I. BACKGROUND 

Plaintiff Encino Newcastle Homeowner’s Association filed a First Amended Complaint (Case No. 21STCV12444) against defendants Del Sol Property Management, Inc. (“Del Sol”), Lara Sinitsin, and Does 1 through 100, setting forth eight causes of action for (1) Breach of Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4) Accounting; (5) Conversion and Theft; (6) Fraud; (7) Specific Performance; and (8) Declaratory Relief. 

Plaintiff Del Sol filed an action (Case No. 24STCV15463) against defendant HOA Management Professionals, Inc. (“HMP”), alleging HMP was served with a subpoena and that it failed to produce all records and produce its officers/employees/agents qualified to testify to matters described in two subpoenas. The complaint sets forth two causes of action for failure to obey subpoenas, Civ. Proc. Code § 1992. 

On July 26, 2024, Case Nos. 21STCV12444 and 24STCV15463 were deemed related, with Case No. 21STCV12444 designated as the lead case. The cases were assigned to this Court for all purposes, and the parties were reminded that related cases are still considered independently unless the cases are consolidated. (Min. Order, July 26, 2024.) 

On September 6, 2024, HMP filed the instant demurrer with motion to strike against the entirety of Del Sol’s complaint filed in Case No. 24STCV15463 on the grounds that the Complaint fails to state sufficient facts to constitute causes of action against it. 

On September 24, 2024, Del Sol filed its opposition to the demurrer and motion to strike. 

On October 3, 2024, HMP filed an untimely reply pertaining to the demurrer. No reply regarding the motion to strike has been received. 

II. REQUEST FOR JUDICIAL NOTICE 

HMP requests the Court take judicial notice of its Notice of Ruling on its Motion to Quash Deposition Subpoena for Business Records in related Case No. 21STCV12444. The request is GRANTED. (Cal. Evid. Code § 452(d).) 

III. PROCEDURAL REQUIREMENTS¿ 

Before filing a demurrer and/or motion to strike, the moving party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41(a); 435.5(a).) 

The Court finds HMP fulfilled the meet and confer requirement prior to filing the demurrer and motion to strike. 

IV. DEMURRER 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿¿ 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).) 

HMP argues that Del Sol’s claims under Civ. Proc. Code §1992 cannot be brought before the trial court “make[s] a prior determination that the subpoenas were disobeyed.” (See Filipoff v. Superior Court of Los Angeles Cty. (1961) 56 Cal. 2d 443, 450) HMP contends there are no allegations that the trial court made a prior determination that the subpoenas were disobeyed, prior to the filing of the complaint, to base causes of action against it. HMP argues that during the meet and confer process, Del Sol misinterpreted Civ. Proc. Code § 2020.240. Section 2020.240 provides that a deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of court directing compliance by the witness, but HMP argues that this language does not suggest that a prior court order is not required when seeking civil damages pursuant to section 1992. HMP relies on Filipoff v. Superior Court of Los Angeles Cty. (1961) 56 Cal. 2d 443 in support thereof. 

In opposition, Del Sol argues nothing in section 1992 requires a court order for compliance before it can sue HMP, and that the disjunctive “or” in the statute between “subpoena” and “court order” suggests that a lawsuit is ripe either when the witness has failed to appear or when the witness fails to comply with the court order for appearance. Del Sol avers that its action against HMP is analogous to Church vs. Payne (1939) 35 Cal.App.2d Supp. 752. Del Sol contends HMP’s reliance on section 1991.2 is misplaced, and that Filipoff did not involve a claim under section 1992 to be applicable. Lastly, Del Sol contends the Court’s ruling on Del Sol’s motion for contempt in the related case does not have a preclusive effect. 

In reply, HMP argues that Plaintiff has not alleged any facts of how it was actually harmed or alleged any damages sustained by the failure to appear for Plaintiff’s subpoenas, and that a court may also grant the demurrer pursuant to California Civil Code of Civil Procedure § 430.10(c) because there is another action pending between the same parties. 

Cal. Civ. Proc. Code § 1992 provides, “A person failing to appear pursuant to a subpoena or a court order also forfeits to the party aggrieved the sum of five hundred dollars ($500), and all damages that he or she may sustain by the failure of the person to appear pursuant to the subpoena or court order, which forfeiture and damages may be recovered in a civil action.” 

The Court has reviewed both Filipoff v. Superior Court of Los Angeles Cty. (1961) 56 Cal. 2d 443 and Church vs. Payne (1939) 35 Cal.App.2d Supp. 752, and finds the rationale outlined in Church to be most applicable to the instant matter.  

