Judge: Gregory Keosian, Case: 22STCV28558, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV28558    Hearing Date: January 19, 2023    Dept: 61

Defendants Jennifer Felten, Timothy Camarena, and Neil M. Popowitz’s Motion to Strike Prayer for Punitive Damages from Complaint is GRANTED with leave to amend.

Defendants to provide notice.

I.                   MOTION TO STRIKE

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. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and 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.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants Jennifer Felten, Timothy Camarena, and Neil M. Popowitz (Defendants) move to strike the prayer for punitive damages asserted by Plaintiffs Alla Kutz and Igor Kutz (Plaintiffs) in their complaint. Defendants contend that the allegations of the Complaint state a claim only for generic legal malpractice, rather than the malicious or fraudulent conduct required to state a claim for punitive damages. (Motion at pp. 8–13.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

“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.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

“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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The Complaint alleges that Defendants, in representing Plaintiffs with respect to a real-estate transaction, failed to disclose that they represented the escrow company associated with the transaction and a broker affiliated with the other party to the transaction, and as a result induced Plaintiffs to sign an agreement unfavorable to Plaintiffs and favorable to Defendants’ other clients. (Complaint ¶¶ 15–29.) The Complaint further alleges that when Plaintiffs approached Defendants about representing them with respect to further steps in the transaction, Defendants disclosed the conflict partially, without disclosing Plaintiffs’ rights or the consequences of further proceedings, thus inducing Plaintiffs to continue with Defendants’ substandard representation. (Complaint ¶¶ 30–37.)

These allegations amount to the commission of torts, and do not allege aggravating circumstances or intent sufficient to support a prayer for punitive damages. Plaintiffs plead no facts to support the conclusion that Defendants acted with the intent to injure Plaintiffs or with conscious disregard of Plaintiffs’ rights. Although Plaintiffs include a conclusory allegation of willful misconduct, such rote invocations of the statutory requirements do not support a prayer for punitive damages. (Complaint ¶ 50; see Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Accordingly, the motion to strike is GRANTED with leave to amend.