Judge: Michael E. Whitaker, Case: 24SMCV05043, Date: 2025-05-12 Tentative Ruling

Case Number: 24SMCV05043    Hearing Date: May 12, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a dispute between neighbors regarding a mudslide that damaged Plaintiff’s property. 

On October 10, 2024, Plaintiff David Kramer, Trustee of the Alberta Trust, dated March 30, 2016 (“Plaintiff”) filed suit against Defendants Jeffrey Frasco and Beverly Frank, as Trustees of the Frank & Frasco Living Trust dated February 2, 2017 (“Defendants”) alleging five causes of action for (1) trespass; (2) waste; (3) nuisance; (4) negligence; and (5) declaratory relief.

Defendants now move to strike Plaintiff’s request for punitive damages and the attendant allegations.  Plaintiff opposes the motion and Defendants reply.

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, subd. (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”].) 

Here, the Complaint alleges:

5. In or about 2014, Kramer acquired the Kramer Trust Property.

6. Plaintiff is informed and believes, and based thereon alleges, that Defendants are the owner of the Frasco Trust Property. Plaintiff is informed and believes, and based thereon alleges, that Defendants acquired the Frasco Trust Property in or about 2003.

7. The Kramer Trust Property and the Frasco Trust Property (collectively, Properties) are both located in a residential area and improved with single family homes. The Properties share a common North/South boundary. An aerial view of the Kramer Trust Property with a (portion of the Defendants’ home on the Frasco Trust Property and the hillside on the Frasco Trust Property (Frasco Hillside) located immediately to the north of the Kramer Trust Property) is depicted below: [picture omitted]

8. At all relevant times, Defendants, and each of them, were responsible for maintaining and repairing the Frasco Trust Property, including the Frasco Hillside.

9. Plaintiff is informed and believes that the Frasco Hillside failed, at least once before, in or about March 2020 (Original Failure) while Defendants, and each of them, owned the Frasco Trust Property. Plaintiff is informed and believes, and based thereon alleges, that Defendants, and each of them, failed to repair, failed to adequately repair, failed to maintain and/or failed to adequately maintain the Frasco Trust Property, including the Frasco Hillside, after the Original Failure.

10. In or about mid-February 2024, the Frasco Trust Property and, in particular, the Frasco Hillside, failed again, this time causing mud, rocks, trees, and bushes and other debris to cascade on and into portions of the Kramer Trust Property. Plaintiff is informed and believes, and based thereon alleges, that this hillside failure was a direct result of Defendants’ failure to repair and maintain the Frasco Trust Property and that Defendants, and each of them, have been cited by the responsible governmental agencies as a result.

11. The following pictures depict the hillside failure on the Frasco Trust Property and some of the damage caused to the Kramer Trust Property: [pictures omitted]

12. As of this Complaint, Plaintiff has incurred at least $71,000.00 in physical damage to the Kramer Trust Property.

13. The Defendants’ failure to maintain and repair the Frasco Trust Property, including the Frasco Hillside, unduly burdens and interferes with the use and enjoyment of the Kramer Trust Property. Plaintiff has demanded that Defendants, and each of them, repair the pervasive damage, properly shore and maintain the Frasco Trust Property, including the Frasco Hillside, and clean up the substantial debris to restore the Kramer Trust Property to its original pristine condition. Defendants, and each of them, have denied any liability to Plaintiff and refused all of Plaintiff’s demands.

14. As a result of Defendants’ wrongful conduct, as alleged herein, Plaintiff has suffered substantial injury from not only property damage but also loss of use of the Kramer Trust Property and diminution in value to the Kramer Trust Property. At the present time, Plaintiff estimates the damages attributable to loss of use and diminution in value to be in excess of $1,000,000.

[…]

18. Plaintiff has demanded that Defendants, and each of them, cease and desist their trespassing onto, and remove from the Kramer Trust Property all debris and to fix all damages caused by the hillside failure. Defendants have refused to do so.

[…]

20. Plaintiff is informed and believes, and on that basis alleges, that Defendants’ conduct in interfering with Plaintiff’s use of the Kramer Trust Property was done maliciously, with intent to oppress Plaintiff, and in conscious disregard of Plaintiff’s rights and objections to Defendants’ conduct. Plaintiff is therefore entitled to punitive damages in an amount to be proven at trial.

