enjoyment;
3) Negligence;
4) Fraud; and,
5) Battery.
GSA moves to strike allegations of the complaint regarding punitive damages. Greystar requests to join GSA s
motion to strike. Greystar s request for joinder is GRANTED.
GS Almaden s request for judicial notice
Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page
2 of 4
ie SUPERIOR COURT OF CALIFORNIA
RCTS
COUNTY OF SANTA CLARA
Se
MINUTE ORDER
In support of its motion, GSA requests judicial notice of the complaint. GSA s request for judicial notice is
GRANTED. (Evid. Code 452, subd. (d).)
GS Almaden s motion to strike
GSA argues that the allegations supporting punitive damages must be stricken because: no specific
allegations have been offered such that would support Plaintiffs claim for punitive damages and notify GS
Almaden of the allegations against it . Plaintiff offers no basis for her allegations that defendants, and each of
them, acted with advanced knowledge of the alleged harm (Def. s memorandum of points and authorities in
support of motion to strike ( Def. s memo ), pp.6:28, 7:1); and, the complaint fails to identify which, if any, of
these individuals committed the alleged fraud and/or battery; she does not particularize acts of advanced
knowledge nor otherwise identify the wrongful conduct [and does not allege] ratification by an officer,
director or managing agent. (Def. s memo, pp.7:15-27, 8:1-8.)
As to GSA s argument that the complaint fails to allege that it acted with advance knowledge of the alleged
harm, the complaint alleges that: GSA knew based on prior incidents in that same unit 404 that there was
mold throughout the unit ; GSA made cuts and holes in the walls from prior to Plaintiff s tenancy to
determine the presence of mold and thereafter patched them; GSA intentionally concealed these facts from
Plaintiff; Plaintiff repeatedly told the supervisor that she had a mold allergy; and, despite this knowledge, the
supervisor told Plaintiff that there was no mold in the carpet, and continued to conceal the unit s prior history
of mold throughout the unit and its failure to remediate the infestation, resulting in Plaintiff to suffer an
allergic reaction, move out/was constructively evicted, miss work, and suffer damage to her belongings.
These allegations are sufficient to establish that GSA had advance notice of the alleged harm. (See O'Hara v.
Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 806 (stating that conscious disregard of appellant's
safety was sufficiently alleged [where] the individual respondents allegedly knew of the serious potential
danger to appellant as a female tenant [y]et they intentionally misled her in order to advance their pecuniary
interest in renting an apartment ); see also Penner v. Falk (1984) 153 Cal.App.3d 858, 867 (stating that
allegations would support an award of punitive damages [where it alleges] long existing physical conditions
of the premises which portend danger for the tenants [and] also set out that respondents knew of those
conditions for up to two years, had power to make changes, but failed to take corrective and curative
measures ).)
As to GSA s argument that the complaint fails to identify the individuals who allegedly committed the fraud
and does not particularize acts of advanced knowledge nor otherwise identify the wrongful conduct, this is
plainly incorrect; the complaint alleges these facts.
As to GSA s argument that it does not allege ratification by an officer, the complaint alleges that the
concealment... [was perpetrated] by individuals who on behalf of the defendant entities were actingin a
management and supervisorial role, were acting on behalf of the defendant entities, who had advanced
knowledge of the harm to Plaintiff when they acted wrongfully. (Complaint, 61, 69.) While perhaps not
abundantly clear, these allegations sufficiently allege that fraud on the part of a managing agent of the
corporation. (See Civ. Code 3294, subds. (b) (stating that [w]ith respect to a corporate employer, the
advance knowledge and act of fraud must be on the part of [a] managing agent of the corporation ), (c)(3)
(defining fraud as an intentional misrepresentation, deceit, or concealment ofa material fact known to the
defendant with the intention on the part of the defendant of thereby depriving a person of property or legal
Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page
3 of 4
ie SUPERIOR COURT OF CALIFORNIA
RCTS
COUNTY OF SANTA CLARA
Se
MINUTE ORDER
rights or otherwise causing injury ); see also O Hara, supra, 75 Cal.App.3d at p.806 (stating that the
alleg[ation] that the misrepresentations were made by persons who acted with the permission and consent
of all the defendants was a sufficient allegation that the corporations had authorized their agent s acts ). )
Here, the complaint alleges that GSA knowingly rented Unit 404 with an existing mold infestation, did not
repair the mold infestation inside the wall before entering into the lease agreement with Plaintiff, and
concealed the fact regarding the mold infestation from Plaintiff both prior to her entering into the lease
agreement and throughout her tenancy. GSA could not possibly agree to lease the apartment without its
agent having substantial discretionary authority to enter into that lease agreement, or without GSA s
ratification of that act. The allegations in the complaint are sufficient to support punitive damages. GSA s
motion to strike the allegations supporting punitive damages is DENIED in its entirety.