Filipoff concerned enforcement of a subpoena relating to the production of documents, wherein the California Supreme Court engaged in a hypothetical discussion of other provisions under which the petitioner could have made the request. The portion cited by HMP referring to section 1992 is part of this theoretical discussion, which this Court interprets as dicta. The Filipoff Court did not, in any way, engage in an analysis of section 1992 that is applicable to the issue here. 

Church is an Appellate Department case of the Los Angeles Superior Court, not a decision from a Court of Appeal, and is therefore not a binding precedent. Nonetheless, the Court finds that Church’s analysis of the construction of section 1992 to be sound, and in line with this Court’s plain reading of section 1992. Section 1992 contains a disjunctive “or” in the language “person failing to appear pursuant to a subpoena or a court order.” The Court agrees with the analysis in Church that “Section 1992, as written, requires only the first of these acts as a condition of the forfeiture.” (Id. at 755.) There is no express condition in this code section except disobedience of the subpoena, and the Court will not read absent language into the statute. Further, the Court’s prior ruling in the related case which (1) granted in part HMP’s motion to quash on the narrow issues raised by the motion, and (2) denied Del Sol’s motion for an order to show cause for contempt, has neither any bearing nor relevance as to whether Del Sol may bring an action against HMP for disobedience of Del Sol’s two subpoenas. The Court finds that the ruling has no preclusive effect on the matter. 

Lastly, HMP introduces new arguments in the reply concerning the sufficiency of the allegations and of another action pending. Nowhere in the moving papers were these contentions initially raised or argued. (Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 [“Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief[.]”].) The Court will not consider the arguments raised for the first time in the reply. 

Based on the foregoing, HMP’s demurrer to Del Sol’s complaint is OVERRULED. 

V. MOTION TO STRIKE 

HMP moves to strike Del Sol’s prayer for punitive damages and forfeiture of $1,500.00. HMP argues punitive damages are not recoverable under section 1992, nor has Del Sol alleged malice, oppression, or fraud for an imposition of punitive damages. Additionally, Del Sol argues the aggrieved party is limited to $500 in civil forfeiture, and that Del stipulated that it waived its right to recover any civil forfeiture against HMP during the meet and confer process. 

In opposition, Del Sol concedes that it will withdraw the claim for civil penalty. However, Del Sol argues that the complaint has sufficiently alleged malice. 

The Court has not received any reply pertaining to the motion to strike.  

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) 

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required.  Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). Thus, it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages.  Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) 

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.¿The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) 

Here, the complaint alleges that HMP knew the documents described in the subpoenas were necessary for Del Sol’s litigation in the related case, that HMP intentionally failed to provide the records or answer questions under oath, and that HMP intended to help Yaghoobian and Tabibi in their litigation against Del Sol. (Compl. ¶ 47) The Court finds that the complaint falls short of criminal indifference or character of outrage frequently associated with crime.  

Further, as pointed out by HMP, the complaint alleges that HMP is a corporation. (Compl. ¶ 2.) 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.” (Cruz v. HomeBase (2000) 83 Cal. App. 4th 160, 167.) “[T]he law does not impute every employee's malice to the corporation. Instead, the punitive damage statute requires proof of malice among corporate leaders: the “officer[s], director[s], or managing agent [s].” (Ibid; Civ.Code, § 3294, subd. (b).) The rationale of confining liability is because malice of low-level employees does not reflect the corporation’s “state of mind” or intentions of the corporate leaders. (Ibid.) “ ‘[T]o award [punitive] damages against the master for the criminality of the servant is to punish a man for that of which he is not guilty.’ [Citations].” (Ibid.). There are no allegations related to how any of HMP’s officers, directors or managing agents authorized or ratified any conduct that would give rise to a claim for punitive damages against HMP. 

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Del Sol has not demonstrated how the complaint can be amended to properly set forth a claim for punitive damages, nor did Del Sol request for leave to amend. 

Accordingly, HMP’s motion to strike punitive damages and forfeiture of $1,500.00 is GRANTED without leave to amend. 

VI. CONCLUSION 

HMP’s demurrer to Del Sol’s complaint is OVERRULED. 

HMP’s motion to strike the prayer for punitive damages and forfeiture of $1,500.00 is GRANTED without leave to amend. 

Moving Party is ordered to give notice. 

DATED: October 16, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.