Judge: Deborah C. Servino, Case: 30-2019-01121179, Date: 2022-11-04 Tentative Ruling
DEMURRER
Cross-Defendant Greenhouse Community Association’s demurrer to Cross-Complainant Eric Woolard’s Second Amended Cross-Complaint (“SAX-C”), is overruled.
Cross-Defendant asserts that Cross-Complainant has improperly requested attorneys’ fees and punitive damages. (Dem., at p. 5:11-8:6.) However, “[a] demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384, disapproved on other grounds in ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175.) Similarly, “[t]he averment of an improper or wrong measure of damage, or the demand or prayer for items of damage not warranted by the facts alleged is not a ground for general demurrer.” (Beason v. Griff (1954) 127 Cal.App.2d 382, 387.)
Further, as explained by the Court in Grieves v. Superior Court (1984) 157 Cal.App.3d 159, “[s]ince a demurrer does not lie to a part of a cause of action [citation removed], petitioners’ punitive damage allegations were not subject to real parties’ demurrers.” (Id. at p. 163.) “There is no cause of action for punitive damages. Punitive or exemplary damages are remedies available to a party who can plead and prove facts and circumstances [set forth in Civil Code section 3294] . . . ‘Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.’” (Id. at pp. 163-164.) Stated yet another way, “a demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562.)
As Cross-Complainant’s requests for attorneys’ fees and punitive damages are “the relief suggested in the prayer of the complaint” and not causes of action pursuant to Code of Civil Procedure section 430.10, subdivision (e), the demurrer fails.
Finally, while the demurrer briefly cites Code of Civil Procedure section 430.10, subdivision (f), which permits demurs for uncertainty, Cross-Defendant did not identify any specific areas of uncertainty, which would support a demurrer. (Dem., at p. 4:21-22.) "Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty." (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809 [disapproved on other grounds in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300].) Accordingly, the demurrer is overruled.
MOTION TO STRIKE
Cross-Defendant’s motion to strike portions of the SAX-C is denied in part and granted in part with 30 days leave to amend.
A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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.) “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is limited to the face of the complaint, including matters that may be judicially noticed. (Code Civ. Proc., § 437, subd. (a).)
Attorney’s Fees
Cross-Defendant challenges the requests for attorney’s fees included within the prayer of the SAX-C, on the basis that Cross-Complainant is currently a self-represented litigant. To support this challenge, Cross-Defendant cites Trope v. Katz (1995) 11 Cal.4th 274, wherein the California Supreme Court held that “an attorney who chooses to litigate in propria persona and therefore does not pay or become liable to pay consideration in exchange for legal representation cannot recover ‘reasonable attorney’s fees’ under section 1717 as compensation for the time and effort he expends on his own behalf . . .” (Id. at p. 292.)
Necessarily, this principle applies equally to a non-lawyer, proceeding in propria persona. Nonetheless, the portion of the motion directed towards attorney’s fees is denied. While Cross-Complainant is currently a self-represented litigant, it is worth noting that the initial Cross-Complaint was filed by counsel and likewise included claims for negligence and harassment. (ROA 34.) Consequently, as to the first and second causes of action, some amount of fees appear to have been incurred, which may justify relief should Cross-Complainant prevail.
Moreover, as this action is still pending and currently being litigated, it is unclear whether Cross-Complainant will remain a self-represented litigant, throughout the remainder of this action. Cross-Defendant does not challenge Cross-Complainant’s ability to obtain attorney’s fees, should he obtain counsel and prevail. Finally, there is some authority which suggests that requests for attorney’s fees need not be pled at all and, consequently, should not be stricken. (Snatchko v. Westfield, LLC (2010) 187 Cal.App.4th 469, 497.) Accordingly, the motion to strike attorney’s fees included within the prayer of the SAX-C, is denied.
Punitive Damages
Next, Cross-Defendant seeks to strike the request for punitive damages included within the second cause of action (i.e., SAX-C at p. 7:26.)
Civil Code section 3294 provides that punitive damages may be awarded in an action for breach of an obligation not arising from contract, if the plaintiff proves by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct that is intended to cause injury or despicable conduct that is carried on with a willful and conscious disregard of the right and safety of others. (Civ. Code, § 3294, subd. (c)(1).)
At the pleading stage, the complaint must allege facts supporting circumstances of oppression, fraud, or malice. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) A corporate defendant may not be liable for punitive damages based on the acts of its employees unless the plaintiff alleges and proves that an officer, director or managing agent of the corporation: (1) was personally guilty of oppression, fraud or malice; or (2) had advance knowledge of, authorized, or ratified the wrongful conduct for which the damages are awarded. (Civ. Code, § 3294, subd. (b).) A motion to strike is an appropriate mechanism for challenging the adequacy of punitive damages allegations. (Grieves v. Superior Court, supra, 157 Cal.App.3d at p. 164.)
In this instance, Cross-Complainant requests punitive damages in connection with his claim for harassment. Relevant to the same, the SAX-C alleges Defendant “targeted Cross-Complainant Eric Woolard [for] harassment,” by video-taping and photographing Complainant “more than ten times per day.” (SAX-C, at ¶ 16.) The SAX-C additionally alleges that Cross-Defendant fabricated violations of the Association Rules. The SAX-C appears to allege that fines were improperly imposed, as a result of these fabrications. (SAX-C, at ¶ 16.) The SAX-C further alleges that Cross-Defendant falsely accused Cross-Complainant of breaking laws and city ordinances, “resulting in over 150 interactions with police and over 10 interactions involving different city code enforcement officer’s . . . .” (SAX-C, at ¶ 17.) Notably, the SAX-C alleges that Cross-Defendant made these false accusation “in [an] attempt to intentionally intimidate, scare and harass Woolard.” (SAX-C, at ¶ 17) The SAX-C additionally alleges that the above acts “caused Cross Complainant Eric Woolard to be seriously alarmed and annoyed and harassed by acts that serve no legitimate purpose.” (SAX-C, at ¶ 32.)
The SAX-C sufficiently alleges “malice” for purposes of Civil Code section 3294, subdivision (c)(1). In particular, the allegations regarding false accusations of crimes, demonstrates either an intent to injure or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) However, the SAX-C does not allege ratification by an officer, director or managing agent of Cross-Defendant.
While the opposition to the motion suggests that the allegations directed towards Roe Defendants establishes ratification, this argument is not persuasive. (Opp., at p. 6:11-22). Accordingly, the motion to strike the punitive damages allegations, is granted with 30 days leave to amend.
As the case is not at issue, the parties should be prepared to discuss with the Court continuance of the November 14, 2022 trial date and related dates.
Cross-Defendant shall give notice of this ruling.