Judge: David B. Gelfound, Case: 23CHCV02580, Date: 2024-04-03 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies). 

Case Number: 23CHCV02580    Hearing Date: April 3, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT

Motion filed: 11/2/23

MOVING PARTY: Defendant The Standard Fire Insurance Company (“Standard Fire Insurance” or the “Moving Defendant”)

RESPONDING PARTY: Plaintiffs Teresa Arasheben, Vince Garcia, Mohammad Arasheben, Ohara Arasheben, and Lara Arasheben. (collectively, “Plaintiffs”)

NOTICE: ok 

RELIEF REQUESTED: An order from this Court striking portions of the Complaint.

TENTATIVE RULING: The motion is GRANTED IN PART with LEAVE TO AMEND.

BACKGROUND

This action involves a property insurance coverage dispute, stemming from a claim that Plaintiffs submitted to the Moving Defendant who is the policy issuing party.

On August 28, 2023, Plaintiffs initiated the action against Defendants Burns & Partners Inc., Standard Fire Insurance, and Does 1-20, alleging: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; and (3) gross negligence.

On November 2, 2023, Standard Fire Insurance filed the instant Motion to Strike portions of the Complaint (the “Motion”). Plaintiffs opposed the Motion on March 20, 2024, to which Standard Fire Insurance replied on March 26, 2024.

On March 22, 2024, Plaintiffs filed a Request for Dismissal, dismissing Plaintiff Vince Garcia. The Request was entered by the Court on the same day.

ANALYSIS

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); Stafford v. Shultz, 42 Cal. 2d 767, 782 (1954) [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

A.    Procedural Requirements Are All Met

1.      Meet and Confer

“Before filing a motion to strike . . . 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.”  (Code Civ. Proc. § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc. § 435.5, subd. (a)(3).) 

Here, Standard Fire Insurance’s counsel (“Counsel”) made efforts to engage in the meet and confer process, including that she contacted Plaintiffs’ counsel via email on September 21, 2023, to schedule a meet and confer phone call regarding the Complaint and Standard Fire Insurance’s intent to file a motion to strike. (Maghareh Decl., ¶ 2.) Further attempts to arrange the meeting were made through follow-up emails and phone calls. (Id., ¶ 3.) On October 5, 2023, Counsel detailed the grounds for the intended motion to strike in an email to Plaintiffs’ counsel. (Ibid.) Subsequently, both parties met and conferred telephonically on October 6, 2023. (Ibid.) Despite Plaintiffs’ counsel indicating on October 9, 2023, that an amendment to the Complaint would be forthcoming, no such amendment was filed by the time the Motion was submitted. (Id., ¶ 6.)

Given the detailed account in the declaration, the Court finds that the meet and confer requirements under Code of Civil Procedure section 435.5 subdivision (a) have been met.

2.      Timeliness

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof [e.g., 30 days after the service of the compliant or cross-complaint unless extended by court order or stipulation.]” (Code Civ. Proc. § 435, subd. (b)(1).)

Here, on September 13, 2023, Plaintiffs granted Standard Fire Insurance a 14-day extension, extending the deadline to respond to the Complaint until October 13, 2023. (Maghareh Decl., ¶ 2.) Subsequently, on October 13, 2023, the Court granted Standard Fire Insurance’s Ex Parte Application, ordering that Standard Fire Insurance to have until November 3, 2023, to file a response to the Complaint. (Id., ¶ 5, 10/13/23 Minute Order.)

In adherence to this extended timeline, the Motion was filed on November 2, 2023, thereby meeting the deadline ordered by the Court.

Accordingly, the filing of the Motion to Strike is considered timely.

B.     Motion to Strike

Moving Defendant requests that the following portions be stricken from the Complaint:

1.      Paragraph 54, in its entirety, which states as follows:

“STANDARD’s conduct described herein was done with a conscious and deliberate disregard of PLAINTIFFS' rights and constitutes despicable conduct, as it was done with the intent to vex, injure or annoy PLAINTIFFS such as to constitute oppression, fraud or malice pursuant to California Civil Code §3294, entitling PLAINTIFFS to an award of punitive damages in an amount appropriate to punish the STANDARD within the dictates of Due Process, or set an example of the STANDARD to discourage similar conduct by other insurance companies.”

2.      Prayer for the First Cause of Action, Paragraph 3 in its entirety, which states as follows:

“For attorney’s fees;”

3.      Prayer for the Second Cause of Action, Paragraph 10 in its entirety, which states as follows:

“Punitive Damages; and”

1)      Punitive Damages

“Punitive damages are accessible only upon a showing that the defendant acted with the intent to vex, injure, or annoy.”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1286 (internal citation omitted).) To withstand a motion to strike punitive damages allegations, the complaint must set forth facts supporting a claim for punitive damages: “the mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Citation omitted.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

Civil Code § 3294 subdivision (c) defines malice, oppression, and fraud:

(1) ‘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.

(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) ‘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.

“[Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court, 8 Cal. 4th 704, 725 (1994).)

Here, in its Motion, Standard Fire Insurance contends that Plaintiffs have not alleged specific facts necessary to warrant a claim for punitive damages, (Mot. at 9), arguing that an insurer’s conduct must exceed mere bad faith to merit such an award, referencing Mock, Mock v. Michigan Millers Mut. Ins. Co., (1992) 4 Cal.App.4th 306, 328.)

Contrastingly, Plaintiffs in their response, argue that the Complaint adequately alleges punitive damages by detailing not only the deprivation of the insurance policy’s benefits but also alleging actions by Standard Fire Insurance that purportedly have exposed Plaintiffs to physical harm from lead. These allegations, they argue, demonstrate the Moving Defendant’s conscious disregard for both the rights and the safety of Plaintiffs, thus meeting the punitive damages pleading standards. (Opp’n., at 8.)

