Judge Daniel M. Crowley, Case Number: 21STCV36045, Date: 2023-07-11 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by Court Call for all matters.

Plaintiff/Cross-Defendant Carla Barboza’s demurrer to the first amended cross-complaint of Cross-Complainant H&E Builders Services, Inc. is overruled as to the 1st, 2nd, 3rd, 4th, and 5th causes of action.

Plaintiff/Cross-Defendant’s motion to strike Cross-Defendant’s motion to 5th cause of action (FACC ¶¶57-61) is granted along with the prayer for reasonable attorney’s fees and costs under Business & Professions Code §7160 (FACC ¶65). Cross-Defendant’s motion to strike Cross-Complainant’s prayer for punitive damages (FACC ¶63) is granted with 20 days leave to amend. Cross-Defendant’s motion to strike general and special damages (FACC ¶62) and interest (FACC ¶64) is denied.

Plaintiff/Cross-Defendant Carla Barboza (“Barboza”) (“Cross-Defendant”) demurs generally to the first amended cross-complaint (“FACC”) of Cross-Complainant H&E Builders Services, Inc. (“H&E”) (“Cross-Complainant”) and demurs specially to the 1st, 2nd, 3rd, 4th, and 5th causes of action of the FACC on the grounds that the various causes of action fail to allege facts sufficient to constitute viable causes of action. (Notice of Demurrer, pg. 1; C.C.P. §430.10.)

Cross-Defendant’s 5/11/2023 request for judicial notice is granted as to Exhibits A (Cal. Code Regs. tit. 16 §832.53), B (C-53 Specialty License for Swimming Pool description), C (H&E Builders Services, Inc.’s contractor’s license “B”), D (Class B Contractors License meaning), and E (Fast Facts “B” General Contractor (Can Do, Cannot Do)). (CD-RJN, Exhs. A-E.)

On June 10, 2022, Cross-Complainant filed its initial cross-complaint (“CC”) against Cross-Defendant in the instant action alleging six causes of action: (1) breach of oral contract, (2) breach of implied covenant of good faith and fair dealing, (3) breach of implied duty to perform with reasonable care, (4) intentional interference with contractual relations, (5) common count for goods and services rendered, and (6) false promise arising from an alleged oral agreement between Cross-Complainant and Cross-Defendant regarding construction of Cross-Defendant’s pool. (See CC.) On March 1, 2023, this Court sustained Cross-Defendant’s demurrer to the CC with leave to amend. (3/1/23 Minute Order.)

On March 9, 2023, Cross-Complainant filed the operative FACC alleging five causes of action: (1) intentional interference with contractual relations, (2) common count for goods and services rendered, (3) false promise, (4) fraudulent concealment, and (5) fraudulent solicitation in violation of Business & Professions Code §7160. Cross-Complainant’s claims arise from alleged wrongful conduct by Cross-Defendant relating to Cross-Complainant’s construction of a swimming pool (“Pool”) at Cross-Defendant’s property at 2526 Lake View Avenue, Los Angeles, California 90039 (“Property”), under an agreement between Cross-Defendant and Defendant Susan Devall (“Devall”). (FACC ¶1.)

Cross-Defendant filed the instant demurrer and motion to strike on May 11, 2023. Cross-Complainant filed its opposition on June 27, 2023. Cross-Defendant filed her joint reply on July 3, 2023.

Cross-Complainant alleges in October 2020, Cross-Defendant solicited Defendant Devall to oversee the construction of the Pool. (FACC ¶12.) Cross-Complainant alleges on or about November 07, 2020, Cross-Defendant met with Devall and Cross-Complainant’s owner, Defendant Henry Garcia (“Garcia”), to discuss the construction of the Pool. (FACC ¶13.) Cross-Complainant alleges at that meeting, Defendant Garcia advised Cross-Defendant that building permits needed to be obtained before construction could begin, that a survey needed to be conducted, and that a soil test, among other preliminary tasks, was necessary before construction could begin. (FACC ¶13.) Cross-Complainant alleges Cross-Defendant insisted that Cross-Complainant not apply for building permits and also declined to have a survey or soil test conducted. (FACC ¶13.)

