Judge Melvin D. Sandvig, Case 21CHCV00940 2022-10-19 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21CHCV00940, Date: 2022-10-19 Tentative Ruling

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Case Number: 21CHCV00940 Hearing Date: October 19, 2022 Dept: F47

Dept. F47

Date: 10/19/22

Case #21CHCV00940

MOTION TO STRIKE

Motion filed on 7/21/22.

MOVING PARTY: Defendant Mary Annette Pickens

RESPONDING PARTY: Plaintiff Lawrence A. Garoutte

RELIEF REQUESTED: An order striking portions of the complaint regarding special damages, punitive damages and attorney fees.

RULING: The motion is granted with 20 days leave to amend.

This action arises out of a loan agreement between Plaintiff Lawrence A. Garoutte (Plaintiff) and Defendant Mary Annette Pickens (Defendant), Plaintiff’s step-mother. Plaintiff alleges that in or around 1989, Plaintiff and his then partner, Duane Boyer, purchased and acquired title to real property commonly known as 22232 Wildwood Place, Chatsworth, California 91311 (the Property). (Complaint ¶5). On or about 9/5/06, Plaintiff acquired Boyer’s right, title and interest in the Property. (Complaint ¶6).

In or about April of 2018, Plaintiff obtained a loan from Defendant in the amount of $35,000. On 8/13/18, Plaintiff and Defendant entered into a written agreement which acknowledges that when Defendant lent Plaintiff the $35,000.00 “the plan” was for Plaintiff to sell the Property and repay Defendant. (See Complaint, Ex.A). However, because Plaintiff preferred not to sell the Property, Defendant agreed to extend the repayment of the loan until 8/1/20 pursuant to certain conditions that were to take effect on 9/1/18. Id. The conditions were: (1) Plaintiff would pay Defendant $2,500.00 on the 1^st of each month and Defendant would pay the mortgage ($1561.91), the HOA dues ($400.00), the homeowners insurance ($95.00) and earthquake insurance ($95.000) with the remaining $350.00 to be interest on the loan; (2) a $500.00 penalty would be assessed for Plaintiff’s late monthly payments; and (3) if Plaintiff missed 2 months of payments, the house was to be placed on the market for sale with Defendant’s knowledge and involvement. Id. The proceeds of the sale would be used to first pay Defendant for the loan and the remainder would go to Plaintiff. Id. The agreement further provided that if Plaintiff refused to put the Property for sale, Defendant would file/record the quit claim deed for the Property which was executed and notarized on 4/24/18 and put the Property for sale and take any proceeds from the sale. Id.

Plaintiff seems to concede that he stopped making the $2,500.00 monthly payments to Defendant beginning 4/1/20. (See Complaint ¶¶13-18). Plaintiff also concedes that in September 2020, he received notice that Defendant intended to record the 4/24/18 quit claim deed. (Complaint ¶16). On 12/24/20, Defendant recorded the 4/24/18 quit claim deed. (Complaint ¶23, Ex.B). On 12/9/21, Plaintiff filed this action against Defendant for: (1) Cancellation of Deed, (2) Quiet Title, (3) Recovery of Usurious Interest and (4) Declaratory Relief.

On 7/21/22, Defendant filed and served the instant motion seeking an order striking portions of the complaint regarding special damages, punitive damages and attorney fees. Specifically, Defendant seeks to strike: (1) All portions of the Complaint, requesting Special Damages, including but not limited to: - Page 14, Paragraph 55 (the complaint does not include a ¶55) - Page 12, Prayer for Relief, Paragraph 3; (2) All portions of the Second Amended Complaint, requesting Punitive Damages and/or Treble Damages, including but not limited to: - Page 9, Paragraph 37 - Page 11, Paragraph 44 As to the First Cause of Action: - Page 12, Prayer for Relief, Paragraph 4. - Page 12, Prayer for Relief, Paragraph 5. - Page 13, Prayer for Relief, Paragraph 7. As to the Third Cause of Action: - Page 13, Prayer for Relief, Paragraph 1. As to the Fourth Cause of Action: - Page 13, Prayer for Relief, Paragraph 3; (3) All portions of the Complaint, requesting Attorney Fees, including but not limited to: - Page 14, Prayer for Relief, Paragraph 3.

Special damages must be pleaded with particularity. Emerald Bay Community Assn. (2005) 130 CA4th 1078, 1095 citing MacLeod (1959) 52 C2d 536, 547-548. Here, Plaintiff seeks “damages in the sum of $300,000.00” without providing sufficient particularity as to how such damages are calculated. (See Complaint, p.12 ¶3, p.13 ¶3). In the Complaint, Plaintiff merely alleges that “the PROPERTY had more than $300,000 in equity.” (Complaint ¶19). However, Plaintiff fails to explain how he was damaged in that amount based on the terms of the contract he has attached to the Complaint and the admissions made in the Complaint as noted above. (See Complaint ¶¶10-18, 23 and Ex.A and B thereto). Facts appearing in exhibits attached to a complaint will be given precedence over conflicting allegations in the pleading. See Dodd (1990) 222 CA3d 1624, 1627; Banis Restaurant Design, Inc. (2005) 134 CA4th 1035, 1045.

Similarly, the Complaint does not include sufficient facts to support a claim for punitive/treble damages. See Grieves (1984) 157 CA3d 159, 166. In order to recover punitive damages, a plaintiff must establish that a defendant acted with fraud, oppression or malice. Civil Code 3294 Plaintiff merely alleges that Defendant acted willfully and intended to injure Plaintiff and deprive Plaintiff of the Property. (Complaint ¶37). However, as noted above, it appears that Defendant acted according to the terms of the contract between the parties based on Defendant’s admitted failure to pay under such contract. Further, the Complaint improperly includes a specific amount ($300,000) of punitive damages sought. (Complaint ¶37). See Civil Code 3295(e).

Plaintiff has also failed to plead a basis to support an entitlement to attorney’s fees. A party may only recover attorney’s fees pursuant to contract, statute or law. CCP 1033.5(a)(10). Plaintiff fails to set forth any provision of a contract or a statute which supports the recovery of attorney’s fees in this action. In the opposition, Plaintiff relies on Civil Code 880.360 (miscited as Civil Code 880.60). (See Opposition, p.4:27). Civil Code 800.360 provides:

A person shall not record a notice of intent to preserve an interest in real property for the purpose of slandering title to the real property. If the court in an action or proceeding to establish or quiet title determines that a person recorded a notice of intent to preserve an interest for the purpose of slandering title, the court shall award against the person the cost of the action or proceeding, including a reasonable attorney's fee, and the damages caused by the recording.

Again, based on the contract between the parties which is attached to the Complaint and Plaintiff’s admissions in the Complaint, Plaintiff has failed to plead facts which would support an award of attorney’s fees pursuant to Civil Code 880.360.

Due to the liberal policy of allowing leave to amend and because this is only the original complaint, Plaintiff is given the opportunity to try to cure the defects in his pleading.