Judge: David A. Rosen, Case: 22GDCV00638, Date: 2023-02-10 Tentative Ruling

Case Number: 22GDCV00638    Hearing Date: February 10, 2023    Dept: E

Hearing Date: 02/10/2023 – 8:30am
Case No: 22GDCV00638
Trial Date: Unset
Case Name: JOSEPH CAMARILLO v. K MOTORS SJC, LLC, et al.

TENTATIVE RULING ON MOTION TO STRIKE

Moving Party: Defendant, K Motors SJC, LLC dba Glendale Nissan
Responding Party: Plaintiff, Joseph Camarillo

Opposition and 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
Defendant moves to strike the following portions of Plaintiff’s Complaint:

1. Complaint, Paragraph 33, page 5, line 17, in part, as irrelevant and improper; "...and attorney's fees..."

2. Complaint, Paragraph 34, page 5, lines 19 through 23, in its entirety, as irrelevant and improper; "Because the conduct of Dealer in misrepresenting the true condition of the Subject Vehicle was motivated by fraud, oppression, or malice. Plaintiff is entitled to an award of punitive damages in an amount which will deter Dealer and others from engaging in the fraudulent conduct alleged herein. The officers and directors of Dealer actively participate in and ratified said fraudulent conduct"

3. Complaint, Paragraph 81, page 10, line 3, in part, as irrelevant and improper; “… and punitive…”

4. Complaint, Paragraph 90, page 10, line 27, in part, as irrelevant and improper; "...and a civil penalty"

5. Complaint, Prayer For Relief re: First Cause of Action No. 4, page 11, line 9, in its entirety, as irrelevant and improper; "Punitive damages"

6. Complaint, Prayer For Relief re: First Cause of Action No. 5, page 11, line 10, in its entirety, as irrelevant and improper; "Attorney's fees incurred in bringing an action against 3rd party to protect Plaintiff's interests"

7. Complaint, Prayer For Relief re: Second Cause of Action No. 4, page 11, line 18, in part, as irrelevant and improper; "Attorney's fees incurred in bringing an action against 3rd party to protect Plaintiffs interests"

8. Complaint, Prayer For Relief re: Third Cause of Action No. 2, page 15, line 25, as irrelevant and improper; "Attorneys' fees and costs pursuant to Code of Civil Procedure § 1021.5"

9. Complaint, Prayer For Relief re: Sixth Cause of Action No. 4, page 16, line 5, in its entirety, as irrelevant and improper; "A civil penalty according to proof “

BACKGROUND
The instant action involves Plaintiff’s purchase of a used Nissan Sentra. Plaintiff alleges that the sales staff of Dealer communicated and advised Plaintiff that the subject vehicle was in good condition, but after taking possession of the subject vehicle, Plaintiff learned that the vehicle was in a state of disrepair at the time of sale.

Plaintiff alleged six causes of action: (1) Intentional Misrepresentation, (2) Negligent Misrepresentation, (3) Violation of Business and Professions Code §17200, (4) Bond Claim, (5) Violation of the Consumer Legal Remedies Act, and (6) Breach of Implied Warranty. Causes of action 1, 2, 3, 5, and 6 were alleged against the dealer, and the fourth cause of action was alleged against International Fidelity Insurance Company.

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 alleges it met and conferred but an agreement could not be reached. (Decl. Mann ¶5.)

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

Requests to strike portions 1, 6, and 7
The portions that Defendant moves to strike with respect to requests 1, 6, and 7 pertain to Plaintiff’s requests for attorney’s fees in Plaintiff’s Intentional Misrepresentation (first cause of action) and Negligent Misrepresentation (second cause of action) causes of action.

Both Defendant and Plaintiff appear to agree that the general rule is that attorney’s fees must be authorized by statute or contract. (CCP §1021.) Further, both parties appear to agree that here there is no statute or contract to allow Plaintiff to recover attorney’s fees. However, both parties also agree that there is an exception to the general rule where recovery of attorney’s fees can be allowed for an action against a third party as damages. Both parties cite Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620.

Defendant argues that Plaintiff is seeking attorney’s fees incurred as damages resulting from prosecuting the intentional and negligent misrepresentation claims against Glendale Nissan directly. In Opposition, Plaintiff argues that in its Complaint, Plaintiff alleges that as a direct result of Dealer’s fraud, he was forced to file a bond claim against Defendant Fidelity Insurance – a third party – in order to protect his interest. Plaintiff thus argues since he is required to prosecute an action against a third party for the protection of his interests due to Dealer’s fraud in connection with the sale of the motor vehicle, Plaintiff is entitled to request attorney’s fees for intentional misrepresentation and negligent misrepresentation.

TENTATIVE RULING PORTIONS 1, 6, 7
The Court GRANTS Defendant’s motion to strike requests 1, 6, and 7, with 20 days’ leave to amend granted. Velez v. Smith (2006, First Dist.) 142 Cal. App. 4^th 1154.

Here, although Plaintiff argued that it alleged that as a direct result of dealer’s fraud he was forced to file a bond claim against Fidelity, Plaintiff’s complaint does not actually allege that. Plaintiff did in fact allege a bond claim against Fidelity, but Plaintiff’s argument that it alleged that as a direct result of Dealer’s fraud it was forced to file a bond claim is an overstatement by the Plaintiff because this statement is not found in the complaint.

Further, there seems to be an inconsistency in the pleading and the prayer. In the prayer for relief for the first and second causes of action, Plaintiff alleges attorney’s fees incurred in bringing an action against the third party to protect Plaintiff’s interests; however, Plaintiff does not allege this anywhere in the body of the complaint with its first and second causes of action. Further, in the prayer, there is no reference as to the bond claim to protect Plaintiff’s interests.