Cross-Complainant alleges on or about November 16, 2020, Cross-Defendant emailed Devall and asked her whether the Pool required building permits. (FACC ¶14.) Cross-Complainant alleges sometime after the email, Cross-Defendant and Devall discussed the issue. (FACC ¶14.) Cross-Complainant alleges on information and belief that Devall acknowledged that permits were required for the Pool. (FACC ¶14.) Cross-Complainant alleges during this conversation, Cross-Defendant apparently felt discouraged from obtaining permits because she formed the belief that: (1) construction with permits would be too expensive; (2) construction with permits would delay construction; and (3) the risk of not getting permits for the construction fell on Cross-Complainant. (FACC ¶14.) Cross-Complainant alleges Cross-Defendant did not disclose this conversation to Garcia or Cross-Complainant. (FACC ¶14.) Cross-Complainant alleges on information and belief that Cross-Defendant wanted to ensure that the permitting process did not reveal prior unpermitted construction at the Property. (FACC ¶14.)

Cross-Complainant alleges between November 07, 2020, and the beginning of construction, Cross-Defendant solicited Cross-Complainant, via Devall, to construct the Pool. (FACC ¶15.) Cross-Complainant alleges in or around December 07, 2020, Cross-Defendant and Devall agreed that Cross-Complainant would build the Pool. (FACC ¶16.) Cross-Complainant alleges according to Cross-Defendant, she agreed to pay Devall for the work (“Contract”), while aware that (a) Cross-Complainant would build the Pool; and (b) Cross-Complainant and Devall had an oral agreement under which Devall would pay Cross-Complainant for its work from the funds paid to her (by Cross-Defendant) under the Contract. (FACC ¶16.) Cross-Complainant alleges the Contract was subsequently orally modified to raise the construction fees to approximately $108,000.00 after Cross-Defendant requested a deck for the Pool. (FACC ¶17.)

Cross-Complainant alleges Cross-Defendant’s refusal to have the construction permitted was consistent with her decade-long practice of having Livan Cartaya perform construction at the Property without permits. (FACC ¶18.) Cross-Complainant alleges on information and belief that Cartaya and Cross-Defendant regularly discussed the need for permitting when Cartaya performed construction at the Property and that they regularly agreed not to obtain permits for the construction. (FACC ¶18.)

Cross-Complainant alleges Cross-Defendant admitted to over a decade of unpermitted construction at the Property but claimed that various licensed contractors (with no connections to each other), including Cartaya, all did not advise her of the need for permits. (FACC ¶19.) Cross-Complainant alleges on information and belief that Cross-Defendant was not truthful when she made these statements, and when she also claimed that she did not understand the concept of permitting until she was cited by the City of Los Angeles in 2021, for the unpermitted Pool. (FACC ¶19.) Cross-Complainant alleges this belief is based on at least these facts: (a) Cross-Defendant has maintained a decade-plus-long practice of paying Cartaya to perform unpermitted construction; (b) Cross-Defendant took various steps to conceal the unpermitted construction; (c) on information and belief, Cartaya, on more than one occasion, advised Cross-Defendant that permits were required, and then moved forward with the construction without permits; and (d) despite claiming that as of the date she was cited, no one had ever told her she needed permits for the prior construction at the Property, Cross-Defendant emailed Devall to ask whether permits were needed for the construction of the Pool, but concealed the conversation from Garcia, and also concealed her email to Devall from Garcia. (FACC ¶19.)

Cross-Complainant alleges Cross-Defendant did not want to pull permits for the Pool because it would cost too much and delay construction and expose the prior unpermitted construction. (FACC ¶20.) Cross-Complainant alleges she was not worried about the consequence of not pulling permits because she believed that any such consequences would only be suffered by H&E and Garcia. (FACC ¶20.) Cross-Complainant alleges while concealing her email to, and conversation with Devall, Cross-Defendant falsely represented to H&E and Garcia that she wanted the construction to take place without permits and that she would pay the construction fees if the Pool was completed in this fashion. (FACC ¶20.)

Cross-Complainant alleges Cross-Defendant’s promise was false, as shown by the fact that even though Cross-Complainant built the Pool to 100% completion, and even though Cross-Complainant did not apply for building permits, Cross-Defendant refused to pay all agreed-upon monies for the Pool, and acted as if the lack of permits was Defendants’ fault—thus resulting in underpayment to Cross-Complainant. (FACC ¶21.)

