Judge: John C. Gastelum, Case: 22-01240150, Date: 2023-11-01 Tentative Ruling
Motion to Strike Portions of First Amended Cross-Complaint (FAXC)
Tentative Ruling: The motion to strike portions of the FAXC by Plaintiff/Cross-Defendant Donald Downs is DENIED in part and GRANTED in part with 15 days leave to amend.
A motion to strike lies either to “strike any “irrelevant, false or improper matter inserted in any pleading,” or to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (Code Civ. Proc, § 436.) Furthermore, as with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (Code Civ. Proc, § 437.)
Punitive Damages: MP seeks to strike the punitive damages allegations from the FAXC. A claim for punitive damages must be supported by specific factual allegations; the mere conclusory characterization of a 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 Civil Code section 3294.’” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)
Civil Code section 3294 states in pertinent part:
(a) 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.
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(c) As used in this section, the following definitions shall apply:
(1) “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.
(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.
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Cross-Complainant has alleged sufficient facts in support of punitive damages against MP Cross-Defendant Downs. Paragraphs 7-24 of the FAXC allege:
Cross-Defendant entered Cross-Complainants’ property yelling and screaming at Cross-Complainant at the top of their lungs, shouting all sorts of expletives and antagonizing Cross-Complainant. Cross-Defendant held up his cane and waived it motioning as though he was going to hit Cross-Complainant with it. After several minutes, Cross-Defendant became increasingly aggravated, hostile and aggressive. Cross-Defendant came within inches of Cross-Complainant’s face and spit on him, while still continuing to hold his cane in the air. Cross-Complainant stepped backwards and extended both of his arms to create distance between the Parties. Cross-Defendant then went to hit Cross-Complainant with his cane. Cross-Complainant blocked the attack of the cane by Cross-Defendant with his arm, but Cross-Defendant then rammed the cane into Cross-Complainant’s stomach. Cross-Defendant continued to antagonize Cross-Complainant by yelling additional expletives and name calling after Cross-Complainant walked away.
This more than adequately alleges malice within the meaning of Civil Code section 3294(c)(1), i.e. “conduct which is intended by the defendant to cause injury to the plaintiff.” Threatening to strike someone, striking someone more than once with a cane and spitting on someone is obviously intended to cause injury. Likewise, “repeatedly striking a person indicates a desire to cause to harm.” (Morgan v. Davidson (2018) 29 Cal.App.5th 540, 547.)
Based upon the foregoing, the request to strike punitive damages is DENIED.
Fees and Costs:
MP moves to strike the following Prayer:
3. For legal fees and costs to be proven at trial.
Under the so-called “American Rule”, a prevailing litigant is to bear his or her own attorney fees unless: (i) the parties agree otherwise; or (ii) a statute provides for attorney fees. (Code Civ. Proc, § 1021.) Here, the FAXC does not allege any agreement or statute that would provide for attorney fees. Thus, the request to strike attorney fees is GRANTED with 15 days leave to amend.
As to the issue of striking costs, that request is denied, as the Code of Civil Procedure section 1032 specifically allows for the recovery of costs by the prevailing party.
Sanctions: Last, the Opposition requests sanctions against moving party for bringing this motion. The Opposition cites Code of Civil Procedure section 425.16. In Reply, moving party contends fees are not warranted in this instance because it is especially a good faith dispute. Code of Civil Procedure section 425.16 deals with anti-SLAPP. This is clearly not an anti-SLAPP motion. Accordingly, the request for sanctions is denied.
Moving Party to give notice.