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20CV368213
Santa Clara — Civil
William C. Dresser, 104375
Law Offices of William C. Dresser
4 North Second Street, Suite 1230
San Jose, California 95113
Tel: 408/279-7529
Fax: 408/298-3306
Attorneys for Plaintiff
Katherine Gilson
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 1/12/2021 4:39 PM
Reviewed By: L. Nguyen
Case #20CV368213
Envelope: 5628112
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
Katherine Gilson,
Plaintiff,
vs.
GS Almaden, LLC., Greystar Worldwide,
LLC., Avana Almaden, and Does 1
through 20, inclusive,
Defendants.
Action No.: 20CV368213
Memorandum of Points and Authorities in
Support of Opposition to Defendant GS
Almaden, LLC Motion to Strike Portions of
the Complaint
Date: January 26, 2021
Time: 9:00 a.m.
Dept.:6
Gilson v GS Almaden,
Seaaeaee
Santa Clara action 20CV368213
MPA ISO Oppo to Mtn to Strike Portions of ComplaintTable of Contents
I. SUMMARY OF ARGUMENT ....0...c ccc cece eens eeeeeeeeeeeeeesaeesseseeenesseseeeeenesaeeaeasess 1
Il. STATEMENT OF FACTS ........cccccccsesecesseseeeeeeeeeeseneeecesaeseesesasesseseseseseeseeeeesesaeaaeas 1
Il. LEGAL ARGUMENT... eece eens neeeeeeseneeeeeeesseseesesaeesseseseseseeseeeeesenaeeaesess 5
A. Standards of Law for Motion to Strike ...........ccccceccecssesseessesseeeeecaseessaeaseesseseseesesaees 5
B. The Complaint alleges with particularity GS Almaden, LLC’s fraud and conscious
disregard of Plaintiff's rights to be free from great risk Of INjUTY..........-.eseeeeeeteeeeeteeee 5
C. Though Plaintiff has alleged battery, an intentional act is not required for an award
Of exe mp laliy: dala Qes eset etre eect eee ere eee 7
D. Defendant entity directly acted by its managing agents.............. cece eects 8
IV. CONCLUSION 0.0... ceececccceeeeeeeecsesceeeeeeeacseseeecasseneseeesesseseneseseeasneeeeeassesesseesessenenaess 8
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA ISO Oppo to Mtn to Strike Portions of ComplaintTable of Authorities
Cases
Blakemore v. Superior Court 129 Cal.App.4th 36 (2005)..
Burke v. Superior Court 71 Cal.2d 276, 279, fn 4 (1969)...
2001
Clauson v. Superior Court 67 Cal.App.4th 1253 (1998)
Courtesy Ambulance Service v. Superior Court 8 Cal.App.4th 1504 (1992)...
Grimshaw v. Ford Motor Company 119 Cal.App.3d 757 (1981).
Hasson v. Ford Motor Company 32 Cal.3d 388 a
Hilliard v. A. H. Robins 148 Cal. App. 3d 374 (1983) ...
Magliulo Vv. Superior Court 47 Cal.App.3d 760 (1975)
Perkins v. Superior Court 117 Cal.App.3d 1 (1981)...
Potter v. Firestone and Rubber Company 6 Cal.4th 965 (1993)
Taylor v. Superior Court 24 Cal.3d 890 (1979).
Velez v. Smith 142 Cal.App.4th 1154 (2006) ...
West v. Johnson & Johnson Products, Inc. 174 Cal.App.3d 831(1985)
White v. Ultramar, Inc. 21 Cal.4th 563 (1999)
Statutes
California Health and Safety Code § 26147 (a) .......ececceeeeeeeeeeseeeeeeteeseeeaeeeeeeeeeeeeeaeeas 6
.5, 10
Castillo v. Nathan Korman & Korman Center Enterprises Inc., BC264310, filed Dec. 21,
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA ISO Oppo to Mtn to Strike Portions of Complaint
ijI.LSUMMARY OF ARGUMENT
The July 9, 2020 filed Complaint herein, including the exhibits initially attempted
to be filed on July 9 and re-filed on July 15, 2020, alleges acts by fraud and battery by
defendants, including their management and onsite supervisors, that were oppressive,
fraudulent and malicious. Exemplary damages may be recovered by Plaintiff.