Cross-Complainant alleges when Cross-Defendant made the promise, she knew she did not intend to honor it. (FACC ¶22.) Cross-Complainant alleges this intent is clear from Cross-Defendant doing a 360 turn and falsely claiming that Cross-Complainant was at fault for doing unpermitted work—even though Cross-Defendant has paid for years of unpermitted construction at the Property. (FACC ¶22.) Cross-Complainant alleges it is also clear from the fact that even though Cross-Defendant knew about the permitting requirements well before the ground broke on construction, she had a discussion with Devall and decided that going without permits was okay for her since she believed that the only ones at risk were Garcia and Cross-Complainant. (FACC ¶22.)

Cross-Complainant alleges it completed the construction of the Pool, in full compliance with the licensing requirements of the Business and Professions Code. (FACC ¶23.) Cross-Complainant alleges it held a General Building Contractor’s B license at all times during the construction of the Pool and the construction involved multiple unrelated building trades or crafts (not including framing and carpentry), including plumbing, electrical work, pool plastering, stucco plastering, and pool equipment installation. (FACC ¶23.) Cross-Complainant alleges its involvement in the construction of the Pool was at all times lawful and in full compliance with Sections 7056 to 7058 of the Business and Professions Code. (FACC ¶23.)

Cross-Complainant alleges it only received approximately $55,000.00 of the $108,000.00 owed under the Contract, even though Cross-Defendant swam in and enjoyed the use of the Pool—because Cross-Defendant did not pay all monies owed under the Contract. (FACC ¶24.) Cross-Complainant alleges Cross-Defendant acted fraudulently and oppressively. (FACC ¶25.) Cross-Complainant alleges Cross-Defendant knowingly made false promises to Cross-Complainant to induce it to construct the Pool without permits and concealed material facts from Cross-Complainant. (FACC ¶25.) Cross-Complainant alleges Cross-Defendant induced Cross-Complainant to build the Pool while intending to place the blame on Cross-Complainant if she was cited for unpermitted construction. (FACC ¶25.) Cross-Complainant alleges consistent with these fraudulent and oppressive intentions, Cross-Defendant immediately blamed Cross-Complainant for the unpermitted work even though such work was done at her insistence. (FACC ¶25.) Cross-Complainant alleges Cross-Defendant has admitted that at least as of November 16, 2020, she knew that the Pool construction required permits, but chose not to obtain them because she was “discouraged” from doing so. (FACC ¶25.) Cross-Complainant alleges consistent with these fraudulent intentions, during this case, Cross-Defendant did not produce her November 16, 2020, email to Devall. (FACC ¶25.)

Cross-Complainant alleges Cross-Defendant owed a fiduciary duty to Cross-Complainant, to disclose to Cross-Complainant that she was willing to pay for the unpermitted construction of the Pool as long as Garcia and Cross-Complainant were the only ones at risk. (FACC ¶26.) Cross-Complainant alleges Cross-Defendant owed this duty to Cross-Complainant because she represented to Cross-Complainant, through Devall, that she would pay for unpermitted construction but Cross-Complainant did not know that again, this agreement to pay was conditioned on Barboza not getting caught or exposed for the lack of permits. (FACC ¶26.) Cross-Complainant alleges this fact was material to Cross-Complainant’s decision to construct the Pool. (FACC ¶26.) Cross-Complainant alleges at all times, Cross-Complainant believed that Cross-Defendant would take on the consequences of unpermitted work, given that she boasted about prior unpermitted work and given that she was a 40-year California attorney who seemingly understood the law. (FACC ¶26.) Cross-Complainant alleges had it known that Cross-Defendant only intended to pay for the construction as long as the lack of permits remained concealed and that Cross-Defendant believed the risk was on Cross-Complainant and Garcia (and not her), Cross-Complainant would not have agreed to build the Pool without permits. (FACC ¶26.)

