Judge: Gregory Keosian, Case: 23STCV21390, Date: 2024-02-22 Tentative Ruling

Case Number: 23STCV21390    Hearing Date: February 22, 2024    Dept: 61

Defendants Bemax Transport, Inc. and Balmore Torres’s Motion
to Strike is DENIED.

Plaintiff 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 Bemax Transport,
Inc. and Balmore Torres (Defendants) move to strike the prayer for punitive
damages and for attorney fees from the Complaint of Anna Gvalevech (Plaintiff).
(Motion at pp. 5–7.)

Defendants’ arguments are unsupported.
Parties to litigation in California must generally bear the cost of their
representation unless statute or contract otherwise provide. (Code Civ. Proc. §
1021.) The lease agreement attached to the Complaint expressly provides for
attorney fees in paragraph 31. (Complaint Exh. 1.)

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

(Civ. Code § 3294, subd. (c).)

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 allegations here support a prayer for punitive
damages. Although most of the claims in the Complaint sound in contract, and
thus are not eligible for punitive damages (Civ. Code § 3294, subd. (a)),
Plaintiff includes a trespass claim based on the allegation that Defendants
broke into the property with bolt cutters after they had previously vacated it,
and caused damage to the property. (Complaint ¶¶ 25, 28.) “Exemplary damages may be awarded
where a trespassory invasion is done with an intent which is malicious.” (Roberts v. Permanente Corp. (1961) 188 Cal.App.2d 526, 532.) Malicious intent is
alleged here. (Complaint ¶ 29.)

The motion is therefore DENIED.