ILSTATEMENT OF FACTS
It is defendant's contention that
“Plaintiff's Complaint does not identify sufficient facts to support a viable claim for
punitive, or exemplary, damages. Plaintiff's Complaint relies entirely on vague and
conclusory statements of GS Almaden’s fraud, oppression, and malice and further
fails to identify any allegations of top-level corporate ratification, as required by
statute to support a claim for punitive damages against business forms.”
This contention ignores the actual allegations of the Complaint. The complaint
herein alleges not merely “habitability claims”, but fraud and battery.
Plaintiff Katherine Gilson entered into a Lease Contract dated August 27, 2018
with GS Almaden LLC for the rent of Unit No. 404. It was signed by management.
Complaint, Ex. A (at pg. 20 of 47 of Volume 1); See also Dresser Decl, Ex. B. The other
named defendants are property management and property owner. Complaint, para 9,
10 and 11.
Katherine Gilson moved into the apartment on August 29, 2018. The Inventory
and Condition form prepared by management shows that no notification was given to
Ms. Gilson of any defect in the condition of the premises. Complaint, Ex. A (pg. 45 of
47 of Vol. 1; see also Complaint, Ex. A, at pg. 31 of 47 of Vol. 1 (Mold Information and
Prevention Addendum); Complaint, para 53.
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of ComplaintWhile making her bed on Christmas eve, December 24, 2018, Ms. Gilson
stepped in a puddle of water. The puddle was so great it soaked through her shoes and
socks. The mattress corner and bed frame were saturated. Ms. Gilson was unable to
leave a voice mail on the 24-hour emergency line. Complaint, para 12.
The next morning was Christmas. At 7:45 a.m. she called the emergency line
back and spoke to aman. Around 9 a.m. a man, who said he was a supervisor, came
to inspect. He cut a portion of the carpet in her bedroom, then left. Complaint, para 13.
This supervisor returned later that morning with a commercial dryer. He cut a
hole in the wall. Ms. Gilson could see the large growth of mold in the wall. Ms. Gilson
told the supervisor - the first of several times she told GS Almaden management and
maintenance - that she could not be around mold due to a severe allergy; that the mold
would adversely affect her health. Complaint, para 14.
The male supervisor told her there was no mold in the carpet. Complaint, para
14. That was not a true statement.
Further actions by property management revealed patches and large mold
growth. A witness has stated that there was a prior saturation and mold growth in Ms.
Gilson’s apartment, and that she had warned management about that. Complaint, para
54. The supervisor who came on Christmas went right to the wall where the largest
mold was, doing so before opening the wall. Complaint, para 13, 14, 36. The company
knew that there was and had been mold in the walls and in the carpet. Complaint, para
13, 14, 34, 36 (“this was evidenced by the amount of mold and the patched holes inside
the wall”), 41, and 54 (“Defendants knew based on prior incidents in that same unit 404
that there was mold throughout that unit. The visible cuts in the walls from before
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of ComplaintPlaintiff began to rent unit 404 were evidence of the knowledge of defendants of the
harmful conditions present in the unit’).
Property management made the situation much worse. The supervisor who
came on December 25 brought with him commercial blower/dryer machines. The
machines ran twenty-four hours a day for three days. This blew toxins and mold spores
throughout the apartment. Complaint, para 14, 15, 16, 41, 49, and 65. This fits all of
the elements of battery.
During that time the management company did not offer a place for Ms. Gilson to
stay, they did not tape off or section the bedroom, nor did they offer her any personal
protection equipment, like a mask or gloves. Complaint, para 15, 21.
Ms. Gilson was unable to use her bedroom. She slept in the living room. So,
too, did her Aunt, who had visited because of a family funeral. Complaint, para 15
The dryer was picked up on December 28th. Ms. Gilson did not hear from the
property management until the night of January 3rd when she had a discussion with
Rebecca. Rebecca informed Ms. Gilson that the next morning a company was going to
be working in her apartment and that everything needed to be moved from the
bedroom. Complaint, para 18, 21.
January 4th Ms. Gilson was sent home from work because her physical reaction
to the mold; her entire face was red and swollen. Ms. Gilson was in no condition to be
interacting with the public at Johnson Garden Center in Morgan Hill; she had the
appearance of a fresh black eye. Complaint, para 19.
Upon arriving home Ms. Gilson discovered there were no workers and no work
was done. She went to the office and spoke again with Rebecca, an onsite manager.