Cross-Complainant alleges because the unpermitted construction was caught by the City of Los Angeles, Cross-Defendant concocted a backward-looking narrative to falsely portray herself as a victim of negligent and fraudulent work by Garcia and Cross-Complainant. (FACC ¶27.) Cross-Complainant alleges on information and belief that Cross-Defendant asked for Cartaya’s help in framing Cross-Complainant and Garcia as contractors that willfully performed unpermitted work, to further the fraud against Cross-Complainant. (FACC ¶27.) Cross-Complainant alleges this much is clear from the fact that after the Pool was complete, Cross-Defendant did not first directly convey her concerns to Cross-Complainant about the perceived issues with the workmanship, and instead, asked for Cartaya to inspect the construction and promptly come up with a report that could be later used against Cross-Complainant. (FACC ¶27.) Cross-Complainant alleges Cross-Defendant did not give Cross-Complainant the chance to inspect its work. Cross-Complainant alleges Defendant Garcia[1] is informed and believes that Cartaya and a colleague modified the Pool based on Cross-Defendant’s change of heart as to design, thus undoing some of Cross-Complainant’s work and thus, destroying proof of the allegedly defective construction and workmanship. (FACC ¶27.)

Cross-Complainant alleges on information and belief that Cartaya and possibly his colleague named Faby Valenzuela agreed to help Cross-Defendant and eventually did so by setting up a paper trail of written communications intended to falsely show that Cross-Defendant only later discovered the unpermitted work and that such unpermitted work was unacceptable to Cross-Defendant. (FACC ¶28.) Cross-Complainant alleges this belief is based on the fact that: (a) Cross-Defendant knowingly paid Cartaya to perform over one decade of unpermitted construction, yet, Cross-Defendant and Cartaya sent each other text messages acting shocked by the unpermitted Pool construction; and (b) Cartaya told Cross-Defendant he and Cross-Defendant needed to teach Garcia “a lesson.” (FACC ¶28.)

Cross-Complainant alleges on information and belief that Cartaya and Cross-Defendant, under the pretext of attempting to “resolve” the dispute with Cross-Complainant, sought information from Devall to bolster the false narrative against Cross-Complainant and Garcia. (FACC ¶29.)

In support of her demurrer to Cross-Complainant’s FACC, Cross-Defendant argues Cross-Complainant’s causes of action fail because the FACC is a sham pleading, the 1st, 2nd, 3rd, 4th, and 5th causes of action fail to state facts sufficient to constitute causes of action, and the 5th cause of action is barred by the statute of limitations. (Demurrer, pgs. 1-10.)

A plaintiff may not discard factual allegations of a prior complaint, or avoid them by contradictory averments, in a superseding amended pleading. (Continental Insurance Co. v. Lexington Insurance Co. (1997) 55 Cal.App.4th 637, 646.) This rule exists to prevent a pleader from attempting to breathe life into a complaint by omitting relevant facts which made his previous complaint defective. (Lee v. Hensley (1951) 103 Cal.App.2d 697, 708-709.) Any inconsistences with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)

When there is a factual inconsistency between allegations, general allegations are limited and controlled by more specific allegations. (Perez v. Golden Empire Transit District (2012) 209 Cal.App.4th 1228, 1235; Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 827.) A specific pleading controls, limits, and supersedes a general pleading found in the same or a prior complaint, notwithstanding the fact that the Court on demurrer should construe the allegations liberally. (Perez, 209 Cal.App.4th at pg. 1235; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal App.3d 1371, 1389-1390; Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 422; Clack v. State of California ex rel. Dept of Pub. Works (1969) 275 Cal.App.2d 743, 748.)

Cross-Defendant argues Cross-Complainant’s FACC is a sham pleading because it now alleges the existence of an oral contract only between Cross-Defendant and Defendant Devall. (FACC ¶16). Cross-Defendant argues Cross-Complainant erased all allegations of a contractual relationship between it and Cross-Defendant that was included in the initial CC and abandoned its original 1st cause of action for breach of oral contract, its original 2nd cause of action for breach of implied covenant of good faith and fair dealing, and its original 3rd cause of action for breach of implied duty to perform with reasonable care. (CC ¶¶12, 13, 21, 22, 28-30, 36-38.)

Cross-Defendant argues Cross-Complainant gratuitously added a new allegation to the FACC that Cross-Defendant “solicited” Defendant Susan Devall to oversee the construction of the pool. (FACC ¶12.) Cross-Complainant relied on this new allegation to add, without leave of Court, an allegedly time-barred 5th cause of action for violation of Business & Professions Code §7160.

