Judge: Melvin D. Sandvig, Case: 22CHCV00822, Date: 2023-05-18 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 22CHCV00822    Hearing Date: May 18, 2023    Dept: F47

Dept. F47

Date: 5/18/23

Case #22CHCV00822

 

MOTION TO STRIKE

 

Motion to Strike filed on 4/3/23.

 

MOVING PARTY: Defendant Friendly Village Community Association, Inc. No.5

RESPONDING PARTY: Plaintiff Patricia Salinas

NOTICE: ok

 

RELIEF REQUESTED: An order striking any and all references in Plaintiff’s complaint for the recovery of punitive damages and attorney fees (p.12:10-12, p.13:24-26, p.15:8-15, p.16:24-p.17:3, p.17:13, p.17:19). 

 

RULING: The motion is denied.  Answer is due within 20 days. 

 

SUMMARY OF ACTION & PROCEDURAL HISTORY

 

This action arises out of a dispute between Plaintiff Patricia Salinas (Plaintiff) and the homeowners’ association, Defendant Friendly Village Community Association, Inc. No.5 (Defendant) wherein Plaintiff’s home is located.  On 1/19/21, a tree located in the common area fell on Plaintiff’s house causing extensive damage to the home and personal injuries to Plaintiff.  Plaintiff alleges that she and at least two other homeowners express concerns to Defendant’s President that the tree posed a significant risk of falling and causing substantial harm.  (Complaint ¶28).  Plaintiff alleges that despite its duties to do so under the CC&Rs, Defendant took no action to inspect the tree or otherwise remedy the situation.  (Complaint ¶¶29-30).  Thereafter, during a windstorm on 1/19/21, the tree fell on Plaintiff’s house.  Plaintiff alleges that if Defendant had maintained the tree as required with timely inspections, the incident would not have occurred as the tree suffered from “root binding.”  (Complaint ¶32). 

 

On 10/6/22, Plaintiff filed this action against Defendant for: (1) Negligence, (2) Breach of the Governing Documents (Count One), (3) Breach of the Governing Documents (Count Two), (4) Breach of the Implied Covenant of Good Faith and Fair Dealing and (5) Breach of Fiduciary Duty.  Plaintiff makes allegations regarding punitive damages and also makes a claim for attorneys’ fees.   

 

After unsuccessful meet and confer efforts, on 4/3/23, Defendant filed and served the instant motion to strike seeking an order striking any and all references in Plaintiff’s complaint for the recovery of punitive damages and attorney fees (p.12:10-12, p.13:24-26, p.15:8-15, p.16:24-p.17:3, p.17:13, p.17:19).  Plaintiff has opposed the motion and Defendant has filed and served a late (by 1 day) reply to the opposition.  CCP 1005(b).  Despite the late filing of the reply, it was considered by the Court.  CRC 3.1300(d). 

 

 

ANALYSIS

 

CCP 436 provides:

 

“The court may, upon any 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 of any part of any pleading not drawn or filed in conformity with the law of this state, or court rule, or any order of the court.”  

 

Civil Code 3294 provides:

 

“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

 

. . .

 

(c) As used in this section, the following definitions shall apply:

(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.”

 

A plaintiff must plead facts showing fraud, oppression or malice on the part of the defendant to support a claim for punitive damages.  Grieves (1984) 157 CA3d 159, 166. 

 

The Court finds that Plaintiffs allegations that: (1) Defendant was aware of concerns regarding the tree that fell on Plaintiff’s home from at least three homeowners before the incident (Complaint ¶28), (2) Defendant failed to take any action to maintain the tree as required by the CC&Rs, despite being aware of such concerns (Complaint ¶¶29, 50, 58-59), (3) the tree suffered from “root binding” which could have been discovered upon inspection (Complaint ¶¶30-32); and (4) Defendant refuses to complete its repair of Plaintiff’s property (Complaint ¶¶42-43) are sufficient to support a finding that Defendant’s conduct was despicable and/or oppressive as defined by Civil Code 3294.  (See Complaint ¶¶54, 85, 94).

 

The CC&Rs provide at Article XVII, section 1, that:

 

“The Board, or any Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration, and shall be entitled to recover from any Owner against whom Such restrictions, conditions, covenants, reservations, liens and charges are enforced, all costs and reasonable attorneys’ fees incurred thereby.”

 

The fact that the foregoing provision provides that attorneys’ fees are recoverable from “any Owner” does not preclude Plaintiff from recovering attorneys’ from Defendant if she prevails in this action.     

   

Civil Code 1717 makes such a unilateral attorney fee provision mutual.  See In re Lane 9th Cir. B.A.P. (Cal.) 2018 589 B.R. 399, affirmed 959 F.3d 1226.  Specifically, Civil Code 1717(a) provides:

 

“In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.”

 

CONCLUSION

 

Based on the foregoing, the motion is denied. 



Dept. F47



Date: 5/18/23



Case #22CHCV00822



 



MOTION FOR
TRIAL PREFERENCE



 



Ex parte application/Motion filed on 4/7/23.



