Judge: Gary I. Micon, Case: 23CHCV01619, Date: 2024-02-22 Tentative Ruling

Case Number: 23CHCV01619    Hearing Date: February 22, 2024    Dept: F43

Dept. F43

Date: 2-22-24

Case # 23CHCV01619, Jessica Andres, et al. vs. Sebastian Keefe

Trial Date: N/A

MOTION TO STRIKE

MOVING PARTY: Defendant Vivian Ajaye

RESPONDING PARTY: Plaintiffs Jessica Andres and Sebastian Keefe

RELIEF REQUESTED

Motion to Strike

·         Claims for Punitive Damages [Comp., ¶¶ 16, 26, and 39; and Paragraph 3 of the prayer]

·         Request for Attorney Fees [Comp., ¶ 16; and Paragraph 6 of the prayer]

RULING: Granted with leave to amend

SUMMARY OF ACTION

Plaintiffs Jessica Andres and Sebastian Keefe (Plaintiffs) filed this case on May 31, 2023. Plaintiff have alleged that a boulder on Defendant Vivian Ajaye’s (Defendant) property rolled down and crashed into a retaining wall on Plaintiffs’ property. Plaintiffs also allege that their home was damaged by the boulder. Plaintiffs allege that they filed this action after they could not resolve the matter with Defendant.

Plaintiffs’ complaint alleges three causes of action for (1) Trespass; (2) Private Nuisance and Encroachment by Private Nuisance; and (3) Negligence.

Defendant filed her motion to strike on September 27, 2023. Plaintiffs oppose Defendant’s motion. Defendant has moved to strike Plaintiffs’ request for punitive damages and attorney fees.

This Court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny 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.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.”

Plaintiffs argue in their opposition that Defendant’s motion to strike was untimely and therefore should not be considered. However, as the issues raised in the motion to strike will likely be addressed again at a later date, the Court will consider the merits of the motion.

            Punitive Damages

Punitive damages are governed by Civ. Code § 3294: “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 and by way of punishing the defendant.” (Civ. Code § 3294(a).)

Plaintiffs’ complaint alleges that Defendant acted with malice or fraud (See Comp., ¶ 26), but does not explain how Defendant’s actions in not addressing the issue with the boulder amounts to malice or fraud beyond ordinary negligence. Additionally, none of the allegations in Plaintiffs’ complaint indicate that any fraud took place.

The requests for punitive damages is stricken from the complaint.

            Attorney Fees

Attorney’s fees are only recoverable when authorized by contract, statute or law. (CCP § 1021; Reid v. Valley Restaurants, Inc. (1957) 48 Cal.2d 606, 610.) In the absence of allegations demonstrating that plaintiff is entitled to recover attorney’s fees, a request for attorney’s fees is improper. (Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1474.)

There is no indication in Plaintiffs’ complaint that Plaintiffs are entitled to the recovery of attorney fees. Plaintiffs cite CCP § 1021.5 as a basis for attorney fees, but that deals with attorney fees in case that involve the public interest. This case involves a private dispute between two landowners. Plaintiffs’ opposition also does not indicate how the public interest is affected by their dispute with Defendant.

The request for attorney fees is stricken from the complaint.

Plaintiffs are given 30 days leave to amend their complaint.

Moving party to give notice to all parties.