TENTATIVE RULING

Defendant Environmental Services, LLC’s Motion to Strike Portions of Plaintiff 5812 Washington, LLC’s Second Amended Complaint is DENIED.

Defendant Environmental Services, LLC shall file and serve an answer to Plaintiff 5812 Washington, LLC’s Second Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendant Environmental Services, LLC to give notice. 

REASONING

Request for Judicial Notice

Plaintiff 5812 Washington, LLC (“Plaintiff”) requests judicial notice of an Environmental Protection Agency fact sheet and 40 Code of Federal Regulations section 261.32. Plaintiff’s request is GRANTED pursuant to Evidence Code section 452, subdivisions (a) and (h).

Legal Standard

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff 5812 Washington, LLC (“Plaintiff”) prays for punitive damages as to its first cause of action for professional negligence alleged in its Second amended Complaint (“SAC”). Defendant Environmental Services, LLC (“Defendant”) moves to strike the prayer on the ground that Plaintiff has failed to allege facts supporting such an award.

In the first cause of action, Plaintiff alleges that Defendant holds itself out as a full-service environmental consulting firm qualified to perform standard and important environmental services, including Phase I Environmental Site Assessment (“ESA”)s, but Defendant found no evidence of a recognized environmental condition even though historical site activities indicated potentially concerning activity by former occupants. (SAC ¶¶ 11-12.) Plaintiff alleges that Defendant’s failure to locate obvious information falls below the standard of care exercised by other professionals in this field, and Defendant acted in conscious disregard of Plaintiff’s rights and others’ safety who have been unknowingly exposed to toxic contamination Defendant failed to report, making Defendant liable for malicious, fraudulent, oppressive conduct. (SAC ¶¶ 13-16.)

In the opposition, Plaintiff argues that this conduct will result in high remediation costs, Defendant made representations about the type of dye used (SAC ¶ 6), and the presence of a single dry-cleaning machine at the property should have prompted a recommendation for further investigation of the condition of the property, as evidenced by the Certificate of Merit filed with the SAC. (SAC ¶ 8.)

Plaintiff’s allegations sound in negligence, which often will not support a claim for punitive damages, as negligence is an unintentional tort, and a negligent party has no desire to cause the harm that results from its conduct, differing from a party who has engaged in willful misconduct and intended to cause harm. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167.) Allegations of negligence where injuries might occur but are not probable do not support a claim of punitive damages. (McDonell v American Trust Co. (1955) 130 Cal.App.2d 296, 300; see also Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 12 [evidence of negligence insufficient to show that defendant knew or must have known of the danger].)

Here, the allegations are such that the trier of fact could conclude that injuries were probable where there are allegations that an environmental consulting firm should have been aware of concerns based on the presence of a long-term occupant operating as a dye house, but Defendant conjured fictional statements that the dye only used natural materials. (SAC ¶ 16.) Plaintiff essentially alleges that Defendant failed to take any action to minimize the risk of contaminated conditions at the property despite evidence putting it on notice of concerning conditions. It follows that punitive damages may be warranted if the trier of fact concludes that Defendant’s “inattention to the danger showed a complete lack of concern regarding the harmful potential [and] the probability and likelihood of injury.” (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 288.)

Accordingly, Defendant Environmental Services, LLC’s Motion to Strike Portions of Plaintiff 5812 Washington, LLC’s Second Amended Complaint is DENIED. Defendant Environmental Services, LLC shall file and serve an answer to Plaintiff 5812 Washington, LLC’s Second Amended Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)