Judge Mark A. Young, Case Number: 23SMCV00125, Date: 2023-07-20 Tentative Ruling

Judge: Mark A. Young, Case: 23SMCV00125, Date: 2023-07-20 Tentative Ruling

Case Number: 23SMCV00125 Hearing Date: July 20, 2023 Dept: M

CASE NAME: Farrington, v. Bear, et al.

CASE NO.: 23SMCV00125

MOTION: Motion to Strike Punitive Damages

HEARING DATE: 7/20/2023

Legal Standard

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. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

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. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294 (a).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, fn. omitted.)

“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

Analysis

Defendants John Bear and Bear Plumbing & Rooter Inc. (“Defendants”) move to strike Plaintiff’s request for punitive damages.

As set forth below, the Court concludes that Plaintiff pled sufficient facts to support a claim of punitive damages under Civil Code section 3294. Section 3294 provides the following definitions:

(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[; and]

(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.

Malice and oppression include the additional component of “despicable conduct.” The Despicable is a powerful term used to describe circumstances that are “base,” “vile,” or “contemptible.” (Coll. Hosp. v. Superior Ct. (1994) 8 Cal.4th 704, 726.) The statute “plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests.” (Id.)

Plaintiff alleges that she is an elderly woman in her seventies, who lives alone at her home. (Compl., ¶ 4.) In January 2021, Plaintiff entered into a home warranty contract with Defendant American Home Shield of California, Inc. (“AHS”), covering various home repairs, including those related to plumbing services. (Id. ¶¶ 1-2.) On August 14, 2021, Plaintiff contacted AHS to request a plumbing service call pursuant to her home warranty and AHS assigned Defendants to the service call and subsequent repair. (¶ 3.)

On August 16, 2021, Defendants and employee David Guzman (“Guzman”) arrived at Plaintiff’s residence to perform an initial inspection. (Compl., ¶ 5.) After this inspection, Bear represented to Plaintiff that her plumbing issues were so bad that she would fall through the floor if they were not fixed. Bear then suggested a myriad of plumbing work not covered under the AHS contract, including: installation of a $600 water pressure regulator; full re-piping of a cracked laundry room drain, and complete rework of the exterior drain pipe for the whole building, which would cost $8,000. (Id.) Plaintiff informed Bear that she could not afford the work, which caused him to become angry and yell at Plaintiff that the price was reasonable. (Id.) After this outburst, Bear left the room and came back with his clipboard and demanded Plaintiff’s driver’s license and credit card. (Id.) Plaintiff believed at that moment that her driver’s license and credit card were needed for the Home Warranty service call. (Id.) Bear then verbally and sexually harassed Plaintiff. (¶ 6.) She became noticeably shaken and disturbed and repeatedly denounced his advances. (Id.) Defendant Bear then left without performing any plumbing work. (Id.) Guzman returned later that day to dig a hole and place two drains along a walkway next to the garage. (¶ 8.) Guzman asked Plaintiff how much Defendant Bear charged Plaintiff for the work and suggested that he would have done the work at a dramatically lesser price. (Id.)

The complaint further alleges that Bear returned to the residence at 5:00 p.m. to complete a master faucet installation. (Compl., ¶ 9.) Plaintiff noticed Bear failed to fix a leaky shower faucet as requested in the work order, and inquired about the unusually slow hot water pressure in her bath tub. (Id.) Bear falsely represented to Plaintiff that her residence had galvanized pipes and would need a complete re-pipe requiring opening up the walls. (Id.) Bear told Plaintiff that she would fall through the bathroom floor if these repairs were not performed, which scared Plaintiff. (Id.) Defendant Bear also told Plaintiff that he could re-pipe the building for $28,000 with a lifetime warranty and guarantee that Plaintiff would never have to worry about leaks or water pressure again. (¶¶ 9-10.) When Plaintiff stated she could not afford this work, Bear told Plaintiff to get her credit card and driver’s license so they could check to see if her credit limit was sufficient. (¶ 10.) Plaintiff did as she was told, and when she came back into the room, Bear pinned her between a butcher block and counter and began to assault and grope her. (Id.) When Bear released Plaintiff, he insisted on her signing a document, to which she reluctantly agreed due to her mental state and desire for him to immediately leave the residence. (Id.) Plaintiff contacted AHS for other various ongoing plumbing issues, who then assigned Defendant Bear to the job. (¶ 11.)

On August 18, 2021, Bear bypassed Plaintiff’s front locked gate and showed up at her front door unannounced, stating that his crew was on the way. (¶ 12.) Plaintiff never saw a crew but noticed Guzman briefly working at one point. (Id.) On August 19, 2021, Guzman continued working underneath the building. (¶ 13.) Afterwards, Guzman advised Plaintiff that there were no leaks and everything was fixed. (Id.) Plaintiff asked Guzman about the leaking pipe, and he said there weren’t any leaking pipes. (Id.) In contravention of Bear’s representations, Guzman informed Plaintiff that he was the entirety of the crew, and the extent of the repair he performed was some horizontal drainage pipes and removal of a cleanout/overflow access point. (Id.) Guzman found that the master bathroom bathtub valves were continuing to leak. (Id.) Guzman appeared to begin a repair on the toilet leak before he stopped working for the day, and informed Plaintiff that Bear would be arriving the next day between 9:00 a.m. and 11:00 a.m. (Id.)

On August 20, 2021, Bear rang Plaintiff’s doorbell at approximately 7:00 to 8:00 a.m., and came in through the front door before Plaintiff could respond. (¶ 14.) Bear led Plaintiff to the master bathroom to check on the leak while Guzman worked on a toilet. (Id.) Bear told Plaintiff not to worry about the master bathroom leak. (Id.) Plaintiff questioned whether the leak was coming from the tub valves and why all of this work was necessary since AHS covered leaks, and after all the work that had been done, she was still facing the exact same plumbing issue that resulted in her initial service call. (Id.) Plaintiff attempted to leave the room to avoid being alone with Bear. (¶ 15.) Bear walked to the living room and sat down across the room from Plaintiff. (Id.) Plaintiff then asked him why her credit card was charged $32,500 for covered work. (Id.) Bear claimed to have repaired over 300 feet of sewer line and that Guzman had redirected the leak “horizontally.” (Id.) Furthermore, he said that it would cost $10,000 to $20,000 per bathroom and require a major demolition to fix the leak. Id.) Bear then shifted the focus of the discussion and again pressured Plaintiff to sell the property to him. After August 20, 2021, the plumbing issues remained. (¶ 17.) Plaintiff requested an itemized list of work performed but never received any such list. (¶ 16.)

The complaint alleges Bear’s malicious and fraudulent conduct while working at Plaintiff’s residence. Beyond Bear’s failure to repair the leaks pursuant to the contract, Bear intentionally performed non-contractual plumbing services to rack up additional, uncovered fees. According to the complaint, Bear misrepresented the work required and charged Plaintiff’s credit card on two separate occasions based upon false pretenses, knowing that Plaintiff would be deprived of essential financial resources. Critically, Bear acted with apparent malice when making unwanted sexual advances towards Plaintiff, including verbally and physically assaulting Plaintiff and coercing Plaintiff into signing a document after groping her. Bear groped her breasts without consent, made lewd comments about her physique, and coerced her into providing personal and financial information. This conduct may be fairly described as base, vile, and contemptible. From the facts, the Court infers a willful and conscious disregard of Plaintiffs' financial interests and physical well-being.

Accordingly, Defendants’ motion is DENIED.