Judge: Michael E. Whitaker, Case: 23SMCV02555, Date: 2024-01-18 Tentative Ruling

Case Number: 23SMCV02555    Hearing Date: January 18, 2024    Dept: 207

TENTATIVE RULING

MOTION

The consolidated actions 23SMCV02555 and 23SMCV03059 arise from a neighbor dispute between Defendant and Cross-Complainant Elisa Perlman (“Perlman”), and her downstairs neighbors, Andrea and Gelly Valero (collectively, “Valeros”). 

Plaintiff and Cross-Defendant Andrea Valero (“Valero”) was also the sole member of the board of directors for Plaintiff Malibu Road Homeowners Association (“HOA”) which  governed the property during most of the events giving rise to the actions.  The Valeros and the HOA brought two separate lawsuits against Defendant stemming from the same factual dispute concerning water leaks in the Valeros’ unit, allegedly caused by Perlman.

Valero now moves to strike the punitive damage allegations from Perlman’s cross-complaint.  Perlman opposes the motion and Valero replies.

MEET AND CONFER REQUIREMENT

            Code of Civil Procedure section 435.5, subdivision (a) requires that “Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” 

The statute further requires “As part of the meet and confer process, the moving party shall identify all of the specific causes of action that it believes are subject to being stricken and identify with legal support the basis of the deficiencies.”  (Code Civ. Proc., § 435.5, subd. (a)(1).)  “The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the pleading could be amended to cure any legal insufficiency.”  (Ibid.)

“The parties shall meet and confer at least five days before the date a motion to strike must be filed.”  (Code Civ. Proc., § 435.5, subd. (a)(2).)  “The moving party shall file and serve with the motion to strike a declaration stating either” the means by which the parties met and conferred, or that the party who filed the pleading subject to demurrer failed to respond to the meet and confer request.  (Id., subd. (a)(3).) 

Here, Valero has provided an attorney declaration indicating “On December 12, 2023 pursuant to Code of Civil Procedure section 435.5, I telephonically met and conferred with Ramy Galal, counsel for Cross-Complainant Elisa Perlman, informing him of Valero’s intentions to file this Motion to Strike as to Plaintiff’s Cross-Complaint.  We were unable to resolve the issues through the meet and confer process.”  (Hill Decl. ¶ 4.)

Perlman correctly notes that the statute requires the parties to meet and confer at least five days before the responsive pleading is due, yet counsel for Valero did not meet and confer until the day before filing.  However, Perlman does not dispute that the parties met and conferred telephonically and discussed the merits of Valero’s motion to strike.

Therefore, under the circumstances, the Court does not find that further meet and confer efforts would likely be fruitful.

REQUEST FOR JUDICIAL NOTICE

            Valero requests the Court to take judicial notice her Complaint for Damages, filed in 23SMCV03059 on July 6, 2023. 

Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because the Valero complaint is part of the Court’s record for the consolidated cases, the Court may take judicial notice of it.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

Accordingly, the Court takes judicial notice of the existence of the Valero complaint filed in 23SMCV03059 as a court record, but not the truth of the allegations contained therein.

ANALYSIS

1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(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.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

            The requests for punitive damages stem from two separate allegations: (1) Valero improperly reimbursed herself from HOA funds; and (2) Valero inconsistently enforced the CC&R’s against Perlman to control Perlman’s deck repair.  (See Cross-Complaint ¶¶ 56, 158.)

            With respect to the first allegation, the Cross-Complaint merely alleges, “On information and belief, Ms. Valero reimbursed herself from the HOA’s operating account for her personal gain. This conduct constitutes malice, oppression, and/or fraud.”  (Cross-Complaint ¶ 56.)

            With respect to the second allegation, the Cross-Complaint alleges:

·         “22. The HOA only enforced the CC&Rs against Ms. Perlman after she requested that the Valeros provide proof of the damages that they were claiming. Essentially, Ms. Valero weaponized the HOA’s governing documents to take control of repairs that impacted her Unit #1.”

·         “23. Based on information and belief, the Valeros completed numerous repairs to their units without architectural approval in the past.”

·         “24. After requesting the Board minutes, the HOA scheduled a special meeting for June 2, 2022, to discuss Perlman’s repairs. As the only Board member, Ms. Valero was the only one making decisions on behalf of the HOA. On information and belief, Ms. Valero used her power as a Board member to take total control over Ms. Perlman’s repair efforts to the Home’s deck despite being an interested party.”

·         “158. Further the HOA breached its fiduciary duties to Ms. Perlman by arbitrarily and capriciously enforcing the governing documents against Ms. Perlman with respect to the emergency deck repairs to the Home. Ms. Valero, as the sole Board member of the HOA, weaponized the governing documents to control over repairs that impacted her Unit #1. Based on information and belief, the HOA never enforced the governing documents related to architectural control before this.  The HOA and Ms. Valeros conduct rises to the level of oppression, malice, and fraud.”

(Cross-Complaint at ¶¶ 22-24, 158.)

Thus, all of the allegations supporting Perlman’s claim for punitive damages are alleged only “on information and belief.”  “[I]t is not sufficient to allege fraud or its elements upon information and belief unless the facts upon which the belief is founded are stated in the pleading.” (Dowling v. Spring Val. Water Co. (1917) 174 Cal.218, 221.)

            Therefore, Perlman has not pleaded sufficient facts with specificity to support her claim for punitive damages. 

2. LEAVE TO AMEND

            A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action.  (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim.  (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) 

Here, Perlman has failed to meet this burden, as she does not address whether leave should be granted if the motion to strike is granted.   

CONCLUSION AND ORDER

The Court grants Valero’s Motion to Strike references to punitive damages from Perlman’s Cross-Complaint without leave to amend. 

Further, the Court orders Valero to file and serve an answer to Perlman’s Cross-Complaint on or before February 8, 2024

Valero shall provide notice of the Court’s ruling and file a proof of service regarding the same. 

DATED:  January 18, 2024                                                    ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court