 



MOVING PARTY: Plaintiff Patricia Salinas



RESPONDING PARTY: Defendant Friendly Village Community
Association, Inc. No.5



NOTICE: ok



 



RELIEF REQUESTED: An order
for preference in setting this matter for trial pursuant to CCP 36(a).





 



RULING: The motion is granted. 



 



SUMMARY OF ACTION & PROCEDURAL HISTORY



 



This action arises out of a dispute between Plaintiff
Patricia Salinas (Plaintiff) and the homeowners’ association, Defendant
Friendly Village Community Association, Inc. No.5 (Defendant) wherein
Plaintiff’s home is located.  On 1/19/21,
a tree located in the common area fell on Plaintiff’s house causing extensive
damage to the home and personal injuries to Plaintiff.  Plaintiff alleges that she and at least two
other homeowners express concerns to Defendant’s President that the tree posed
a significant risk of falling and causing substantial harm.  (Complaint ¶28).  Plaintiff alleges that despite its duties to
do so under the CC&Rs, Defendant took no action to inspect the tree or
otherwise remedy the situation. 
(Complaint ¶¶29-30).  Thereafter,
during a windstorm on 1/19/21, the tree fell on Plaintiff’s house.  Plaintiff alleges that if Defendant had
maintained the tree as required with timely inspections, the incident would not
have occurred as the tree suffered from “root binding.”  (Complaint ¶32). 



 



On 10/6/22, Plaintiff filed this action against Defendant
for: (1) Negligence, (2) Breach of the Governing Documents (Count One), (3)
Breach of the Governing Documents (Count Two), (4) Breach of the Implied
Covenant of Good Faith and Fair Dealing and (5) Breach of Fiduciary Duty.  On 4/3/23, Defendant filed and serve a motion
to strike Plaintiff’s allegations regarding and prayers for punitive damages
and attorneys’ fees which was originally scheduled to be heard on 7/3/23. 



 



On 4/7/23, Plaintiff filed an Ex Parte Application for
Preferential Trial Setting, or in the alternative, For an Order Shortening Time
to Hear a Motion for Preferential Trial Setting.  On 4/7/23, Defendant filed an opposition to
the ex parte application.  On 4/10/23,
the Court advanced and continued the hearing on Defendant’s motion to strike to
5/18/23 and continued the instant ex parte application/motion for preferential
trial setting to 5/18/23.  (See
4/10/23 Minute Order).  On 5/11/23,
Plaintiff filed and serve a reply to the opposition.     



 



 



ANALYSIS



 



CCP 36 provides, in relevant part:



 



“(a) A party to a civil action who
is over 70 years of age may
petition the court for a preference, which the court shall grant if the court
makes both of the following
findings:



(1) The party has a substantial
interest in the action as a whole.



(2) The health of the party is such
that a preference is necessary to prevent prejudicing the party's interest in
the litigation.



 



. .
.



 



(f) Upon the granting of such a
motion for preference, the court shall
set the matter for trial not more than 120 days from that date and there shall
be no continuance beyond 120 days from the granting of the motion for
preference except for physical disability of a party or a party's attorney, or
upon a showing of good cause stated in the record. Any continuance
shall be for no more than 15 days and no more than one continuance for physical
disability may be granted to any party.”



 



CCP 36.5 provides:



 



“An affidavit submitted in support
of a motion for preference under subdivision
(a) of Section 36 may be signed by the attorney for the party seeking
preference based upon information and belief as to the medical diagnosis and
prognosis of any party. The affidavit is not admissible for any purpose other
than a motion for preference under subdivision
(a) of Section 36.”



 



Plaintiff’s attorney has filed a declaration in support
of the motion stating that Plaintiff is 80 years old (will be 81 in May) and
suffers from a heart condition which has caused her to undergo numerous
procedures and treatments.  (See
Morris Decl.).  Plaintiff’s attorney
additionally states that Plaintiff’s health is declining such that a
preferential trial date is necessary to prevent prejudicing her interest in the
litigation.  Id.  Additionally, as the only plaintiff in this
case, Plaintiff has a substantial interest in the action as a whole.  Id.



 



Defendant does not dispute any of the foregoing.  The only arguments in the opposition which
were not addressed by the Court’s 4/10/23 order, are that a preferential trial
date will significantly impact Defendant’s due process rights with regard to
discovery and Defendant’s ability to have a dispositive motion heard.  However, when the requirements of CCP 36(a)
are met, the setting of a preferential trial date is mandatory and supersedes
the remaining considerations raised by Defendant.  See Miller (1990) 221 CA3d
1200, 1204; Sprowl (1990) 219 CA3d 777, 781; Swaithes (1989) 212
CA3d 1082, 1085-1086; Looney (1993) 16 CA4th 521, 532.



 



CONCLUSION



 



Based on the foregoing, the motion is granted.  Trial will be set within the next 120
days.