The Court will prepare the Order.
Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page
4 of 4
Preview
ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER Katherine Gilson vs GS Almaden, LLC. et al Hearing Start Time 9:00 AM 20CV368213 Hearing Type: Motion: Strike Date of Hearing: 01/26/2021 Comments: Line 3 Heard By: Takaichi, Drew C Location Department 2 Courtroom Reporter: - No Court Reporter Courtroom Clerk Farris Bryant Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - Portions of the Complaint by Def GS Almaden, LLC (Michelle Perez) ~ No appearance. No one has contested the Tentative Ruling. The Tentative Ruling is adopted. See below for ruling. Calendar Lines 3-4 Case Name: Gilson v. GS Almaden, LLC, et al. Case No.: 20CV368213 According to the allegations of the complaint, on August 27, 2018, plaintiff Katherine Gilson ( Plaintiff) entered into a lease agreement with defendant GS Almaden, LLC ( GSA ) for the rental of its property at 925 Foxchase Drive Unit No. 404 in San Jose. (See complaint, 9.) The lease contract lists defendant Avana Almaden ( Avana ) as the payee and as GSA s agent and defendant Greystar Worldwide, LLC ( Greystar ) as an interested party of liability insurance. (See complaint, 10-11.) On December 24, 2018, Plaintiff discovered a puddle of water in her bedroom; she called Avana s emergency phone number as designated in the lease agreement but the number did not allow her to leave a message. (See complaint, 12.) On December 25, 2018, Plaintiff again called the emergency line and spoke to a man who answered the phone. (See complaint, 13.) A supervisor for Avana arrived at Plaintiffs apartment to inspect the damage and cut a hole in the carpet and the wall. (id.) Plaintiff saw a large amount of mold inside the wall and repeatedly told the Avana supervisor that she had a mold allergy. (See complaint, 14.) The supervisor told her that there was no mold in the carpet and returned with commercial blowers to dry the carpet and wall. (Id.) For the next three days, the commercial blowers blew for 24 hours a day, blowing mold spores throughout the apartment rendering the bedroom uninhabitable. (See complaint, 15.) Avana picked up the blowers on December 28, 2018, and then did not contact her until the evening of January 3, 2019 when Avana employee Rebecca instructed Plaintiff that a company was coming to work on the Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page 1 of 4 ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER apartment the next morning and that Plaintiff needed to remove everything from the bedroom. (See complaint, 16-18.) On January 4, 2019, Plaintiff was weak, in pain, had swollen eyes, rashes on her face and arm and was sent home from employment, whereupon she found that no work had actually been performed at the apartment. (See complaint, 19-20.) Plaintiff went to Avana s apartment management office and was told that she should contact her rental insurance since Avana was not responsible and gave Plaintiff the option of moving into an upstairs apartment, stay in Saratoga, or break the lease. (See complaint, 21.) When Plaintiff continued to suffer a severe reaction to the mold despite the restoration company s work, she moved into a motel on January 5, 2019 and left a voicemail for Avana notifying it that she was moving out and staying at a motel. (See complaint, 22- 23.) On January 6, 2019, Olga at Avana left a voicemail for Plaintiff saying that she did not understand Plaintiff s voicemail, and so, Plaintiff emailed Rebecca to again inform Avana that she was moving out and requested Avana to compensate her for her damaged belongings, missed work, and medical expenses due to the excessive mold exposure. (See complaint, 24-25.) On January 14, 2019, the restoration company picked up five bags of Plaintiffs clothing for dry cleaning, but returned her clothing missing approximately $1,000 in dresses, jackets and sweaters. (See complaint, 26.) On January 31, 2019, a mold test was performed and were positive for high concentration of alternaria (utocladium) fungal spores and particulates, aspergillus/penicillium, ascospores, basidiospores, cladosporium, and myxomycetes, with patent mold growth. (See complaint, 28.) On February 4, 2019, Avana community manager Juan Tabares stated that Plaintiff was not responsible for rent after January 31, 2019, nor any fees associated with terminating the lease. (See complaint, 29.) In fact, Defendants knew based on prior incidents in the same unit that there was mold throughout the unit: there were visible cuts and patched holes in the walls in incidents from previous tenants and Defendants concealed the reason for the cuts and their knowledge of the existence of mold throughout the unit. (See complaint, 34-36, 41, 54-60.) On July 9, 2020, Plaintiff filed a complaint against Avana, GSA, and Greystar (collectively, Defendants ) asserting causes of action for: 1) Breach of written contract; 2) Breach of the implied covenant of quiet enjoyment; 3) Negligence; 4) Fraud; and, 5) Battery. GSA moves to strike allegations of the complaint regarding punitive damages. Greystar requests to join GSA s motion to strike. Greystar s request for joinder