Judge Barbara M. Scheper, Case Number: 23STCV13558A, Date: 2024-11-15 Tentative Ruling

Judge: Barbara M. Scheper, Case: 23STCV13558A, Date: 2024-11-15 Tentative Ruling

Case Number: 23STCV13558A Hearing Date: November 15, 2024 Dept: 30

Dept. 30

Calendar No.

Present, et. al. vs. Playa Properties 2, LLC, et. al., Case No. 23STCV13558

Tentative Ruling re: Defendants’ Motion to Strike

Playa Property 2, Playa Partnership Properties, Playa Property 3, and Playa Land (Defendants) move to strike Harold Present, Regina Present, and Jacqueline Present’s (Plaintiffs) prayer and justification for punitive damages. Defendants’ motion to strike is denied.

Plaintiffs argue that they did not receive notice of the present motion as required by Code of Civil Procedure section 1005, subdivision (b). That section provides that all moving papers shall be filed and served at least 18 court days before the hearing if served by email. (Code Civ. Proc., § 1005, subd. (b).) Here, with a hearing date of November 15, 2024, for the present motion, Defendants needed to serve all papers by October 21, 2024. Plaintiffs were never served with the motion and have only been able to respond through diligent discovery of the online filing. (Bentley Decl. ¶ 6.) Defendants filed their motion on October 29, 2024, also past the statutory deadline. Thus, Defendants’ motion is not timely under section 1005.

Plaintiffs also argue that Defendants’ motion to strike is deficient under section 435. It provides that motions to strike are only permitted within the time allowed to respond to a pleading. (Code. Civ. Proc., § 435, subd. (b)(1).) Here, Plaintiffs filed their SAC on September 9, 2024. Thus, any motion to strike must have been filed by October 9, 2024. (Id., § 412.20, subd. (a)(3).) Defendants filed their motion on October 29. Additionally, Defendants’ motion addresses language that Plaintiffs included in their original and first amended complaints as well. Thus, Defendants’ motion is not timely under section 435, either.

Finally, Plaintiffs argue that Defendants have failed to comply with section 1008, subdivision (a). That section prohibits a motion for reconsideration more than 10 days after the entry of an order by the Court. (Id., § 1008, subd. (a).) However, Defendants do not ask the Court to reconsider its earlier decision allowing for leave to amend. Rather, Defendants move for an order striking any claims for punitive damages from the newly filed SAC. Thus, Defendants’ motion is not deficient under section 1008.

The Court exercises its discretion to consider the merits of the present motion despite the procedural deficiencies identified above.

The Court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The Court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court. (Id., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

Defendants move to strike Plaintiffs’ claims for punitive damages. A plaintiff may recover punitive damages where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Malice is defined as conduct intended to injure the plaintiff or despicable conduct by a defendant acting with a willful and conscious disregard of the rights and safety of others. (Id., § 3294, subd. (c)(1).) Oppression means despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of their rights. (Id., § 3294, subd. (c)(2).) And fraud refers to intentional misrepresentations or concealment of a material fact known to the defendant. (Id., § 3294, subd. (c)(3).)

A plaintiff attempting to prove malice or oppression must offer clear and convincing evidence of despicable conduct. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 328 (Mock).) This refers to conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Id. at p. 331.) A claim for punitive damages is insufficient where it lacks a factual assertion supporting the conclusion that a party acted with oppression, malice, or fraud. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Here, Plaintiffs allege that “the conduct of Defendants . . . has been oppressive, fraudulent, or malicious in that said Defendants have acted with a willful and conscious disregard of the rights and safety of others . . . because they ignored citations from the City of Los Angeles (City) requiring them to repair the retaining wall . . . and also ignored numerous warnings that their retaining wall and slope was about to collapse.” (SAC ¶ 10.) These do not constitute conclusory allegations without any factual basis. Plaintiffs support their claims of oppressive and malicious conduct with Defendants’ ignoring the warnings and citations from the City which preceded and foretold the eventual collapse.

Defendants further argue that their alleged failure to head the warnings and citations from the City does not constitute despicable conduct under Mock. Contrary to Defendants’ assertions, such conduct is potentially despicable. If Defendants were aware of an imminent landslide risk as Plaintiffs allege, then they knew that Plaintiffs were in physical danger. Defendants’ failure to heed warnings from officials, and placing lives in danger as a result, could prove despicable to a jury, justifying punitive damages. Thus, Plaintiffs have pled sufficient facts to warrant a claim for punitive damages. Accordingly, Defendants’ motion to strike is denied.