Because it is unclear what Plaintiff is trying to allege as its basis for attorney’s fees in the first and second causes of action and whether the exception Plaintiff relies on applies, the Court grants Defendant’s motion to strike requests 1, 6, and 7. Plaintiff is granted leave to amend.

Requests to strike portions 2 and 5
Plaintiff’s requests to strike portions 2 and 5 pertains to striking requests for punitive damages with respect to the intentional misrepresentation cause of action.

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).)

Here, Plaintiff alleged an intentional misrepresentation cause of action for fraud. Fraud/intentional misrepresentation is an acceptable basis to seek punitive damages. (CCP §3294(c)(3).

Defendant’s arguments as to Plaintiff not alleging facts sufficient to constitute a cause of action for fraud are outside the scope of this motion. Defendant did not file a demurrer challenging whether Plaintiff sufficiently alleged a fraud cause of action. 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.)  Defendant cites cases like Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872, and those cases refer to arguments brought up on demurrer.

Defendant also argues that Plaintiff did not allege ratification.

“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, Plaintiff alleged, “The officer and directors of Dealer actively participate in and ratified said fraudulent conduct.” (Compl. ¶34.) Therefore, Defendant’s argument is unavailing.

TENTATIVE RULING PORTIONS 2 and 5
Motion to strike portions 2 and 5 is DENIED.

Request to Strike portion 3
Defendant’s request to strike portion 3 pertains to Plaintiff’s punitive damages request with respect to Plaintiff’s fifth cause of action for violation of California’s Consumer Legal Remedies Act.

As a preliminary matter, Defendant doesn’t make an argument as to why the request for punitive damages request should be stricken with respect to the CLRA. Defendant only makes an argument as to striking punitive damages with respect to fraud and Civil Code 3294.

“The CLRA authorizes any consumer “who suffers any damage” because of a unlawful method, act or practice to bring an action for various forms of relief, including (1) actual damages, (2) an order enjoining the methods, acts, or practices, (3) restitution of property, (4) punitive damages, and (5) any other relief the court deems proper. (Civ. Code, § 1780, subd. (a).) “This statutory language makes clear that, to obtain relief under the CLRA, [Gutierrez] must have suffered some damage caused by a practice deemed unlawful under Civil Code section 1770.” (Steroid Hormone Product Cases (2010) 181 Cal.App.4th 145, 156, 104 Cal.Rptr.3d 329.)” (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1263.)

TENTATIVE RULING PORTION 3
Plaintiff’s motion to strike portion 3 is DENIED.

Request to strike portions 4 and 9
Defendant’s motion to strike portions 4 and 9 pertain to striking Plaintiff’s request for a civil penalty in Plaintiff’s sixth cause of action for Breach of Implied Warranty.

Here, Plaintiff’s opposition did not oppose Defendant’s argument as to striking these two portions.

TENTATIVE RULING PORTIONS 4 and 9
Defendant’s motion to strike portions 4 and 9 is GRANTED. Leave to amend is not granted since Plaintiff did not oppose Defendant’s motion to strike as to these two portions.

Request to strike portion 8
Request 8 pertains to the third cause of action for violation of Business and Professions Code §17200. Defendant moves to strike the third cause of action’s prayer for relief with respect to attorney’s fees.

Defendant argues that attorney’s fees cannot be awarded here under 1021.5 because Plaintiff is vindicating his own personal and economic interests, and since Plaintiff is not prosecuting this action on behalf of others, Plaintiff cannot plead attorney’s fees.

Plaintiff cites Snatchko v. Westfield LLC which states in relevant part :

“There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a ... judgment[.]” (Washburn v. City of Berkeley (1987) 195 Cal.App.3d 578, 583, 240 Cal.Rptr. 784, italics added.) 

(Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497.)

Further, Plaintiff argues that it has a basis for attorney’s fees because its third cause of action is based on violation of the CLRA.

Plaintiff argues, “While it is true that attorney's fees are not generally recoverable for UCL claims, attorney's fees may be recoverable when, like here, the plaintiff's action includes another statutory claim authorizing fees or the action will serve to benefit the public welfare. [See CCP §1021.5.]” (Oppo. p. 3-4.) Plaintiff then argues that the CLRA claim entitles plaintiff to attorney’s fees because the CLRA authorizes recovery of attorney’s fees and there exists another statutory claim authorizing fees.

First, the UCL (third cause of action) claim does not mention the CLRA at all in the body of the complaint or the prayer for relief as Plaintiff’s basis for attorney’s fees for the third cause of action.

Further, Plaintiff argues:

An award of attorney's fees is therefore appropriate under CCP ) 1021.5 when (I) the action "has resulted in the enforcement of an important right affecting the public interest," (2) "a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons...," and (3) "the necessity and financial burden of private enforcement...are such as to make the award appropriate." [Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Cal.4th 1018, 1026 (emphasis added).].

(Oppo. p. 5.)

Plaintiff then goes on to say that Plaintiff’s allegation of entitlement to attorney’s fees under CCP §1021.5 is sufficient notice that he intends to present evidence of a substantial public benefit which is conferred by his pursuit of an injunction against the dealer.

However, Plaintiff doesn’t make any actual allegation in the Complaint about “public benefit.”

While Plaintiff cited the Snatchko case, the following case also applies: “Private plaintiffs suing under the UCL may seek only injunctive and restitutionary relief, and the UCL does not authorize attorney fees. See, Zhang v. Superior Court, supra, 57 Cal.4th 364, 371 (fn. 4); Rose v. Bank of America, N.A. (2013) 57 Cal.4th 390, 399.

TENTATIVE RULING PORTION 8
Defendant’s request to strike portion 8 is GRANTED with 20 days’ leave to amend.