is GRANTED. GS Almaden s request for judicial notice Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page 2 of 4 ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER In support of its motion, GSA requests judicial notice of the complaint. GSA s request for judicial notice is GRANTED. (Evid. Code 452, subd. (d).) GS Almaden s motion to strike GSA argues that the allegations supporting punitive damages must be stricken because: no specific allegations have been offered such that would support Plaintiffs claim for punitive damages and notify GS Almaden of the allegations against it . Plaintiff offers no basis for her allegations that defendants, and each of them, acted with advanced knowledge of the alleged harm (Def. s memorandum of points and authorities in support of motion to strike ( Def. s memo ), pp.6:28, 7:1); and, the complaint fails to identify which, if any, of these individuals committed the alleged fraud and/or battery; she does not particularize acts of advanced knowledge nor otherwise identify the wrongful conduct [and does not allege] ratification by an officer, director or managing agent. (Def. s memo, pp.7:15-27, 8:1-8.) As to GSA s argument that the complaint fails to allege that it acted with advance knowledge of the alleged harm, the complaint alleges that: GSA knew based on prior incidents in that same unit 404 that there was mold throughout the unit ; GSA made cuts and holes in the walls from prior to Plaintiff s tenancy to determine the presence of mold and thereafter patched them; GSA intentionally concealed these facts from Plaintiff; Plaintiff repeatedly told the supervisor that she had a mold allergy; and, despite this knowledge, the supervisor told Plaintiff that there was no mold in the carpet, and continued to conceal the unit s prior history of mold throughout the unit and its failure to remediate the infestation, resulting in Plaintiff to suffer an allergic reaction, move out/was constructively evicted, miss work, and suffer damage to her belongings. These allegations are sufficient to establish that GSA had advance notice of the alleged harm. (See O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 806 (stating that conscious disregard of appellant's safety was sufficiently alleged [where] the individual respondents allegedly knew of the serious potential danger to appellant as a female tenant [y]et they intentionally misled her in order to advance their pecuniary interest in renting an apartment ); see also Penner v. Falk (1984) 153 Cal.App.3d 858, 867 (stating that allegations would support an award of punitive damages [where it alleges] long existing physical conditions of the premises which portend danger for the tenants [and] also set out that respondents knew of those conditions for up to two years, had power to make changes, but failed to take corrective and curative measures ).) As to GSA s argument that the complaint fails to identify the individuals who allegedly committed the fraud and does not particularize acts of advanced knowledge nor otherwise identify the wrongful conduct, this is plainly incorrect; the complaint alleges these facts. As to GSA s argument that it does not allege ratification by an officer, the complaint alleges that the concealment... [was perpetrated] by individuals who on behalf of the defendant entities were actingin a management and supervisorial role, were acting on behalf of the defendant entities, who had advanced knowledge of the harm to Plaintiff when they acted wrongfully. (Complaint, 61, 69.) While perhaps not abundantly clear, these allegations sufficiently allege that fraud on the part of a managing agent of the corporation. (See Civ. Code 3294, subds. (b) (stating that [w]ith respect to a corporate employer, the advance knowledge and act of fraud must be on the part of [a] managing agent of the corporation ), (c)(3) (defining fraud as an intentional misrepresentation, deceit, or concealment ofa material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page 3 of 4 ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER rights or otherwise causing injury ); see also O Hara, supra, 75 Cal.App.3d at p.806 (stating that the alleg[ation] that the misrepresentations were made by persons who acted with the permission and consent of all the defendants was a sufficient allegation that the corporations had authorized their agent s acts ). ) Here, the complaint alleges that GSA knowingly rented Unit 404 with an existing mold infestation, did not repair the mold infestation inside the wall before entering into the lease agreement with Plaintiff, and concealed the fact regarding the mold infestation from Plaintiff both prior to her entering into the lease agreement and throughout her tenancy. GSA could not possibly agree to lease the apartment without its agent having substantial discretionary authority to enter into that lease agreement, or without GSA s ratification of that act. The allegations in the complaint are sufficient to support punitive damages. GSA s motion to strike the allegations supporting punitive damages is DENIED in its entirety. The Court will prepare the Order. Printed: 1/26/2021 01/26/2021 Motion: Strike - 20CV368213 Page 4 of 4