Judge: Gail Killefer, Case: 23STCV22387, Date: 2024-03-06 Tentative Ruling

Case Number: 23STCV22387    Hearing Date: March 6, 2024    Dept: 37

HEARING DATE:                 Wednesday, March 6, 2024

CASE NUMBER:                   23STCV22387

CASE NAME:                        Douglas J. DeNoce, et al. v. Watergate Property Owners Association, Inc., et al.

MOVING PARTY:                 Defendants Watergate Property Owners Association, Inc.; S.H. Chavin, Inc. dba Community Property Management

OPPOSING PARTY:             Plaintiffs Douglas J. DeNoce as an individual and Trustee of the Savannah N. DeNoce Trust

TRIAL DATE:                        Not Set.

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike First Amended Complaint

OPPOSITION:                        22 February 2024

REPLY:                                  26 February 2-24

TENTATIVE:                         Defendants’ motion to strike is granted. The Plaintiff is given 30 days leave to amend. OS re: Amended Complaint set for _. Defendants to give notice.

Background

On September 18, 2023, Douglas J. DeNoce, as an individual and Trustee of the Savannah N. DeNoce Trust (“Plaintiff”), filed a Complaint against Watergate Property Owners Association, Inc.; S.H. Chavin, Inc. dba Community Property Management (collectively “Defendants”) and Does 1 to 25.

The operative First Amended Complaint (“FAC”) alleges two causes of action: (1) private nuisance; and (2) public nuisance.

On January 26, 2024, Defendants filed a motion to strike the FAC’s request for punitive damages. Plaintiffs oppose the Motion.

Motion to strike[1]

I.         Legal Standard

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. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿¿¿ 

¿¿ 

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿ 

II.        Discussion

Defendants seek to strike the following from Plaintiff’s FAC:

Plaintiffs are entitled to punitive and exemplary damages in an amount to be ascertained, which is appropriate to punish or set an example of Defendants and deter such behavior by Defendants and others in the future.

(FAC ¶ 53.)

f. For punitive damages for Defendants malicious, fraudulent, and oppressive actions by the persons identified in the First Amended Complaint and according to proof

[ . . . ]

h. An award to Plaintiffs for exemplary damages according to proof

(Prayer for Relief subds. (f), (g).)

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.)¿ The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.)¿¿“Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) 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(c)(3).

The FAC alleges that Plaintiff resided in a townhouse and that Defendants failed to abate a noise-based nuisance that caused Plaintiff to suffer a life-altering pontine ischemic stroke and that the noise nuisance constituted an interference with Plaintiff’s use and enjoyment of the townhouse. (FAC ¶ 1.)

Defendants point out that Plaintiff alleged he has lived in the townhouse since 1999. (FAC ¶ 13.)  Plaintiff fails to allege that the adjacent parking strips that were responsible for the vehicle noise nuisance were added after he moved to the townhouse or that his stroke was proximately caused by the creation of the parking strips because he suffered a stroke shortly after the parking strips were built. “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949,958.)

The FAC alleges that when a vehicle pulls into the parking lot or departs from the parking lot it makes noise and that the Watergate Property Owners Association (“WPOA”) controls the parking strips. (FAC ¶¶ 17, 18.) The FAC fails to allege facts that support a finding that Defendants acted with malice, oppression, or fraud in building the adjacent parking strips and in failing to control and abate the noise emitting from the vehicles that use the parking strips. Although Plaintiff raised objections to Defendants raising the issue of how long Plaintiff has lived in the townhouse, that fact exists on the face of the FAC and Plaintiff had the opportunity to raise the issue and explain why such a fact cannot considered at the hearing for this Motion.

“Public nuisance liability ‘does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance.’” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 citing City of Modesto Redevelopment Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38; see also County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 306 [accord].) Here, there are no facts alleging that Defendants acted with malice, fraud, or oppression in creating or assisting in the creation of the noise nuisance sufficient to support a claim for punitive damages.

When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code, § 3294(b).) Here, Plaintiff fails to allege who, what, and when each board member and managing agent of the trust learned about the nuisance, Plaintiff’s health condition, and the impact of the nuisance on Plaintiff’s health sufficient to show that each individual acted with malice, fraud, or oppression and/or ratified said conduct.

Based on the above, Defendants’ motion to strike is granted.

Conclusion

Defendants’ motion to strike is granted. The Plaintiff is given 30 days leave to amend. OSC re: Amended Complaint set for _. Defendants to give notice.