Judge David A. Rosen, Case 19GDCV00061 2022-12-09 Tentative Ruling

Judge: David A. Rosen, Case: 19GDCV00061, Date: 2022-12-09 Tentative Ruling

Case Number: 19GDCV00061 Hearing Date: December 9, 2022 Dept: E

Hearing Date: 12/09/2022 – 8:30am
Case No: 19GDCV00061
Trial Date: UNSET
Case Name: MEGA FINANCIAL LLC, TRUSTEE v. BARBARA WILLIAMS-BURRELL, et al.

TENTATIVE RULING ON MOTION TO STRIKE

Moving Party: Cross-Defendants, Century 21 Allstars, Inc., Louis Chavez, and Gabriela Salazar (collectively “Brokers”)

Responding Party: Cross-Complainant/Defendant Stockpile Property Ventures, LLC.

[Opposition submitted but no Reply submitted.]

Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): ok
Proper Address: ok

RELIEF REQUESTED
Cross-Defendants Century 21 Allstars, Inc., Louis Chavez, and Gabriela Salazar (collectively “Brokers”) seek an order striking the following portions of Stockpile’s Cross-Complaint:

1. Stockpile’s vague, conclusory, and improper request for punitive damages as to Century 21 Allstars, Inc. is illegitimate, improper, and without basis in law:

a. Paragraph 53, page 10 at lines 22-24

b. Prayer Paragraph 2, page 18 at line 5

Preliminary issues

Moving party simply refers to striking portions from Stockpile’s Cross-Complaint. It appears that Stockpile filed a cross-complaint on 2/16/2021 and an amended cross-complaint on 6/22/2022. This Court will assume that moving party is referring to striking portions of Stockpile’s Amended Cross-Complaint filed on 06/22/2022.

Moving party references striking Prayer Paragraph 2, page 18 at line 5. Problematic with this is that page 18 has multiple paragraph 2s. Since line 5 on page 18 reads, “Punitive damages in an amount according to proof at the time of trial;” and since this paragraph 2 is in the same cause of action for fraud in which the moving party wishes to strike Paragraph 53, page 10, lines 22-24, the Court finds that this error is not fatal.

BACKGROUND
On 01/11/2019, Mega Financial LLC, Trustee of the Robles Trust dated 07/26/2018 filed a verified complaint for Quiet Title and Declaratory relief.

On 01/11/2021, Mega Financial LLC, Trustee of the Robles Trust dated 07/26/2018 filed a verified first amended complaint for quiet title, breach of contract, restitution based on unjust enrichment, and declaratory relief.

On 02/16/2021, Stockpile Property Ventures, LLC, a Texas Limited Liability Company filed a cross-complaint.

On 06/22/2022, Stockpile Property Ventures, LLC a Texas Limited Liability Company filed a First Amended Cross-Complaint alleging 15 causes of action. The Cross-Defendants in the First Amended Cross-Complaint are: (1) Barbara Williams-Burrell, an individual; (2) T.B. Sanders, an individual and aka Tisha Sanders; (3) Michael Wayne Clayton, an indiv; (4) Faith S. Jones, an indiv; (5) William Estate & Co., a California corporation; (6) Century 21 Allstars, Inc., a California corporation; (7) Louis Chavez, an indiv; (8) Gabriela Salazar, an indiv; (9) Orange Coast Title Company of Southern California, a California corporation; (10) Real Advantage Title Insurance Company, a California corporation; and (11) Roes 2-25 inclusive. [This FACC is the subject of the instant motion to strike.]

On 08/30/2022, Williams Estates and Co., a California Corporation filed a cross complaint against Century 21 Allstars, Inc., a California corporation; Louis Chavez, an indiv; and Gabriela Salazar, an indiv; and Roes 1-25.

PROCEDURAL
Meet and Confer
Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP §435.5(a).)

Moving party met and conferred. (Decl. Loangkote ¶3.)

Legal Standard Motion to Strike
The court may, upon a motion made pursuant to Section 435, 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(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. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”].)

ANALYSIS
Punitive Damages
In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example by way of punishing the defendant. (Cal. Civ. Code §3294(a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (CCP §3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (CCP §3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (CCP §3294(c)(3).)

In order for Cross-Complainant to allege punitive damages, Cross-Complainant simply must allege fraud. Cross-Defendants argue that a claim for punitive damages cannot be pleaded generally or by mere legal conclusions that a defendant acted fraudulently, intentionally or in conscious disregard of plaintiff’s rights. Cross-Defendants argue that rather the claim must be supported with sufficient factual averments to demonstrate that the conduct was indeed intentional, fraudulent, malicious, willful, wanton, and/or undertaken in conscious disregard of plaintiff’s rights.

Problematic with Cross-Defendants’ arguments is that Cross-Defendants did not demur to the fifth cause of action for fraud. Therefore, this Court need not test the sufficiency of the fraud allegations against Cross-Complainant. This Court will assume that Cross-Complainant adequately pleaded fraud.

It appears Movant may have a colorable argument based upon Civil Code §3294(b).

Cross-Defendant Century 21 Allstars, Inc. is a California corporation, and Louis Chavez and Gabriela Salazar appear to be employees/agents of Century 21 Allstars. [“The real estate brokerage handling the Agreement, for both buyer and seller, was Cross-Defendant C21. The assigned C21 agents were Cross-Defendants Chavez and Salazar. Based on information and belief, C21, Chavez, and Salazar either (1) negligently failed to verify the identity of the person purporting to be the Seller, or (2) were in fact aware that the person proceeding as the Seller was not the owner of the Subject Property, but they proceeded nevertheless, either because they were part of the scheme and/ or because they stood to gain a commission whether the sale was fraudulent or not.” (FACC ¶23.)]

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (CCP §3294(b).)

Here, the Court does not see how Cross-Complainant met the requirement of 3294(b) for Century 21 Allstars.

In paragraph 13 of the FACC, Cross-Complainant alleged, “Cross-Complainant is informed and believes and based thereon alleges that at all times herein mentioned, Cross-Defendants and ROES 2 through 25, inclusive (collectively, "Cross-Defendants"), were agents, servants, employees, alter egos, superiors, successors in interest, joint venturers and/or co-conspirators of each of their co-defendants and in doing the things herein after mentioned, or acting within the course and scope of their authority of such agents, servants, employees, alter egos, superiors, successors in interest, joint venturers and/or co-conspirators with the permission and consent of their co-defendants and, consequently, each Cross-Defendant named herein, and those Cross-Defendants named herein as ROES 2 through 25, inclusive, are jointly and severally liable to Cross-Plaintiffs for the damages and harm sustained as a result of their wrongful conduct.” (FACC ¶13.)

However, these allegations in Paragraph 13 do not pertain to ratification of a corporate employer.

The Opposition to this motion is rather unintelligible, incomprehensible, and indecipherable.

TENTATIVE RULING
Cross-Defendants motion to strike is granted in part and denied in part.

The motion to strike the two portions noted in the “Relief Requested” section are granted only as to Cross-Defendant Century 21Allstars for failure to meet the requirements of Civil Code §3294(b). 20 day’s leave to amend is granted.

The motion to strike the two portions noted in the “Relief Requested” is denied as to Cross-Defendants/Movants Louis Chavez and Gabriela Salazar, as the relief requested section only mentions striking as to Century 21 Allstars Inc. Further, in the meet in confer emails in Exhibit B, Cross-Defendants’ attorney says, “I understand your allegations supporting punitive damages as to the agents, and as to them, I will not be bringing forth the motion.”