Judge Monica Bachner, Case 21STCV03788 2023-03-27 Tentative Ruling

Defendants Lionel Pereira’s and Southern California Coin and Stamps’ motion to strike is denied.

Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, and Hawthorne Mini Venture, LLC’s motion to strike is granted in part and denied in part.

Defendants Stephen Pattillo’s, individually and dba Quality Stamp Shows, and Orcoexpo’s motion to strike is granted in part and denied in part.

Defendant Briana Pattillo’s motion to strike is granted in part and denied in part.

Defendant Eric Pattillo’s motion to strike is granted in part and denied in part.

Defendants Lionel Pereira and Southern California Coin and Stamps (collectively, “Pereira Defendants”) move to strike portions of Plaintiff Wesley Robbins’ (“Robbins”) (“Plaintiff”) second amended complaint (“SAC”). (Motion Pereira, pg. 5; C.C.P §435.5.)

Defendants Benson Williams II’s, US Storage Centers, Inc.’s, Westport Properties, Inc.’s, and Hawthorne Mini Venture, LLC (collectively, “USSC Defendants”), move to strike portions of Plaintiff’s SAC. (Notice of Motion USSC, pgs. 2-6; C.C.P. §§435-437.)

Defendants Stephen Pattillo, individually and dba Quality Stamp Shows, and Orcoexpo (collectively, “Stephen Defendants”) move to strike portions of Plaintiff’s SAC. (Notice of Motion Stephen, pgs. 2-4; C.C.P. §§435, 436, 1021.)

Defendant Briana Pattillo (“Briana”) moves to strike portions of Plaintiff’s SAC. (Notice of Motion Briana, pgs. 2-3; C.C.P. §§435, 436, 1021.)

Defendant Eric Pattillo (“Eric”) moves to strike portions of Plaintiff’s SAC. (Notice of Motion Eric, pgs. 2-3; C.C.P. §§435, 436, 1021.)

Before filing a motion to strike, moving party’s counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading to reach an agreement that would resolve the objections to the pleading and obviate the need for filing a motion to strike. (C.C.P. §435.5.) The moving party must identify all the specific allegations it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading must explain with legal support the basis for its position that the pleading is legally sufficient, or, if it is not, how the pleading could be amended to cure any legal insufficiency. (C.C.P. §435.5(a)(1).) A declaration must be filed with the motion to strike regarding the results of the meet and confer process. (C.C.P. §435.5(a)(3).) C.C.P. §435.5 contains no provision for compelling compliance with its meet and confer requirement, and the failure to sufficiently meet and confer is not a ground to grant or deny the motion to strike. (C.C.P. §435.5(a)(4).)

Pereira Defendants’ counsel declares that on November 17, 2022, counsel sent a meet and confer letter to Plaintiff to arrange a telephone all for November 21, 2022, at 10:00 AM for parties to meet and confer. (Decl. of Brownstein ¶¶2-3, Exh. A.) Pereira Defendants’ counsel declares that he left voicemails for Plaintiff and Plaintiff returned counsel’s call indicating he had not received the hard copy of the letter and does not do emails. (Decl. of Brownstein ¶4.) Pereira Defendants’ counsel declares the meet and confer was rescheduled to November 22, 2022, at 10:00 AM, at which time counsel called Plaintiff and left a voicemail. (Decl. of Brownstein ¶4.) Counsel declares he received no calls from Plaintiff on November 23, 25, 26 or 27; however, on December 2, 2022, he received Plaintiff’s response to the meet and confer letter, dated November 23, 2022, in which he addressed Pereira Defendants’ meet and confer letter. (Decl. of Brownstein ¶5, Exh. B.) Pereira Defendants’ counsel demonstrated good faith efforts to meet and confer to resolve issues on the instant motion without court intervention, and the Court will consider Pereira Defendants’ motion.

USSC Defendants’ counsel declares she met and conferred with Plaintiff on December 13, 2022. (Decl. of Wright ¶¶4-5, Exh. A.) USSC Defendants’ counsel declares that she attempted to discuss the contents of an email she sent to Plaintiff the day before regarding the deficiencies of his SAC, but Plaintiff engaged in uncivil conduct and hung up on her; as such, parties could not come to an agreement out of court. (Decl. of Wright ¶¶4-5, Exh. A.) USSC Defendants’ counsel demonstrated a good faith effort to meet and confer to resolve issues of the instant motion without court intervention, and the Court will consider USSC Defendants’ motion.