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of ComplaintRebecca informed her that if she needed a place to stay then her renter’s insurance
would cover a hotel cost and that Avana Almaden was not responsible. Later that day
Rebecca told Ms. Gilson that the restoration company was on the way and if she
wanted to move into an upstairs apartment it had to be done within two days or she
could stay in Saratoga or back out of the lease. At this point Ms. Gilson was so sick and
weak from the allergy she was not physically capable of moving all of her belongings
and furnishing to an upstairs apartment by herself in just two days. The management
company did not offer Ms. Gilson any assistance. Complaint, para 20, 21, 23, 24.
Restoration finally arrived and tented the bedroom. By that time the entire
apartment was utterly untenantable. It was infected throughout with significant levels of
fungi Aspergillus/Penicillium. Complaint, para 27, 28; See Dresser Decl, Ex. C.
Ms. Gilson developed a severe reaction to the mold and great and serious
physical and emotional injury. Among other things, Ms. Gilson’s face completely
swelled up to the point of her left eye being swollen shut and her right arm swelled as
well, and felt like it was on fire.
In an email dated January 7, 2019 Ms. Gilson requested Avana Almaden repair
her ruined and damaged property and assist with health issues that arose from the
unhealthy living space. One month later Juan Tabares, Community Manager replied
with a mere acknowledgment that Ms. Gilson was moving out, stating she was no
longer responsible for the rent after January 31, 2019 and the tenancy was terminated
without penalty. Mr. Tabares did not offer any assistance with relocation, or for ruined
property, housing, or medical care. Complaint, para 29.
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of ComplaintILLEGAL ARGUMENT
A. Standards of Law for Motion to Strike
A motion to strike challenges the legal sufficiency of the complaint’s allegations,
which are assumed to be true and which are given a liberal construction. Blakemore v.
Superior Court 129 Cal.App.4th 36, 53(2005) ; Velez v. Smith 142 Cal.App.4th 1154,
1163(2006) . Allegations of a pleading subject to a motion to strike are considered as a
whole, with all parts in their appropriate context. Courtesy Ambulance Service v.
Superior Court 8 Cal.App.4th 1504 (1992) . (See also Clauson v. Superior Court 67
Cal.App.4th 1253, 1255 (1998) “[JJudges read allegations of a pleading subject to a
motion to strike as a while, all parts in their context, and assume their truth.)
Plaintiff is not required to prove in her complaint that the defendant is liable for
punitive damages. That is an issue to be decided by a jury at trial. Rather, plaintiff is
required to allege in her complaint the “ultimate facts” upon which his claim for punitive
damages is based. (Burke v. Superior Court 71 Cal.2d 276, 279, fn 4 (1969) (It is “the
general rule that a complaint must contain only allegations of ultimate facts as opposed
to allegations of the evidentiary facts or of legal conclusions or arguments”).) The
proper standard for determination of a motion to strike punitive damages is whether
plaintiff has alleged “ultimate facts” showing an entitlement to exemplary damages.
(Clauson v. Superior Court 67 Cal.App.4th 1253, 1255. (1998))
B. The Complaint alleges with particularity GS Almaden, LLC’s fraud and
conscious disregard of Plaintiff's rights to be free from great risk of injury
Defendant GS Almaden, LLC’s management signed a lease agreement in which
it falsely stated that there was no known risk of harm to Plaintiff. Yet Defendant
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of Complaintproperty management knew of an existing mold infestation inside the walls of apartment
404. This is evident not just by the amount of mold inside of the walls, but by the
patches and attempted patches in the walls. Plaintiff Katherine Gilson told management
that she was susceptible to illness. Defendant acted in disregard of the knowledge that
the condition of its property and the actions of its management and employees would
cause harm to Plaintiff.
The owner and property manager’s failure to warn Ms. Gilson was an intentional
and knowing violation of California Health and Safety Code Section 26147 (a). Section
26147 (a) states:
Subject to subdivisions (b), (d), and (e), residential landlords shall provide written
disclosure to prospective and current tenants of the affected units as specified in
subdivision (b) when the residential landlord knows, or has reasonable cause to
believe, that mold, both visible and invisible or hidden, is present that affects the
unit or the building and the mold either exceeds the permissible exposure limits to
molds established by subdivisions (a), (b), and (c) of Section 26103 or poses a
health threat according to the department's guidelines as developed pursuant to
Section 26105.
This is a statute that was intended to protect tenants such as Ms. Gilson.
Property management - the highest level of on-site management - did not provide
Ms. Gilson with any notification of existing mold in the walls in her apartment. Given
that the inside of the walls had previously been patched and there was existing mold in
quantity, there is clear evidence that the property management/landlord in fact had
knowledge of a previous and existing mold infestation in Ms. Gilson’s apartment.