The Moving Defendant, in its Reply, does not directly contest the adequacy of Plaintiffs’ allegations regarding safety disregard. Instead, it focuses on asserting that the Complaint’s allegations, particularly those related to Standard Fire’s failure to pay additional policy benefits due to the faulty workmanship of a vendor, are conclusory and lack the detailed facts necessary to imply wrongful intent, motive, or purpose. (Reply, at 3.) Furthermore, Standard Fire Insurance maintains that a breach of the covenant of good faith and fair dealing alone does not establish a right to punitive damages. (Reply, at 4.)

The Court, in its evaluation, references specific allegations from the Complaint, including actions by Standard Fire Insurance’s adjuster Ms. Ortiz that allegedly delayed the restoration by not approving packout and ordering the restoration company to move the personal property of Plaintiffs from one from to another (Compl., ¶ 20); that Standard Fire Insurance authorized lead abatement by Burns & Partners Inc. (“Burns”) based on a positive lead assessment result reported by Go Eco Restoration (“G.E.R.”) (Id., ¶ 22); that Burns removed their non-compliant barrier without allowing the dust to settle and left the job site ... the entire house was contaminated (Id., ¶ 25); that another lead testing was performed by G.E.R. to confirm clearance, which resulted a high level of lead throughout the property and concluded that it is causes by Burns left the property in a contaminated state without capsulating the area that contained lead (Id., ¶ 26); that Plaintiffs’ personal property were also contaminated due to Standard Fire Insurance’s refusal to remove them from the property (Id., ¶ 28); and that Standard Fire Insurance initially approved a second abatement company to clean the property; however, it subsequently withdrew its approval and removed housing approval as well. (Id., ¶ 31.)

            The Complaint further alleges that “STANDARD engaged in unlawful insurance claims handling practices by attempting to assert that PLAINTIFFS were not entitled to full benefits under the Policy for the losses, low-balling the value of the claims and then wrongfully and unreasonably denying further benefits to the PLAINTIFFS. Such bad faith conduct constitutes continuing tort[.]” (Compl., ¶ 50.) “This conduct ... including, but not limited to the following: (a) Unreasonably withholding benefits owed to PLAINTIFFS under coverage for the Property under the claims; (b) Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under the Policy; (c) Failing to adopt arid implement reasonable standards for the prompt investigation and processing of claims; (d) Not attempting in good faith to effectuate prompt, fair, and equitable settlement of Plaintiffs' claims; (e) Compelling Plaintiffs to initiate litigation to obtain benefits due under the Policy for the losses; (f) Failing to provide a reasonable explanation of the basis relied on in the insurance policy, in relation to the facts or applicable law, for the unreasonable delay of a claim or for the offer of a compromise settlement; (g) Failing to settle claims promptly, where liability has become apparent, under one portion of the insurance policy coverage in order to influence settlements under other portions of the insurance policy coverage. (h) Failing to consider Plaintiffs' interests at least equal to its own; (i) Commencing on a course of conduct to wrongfully influence the adjustment of the losses and an improper attempt to minimize the losses[.]” (Id., ¶ 52.)

            Given the Code of Civil Procedures sections 437 and 452 – which mandate that the grounds for a Motion Strike must appear on the face of the challenged pleading and the pleading’s allegations must be liberally construed – the Court finds Plaintiff’s pleadings, when considered in their entirety, sufficiently allege facts that could imply the Moving Defendant’s conscious disregard of Plaintiffs’ rights and safety. Consequently, the Court finds Standard Fire Insurance’s argument to be unpersuasive.

            Accordingly, the Court DENIES the Motion to Strike with respect to punitive damages, specifically noting Paragraph 54 of the Complaint and Paragraph 10 of the Prayer for the Second Cause of Action.

2)      Attorney’s Fees

When authorized by contract, statute or law, reasonable attorney fees are “allowable costs.” (Code Civ. Proc., § 1033.5, subd. (a)(10).) “Costs” can include items allowable as “attorneys’ fees” as a prevailing party, if allowable by statute or contract. (Heritage Engineering Const., Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1441-1442.) 

A cause of action for breach of contract requires proof of the following elements: (1) the existence of the contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damages to the plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) 

Additionally, “[a] written contract may be pleaded either by its terms – set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference – or by its legal effect.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 993.)

Here, the Moving Defendant challenges the Complaint for not citing any authority that supports Plaintiffs’ purported right to recover attorney’s fees. (Mot. at 10.) The Court observes that Plaintiffs do not include any contract in question to their Complaint or to adequately allege its legal effect in authorizing the recovery of attorney’s fees. Plaintiffs merely state possession of complete policy by the Moving Defendant and assert they have incurred attorney fees and court costs without sufficiently alleging the policy’s provisions or their legal effect regarding attorney’s fees recovery. (Compl., ¶¶ 34, 40).

Consequently, the Court concludes that Plaintiffs have failed to sufficiently plead the basis for recovering attorney’s fees under their either law or their policy with Standard Fire Insurance. Accordingly, the Court GRANTS the Motion to Strike regarding attorney’s fees, with LEAVE TO AMEND.

In sum, the Court GRANTS IN PART with LEAVE TO AMEND the Motion to Strike.

CONCLUSION

The Motion to Strike is GRANTED IN PART.

Plaintiff is GRANTED LEAVE TO AMEND as to the attorney’s fees within 10 days of notice of this order.

Moving party to give notice.