Judge: Mark C. Kim, Case: 21LBCV00659, Date: 2023-01-19 Tentative Ruling

Case Number: 21LBCV00659    Hearing Date: January 19, 2023    Dept: S27

1.     Background Facts

Plaintiff, Hovik Keleshyan filed this action against Defendants, Dorothy Smith and Oleria DeBose for specific performance and interference with contract.  Plaintiff alleges he entered into a contract with Smith pursuant to which he was to purchase Smith’s property, but Smith has refused to honor the contract.  He alleges DeBose is Smith’s sister; DeBose is running a sober living facility out of the subject house and has taken steps to interfere with the sale of the property. 

2.     Matters on Calendar Today

There are four matters on calendar today:  The matters are:

• Defendants’ motion to strike;
• Plaintiff’s motion to compel directed at DeBose;
• Plaintiff’s motion to compel directed at Smith;
• Case management conference.

3.     Motion to Strike

a.     Procedural History of Motion

Plaintiff filed his complaint on 12/16/21.  Defendants filed demurrers and motions to strike on 6/06/22, and a motion to dismiss on 7/11/22.  The Court heard the matters on 9/20/22.  The Court denied the motion to dismiss, overruled the demurrers, and denied the motions to strike.  The Court ordered Defendants to file a “response” within twenty days. 

b.     Objection to Motion to Strike

On 10/11/22, Defendants filed the instant motion to strike.  On 10/31/22, Plaintiff filed an objection to the motion to strike.  The Court has reviewed the objection, as well as Defendants’ reply, which includes a discussion of the objection.  Plaintiff contends, in his objection, that the Court considered Defendants’ request to file a new motion to strike on 9/20/22, and the Court rejected the request, ordering Defendants to seek any sort of relief by way of noticed motion.  Plaintiff contends the Court intended this to mean Defendants would need to file some type of CCP §473(b) or other motion based on mistake, etc., obtain relief from the fact that the prior motion to strike had already been heard and denied, and then file a subsequent motion to strike if relief was granted.  Defendants, in reply, contend the Court agreed to permit them to file a new motion to strike, and the fact that the Court’s minute order requires them to file a “response” instead of an “answer” supports their position.  They note the lack of any declaration in support of Plaintiff’s position with the objection papers. 

The Court does not have an independent memory of the 9/20/22 proceedings.  In light of the fact that the minute order says “response,” and the issue was clearly discussed on the record, the Court is inclined to rule on the motion on its merits.  The Court notes that it is in the interest of justice to limit the issues presented in the complaint at this time, rather than in the future, to the extent limitation of the issues is appropriate. 

c.     Initial Note

Defendants’ notice of motion indicates that “Defendants” are filing the motion to strike.  All of the subject claims for damages, however, are pled solely against DeBose.  The Court, therefore, clarifies that only DeBose is moving to strike portions of the complaint. 

d.     Lost Profits and Expenses

DeBose moves to strike Plaintiff’s prayer for “lost profits and expenses” from his complaint, contending Plaintiff is obligated to plead specific facts, with particularity, supporting his claim for these special damages, and also must plead an amount of these special damages.  Defendant cites various authorities holding that special damages must be pled with particularity and that an amount of special damages must be claimed.  Additionally, Defendant contends the exhibits to the complaint show that Plaintiff intends to use the subject property as his personal home, such that no lost profits would be incurred.

Plaintiff’s only argument against DeBose’s contention that the damages must be pled with particularity and that an amount must be pled is that her paper is more akin to a demurrer than to a motion to strike.  This is incorrect.  The pleading is clearly a motion to strike the damages as unsupported by the pleading; no cause of action is being attacked, and no cause of action would be dismissed from the complaint if the motion were granted.  The motion to strike the prayer for lost profits is granted on the ground that Plaintiff failed to plead the claim with particularity and failed to include a specific amount of such damages in the complaint; leave to amend is granted to permit Plaintiff to do so.

Plaintiff’s argument against DeBose’s contention that Plaintiff admits he intends to live in the home is that the home is a sober living facility, and Plaintiff intends to both occupy the home and also make a profit from the home.  The motion to strike the prayer for lost profits on the ground that Plaintiff admits he will not profit from the home is therefore denied; the complaint is susceptible to the meaning ascribed to it by Plaintiff.

e.     Mental Suffering and Damage to Reputation

DeBose moves to strike Plaintiff’s prayer for mental suffering and damage to reputation, contending the complaint fails to include any allegations showing anything DeBose did caused Plaintiff to suffer mental distress and/or damaged his reputation. 

Plaintiff, in opposition to the motion, argues the facts pled in the complaint lead to the reasonable conclusion that he would suffer emotional distress and damage to his reputation as a result of DeBose’s conduct. 

DeBose did not address this issue in reply.  The motion to strike is therefore denied.

f.      Punitive Damages

DeBose moves to strike Plaintiff’s prayer for punitive damages, contending nothing in the complaint shows DeBose acted with fraud, malice, or oppression.  Plaintiff, in opposition, cites Duff v. Engelberg (1965) 237 Cal.App.2d 505, 508 to support his position that punitive damages are available for interference with contract.  Duff affirmed a trial court award of punitive damages in connection with a conspiracy claim involving interference with contract.  The Duff Court did not hold that punitive damages are always permitted in connection with an interference with contract; nothing in Duff altered Civil Code §3294, which requires a plaintiff to plead and prove malice, fraud, or oppression in order to obtain punitive damages. 

Notably, Plaintiff’s opposition includes purported facts in support of his claim for punitive damages that are not found in the body of the complaint.  The complaint itself alleges nothing over and above interference with the subject contract.  The motion to strike is therefore granted.  Leave to amend is granted if Plaintiff can plead specific facts showing fraud, malice, and/or oppression. 

g.     Conclusion

DeBose’s motion to strike the prayer for lost profits and the prayer for punitive damages is granted with leave to amend.  DeBose’s motion to strike is otherwise denied.  Plaintiff is ordered to file an amended complaint within twenty days.  Defendants are ordered to file a responsive pleading within the statutory time thereafter.

4.     Motions to Compel

On 12/08/22, Plaintiff filed motions to compel Defendants, Smith and DeBose to serve responses to form interrogatories and to pay sanctions.  Plaintiff establishes he served form interrogatories on each of the two defendants on 7/29/22.  He establishes Defendants did not respond, did not request an extension of time to respond, and have continued to fail to respond even since they retained an attorney and represented in open court that responses would be forthcoming. 

Any opposition to the motions was due on or before 1/05/22.  Defendants have not filed an opposition to the motions.  The motions are therefore granted.  Defendants are ordered to serve responses to the outstanding form interrogatories, without objections, within ten days.  CCP §2030.290(a), (b). 

Sanctions are mandatory.  §2030.290(c).  Plaintiff seeks to recover the reasonable and fully supported amount of $1260 total in connection with the two motions, resulting in an award of sanctions in the amount of $630 against each of the two defendants (mis-stated as $660 in the notices of motion).  Sanctions are sought and imposed against Defendants and their attorney of record, jointly and severally.  DeBose and Defense Counsel are ordered, jointly and severally, to pay sanctions to Plaintiff, by and through his attorney of record, in the amount of $630, within twenty days.  Smith and Defense Counsel are ordered, jointly and severally, to pay sanctions to Plaintiff, by and through his attorney of record, in the amount of $630, within twenty days. 

5.     Case Management Conference

The parties are reminded that there is a CMC on calendar today concurrently with the hearing on the other above discussed matters.  The Court asks the parties to make arrangements to appear remotely at the CMC and hearing on the above motions.