There was express written misrepresentation in the lease.
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of ComplaintThere was an intentional concealment of known harmful conditions.
A multi-state corporation with knowledge of the risk of injury and harm to its
tenants violated state statutes in failing to provide warning notice. It then increased the
harm and injury to its tenant. It then violated further statutory requirements intended to
protect the tenants. Katherine Gilson was seriously harmed as a direct result of the
despicable and fraudulent conduct of defendants.
The fraud and intentional concealment, combined with the heartless acts of
Defendant thereafter, are acts in conscious disregard of the right of Katherine Gilson to
the quiet enjoyment of her residence and are despicable.
C. Though Plaintiff has alleged battery, an intentional act is not required
for an award of exemplary damages
The Fifth Cause of Action of the Complaint seeks recovery for battery. There
was an act by defendants. The actions were known to cause offensive contact and
illness. Plaintiff Katherine Gilson was in fact harmed by this offensive contact. Punitive
damages are properly alleged, and may properly be awarded, under this claim. See
Magliulo v. Superior Court 47 Cal.App.3d 760 (1975) (assault by employee).
An intentional act need not be alleged. Exemplary damages may be awarded
when there has been “such a conscious and deliberate disregard of the interests of
others that his conduct may be called willful or wanton.” Here, defendant was: (1)
aware of the probable dangerous consequences of its conduct; and (2) that with such
awareness defendant willfully and deliberately failed to avoid those consequences.
(Taylor v. Superior Court 24 Cal.3d 890, 89 (1979) ; Hoch v. Allied-Signal, Inc./Bendix
Safety Restraints Division 24 Cal.App.4th 48, 61 (1994).)
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of ComplaintD. Defendant entity directly acted by its managing agents
The false statements in the lease and attachments to lease were by the
defendant entity directly. Complaint, para 33; See Dresser Decl, Ex. B. The actions
concealment was by management. Compl, para 61. Actions taken thereafter were by
the on-site management of defendant entity. Compl, para 13, 14, and 36. The
disregard of Ms. Gilson’s rights thereafter were by management. Compl, para 21
(Rebecca in apartment management office), 25, and 38.
The actions in conscious disregard of the rights of Plaintiff to be free from risk of
serious injury were taken by employees who “exercised substantial authority over
significant aspects of a corporation's business.” (White v. Ultramar, Inc. 21 Cal.4th 563,
576-577 (1999) .)
Awards of exemplary damages have been awarded in analogous landlord tenant
situations. Castillo v. Nathan Korman & Korman Center Enterprises Inc., BC264310,
filed Dec. 21, 2001.
IV. CONCLUSION
A motion to strike is to be denied if the “complaint as a whole contains sufficient
facts to apprise the defendant of the basis upon which plaintiff is seeking relief.
Conclusory allegations will not be stricken where they are supported by other factual
allegations in the Complaint.” (Perkins v. Superior Court 117 Cal.App.3d 1, 6 (1981) ).
Plaintiff is not required to prove in his complaint that the defendant is liable for
punitive damages. That is an issue to be decided by a jury at trial. Rather, plaintiff is
required to allege in his complaint the “ultimate facts” upon which his claim for punitive
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of Complaintdamages is based. (Burke v. Superior Court 71 Cal.2d 276, 279, fn 4 (1969) [It is “the
general rule that a complaint must contain only allegations of ultimate facts as opposed
to allegations of the evidentiary facts or of legal conclusions or arguments”].)
The pleadings sufficiently allege facts setting forth long existing physical
conditions of the premises which portend danger for Plaintiff tenant. The pleadings also
set out that defendant knew of those conditions, but failed to take corrective and
curative measures. Rather, defendant exposed Plaintiff to the harm. These allegations
would support an award of punitive damages.
The within is a pleadings motion. This pleading motion should be denied.
(Taylor v. Superior Court (1978) 24 Cal.3d 890, 894 - 895; Potter v. Firestone and
Rubber Company 6 Cal.4th 965, 1004 (1993) ; Grimshaw v. Ford Motor Company 119
Cal.App.3d 757(1981) ; and Hasson v. Ford Motor Company 32 Cal.3d 388, 400 -
403(1982) ; West v. Johnson & Johnson Products, Inc. 174 Cal.App.3d 831, 869 (1985);
Hilliard v. A.H. Robins 148 Cal.App.3d 374, 397 — 398 (1983)).