Cross-Complainant sufficiently explains why it eliminated allegations of a contractual relationship between it and Cross-Defendant that was in the CC and why its FACC alleges an oral contract only between Cross-Defendant and Devall is unavailing. (See Decl. of Weerasuriya ¶¶7-11.) Cross-Defendant’s testimony that she had no written contract with Cross-Complainant is a sufficient explanation by Cross-Complainant to eliminate its allegations pertaining to the existence of a contract between it and Cross-Defendant. Here, Cross-Complainant’s CC alleged an oral contract, not a written contract, between Cross-Defendant, Devall, and Cross-Complainant. It is not implausible that an oral contract that does not memorialize such an agreement did not exist between the parties if Cross-Defendant had never heard of Cross-Complainant. (Decl. of Weerasuriya ¶7, Exh. A at 27:9-20.) As such, Cross-Complainant’s FACC is not a sham pleading.

However, Cross-Complainant’s addition of a new allegation to the FACC that Cross-Defendant “solicited” Defendant Susan Devall to oversee the construction of the pool was not granted with leave of Court. (FACC ¶12.) While such an amendment is not a sham pleading, the addition of the new cause of action was improper and will be discussed in the motion to strike.

Intentional Interference with Contractual Relations, Common Count for Goods and Services Rendered, False Promise, Fraudulent Concealment, Fraudulent Solicitation (1st, 2nd, 3rd, 4th, & 5th COAs)

[A]ny person, who undertakes to or offers to undertake to, or purports to have the capacity to undertake to, or submits a bid to, or does himself or by or through others, construct, alter, repair, add to, subtract from, improve . . . any building . . . or other structure, project, development or improvement, or to do any part thereof . . . .

Business and Professions Code §7025 defines “person,” as used in §7026, to include an “individual, a firm, partnership, corporation, limited liability company, association or other organization, or any combination thereof” who enters into a construction contract. (Bus. & Prof. Code §7025(b).)

(a) Except as provided in subdivision (e), no person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, in any court of this state for the collection of compensation for the performance of any act or contract where a license is required by this chapter without alleging that they were a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person, except that this prohibition shall not apply to contractors who are each individually licensed under this chapter but who fail to comply with Section 7029.

Business & Professions Code §7058 defines a specialty contractor (for the “C” specialty licenses) as the following: “(a) A specialty contractor is a contractor whose operations involve the performance of construction work requiring special skill and whose principal contracting business involves the use of specialized building trades or crafts.” (Bus. & Prof. Code §7058(a).)

The California Code of Regulations further defines specialty contractors: “[s]pecialty contractors shall perform their trade using the art, experience, science and skill necessary to satisfactorily organize, administer, construct and complete projects under their classification, in accordance with the standards of their trade,” including a C-53 specialty license for swimming pool. (16 C.C.R. §832.)

Business and Professions Code §7057(b), provides that a contractor with a general license may take on a contract involving specialty work, as the prime or subcontractor, even without a specialty license, if two unrelated building trades or crafts are involved in the construction. . . . The general building contractor shall not count framing or carpentry in calculating the two unrelated trades necessary in order for the general building contractor to be able to take a prime contract or subcontract for a project involving other trades. (Bus. & Prof. Code §7057(b), emphasis added.)

In Home Depot, U.S.A., Inc. v. Contractors’ State License Board, the Court of Appeal explained that “[w]hen read in its entirety, the language of section 7057 clearly provides that those contractors who principally work on structures that involve more than two unrelated building trades or crafts are to be classified as general building contractors. Nothing in the language of section 7057 requires a general building contractor to absolutely limit his or her contracting work to projects involving more than two unrelated building trades or crafts.” (Home Depot, U.S.A., Inc. v. Contractors’ State License Board (1996) 41 Cal.App.4th 1592, 1601.)

Cross-Complainant sufficiently alleges that it is a duly licensed contractor, under the Business & Professions Code. (FACC ¶23.) Cross-Complainant alleges it held a General Building Contractor’s B license at all times during the construction of the Pool and the construction involved multiple unrelated building trades or crafts (not including framing and carpentry), including plumbing, electrical work, pool plastering, stucco plastering, and pool equipment installation. (FACC ¶23, emphasis added.) Cross-Complainant alleges its involvement in the construction of the Pool was at all times lawful and in full compliance with Business and Professions Code §§7056-7058. (FACC ¶23.)

Based on the amendments to Cross-Complainant’s pleading, Hydrotech Systems, Ltd. v. Oasis Waterpark is not dispositive. (Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52 Cal.3d 988, 997.)

