Judge: Michael E. Whitaker, Case: 23SMCV03681, Date: 2024-02-14 Tentative Ruling

Case Number: 23SMCV03681    Hearing Date: February 14, 2024    Dept: 207

TENTATIVE RULING

BACKGROUND

This case arises from a dispute over the allegedly defective installation of doors and windows in the home of Plaintiffs Homan Siman and Sanam Siman (collectively, “Plaintiffs”), which has resulted in water leaking into the walls of Plaintiffs’ home.  (Complaint ¶ 16.)

Plaintiffs allege they entered into a contract with Defendants Juan Antonio Devoto and Mandrake Construction Co. (“Mandrake Defendants”), who purchased the subject windows from Defendant Horizon & Renovation, Inc. (“Horizon”), who in turn purchased them from the manufacturer, Defendant Andersen Windows, Inc. (“Andersen.”).  (Complaint ¶¶ 14-15.)

Although the Complaint alleges fourteen causes of action against the various defendants, the only causes of action alleged as to Andersen are the fifth and sixth for breach of implied and express warranty, respectively.

Andersen now moves to strike from the Complaint Plaintiff’s prayer for (1) recission of the agreement; (2) attorneys’ fees; (3) business and professions code section 7160 penalties; and (4) for punitive damages, on the basis that the limited allegations and causes of action alleged against Andersen do not support these damages.  The motion is unopposed.

ANALYSIS

A.    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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

1.      Rescission

Andersen first contends that the complaint does not allege any agreement between Plaintiffs and Andersen to rescind.  Instead, the complaint alleges Plaintiffs entered into an agreement with the Mandrake Defendants, who purchased the windows from Horizon, who in turn purchased the windows from Andersen.  The Court agrees.

Although there are general allegations that “In doing the things hereinafter alleged, the Defendants, and each of them, acted as the agents, servants, employees, and alter egos of their co-defendants, who acted within the course and scope of said agency and employment, and with the knowledge, consent, and approval of their codefendants, whereby their conduct was ratified by their codefendants” and “Each of the Defendants acted as the agent, joint venture, or alter ego of or for the other defendants with respect to the acts, violations, and common course of conduct alleged herein[,]” (Complaint ¶¶ 11-12), Plaintiffs do not assert any breach of contract cause of action against Andersen or otherwise allege that there exists a contract between Plaintiffs and Andersen to rescind.

2.      Attorneys’ Fees

Similarly, because there is no contract alleged between Plaintiffs and Andersen, there is no basis for the recovery of attorneys’ fees. 

Code of Civil Procedure section 1021 provides “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties [….]”  Similarly, Civil Code section 1717 provides “[i]n 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.”  (Civ. Code, § 1717, subd. (a).)

The Complaint does not allege any statutory basis for attorneys’ fees, nor does it allege the existence of a contract between Plaintiffs and Andersen.  Therefore, there is no basis alleged to recover attorneys’ fees from Andersen.

3.      Business & Professions Code section 7160 Penalties

Business and Professions Code section 7160 provides:

Any person who is induced to contract for a work of improvement, including but not limited to a home improvement, in reliance on false or fraudulent representations or false statements knowingly made, may sue and recover from such contractor or solicitor a penalty of five hundred dollars ($500), plus reasonable attorney’s fees, in addition to any damages sustained by him by reason of such statements or representations made by the contractor or solicitor.

            The Complaint does not allege that Andersen made any false or fraudulent representations to Plaintiffs, that Andersen induced Plaintiffs to enter into a home improvement contract, or that Andersen did enter into any contract with Plaintiffs. 

Therefore, the allegations do not support Section 7160 penalties as to Andersen.

4.      Punitive Damages

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”].) 

Moreover, “[T]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

            Here, there are no allegations that Andersen acted with oppression, fraud, or malice.  Therefore, the Court finds the allegations do not adequately support a claim for punitive damages against Andersen.

B.     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.) A 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, Plaintiffs have failed to meet their burden, as they have not opposed Andersen’s motion, and therefore they do not address whether leave should be granted if the motion to strike is granted. 

CONCLUSION AND ORDER

For the reasons stated, the Court grants Andersen’s Motion to Strike in its entirety, and orders the prayer for recission, attorneys’ fees, Business & Professions Code section 7160 penalties, and punitive damages stricken from the Complaint as to Andersen without leave to amend.

Further, the Court orders Andersen to file and serve an Answer to the Complaint on or before February 28, 2024.

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

DATED:  February 14, 2024                                                  ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court