Dated: January 12, 2021 / /
il Lp 4.
Attorneys for Plaintiff
Katherine Gilson
Gilson\PId\MPA_Oppo_MtnToStrike.112
Gilson v GS Almaden, LLC; Santa Clara action 20CV368213
MPA in Oppo to Mtn to Strike Portions of Complaint
Preview
20CV368213 Santa Clara — Civil William C. Dresser, 104375 Law Offices of William C. Dresser 4 North Second Street, Suite 1230 San Jose, California 95113 Tel: 408/279-7529 Fax: 408/298-3306 Attorneys for Plaintiff Katherine Gilson Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/12/2021 4:39 PM Reviewed By: L. Nguyen Case #20CV368213 Envelope: 5628112 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA Katherine Gilson, Plaintiff, vs. GS Almaden, LLC., Greystar Worldwide, LLC., Avana Almaden, and Does 1 through 20, inclusive, Defendants. Action No.: 20CV368213 Memorandum of Points and Authorities in Support of Opposition to Defendant GS Almaden, LLC Motion to Strike Portions of the Complaint Date: January 26, 2021 Time: 9:00 a.m. Dept.:6 Gilson v GS Almaden, Seaaeaee Santa Clara action 20CV368213 MPA ISO Oppo to Mtn to Strike Portions of ComplaintTable of Contents I. SUMMARY OF ARGUMENT ....0...c ccc cece eens eeeeeeeeeeeeeesaeesseseeenesseseeeeenesaeeaeasess 1 Il. STATEMENT OF FACTS ........cccccccsesecesseseeeeeeeeeeseneeecesaeseesesasesseseseseseeseeeeesesaeaaeas 1 Il. LEGAL ARGUMENT... eece eens neeeeeeseneeeeeeesseseesesaeesseseseseseeseeeeesenaeeaesess 5 A. Standards of Law for Motion to Strike ...........ccccceccecssesseessesseeeeecaseessaeaseesseseseesesaees 5 B. The Complaint alleges with particularity GS Almaden, LLC’s fraud and conscious disregard of Plaintiff's rights to be free from great risk Of INjUTY..........-.eseeeeeeteeeeeteeee 5 C. Though Plaintiff has alleged battery, an intentional act is not required for an award Of exe mp laliy: dala Qes eset etre eect eee ere eee 7 D. Defendant entity directly acted by its managing agents.............. cece eects 8 IV. CONCLUSION 0.0... ceececccceeeeeeeecsesceeeeeeeacseseeecasseneseeesesseseneseseeasneeeeeassesesseesessenenaess 8 Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA ISO Oppo to Mtn to Strike Portions of ComplaintTable of Authorities Cases Blakemore v. Superior Court 129 Cal.App.4th 36 (2005).. Burke v. Superior Court 71 Cal.2d 276, 279, fn 4 (1969)... 2001 Clauson v. Superior Court 67 Cal.App.4th 1253 (1998) Courtesy Ambulance Service v. Superior Court 8 Cal.App.4th 1504 (1992)... Grimshaw v. Ford Motor Company 119 Cal.App.3d 757 (1981). Hasson v. Ford Motor Company 32 Cal.3d 388 a Hilliard v. A. H. Robins 148 Cal. App. 3d 374 (1983) ... Magliulo Vv. Superior Court 47 Cal.App.3d 760 (1975) Perkins v. Superior Court 117 Cal.App.3d 1 (1981)... Potter v. Firestone and Rubber Company 6 Cal.4th 965 (1993) Taylor v. Superior Court 24 Cal.3d 890 (1979). Velez v. Smith 142 Cal.App.4th 1154 (2006) ... West v. Johnson & Johnson Products, Inc. 174 Cal.App.3d 831(1985) White v. Ultramar, Inc. 21 Cal.4th 563 (1999) Statutes California Health and Safety Code § 26147 (a) .......ececceeeeeeeeeeseeeeeeteeseeeaeeeeeeeeeeeeeaeeas 6 .5, 10 Castillo v. Nathan Korman & Korman Center Enterprises Inc., BC264310, filed Dec. 21, Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA ISO Oppo to Mtn to Strike Portions of Complaint ijI.LSUMMARY OF ARGUMENT The July 9, 2020 filed Complaint herein, including the exhibits initially attempted to be filed on July 9 and re-filed on July 15, 2020, alleges acts by fraud and battery by defendants, including their management and onsite supervisors, that were oppressive, fraudulent and malicious. Exemplary damages may be recovered by Plaintiff. ILSTATEMENT OF FACTS It is defendant's contention that “Plaintiff's Complaint does not identify sufficient facts to support a viable claim for punitive, or exemplary, damages. Plaintiff's Complaint relies entirely on vague and conclusory statements of GS Almaden’s fraud, oppression, and malice and further fails to identify any allegations of top-level corporate ratification, as required by statute to support a claim for punitive damages against business forms.” This contention ignores the actual allegations of the Complaint. The complaint herein alleges not merely “habitability claims”, but fraud and battery. Plaintiff Katherine Gilson entered into a Lease Contract dated August 27, 2018 with GS Almaden LLC for the rent of Unit No. 404. It was signed by management. Complaint, Ex. A (at pg. 20 of 47 of Volume 1); See also Dresser Decl, Ex. B. The other named defendants are property management and property owner. Complaint, para 9, 10 and 11. Katherine Gilson moved into the apartment on August 29, 2018. The Inventory and Condition form prepared by management shows that no notification was given to Ms. Gilson of any defect in the condition of the premises. Complaint, Ex. A (pg. 45 of 47 of Vol. 1; see also Complaint, Ex. A, at pg. 31 of 47 of Vol. 1 (Mold Information and Prevention Addendum); Complaint, para 53. Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of ComplaintWhile making her bed on Christmas eve, December 24, 2018, Ms. Gilson stepped in a puddle of water. The puddle was so great it soaked through her shoes and socks. The mattress corner and bed frame were saturated. Ms. Gilson was unable to leave a voice mail on the 24-hour emergency line. Complaint, para 12. The next morning was Christmas. At 7:45 a.m. she called the emergency line back and spoke to aman. Around 9 a.m. a man, who said he was a supervisor, came to inspect. He cut a portion of the carpet in her bedroom, then left. Complaint, para 13. This supervisor returned later that morning with a commercial dryer. He cut a hole in the wall. Ms. Gilson could see the large growth of mold in the wall. Ms. Gilson told the supervisor - the first of several times she told GS Almaden management and maintenance - that she could not be around mold due to a severe allergy; that the mold would adversely affect her health. Complaint, para 14. The male supervisor told her there was no mold in the carpet. Complaint, para 14. That was not a true statement. Further actions by property management revealed patches and large mold growth. A witness has stated that there was a prior saturation and mold growth in Ms. Gilson’s apartment, and that she had warned management about that. Complaint, para 54. The supervisor who came on Christmas went right to the wall where the largest mold was, doing so before opening the wall. Complaint, para 13, 14, 36. The company knew that there was and had been mold in the walls and in the carpet. Complaint, para 13, 14, 34, 36 (“this was evidenced by the amount of mold and the patched holes inside the wall”), 41, and 54 (“Defendants knew based on prior incidents in that same unit 404 that there was mold throughout that unit. The visible cuts in the walls from before Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of ComplaintPlaintiff began to rent unit 404 were evidence of the knowledge of defendants of the harmful conditions present in the unit’). Property management made the situation much worse. The supervisor who came on December 25 brought with him commercial blower/dryer machines. The machines ran twenty-four hours a day for three days. This blew toxins and mold spores throughout the apartment. Complaint, para 14, 15, 16, 41, 49, and 65. This fits all of the elements of battery. During that time the management company did not offer a place for Ms. Gilson to stay, they did not tape off or section the bedroom, nor did they offer her any personal protection equipment, like a mask or gloves. Complaint, para 15, 21. Ms. Gilson was unable to use her bedroom. She slept in the living room. So, too, did her Aunt, who had visited because of a family funeral. Complaint, para 15 The dryer was picked up on December 28th. Ms. Gilson did not hear from the property management until the night of January 3rd when she had a discussion with Rebecca. Rebecca informed Ms. Gilson that the next morning a company was going to be working in her apartment and that everything needed to be moved from the bedroom. Complaint, para 18, 21. January 4th Ms. Gilson was sent home from work because her physical reaction to the mold; her entire face was red and swollen. Ms. Gilson was in no condition to be interacting with the public at Johnson Garden Center in Morgan Hill; she had the appearance of a fresh black eye. Complaint, para 19. Upon arriving home Ms. Gilson discovered there were no workers and no work was done. She went to the office and spoke again with Rebecca, an onsite manager. Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of ComplaintRebecca informed her that if she needed a place to stay then her renter’s insurance would cover a hotel cost and that Avana Almaden was not responsible. Later that day Rebecca told Ms. Gilson that the restoration company was on the way and if she wanted to move into an upstairs apartment it had to be done within two days or she could stay in Saratoga or back out of the lease. At this point Ms. Gilson was so sick and weak from the allergy she was not physically capable of moving all of her belongings and furnishing to an upstairs apartment by herself in just two days. The management company did not offer Ms. Gilson any assistance. Complaint, para 20, 21, 23, 24. Restoration finally arrived and tented the bedroom. By that time the entire apartment was utterly untenantable. It was infected