Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Konkol v. Oakwood Worldwide Local, LLC

United States District Court, C.D. California

January 2, 2015

ANNIE KONKOL, Plaintiff,
v.
OAKWOOD WORLDWIDE LOCAL, LLC; AVALONBAY COMMUNITIES, INC.; TERMINIX INTERNATIONAL, INC.; VALLEYCREST LANDSCAPE MAINTENANCE, INC.; AMERICAN NURSERIES LANDSCAPING; DOES 1-100 Defendants.

ORDER GRANTING DEFENDANT AVALONBAY'S MOTION TO STRIKE [8] AND MOTION TO DISMISS [9] AND GRANTING DEFENDANT TERMINIX'S MOTION TO STRIKE [27] AND MOTION TO DISMISS [28]

OTIS D. WRIGHT, II, District Judge.

I. INTRODUCTION

The instant action arises from the alleged failure of Defendants and their respective agents to warn Plaintiff before "exposing" her to toxic chemicals and other hazardous substances. For the reasons discussed below, The Court GRANTS Defendant AvalonBay's Motion to Strike and Motion to Dismiss. (ECF Nos. 8-9.) The Court also GRANTS Defendant Terminix's Motion to Strike and Motion to Dismiss. (ECF Nos. 27-28.)[1]

II. FACTUAL BACKGROUND

Annie Konkol was a tenant at the Oakwood-Woodland Hills apartment complex in Woodland Hills, California. (FAC. ¶ 5.) Oakwood Worldwide Local, LLC ("Oakwood") was the owner, operator, and/or manager of the building between January 4, 2011 and September 5, 2012. ( Id. ¶ 6.) AvalonBay Communities, Inc. ("AvalonBay") was the owner, operator, and/or manager of the building after purchasing it in late February 2013. ( Id. ¶ 7.)

Konkol has a medical condition known as Multiple Chemical Sensitivity ("MCS") caused by multiple exposures to non-green/toxic pesticides, herbicides, weed killers, disinfectants, sanitizers and cleaning agents that have built up a progressive sensitization in her body over time. ( Id. ¶ 26.) She suffers "severe and debilitating bodily injury, together with collateral emotional distress and mental anguish whenever she is exposed." ( Id. )

Konkol further alleges that in the following instances, Oakwood and AvalonBay failed to warn before exposing her to chemicals that would exacerbate her medical condition and are known to cause various medical conditions, including cancer. ( Id. ¶ 16.) On March 23, 2012, Terminix International, Inc. (Terminix") applied pesticides in the apartment directly below Konkol's despite notice and supporting documentation of her medical condition. ( Id. ) On September 13, 2013, Terminix applied a pesticide in the common area without notice after being hired by AvalonBay despite the American with Disabilities Act ("ADA") Accommodations Agreement between Konkol and AvalonBay. ( Id. ) On January 3, 2014, AvalonBay applied Lysol lii without notice despite the ADA Accommodations Agreement. ( Id. ) On March 7, 2014, AvalonBay applied chemical cleaning agents without notice despite a toxicologist's advice and the ADA Accommodations Agreement. ( Id. ) On April 10 and 15, 2014, AvalonBay did the same. ( Id. )

On March 21, 2014, Plaintiff filed suit in Los Angeles County Superior Court. (Compl. ¶ 1.) On July 1, 2014, Plaintiff filed a First Amended Complaint, alleging breach of implied warranty of habitability, breach of the covenant of quiet enjoyment, breach of implied covenant of good faith and fair dealing, negligence per se violations of the Americans with Disabilities Act, violations of the Unruh Civil Rights Act, violations of the California Fair Housing Act, negligence, premises liability, trespass, and battery. (FAC ¶ 1.) On August 21, 2014, Defendant AvalonBay removed the instant action to federal court. (ECF No. 1.)

On August 28, 2014, Defendant AvalonBay filed a Motion to Dismiss the First, Ninth and Tenth Causes of Action from the First Amended Complaint ("FAC") and a Motion to Strike Portions of the FAC. (ECF Nos. 8-9.) Defendant Oakwood Worldwide joined both Motions. (ECF Nos. 12-13.) Plaintiff's opposition documents were due to be filed no later than September 8, 2014. (ECF Nos. 14-15.) On September 26, 2014, Plaintiff requested an extension to find an attorney and file a response. (ECF No. 19.) The Court granted Plaintiff's request and gave her until November 28, 2014 to respond. (ECF No. 25.) On December 8, 2014, Plaintiff gave the Court and served AvalonBay a hardcopy of her Opposition dated November 28, 2014.

On October 20, 2014, Defendant Terminix filed a Motion to Dismiss the FAC and a Motion to Strike Portions of the FAC. (ECF Nos. 27-28.) Plaintiff's opposition documents were due to be filed no later than November 24, 2014. (ECF Nos. 31-32.) Plaintiff failed to oppose.

Before the Court is the Motion to Strike and Motion to Dismiss filed by AvalonBay and joined by Oakwood, and the Motion to Strike and Motion to Dismiss filed by Terminix. Defendants Valleycrest Landscape Maintenance, Inc. and American Nurseries Landscaping did not join either set of Motions.

III. LEGAL STANDARD

A. Motion to Strike

A court has discretion to strike a pleading or portions of the pleading. Fed.R.Civ.P. 12(f). Rule 12(f) provides that "[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Id. The decision whether to grant a motion to strike is made at the court's discretion. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir. 1993), rev'd on other grounds in Fogerty v. Fantastic, Inc., 510 U.S. 517 (1994)). In using its discretion, the court must view the pleadings in the light most favorable to the non-moving party. In re 2TheMart.com Sec. Litig., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000).

Courts may grant a motion to strike "to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial...." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, 984 F.2d at 1527 (9th Cir. 1993). Courts may also grant such a motion in order to streamline the resolution of the action and focus the jury's attention on the real issues in the case. Fantasy, 984 F.2d at 1528. Motions to strike are generally disfavored due to the limited role that pleadings play in federal practice, and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.