Judge: Margaret L. Oldendorf, Case: 23AHCV01272, Date: 2023-11-01 Tentative Ruling
Case Number: 23AHCV01272 Hearing Date: November 1, 2023 Dept: P
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
NORTHEAST DISTRICT
I. INTRODUCTION
This motion to strike turns on three issues: (1)
whether the fourth cause of action can be asserted, (2) whether plaintiffs’
claims provide a basis to award punitive damages, and (3) whether plaintiffs have
alleged a basis for requesting attorney fees.
Here, Plaintiffs Scott Marshall-Kimball (Scott) and Julie
Kimball (Julie) (collectively Plaintiffs), as co-trustees of the Gail Fromm
Family Trust, jointly own a multi-unit commercial property (Property) located
at 9331 East Valley Blvd., Rosemead CA 91770 with the Layne Cosloff Trust, for
which Defendant Lane Cosloff (Cosloff) is the trustee, and with the Cuccia
Family Trust, for which Defendant Cheryl L. Cuccia (Cuccia) (collectively
Defendants) is the trustee. Plaintiffs wish to sell the property, and Defendants
allegedly do not. Plaintiffs request partition by sale.
The complaint sets forth four causes of action: (1)
partition, (2) accounting, (3) breach of fiduciary duty, and (4) declaratory
relief.
In the motion to strike now before the Court,
Defendants urge that: (1) the fourth cause of action for declaratory relief
cannot be asserted, (2) plaintiff’s allegations do not provide a basis on which
to award punitive damages, and (3) plaintiff has not alleged a basis for the
request for attorney fees.
For the reasons that follow, defendants’ motion to
strike is granted in part and denied in part.
II. MEET AND CONFER
Defendant’s counsel, Noah
Green, declares that on June 28, 2023, he emailed a meet and confer letter to
Plaintiffs’ counsel, discussing the basis for the motion and asking to speak by
phone. (Green Decl. ¶¶ 2, 3.) He further declares that on June 28, 2023, parties
met and conferred over the phone. (Green Decl. ¶ 4.) However, the parties were
unable to reach an agreement resolving the objections raised by this Motion.
(Green Decl., ¶ 4.)
Counsel’s declaration is sufficient for meet and confer
requirements. (CCP § 435.5(a).)
III. LEGAL
STANDARD
Code Civ. Proc. Section 436 permits trial courts to strike
out any irrelevant, false, or improper matter inserted in a pleading:
“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.” (CCP § 436.)
IV. ANALYSIS
A. Portions of the Complaint at Issue
Defendant seeks to strike the
following portions of the Complaint:
p.
7, line 24: “Declaratory Relief”
¶¶49-55:
Allegations as to the Declaratory Relief cause of action
p.
9, line 6: “For exemplary and punitive damages according to proof;”
p.
9, line 9: “For reasonable attorney’s fees”
B. Declaratory Relief Cause of Action
In their first argument, Defendants note that the
declaratory relief statute’s “object is to afford a new form of relief where
needed and not to furnish a litigant with a second cause of action for the
determination of identical issues.” (General of America Ins. Co. v. Lilly
(1968) 258 Cal.App.2d 465, 470.) “Declaratory relief is unavailable for the
determination of issues involved in an already pending action or to prevent
such issues from being presented to a jury.” (Pacific Electric Railway Co.
v. Dewey (1949) 95 Cal.App.2d 69, 73.) Defendants argue that Plaintiffs
have not alleged any reason as to why their other causes of action for
partition, accounting and breach of fiduciary duty are insufficient for relief in
this action. (Motion, p.4: 22-24.)
In opposition, plaintiffs argue that the fourth cause of
action is essentially a request for injunctive relief, and that it is
adequately pleaded. (Opposition, p.5: 23-25.) Plaintiffs cite cases in support
of the proposition that it is the substance of pleadings that control, not the potentially
erroneous labels they are given. (Opposition, p.6: 1-4, referencing Parnham
v. Parnham (1939) 32 Cal.App.2d 93, 96; Williams v. Beechnut Nutrition
Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Plaintiffs urge that they are
seeking a prohibitory injunction against Defendants in the fourth cause of
action. (Opposition, p.6: 5-6.) Plaintiffs urge that the fourth cause of action
provides a basis for a prohibitory injunction under the applicable statute, CCP
section 526. (Opposition p. 7: 9-10, referencing CCP § 526(1)-(4).)
In reply, defendants urge that the “conclusory allegation
of ‘misappropriation’ does not suffice to show that there is an ongoing wrong
that must be prevented.” (Reply, p.2:11-12.) This argument is not well taken. The
sufficiency of the pleading itself is an issue to be resolved on demurrer, not
a motion to strike. (CCP § 430.10, see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)
Accordingly, the Court denies the motion to strike as to
p.7, line 24 and ¶¶ 49-55 of the complaint, as the sufficiency of the claim itself
is an issue more appropriately decided on demurrer, not a motion to strike.