throughout with significant levels of fungi Aspergillus/Penicillium. Complaint, para 27, 28; See Dresser Decl, Ex. C. Ms. Gilson developed a severe reaction to the mold and great and serious physical and emotional injury. Among other things, Ms. Gilson’s face completely swelled up to the point of her left eye being swollen shut and her right arm swelled as well, and felt like it was on fire. In an email dated January 7, 2019 Ms. Gilson requested Avana Almaden repair her ruined and damaged property and assist with health issues that arose from the unhealthy living space. One month later Juan Tabares, Community Manager replied with a mere acknowledgment that Ms. Gilson was moving out, stating she was no longer responsible for the rent after January 31, 2019 and the tenancy was terminated without penalty. Mr. Tabares did not offer any assistance with relocation, or for ruined property, housing, or medical care. Complaint, para 29. Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of ComplaintILLEGAL ARGUMENT A. Standards of Law for Motion to Strike A motion to strike challenges the legal sufficiency of the complaint’s allegations, which are assumed to be true and which are given a liberal construction. Blakemore v. Superior Court 129 Cal.App.4th 36, 53(2005) ; Velez v. Smith 142 Cal.App.4th 1154, 1163(2006) . Allegations of a pleading subject to a motion to strike are considered as a whole, with all parts in their appropriate context. Courtesy Ambulance Service v. Superior Court 8 Cal.App.4th 1504 (1992) . (See also Clauson v. Superior Court 67 Cal.App.4th 1253, 1255 (1998) “[JJudges read allegations of a pleading subject to a motion to strike as a while, all parts in their context, and assume their truth.) Plaintiff is not required to prove in her complaint that the defendant is liable for punitive damages. That is an issue to be decided by a jury at trial. Rather, plaintiff is required to allege in her complaint the “ultimate facts” upon which his claim for punitive damages is based. (Burke v. Superior Court 71 Cal.2d 276, 279, fn 4 (1969) (It is “the general rule that a complaint must contain only allegations of ultimate facts as opposed to allegations of the evidentiary facts or of legal conclusions or arguments”).) The proper standard for determination of a motion to strike punitive damages is whether plaintiff has alleged “ultimate facts” showing an entitlement to exemplary damages. (Clauson v. Superior Court 67 Cal.App.4th 1253, 1255. (1998)) B. The Complaint alleges with particularity GS Almaden, LLC’s fraud and conscious disregard of Plaintiff's rights to be free from great risk of injury Defendant GS Almaden, LLC’s management signed a lease agreement in which it falsely stated that there was no known risk of harm to Plaintiff. Yet Defendant Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of Complaintproperty management knew of an existing mold infestation inside the walls of apartment 404. This is evident not just by the amount of mold inside of the walls, but by the patches and attempted patches in the walls. Plaintiff Katherine Gilson told management that she was susceptible to illness. Defendant acted in disregard of the knowledge that the condition of its property and the actions of its management and employees would cause harm to Plaintiff. The owner and property manager’s failure to warn Ms. Gilson was an intentional and knowing violation of California Health and Safety Code Section 26147 (a). Section 26147 (a) states: Subject to subdivisions (b), (d), and (e), residential landlords shall provide written disclosure to prospective and current tenants of the affected units as specified in subdivision (b) when the residential landlord knows, or has reasonable cause to believe, that mold, both visible and invisible or hidden, is present that affects the unit or the building and the mold either exceeds the permissible exposure limits to molds established by subdivisions (a), (b), and (c) of Section 26103 or poses a health threat according to the department's guidelines as developed pursuant to Section 26105. This is a statute that was intended to protect tenants such as Ms. Gilson. Property management - the highest level of on-site management - did not provide Ms. Gilson with any notification of existing mold in the walls in her apartment. Given that the inside of the walls had previously been patched and there was existing mold in quantity, there is clear evidence that the property management/landlord in fact had knowledge of a previous and existing mold infestation in Ms. Gilson’s apartment. There was express written misrepresentation in the lease. Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of ComplaintThere was an intentional concealment of known harmful conditions. A multi-state corporation with knowledge of the risk of injury and harm to its tenants violated state statutes in failing to provide warning notice. It then increased the harm and injury to its tenant. It then violated further statutory requirements intended to protect the tenants. Katherine Gilson was seriously harmed as a direct result of the despicable and fraudulent conduct of defendants. The fraud and intentional concealment, combined with the heartless acts of Defendant thereafter, are acts in conscious disregard of the right of Katherine Gilson to the quiet enjoyment of her residence and are despicable. C. Though Plaintiff has alleged battery, an intentional act is not required for an award of exemplary damages The Fifth Cause of Action of the Complaint seeks recovery for battery. There was an act by defendants. The actions were known to cause offensive contact and illness. Plaintiff Katherine Gilson was in fact harmed by this offensive contact. Punitive damages are properly alleged, and may properly be awarded, under this claim. See Magliulo v. Superior Court 47 Cal.App.3d 760 (1975) (assault by employee). An intentional act need not be alleged. Exemplary damages may be awarded when there has been “such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” Here, defendant was: (1) aware of the probable dangerous consequences of its conduct; and (2) that with such awareness defendant willfully and deliberately failed to avoid those consequences. (Taylor v. Superior Court 24 Cal.3d 890, 89 (1979) ; Hoch v. Allied-Signal, Inc./Bendix Safety Restraints Division 24 Cal.App.4th 48, 61 (1994).) Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of ComplaintD. Defendant entity directly acted by its managing agents The false statements in the lease and attachments to lease were by the defendant entity directly. Complaint, para 33; See Dresser Decl, Ex. B. The actions concealment was by management. Compl, para 61. Actions taken thereafter were by the on-site management of defendant entity. Compl, para 13, 14, and 36. The disregard of Ms. Gilson’s rights thereafter were by management. Compl, para 21 (Rebecca in apartment management office), 25, and 38. The actions in conscious disregard of the rights of Plaintiff to be free from risk of serious injury were taken by employees who “exercised substantial authority over significant aspects of a corporation's business.” (White v. Ultramar, Inc. 21 Cal.4th 563, 576-577 (1999) .) Awards of exemplary damages have been awarded in analogous landlord tenant situations. Castillo v. Nathan Korman & Korman Center Enterprises Inc., BC264310, filed Dec. 21, 2001. IV. CONCLUSION A motion to strike is to be denied if the “complaint as a whole contains sufficient facts to apprise the defendant of the basis upon which plaintiff is seeking relief. Conclusory allegations will not be stricken where they are supported by other factual allegations in the Complaint.” (Perkins v. Superior Court 117 Cal.App.3d 1, 6 (1981) ). Plaintiff is not required to prove in his complaint that the defendant is liable for punitive damages. That is an issue to be decided by a jury at trial. Rather, plaintiff is required to allege in his complaint the “ultimate facts” upon which his claim for punitive Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of Complaintdamages is based. (Burke v. Superior Court 71 Cal.2d 276, 279, fn 4 (1969) [It is “the general rule that a complaint must contain only allegations of ultimate facts as opposed to allegations of the evidentiary facts or of legal conclusions or arguments”].) The pleadings sufficiently allege facts setting forth long existing physical conditions of the premises which portend danger for Plaintiff tenant. The pleadings also set out that defendant knew of those conditions, but failed to take corrective and curative measures. Rather, defendant exposed Plaintiff to the harm. These allegations would support an award of punitive damages. The within is a pleadings motion. This pleading motion should be denied. (Taylor v. Superior Court (1978) 24 Cal.3d 890, 894 - 895; Potter v. Firestone and Rubber Company 6 Cal.4th 965, 1004 (1993) ; Grimshaw v. Ford Motor Company 119 Cal.App.3d 757(1981) ; and Hasson v. Ford Motor Company 32 Cal.3d 388, 400 - 403(1982) ; West v. Johnson & Johnson Products, Inc. 174 Cal.App.3d 831, 869 (1985); Hilliard v. A.H. Robins 148 Cal.App.3d 374, 397 — 398 (1983)). Dated: January 12, 2021 / / il Lp 4. Attorneys for Plaintiff Katherine Gilson Gilson\PId\MPA_Oppo_MtnToStrike.112 Gilson v GS Almaden, LLC; Santa Clara action 20CV368213 MPA in Oppo to Mtn to Strike Portions of Complaint