Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This case arises from an allegedly defective roof.  Plaintiff 2512 28th Street Homeowners Association contracted with Defendant Titan Roofing & Decking Co., Inc. to install a “cool roof system”.  Plaintiff claims that Defendant’s work was defective, resulting in water leaks.   

Defendant disavowed responsibility for the water leaks, blaming them on the HVAC unit.  According to Plaintiff, it commissioned three separate, independent inspections of the roof, each of which concluded that Defendant’s roofing work was of poor quality and sub-standard.  This action ensued.   

The operative complaint alleges eight claims for (1) breach of contract, (2) breach of the covenant of good faith and fair dealing, (3) breach of express and implied warranties, (4) damage to real property, (5) intentional misrepresentation, (6) negligence, (7) negligent misrepresentation and (8) recovery against contractor’s bond.   

This hearing is on Defendant’s motion to strike Plaintiff’s punitive damages allegations.  Defendants argue that Plaintiffs have not alleged facts supporting a showing of fraud, malice or oppression. 

MEET AND CONFER 

Code Civ. Proc. § 435.5 requires that before the filing of 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 motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.  (Code Civ. Proc., § 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., §435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing its meet and confer efforts.  (Code Civ. Proc., §435.5(a)(3).)  Defendants submit the Declaration of Paul Smigliani who attests the parties met and conferred by telephone.  The Court concludes Defendant has satisfied its meet and confer requirements.  

LEGAL STANDARD 

The court may, upon 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).)  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, 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.) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  

DISCUSSION 

Defendants move to strike Plaintiff’s allegations of “willful, wanton, malicious and oppressive” misconduct and prayer for punitive damages.  Defendants argue Plaintiff has only stated a claim for breach of contract or negligence, which cannot support a claim for punitive damages.  The Court disagrees.    

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  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 (citations omitted).)   

Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)     

Cal. Civ. Code section 3294 provides the basis upon which punitive damages can be recovered.  Punitive damages may only be sought where there is clear and convincing evidence that the defendant has been guilty of malice, oppression or fraud: 

(c)(1) “Malice” means conduct which is intended 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. 

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

(c)(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.  

(Civ. Code §3294.) 

Section 3294 was amended in 1987 to increase the burden of proof required in order to allege a punitive damages claim as well as to raise the level of misconduct necessary for an award of punitive damages.  The California Supreme Court has ruled that the insertion of the word “despicable” in section 3294 created a “new substantive limitation on punitive damage awards.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “Despicable” means conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)  “Such conduct has been described as having the character of outrage frequently associated with [a] crime.”  (Id.) 

Punitive damages are disfavored by public policy and are allowed only under the most extreme circumstances and in the “clearest of cases.”  (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9.)  “To contain the generosity and emotionality of juries, appellate courts have set the threshold high in defining situations in which punitive damages can be given.  Conduct which may be characterized as unreasonable, negligent, grossly negligent or reckless does not satisfy the highly culpable state of mind warranting punitive damages.  Conduct which warrants punitive damages must be of such severity or shocking character [as] warrants the same treatment as accorded willful misconduct – conduct in which defendant intends to cause harm.”  (Id. at 10 (internal quotations and citations omitted).) 

Facts constituting only negligence are insufficient to support a claim for punitive damages. (Robbins v. Roques (1932) 128 Cal.App. 1, 7.) A complaint sounding in negligence, and not intentional conduct, is insufficient to justify a claim for punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167.)  Factual allegations of intentional acts are required to justify a claim of punitive damages. (Kiseskey v. Carpenters’ Trust of Southern California (1983) 144 Cal.App.3d 222, 234.)   

Here, Plaintiff has alleged a claim for fraud.  Fraud¿alone¿can be an adequate basis for a¿punitive¿damages¿award. (Las Palmas Assocs. v. Las Palmas Ctr. Assocs.¿(1991) 235 Cal.App.3d 1220, 1239.) 

Plaintiff’s fraud claim is based on two alleged misrepresentations: (1) that the roof system installed was not of the type represented by Defendant, and (2) that the roof system could be installed without removal of the solar panels.  As to (1), Defendant claims it never made the representation, and as to (2) Defendant argues “there was no misrepresentation”.  However, while Defendant may ultimately prevail on the facts, on a demurrer the Court is required to accept Plaintiff’s allegations as true.   

 

CONCLUSION AND ORDER 

Based on the foregoing, the Court DENIES Defendant’s motion to strike.   

IT IS SO ORDERED. 

 

DATED: May 27, 2025 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court