Judge Michael E. Whitaker, Case Number: 24SMCV00048, Date: 2024-06-17 Tentative Ruling

Judge: Michael E. Whitaker, Case: 24SMCV00048, Date: 2024-06-17 Tentative Ruling

This case arises from a dispute between two neighboring property owners. Marcus and Jill Rosner (collectively, “Plaintiffs”) allege Howard Altman (“Defendant”) failed to maintain and/or altered his property in a manner that caused excess surface water to flood the Plaintiffs’ property, causing damages.

On January 4, 2024, Plaintiffs filed a complaint alleging four causes of action: (1) negligence; (2) nuisance; (3) trespass; and (4) preliminary and permanent injunction. Plaintiffs seek punitive damages in conjunction with the third and fourth causes of action.

On May 13, 2024, Defendants moved to strike Plaintiffs’ requests for punitive damages.

On June 4, 2024, Plaintiffs filed an opposition to Defendant’s 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.)

A motion to strike is only based upon grounds which “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) And when a motion to strike is based upon a judicially noticeable matter, the matter must be specified in the notice of the motion or supporting points and authorities, except as otherwise permitted by the court. (Code Civ. Proc., § 437, subd. (b).) Further, courts have interpreted Section 437 to mean a review of a motion to strike “disregards facts extrinsic to the pleadings . . . .” (CPF Agency Corp. v. R&S Towing Service (2005) 132 Cal.App.4th 1014, 1032 [Defendant’s motion to strike denied because it alleged facts extrinsic to the pleading it challenged].)

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.

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”].)

Defendants move to strike Plaintiffs’ claims for punitive damages from the complaint. Defendant contends that Plaintiffs failed to allege substantive facts supporting Defendant's malice, oppression, or fraud. Plaintiffs argue they established Defendant’s malice and oppression.

Plaintiffs contend in their opposition that Defendant’s “home and pool are still precariously overhanging Plaintiffs’ backyard as this dangerous condition has still not been repaired” (Plaintiffs’ Opposition p. 2), a condition Plaintiffs also allege has existed for 15 months. But Plaintiffs’ complaint makes no reference to such facts. As such, the Court disregards those facts which are extrinsic to Plaintiffs’ complaint.

Next, Plaintiffs cite the following paragraphs from their complaint to support their contention that they established Defendant’s malice and/or oppression.

23. Plaintiffs are at risk for physical and emotional injuries from continuing emotional trauma and mental and physical distress and have suffered mental and physical injury as a result of Defendants’ actions and inactions and Plaintiffs fear for their safety and the safety of their home as a result of Defendants’ actions and inactions.

24. Plaintiffs are entitled to punitive damages for the actions of Defendants, who are guilty of oppression and malice in these actions.

26. Defendants are wrongfully interfering with Plaintiffs’ use of their quiet use and enjoyment of their property at 17 Latimer. Defendants have made no attempts to property (sic) maintain and/repair their respective irrigation/drainage systems and/or remove the resulting dirt, mud, silt, vegetation and other debris, including structures, from their respective properties and/or on the Plaintiffs’ Property on 17 Latimer rendering certain portions of the land and improvements unusable and unsafe causing extreme danger and fear and fright to Plaintiffs and their property.

29. Defendants’ acts, knowing of the rainy season and the prior major slope failure, continue to cause Plaintiffs emotional and physical distress, as well as damaged the Plaintiffs’ property. Plaintiffs have been and will continue to be deprived of their peace of mind and security in their home and property.

31. Defendants have oppressively or fraudulently or maliciously interfered with the quiet use and enjoyment of their property at 17 Latimer for the purpose of injuring Plaintiffs and with willful and conscious disregard of Plaintiffs’ rights. Plaintiffs are therefore entitled to exemplary damages pursuant to Civ. Code, § 3294 in the sum according to proof at time of trial.

32. Plaintiffs request the court issue a permanent injunction restraining and enjoining Defendants from interfering with Plaintiffs’ access to and other use of their property at 17 Latimer and during the pendency of this action, a preliminary injunction issue to enjoin and restrain Defendants from the acts and inactions set forth above that requires the Defendants to refrain from (1) failing to repair the hillside and clear the vegetation; and (2) to employ alternative diversion methods of rainwater run-off from their respective properties.

For example, Plaintiffs fail to allege when and how Defendant has “made no attempts to property (sic) maintain and/repair their respective irrigation/drainage systems and/or remove the resulting dirt, mud, silt, vegetation and other debris, including structures, from their respective properties,” assuming Defendant is even aware that such conditions exist or need remediation. (See Complaint ¶ 26). Also Plaintiffs fail to allege when and how Defendant knows about “the rainy season and the prior major slope failure” which continues to cause Plaintiffs emotional and physical distress, as well as damaged the Plaintiffs’ property. (See Complaint ¶ 29.)

In short, the Court finds that Plaintiffs have not alleged facts specific enough to establish any of the three preconditions (malice, oppression, or fraud) required under Civil Code section 3294. Therefore, Plaintiffs have failed to state a prima facie claim for punitive damages.

For the reasons stated, the Court grants Defendant’s Motion to Strike punitive damages, without leave to amend, and orders Plaintiffs’ claim for punitive damages stricken from the Complaint.[1]

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

[1] In their opposition, Plaintiffs did not request leave to amend the Complaint should the Court find their claim for punitive damages to be factually deficient. As such, the Court finds that Plaintiffs have forfeited their right to seek leave to amend their Complaint in conjunction with Defendant’s motion to strike.

DEPARTMENT	207
HEARING DATE	June 17, 2024
CASE NUMBER	24SMCV00048
MOTION	Motion to Strike Portions of Complaint
MOVING PARTIES	Defendant Howard Altman as Trustee of The Big Norm Trust
OPPOSING PARTY	Plaintiffs Marcus Rosner and Jill Rosner