Judge: James L. Crandall, Case: 22-1270110, Date: 2022-12-29 Tentative Ruling

Motion to Strike Portions of Complaint

Defendant, North Star Enterprise Holdings dba ServPro of Yorba Linda/Brea’s (Defendant) Motion to Strike Portions of the Complaint (Motion), filed 8-30-22 under ROA No. 14 is GRANTED.

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Kamerlingh (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, sub. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Defendant moves to strike the following from the Complaint:

1. Paragraph 17, page 5, lines 7-8: “Defendants’ acts and omissions were intentional (not accidental), deliberate, willful, and done knowing they would create a nuisance to Plaintiff.

2. Paragraph 19, page 5, lines 12-19: “Defendants ServPro and Does 1-20 knew that their conduct would cause and was causing asbestos contamination and would be and was hazardous to Plaintiff and all other occupants at the Property, yet, despite multiple complaints and warnings from Plaintiff, still refused to stop it or remediate it. Defendants therefore committed, allowed, encouraged, tolerated, and ratified the above-described nuisance with oppression, fraud, or malice, with a conscious disregard for Plaintiff’s rights, and with the intent to vex, injure, and annoy Plaintiff. Defendants’ acts therefore warrant the assessment of punitive damages in a sum appropriate to punish and set an example of Defendants ServPro and Does 1-20.”

3. Prayer for Relief, page 5, line 25: “For punitive damages on Plaintiff’s claim for nuisance.”

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294 subd. (a).)

“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.” (Civ. Code, § 3294 subd. (c)(1).)

“Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (c)(2).)

“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)(3).)

A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Defendant argues that the Complaint’s punitive damages allegations must be stricken because the Complaint does not include specific factual allegations demonstrating that Defendant acted with fraud, oppression or malice within the meaning of Civil Code section 3294. (Motion, 3-5.) According to Defendant, the Complaint consists only of conclusory allegations of malice, fraud and oppression, which are insufficient support the claim for punitive damages. (Motion, 5-6.)

In opposition, Plaintiff contends that a party who prevails on a claim for nuisance arising out of a residential dispute may also recover punitive damages. (Opposition, 3-5.) Plaintiff cites to Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 (Stoiber) for this argument. Plaintiff also cites to Sturges v. Charles L. Harney, Inc. (1958) 165 Cal.App.2d 306, 321-22 (Sturges) for the argument that Plaintiff only needs to show that Defendant intended to “do the act that resulted in the harm to Plaintiff” for Plaintiff to claim punitive damages in a nuisance case.

Stoiber states: “A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable. [citation] Appellant has pleaded sufficient facts to support her prayer for exemplary damages. She alleged that defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants “In maintaining said nuisance, ... acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.”[citation]” (Stoiber, supra, 101 Cal.App.3d at 920.)

Sturges states: ““An award of exemplary damages in an action for damages for injuries inflicted by the defendant's malicious act, can be made only if the plaintiff can show that malice in fact, as distinguished from malice in law, existed with respect to the defendant's act. The distinction between malice in fact and malice in law is substantial. Malice in fact, or actual malice, denotes ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it.” (Sturges, supra, 165 Cal.App.2d at 321.)

Thus, Stoiber and Sturges does not support Plaintiff’s argument that he was only required to state a claim for nuisance to also state a request for punitive damages. The cited portions of both cases stand for the proposition that Plaintiff was required to plead facts sufficient to demonstrate fraud, malice or oppression.

Here, the Complaint alleges: “Defendants ServPro and Does 1-20’s failure and refusal to promptly and properly repair the Property and to prevent asbestos from contaminating and affecting the Property created and creates a private nuisance within the meaning of Civil Code Section 3479. Defendants’ acts and failure to act have created and create conditions that interfere with Plaintiff’s comfortable enjoyment of the Property. Defendants’ nuisance was a continuing violation, with ongoing, continuing harm to Plaintiff and the Property, and has proximately caused Plaintiff discomfort, annoyance and mental suffering. [¶] Defendants ServPro and Does 1-20 knew (from direct observation, common sense, and being so advised by Plaintiff and others) that, if they failed to prevent and repair the asbestos contamination at the Property, the Property would become hazardous and uninhabitable and thus lose much of its fair market value. Notwithstanding Defendants’ direct, prior, and ongoing awareness of the impact of their acts and omissions upon Plaintiff and the Property, Defendants failed and refused to prevent or repair the asbestos contamination at the Property. [¶] Defendants’ acts and omissions were intentional (not accidental), deliberate, willful, and done knowing they would create a nuisance to Plaintiff…[¶] Defendants ServPro and Does 1-20 knew that their conduct would cause and was causing asbestos contamination and would be and was hazardous to Plaintiff and all other occupants at the Property, yet, despite multiple complaints and warnings from Plaintiff, still refused to stop it or remediate it. Defendants therefore committed, allowed, encouraged, tolerated, and ratified the above-described nuisance with oppression, fraud, or malice, with a conscious disregard for Plaintiff’s rights, and with the intent to vex, injure, and annoy Plaintiff.” (Complaint, ¶¶ 15, 16, 19.)

Based on the foregoing, the court finds that Plaintiff has not pled that Defendant acted with fraud, malice or oppression within the meaning of Civil Code section 3294.

The Complaint alleges generally that Defendant and “Does 1-20” engaged in each of the allegedly improper actions or had knowledge that such actions were wrongful. However, such allegations are insufficient to allege that Defendant acted with fraud, malice or oppression toward Plaintiff. Therefore, Plaintiff’s punitive damages allegations are improper and must be stricken.

For these reasons, Defendant’s Motion is GRANTED.

Plaintiff is granted 30 days leave to amend.

Defendant is to give notice.

Future hearing dates

2/22/23 – CMC