Accordingly, Cross-Defendant’s demurrer to the 1st, 2nd, 3rd, 4th, and 5th causes of action is overruled.

Cross-Defendant’s argument that the 5th cause of action is barred by the statute of limitations is unavailing given Cross-Complainant sufficiently alleges it is a licensed contractor. (FACC ¶23.) Therefore, the one-year statute of limitations cited in Eisenberg Village of Los Angeles Jewish Home for the Aging v. Suffolk Construction Co., Inc. is inapposite because it does not state the limitations period applies to a claim under Business & Professions Code §7160. (See Eisenberg Village of Los Angeles Jewish Home for the Aging v. Suffolk Construction Co., Inc. (2020) 53 Cal.App.5th 1201, 1214-1215.)

Further, Cross-Complainant’s claim relates back to the original CC because it is based on the same general facts, involves the same injury as alleged in the CC, and refers to the same instrumentality. (See CC ¶¶16, 17, 57-59; FACC ¶¶25, 51-56, 58-60; Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276.)

Accordingly, Cross-Defendant’s demurrer to the 5th causes of action is overruled.

Plaintiff/Cross-Defendant Carla Barboza’s demurrer to the first amended cross-complaint of Cross-Complainant H&E Builders Services, Inc. is overruled as to the 1st, 2nd, 3rd, 4th, and 5th causes of action.

Cross-Defendant moves to strike the following portions of the FACC: (1) the 5th cause of action (FACC ¶¶57-61); (2) FACC ¶62 (“special damages”); (3) FACC ¶62 (“general damages”); (4) FACC ¶63 (“punitive damages”); (5) FACC ¶64 (“pre-judgment and post-judgment interest”); and (6) FACC ¶65 (“attorneys’ fees and costs”). (Notice of Motion, pg. 1; C.C.P §§435, 436.)

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or 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.” A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (C.C.P. §437.)

Generally, where a court grants leave to amend after sustaining a demurrer, the scope of permissible amendment is limited to the cause(s) of action to which the demurrer has been sustained: “such granting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” (People v. Clausen (1967) 248 Cal.App.2d 770, 785-786, emphasis added; see Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [obtaining permission to do so].) C.C.P. §436(b) authorizes “the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)

Cross-Complainant’s addition of a new allegation to the FACC that Cross-Defendant “solicited” Defendant Susan Devall to oversee the construction of the pool was not granted with leave of Court. (FACC ¶12; Clausen, 248 Cal.App.2d at pgs. 785-786; see Harris, 185 Cal.App.4th at pg. 1023.) While such an amendment is not a sham pleading, the addition of the new cause of action was improper and therefore subject to a motion to strike.

Accordingly, Cross-Defendant’s motion to strike the 5th cause of action (FACC ¶¶57-61) is granted along with the prayer for reasonable attorney’s fees and costs under Business & Professions Code §7160 (FACC ¶¶65).

A motion to strike may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63 [allegations of gender discrimination did not show defendant acted with requisite state of mind for punitive damages]

Cross-Complainant fails to allege facts sufficient to sustain a prayer for punitive damages based on allegations of fraud. (FACC ¶¶25, 53, 55.)

Accordingly, Cross-Defendant’s motion to strike Cross-Complainant’s prayer for punitive damages is granted with 20 days leave to amend.

Cross-Defendant’s argument that Hydrotech Systems, Ltd. precludes Cross-Complainant’s prayer for special damages, general damages, punitive damages, and interest is unavailing, as this Court stated in the demurrer Hydrotech Systems, Ltd. is not dispositive based on the amendments to Cross-Complainant’s pleading.

Accordingly, Cross-Defendant’s motion to strike general and special damages and interest is denied.

Cross-Defendant’s motion to strike the 5th cause of action (FACC ¶¶57-61) is granted along with the prayer for reasonable attorney’s fees and costs under Business & Professions Code §7160 (FACC ¶65).

Cross-Defendant’s motion to strike Cross-Complainant’s prayer for punitive damages (FACC ¶63) is granted with 20 days leave to amend.

Cross-Defendant’s motion to strike general and special damages (FACC ¶62) and interest (FACC ¶64) is denied.

[1] The Court points out that Cross-Complainant makes an allegation in its Cross-Complaint on the behalf of Defendant Garcia who is not a party to the Cross-Complaint.