21. Unless enjoined and restrained by order of this Court, Defendants’ interference or obstruction of Plaintiff’s right to use the Kramer Trust Property will cause great and irreparable injury to him. […]

25. Plaintiff is informed and believes, and on that basis alleges, that Defendants’ conduct in committing waste on the Kramer Trust Property was done maliciously, with intent to oppress Plaintiff, and in conscious disregard of Plaintiff’s rights and objections to Defendants’ conduct. Plaintiff is therefore entitled to punitive damages in an amount to be proven at trial.

[…]

28. Plaintiff is informed and believes, and on that basis alleges, that Defendants will, unless restrained by this Court, continue to maintain the nuisance alleged hereinabove and continue the wrongful acts complained of herein; and each and every one of the acts has been and will continue to be, without the consent, against the will and in violation of the rights of Plaintiff. Plaintiff has given repeated notice to Defendants as to the nature and extent of their nuisance. Defendants have ignored and refused to abate the nuisance.

[…]

30. Defendants’ refusal and failure to abate the nuisance at the Kramer Trust Property was deliberate and calculated to interfere with Plaintiff’s quiet use and enjoyment of the Kramer Trust Property. Such conduct on the part of Defendants was grossly negligent, malicious and oppressive, thereby entitling Plaintiff to an award of punitive damages in an amount to be proven at trial.

(Complaint ¶¶ 5-30.)  The prayer also seeks punitive damages as to the first, second, and third causes of action.  (See Complaint.)

Allegations made “on information and belief” are insufficient to satisfy the heightened pleading requirement “unless the facts upon which the belief is founded are stated in the pleading.”  (Dowling v. Spring Valley. Water Co. (1917) 174 Cal.218, 221.)  Here, while the underlying facts allege that Defendants have refused to remove mudslide debris, in disregard for Plaintiff’s rights, there are no specific facts demonstrating that Defendants acted with an intent to injure Plaintiff or that they engaged in “despicable conduct” subjecting Plaintiff to a “cruel and unjust hardship” sufficient to rise to the level of oppression or malice. 

While deliberately depositing debris on a neighbor’s property can rise to the level of oppression and/or malice (Armitage v. Decker (1980) 218 Cal.App.3d 887, 907), there are insufficient specific facts here demonstrating that Defendants’ conduct rises to that level.

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.) 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, Plaintiff has failed to meet this burden.  Although Plaintiff generally requests leave to amend, Plaintiff does not specify any facts that could be added to the complaint to remedy the deficiencies identified above.    

CONCLUSION AND ORDER

For the reasons stated, the Court grants Defendants’ Motion to Strike in its entirety.  The Court strikes the following from the Complaint without leave to amend:

·       Paragraph 20, page 7: "Plaintiff is informed and believes, and on that basis alleges, that Defendants' conduct in interfering with Plaintiffs use of the Kramer Trust Property was done   maliciously, with intent to oppress Plaintiff, and in conscious disregard of Plaintiffs rights and objections to Defendants' conduct. Plaintiff is therefore entitled to punitive damages in an amount to be proven at trial."

·       Paragraph 25, page 8: "Plaintiff is informed and believes, and on that basis alleges, that Defendants' conduct in committing waste on the Kramer Trust Property was done maliciously, with intent to oppress Plaintiff, and in conscious disregard of Plaintiffs rights and objections to Defendants' conduct. Plaintiff is therefore entitled to punitive damages in an amount to be proven at trial."

·       Paragraph 30, page 9: "Defendants' refusal and failure to abate the nuisance at the Kramer Trust Property was deliberate and calculated to interfere with Plaintiffs quiet use and enjoyment of the Kramer Trust Property. Such conduct on the part of Defendants was grossly negligent, malicious and oppressive, thereby entitling Plaintiff to an award of punitive damages in an amount to be proven at trial."

·       Prayer for relief, page 10, paragraph 1: "b. Punitive damages in an amount to be determined by the trier of fact;"

·       Prayer for relief, page 10, paragraph 1: "d. Punitive damages;"

·       Prayer for relief, page 10, paragraph 2: "c. Punitive damages;"

Further, the Court orders Defendants to file and serve an Answer or Answers to the Complaint on or before  May 23, 2025.   

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

DATED:  May 12, 2025                                             ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court