C. Punitive Damages
“‘In
order to state a prima facie claim for punitive damages, a complaint must set
forth the elements as stated in the general punitive damage statute, Civil Code
section 3294.’ (Citation.)” (Today IV’s Inc. v. Los Angeles County MTA
(2022) 83 Cal.App.5th 1137, 1193.) Civil Code section 3294 provides that on a
non-contract cause of action, a plaintiff may recover punitive damages when
they prove “by clear and convincing evidence that the defendant has been guilty
of oppression, fraud, or malice” (CC § 3294(a).) Oppression, fraud and malice are defined as: “(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. (3) ‘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.” (CC
§ 3294(c).) Punitive damages are appropriate if the defendant's acts are
reprehensible, fraudulent or in blatant violation of law or policy. (American
Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96
Cal.App.4th 1017.)
Defendants note that factual assertions are required to
support a claim for punitive damages. (Smith v. Sup. Ct. (1992) 10
Cal.App.4th 1033, 1042.) Defendants then
urge that the complaint does not set forth either the language of CC Section 3294,
or facts demonstrating that the code section applies. (Motion, p. 6: 4-9.) This
argument is well taken, as the complaint does not contain factual allegations
upon which the Court may grant punitive damages.
In opposition, plaintiffs argue that their complaint
alleges facts demonstrating a blatant violation of law and policy, and
therefore, punitive damages should be allowed. (Opposition, p. 8: 19-24,
referencing American Airlines, Inc. v. Sheppard, Mullin, Richter &
Hampton (2002) 96 Cal.App.4th 1017.) Plaintiffs argue that their
allegations support a claim for violation of Penal Code section 487(b)(3) and
as such, the allegations regarding punitive damages should not be stricken.
(Opposition, p.8: 20-21.) Penal Code section 487(b)(3) provides that grand
theft occurs: “[when] the money, labor, real property, or personal property is
taken by a servant, agent, or employee from their principal or employer and
aggregates nine hundred fifty dollars ($950) or more in any 12 consecutive
month period.” (PC § 487(b)(3).) In support, plaintiffs cite ¶ 47 of the
complaint. However, that portion of the complaint contains only a conclusory
allegation, on information and belief, of misappropriation of an unspecified
sum of money. (See Reply, p.3: 1-2.)
Accordingly,
the Court grants the motion to strike as to Page 9, line 6.
C. Attorney Fees
“Except as
attorney's fees are specifically provided for by statute, the measure and mode
of compensation of attorneys and counselors at law is left to the agreement,
express or implied, of the parties....” (CCP § 1021.)
The
third issue before the Court is whether the Complaint adequately pleads a basis
for attorney fees. Defendants note that the Complaint contains two requests for
attorney fees. (Complaint, p.8: 20-22, p. 9: 9.) While the statutory or
contractual basis is not alleged as to either request, Defendants highlight
that there is a statutory basis for attorney fees in a partition action. (CCP §
874.010.) Defendants argue that the second request does not allege a statutory
basis nor a contractual basis for attorney fees. (Motion, p. 7: 4-5.) This
argument is well-taken. The request for attorney fees on p.9 line 9 of the
Complaint does not reference a contract or a statute granting attorney fees. It
is also unclear as to what cause of action this remedy refers to.
In
opposition, Plaintiffs argue that under CCP section 874.010, they may seek
attorney fees with respect to their partition cause of action and their
accounting cause of action. (Opposition, p. 5: 2-3.) Plaintiffs note that CCP
section 874.010 provides “The costs of partition include: (a) Reasonable
attorney’s fees incurred or paid by a party for the common benefit.” Plaintiffs
note that the complaint seeks attorney fees pursuant to this section; but they do
not address the portion of the Complaint that defendants seek to have stricken,
namely, p.9 line 9. As pleaded, the request for attorney fees on p.9 line 9
could apply to any one of the causes of action or all of them. As plaintiffs do
not provide a statutory or contractual basis for attorney fees with respect to
all four causes of action, this language on p.9 is ordered stricken.
As
such, the Court grants the motion to strike p.9 line 9 from the operative
complaint.
IV. CONCLUSION
Defendants’ motion to strike is granted with respect to
these portions of the complaint: p.9, line 6; and p.9, line 9. Defendants’
motion to strike is DENIED with respect to p.7, line 2 and ¶¶ 49-55 of the
complaint.
Defendants are ordered to provide
notice of this ruling.
Dated: _______________________________
MARGARET L. OLDENDORF
JUDGE
OF THE SUPERIOR COURT