Judge Lynette Gridiron Winston, Case Number: 22PSCV01755, Date: 2023-09-29 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01755, Date: 2023-09-29 Tentative Ruling

Defendants Nicholas and Cathy Simmons’ Motion to Strike Portions of Plaintiff’s Third Amended Complaint

Moving Parties are ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a real property dispute. On November 9, 2022, plaintiffs Joy Yin and Ho Seong Lee (collectively, Plaintiffs) filed this action against defendants Nicholas Simmons (Nicholas), Cathy Simmons (Cathy) (collectively, Moving Parties), Prager Metis, CPAs (Prager), Genitrix Georges (Georges), and Does 1 to 10. On September 29, 2023, Plaintiffs filed a Second Amended Complaint (SAC), alleging causes of action for injury to real property, breach of contract (Nicholas and Cathy Simmons), intentional misrepresentation/fraud, breach of contract (Georges/Prager Metis), and trespass. After the Court sustained a demurrer and granted a motion to strike to the SAC, Plaintiffs filed the operative Third Amended Complaint (TAC) alleging the same causes of action.

On March 5, 2024, Moving Parties moved to strike certain portions of the TAC. On April 2, 2024, Plaintiffs opposed the motion. On April 10, 2024, Moving Parties replied.

“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “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.” (Id., § 436.)

Per Code of Civil Procedure section 435.5, subdivision (a), Moving Parties were required to meet and confer telephonically or in person before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Moving Parties’ efforts to meet and confer sufficient. (Mellring Decl., ¶ 2.)

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

Moving Parties seek to strike the following allegations from the TAC on the grounds that they are irrelevant and that the TAC does not allege facts evidencing a claim for punitive damages against them. Moving Parties contend the descriptions of Nicholas[1] as a “dangerous gangster” are irrelevant, and that Plaintiffs are attempting to portray him in a negative light via his occupation as a rapper. Moving Parties contend none of the causes of action at issue here involve any threats of harm to Plaintiffs’ persons, but the TAC contains many allusions to such. Moving Parties contend the trespass allegations similarly suffer from including unnecessary allegations about Nicholas’ reputation as an artist, since the alleged misconduct at issue involved him purportedly damaging a security camera and throwing rocks into a pool.

In opposition, Plaintiffs contend the allegations are relevant to their claims. Plaintiffs also note that this is Moving Parties’ first motion to strike, despite having filed two answers to prior complaints.

The Court finds Moving Parties’ arguments to be well taken. To state a cause of action for injury to real property, the plaintiff must allege facts demonstrating that the defendant’s actions caused immediate and permanent injury to the real property. (See Krusi v. S.J. Amoroso Construction Co. (2000) 81 Cal.App.4th 995, 1005.) Nicholas’ artistic profession has no bearing on whether he damaged the subject property as alleged. (See Code Civ. Proc., § 431.10).

To state a cause of action for breach of contract, the plaintiff must allege facts demonstrating the existence of a contract, the plaintiff’s performance or excuse for nonperformance, the defendant’s breach, and damages. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) Nothing in the TAC alleges that the terms of the contract were predicated on Nicholas’ artistic profession. (See TAC, Exs. B, C, D.) Thus, Nicholas’ artistic profession again has no bearing on this cause of action. (See Code Civ. Proc., § 431.10).

To state a cause of action for trespass, the plaintiff must allege facts demonstrating the plaintiff’s ownership of the property, the defendant’s intentional, reckless, or negligent entry onto the property, defendant’s lack of permission to enter the property, damages, and that the defendant’s conduct was a substantial factor in causing the harm. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.) Again, Nicholas’ artistic profession has no bearing on this cause of action. (See Code Civ. Proc., § 431.10).

The Court also finds Plaintiffs’ allegations regarding Nicholas’ alleged dangerous behavior to be irrelevant to these causes of action. Plaintiffs’ emotional state is also irrelevant, as Plaintiffs have not alleged any claims where their emotional state is at issue, such as intentional or negligent infliction of emotional distress.

The Court further finds unavailing Plaintiffs’ argument regarding Moving Parties’ lack of prior motions to strike. Code of Civil Procedure section 435.5, subdivision (b), applies when a party moves to strike on grounds not asserted in a prior motion to strike that the Court granted. (Code Civ. Proc., § 435.5, subd. (b).) By virtue of not having previously moved to strike, this provision does not apply to Moving Parties’ motion. Additionally, as Moving Parties correctly note in their reply papers, the prior versions of Plaintiffs’ complaints did not contain the language that the TAC does regarding Nicholas’ artistic profession or any allegations of Nicholas promoting a “gangster” image. (See generally Compl., FAC, and SAC.)

A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)

Moving Parties contend Plaintiffs’ Second Cause of Action for breach of contract improperly alleges entitlement to punitive damages. Moving Parties contend punitive damages may not be awarded in a breach of contract claim. They also contend that the allegations at issue, specifically paragraph 18, show Plaintiffs really intended for the punitive damages claim to apply to Prager and Georges.

In opposition, Plaintiffs cite the Court’s prior ruling on January 4, 2024,[2] where the Court only struck the language from the SAC as it pertained to Defendants Prager and Georges, and reiterate their argument about Moving Parties having not previously moved to strike the prior complaints. Plaintiffs further contend the TAC includes causes of action for injury to real property and trespass, which support punitive damages claims.

The Court again agrees with Moving Parties. Civil Code section 3294, subdivision (a), expressly excludes claims for breach of contract from the scope of punitive damages claims. (Civ. Code, § 3294, subd. (a) [“In an action for the breach of an obligation not arising from contract…”]; see also Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 897 [commercial landlord’s breach of implied covenant of quiet enjoyment was not a tort that allowed tenant to recover punitive damages, unless there was a wrongful eviction claim].) Paragraph 42 of the TAC falls under Plaintiffs’ Second Cause of Action for breach of contract, and therefore does not entitle Plaintiffs to recover punitive damages. (See TAC, ¶ 42.) Also, as already discussed above, Moving Parties’ lack of prior motions to strike Plaintiffs’ complaints is unavailing.

The Court does note, however, that while Moving Parties moved to strike certain portions of paragraph 42 of the TAC as it pertains to punitive damages, Moving Parties did not move to strike the request for punitive damages from the prayer for relief. (See TAC, Prayer for Relief, ¶ 4.; see generally Moving Parties’ Notice of Motion to Strike.) Plaintiffs’ claims for injury to real property and trespass are causes of action in which punitive damages may be sought. (Brenner v. Haley (1960) 185 Cal.App.2d 183, 188 [willful trespass or intentional injury to real property may be grounds for punitive damages]; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 [forcible detainer and trespass may merit punitive damages].) Accordingly, Plaintiffs’ punitive damages claim will otherwise remain.

The Court also notes that Plaintiffs did not make an offer of proof as to how the defects discussed herein can be corrected. (See Code Civ. Proc., § 435.5, subd. (e)(1)). Based on the foregoing, the Court GRANTS Moving Parties’ motion to strike without leave to amend.

Moving Parties are ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] The Court refers to Nicholas by his first name since he shares the same surname with Cathy. No disrespect is intended.

[2] Plaintiffs incorrectly claim the ruling was issued on January 1, 2024.