Judge: Mark E. Windham, Case: 20STLC00307, Date: 2023-03-22 Tentative Ruling
Case Number: 20STLC00307 Hearing Date: March 22, 2023 Dept: 26
Basta, Inc. v. Zendano, et al.
MOTION TO STRIKE
(CCP §§ 435, 436)
TENTATIVE RULING:
Defendant Irene Zendano’s Motion
to Strike Portions of Complaint or Entirety Thereof is DENIED.
ORDER TO SHOW CAUSE REGARDING
CLASSIFICATION OF THIS ACTION AS A LIMITED JURISDICTION CASE IS SET FOR APRIL
19, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
On January 10, 2020, Plaintiff
Basta, Inc. (“Plaintiff”) filed this action for
“wrongful use of civil proceedings” against Defendant Irene Zendano,
individually and as trustee of the Irene Valerie Zendano Family
Revocable Living Trust U.T.D. May 9, 2015
(“Defendant”). Following Defendant’s failure to
file a responsive pleading, Plaintiff obtained entry of default on August 13,
2021. On Febraury 3, 2022, the Court granted Defendant’s motion to vacate the
entry of default and set an Order to Show Cause Re Proof of Service of Summons
and Complaint for April 6, 2022. (Minute Order, 02/03/22.) On August 1, 2022,
the OSC Re Failure to File Proof of Service was discharged. (Minute Order,
08/01/22.)
Defendant,
through a special appearance, filed a Motion to Quash Service of the Summons
and Complaint on August 18, 2022. The Motion to Quash was denied on October 10,
2022 and Defendant filed the instant Motion to Strike Portions of the
Complaint and the Entirety Thereof on December 8,
2022. Plaintiff filed an opposition on March 9, 2023.
Discussion
Defendant brings the instant
Motion to Strike Portions of the Complaint or the Entirety Thereof seeking to
strike allegations regarding the request for punitive damages and the entire
Complaint because it is based on protected and privileged communications. The
Motion is brought pursuant to Code of Civil Procedure sections 431.10,
subdivision (b), 435 and 436. The Motion is accompanied by a meet and confer declaration
as required by Code of Civil Procedure section 435.5. (Meet and Confer Decl.,
filed 11/09/22.)
Allegations in the Complaint
The Complaint alleges that Defendant prosecuted a federal
action against Plaintiff “for no good reason.” (Compl., ¶1.) The only allegation
against Plaintiff in the federal action were that it “provided a prepaid
envelope for an overnight messenger service to another firm that shared its
office and that other firm used the envelope to serve a reply brief in support
of a motion related to enforce a judgment in a case . . . .” (Id. at ¶1,
15.) Defendant’s federal action was terminated in Plaintiff’s favor following
dismissal of the California claims under this state’s anti-SLAPP statute. (Id.
at ¶¶6-7.) The remaining federal racketeering claim was dismissed by a motion
for judgment on the pleadings. (Id. at ¶7.) In opposing the dispositive
motions, Defendant did not explain how Plaintiff was responsible for the
actions of any of the other defendants in the federal action by simply
providing the envelope. (Id. at ¶17.) No reasonable person would believe
there were sufficient grounds to bring the common law and racketeering claims
against Plaintiff based on this allegation. (Id. at ¶8.) Defendant did
not indicate that any of the witnesses she disclosed in the federal action had
any knowledge of other acts by Plaintiff. (Id. at ¶18.) Defendant filed
the federal action against Plaintiff for reasons other than the merits of the
claims; rather, Defendant seemed to have named Plaintiff to encourage the other
defendants to settle or to seek discovery into Plaintiff. (Id. at ¶19.)
As a result of Defendant filing the federal action, Plaintiff has been harmed
in the costs it incurred defending the action and by damage to its reputation.
(Id. at ¶20.) Plaintiff seeks compensatory damages of about $25,000.00
and punitive damages of no more than $25,000.00. (Id. at Prayer, ¶¶a-b.)
Punitive Damages
Punitive damages are authorized by Civil Code section 3294
in non-contract cases “where the defendant has been guilty of oppression,
fraud, or malice, express or implied . . . .”
(Civil Code, § 3294, subd. (a).) 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. (Civil Code, § 3294, subd. (c)(1).) Oppression
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights. (Civil Code, § 3294, subd.
(c)(2).) Fraud means an intentional misrepresentation, deceit, or concealment
of a material fact known to the defendant with the intention on the party of
the defendant of thereby depriving a person of property or legal rights or
otherwise causing injury. (Civil Code, § 3294, subd. (c)(3).)
Defendant argues that Plaintiff has only alleged legal
conclusions regarding her allegedly oppressive, malicious or fraudulent conduct
without specific facts. Defendant also argues that at most the Complaint
alleges she lost the federal action against Plaintiff. The Motion to Strike,
however, does not include any analysis of the allegations in the Complaint, as set
forth above. The Complaint alleges that Defendant’s federal action against Plaintiff
was premised on a single fact regarding providing a prepaid envelope to another
defendant. It goes on to allege that no reasonable person would find this a
valid basis for common law tort claims and that Defendant has provided no
explanation as to how this fact supported the federal action against Plaintiff,
or even that Defendant’s witnesses had knowledge regarding Plaintiff’s conduct.
The Motion to Strike does not explain why these allegations should be deemed
mere conclusions regarding Defendant’s conduct and intent. Notably, none of the
cases cited by Defendant in the Motion to Strike involve malicious prosecution.
(See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 868 [action “for
medical malpractice based upon tortious conduct only”]; G. D. Searle &
Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25 [action for products
liability, fraud, and negligence]; Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1035 [action for professional negligence].)
Therefore, the Motion to Strike the request for punitive
damages in the Complaint is denied.
Entire Complaint
Defendant also moves to strike the entire Complaint on the
grounds that anything that Defendant or defense counsel said or did in the
federal act is protected by the Noerr-Pennington doctrine and California’s
litigation privilege, therefore, allegations regarding the same are
“irrelevant, impertinent, or otherwise false.” (Motion, pp. 3:24-4:3.) That
allegations are “impertinent” is not a permitted basis to strike allegations in
any California court. (Code Civ. Proc., § 436.) That allegations are irrelevant
or false is not a permitted basis to strike allegations in the limited
jurisdiction court. Motions to strike in the limited jurisdiction court may
only challenge pleadings on the basis that “the damages or relief sought are
not supported by the allegations of the complaint.” (Code of Civ. Proc., § 92,
subd. (d).)
The request to strike the entire Complaint, therefore, is
also denied.
Classification of this Action
Finally, the Court has concerns
about whether this action was filed in the correct jurisdiction court. The
Complaint seeks compensatory damages estimated to be about $25,000.00 and
punitive damages not to exceed $25,000.00. (Compl., Prayer, ¶¶a-b.) An order to
show cause regarding reclassification of this action to an Independent Calendar
court is set for April 19, 2023 at 9:30 am in Department 26 in the Spring
Street Courthouse.
Conclusion
Defendant Irene Zendano’s Motion
to Strike Portions of Complaint or Entirety Thereof is DENIED.
ORDER TO SHOW CAUSE REGARDING
CLASSIFICATION OF THIS ACTION AS A LIMITED JURISDICTION CASE IS SET FOR APRIL
19, 2023 AT 9:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.
Plaintiff to give notice.