Stephen Defendants’, Defendant Briana’s, and Defendant Eric’s counsel declares on December 7, 2022, he sent an email and letter to Plaintiff to meet and confer and requested Plaintiff contact him by telephone on December 8 or 9, 2022, at 10:00 AM, or alternatively for Plaintiff to provide his availability to confer. (Decls. of Mallory ¶¶3-4, Exh. A.) Stephen Defendants’, Defendant Briana’s, and Defendant Eric’s counsel declares Plaintiff did not reach him by phone call, email, or letter to respond to his meet and confer request, and as such, parties did not reach an agreement to resolve the issues in the SAC without Court intervention. (Decls. of Mallory ¶5.) Stephen Defendants’, Defendant Briana’s, and Defendant Eric’s counsel demonstrated a good faith effort to meet and confer to resolve issues of the instant motion without court intervention, and the Court will consider Stephen Defendants’, Defendant Briana’s, and Defendant Eric’s motions.

Plaintiff’s SAC alleges thirteen causes of action: (1) civil conspiracy, (2) fraud (I), (3) tortious interference (I), (4) defamation, (5) invasion of privacy, (6) trespass, (7) conversion, (8) tortious interference (II), (9) fraud (II), (10) gross negligence, (11) appropriation, (12) intentional infliction of emotional distress (“IIED”), and (15) receipt of stolen property.[1] The facts alleged in Plaintiff’s SAC arise from an alleged conspiracy by members of southern California stamp clubs against Plaintiff, beginning in 2018, to convert Plaintiff’s stamps, philatelic covers, books, stamp albums, stamp collections, and items kept by Plaintiff in roughly 200 banker boxes (“Inventory”) at a storage unit (“Unit C94”) in Hawthorne, California. (See SAC pgs. 4, 5.)

Motions to strike can be used to reach defects in or objections to pleadings that are not challengeable by demurrer. Complaints, cross-complaints, answers and demurrers are all subject to a motion to strike. (C.C.P. §435(a)(2).) Moreover, a motion to strike can be used to attack the entire pleading, or any part thereof, i.e., even single words or phrases. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393-394; Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)

Pereira Defendants filed the instant motion on December 16, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition to all moving Defendants’ motions to strike. As of the date of this hearing, Pereira Defendants have not filed a reply. This Court ruled on Pereira Defendants’ demurrer to Plaintiff’s SAC, filed contemporaneously with this motion to strike, on March 23, 2023. (3/23/2023 Ruling.)

Pereira Defendants move to strike the following portions of the SAC: (i) pgs. 3:17-4:11 because there is a misjoinder of Pereira Defendants with the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 13th, and 14th causes of action, which do not name or affect Pereira Defendants; (ii) the factual allegations on pgs. 10:23-18:27, which does not involve Pereira Defendants; (iii) the factual allegations referred to as “B.” of the SAC starting at pg. 19:1, because Pereira Defendants are not named; (iv) the summary at pgs. 24:19-25:10; (v) reference to the “Hawthorne Heist” at pg. 25:11; (vi) statements starting at pg. 34:24-35:11 because they do not state facts sufficient to state a cause of action and are based entirely on unsupported hearsay; (vii) SAC ¶139 on the basis that there is nothing to support the allegations, the statements are vague and ambiguous, the statements are inadmissible hearsay, and are irrelevant to the contentions raised in the FAC; (viii) pg. 41:23-28 constitutes mere opinion of Plaintiff which are not statements of fact; and (ix) Plaintiff failed to state facts sufficient to support the contentions raised in SAC ¶¶139, 140, 143, or 144. (Motion Pereira, pgs. 6-10.)

Pereira Defendants argue pages 3:17-4:11 should be stricken because there is a misjoinder of Pereira Defendants in the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 13th, and 14th causes of action. Pereira Defendants also argue the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 13th, and 14th causes of action involve defendants that have nothing to do with Pereira Defendants (SAC pages 10:23-18:27, 24:19-20:10, 32:6-7). The issue of misjoinder was addressed in Pereira Defendants’ demurrer, which is also the more appropriate motion to challenge issues of misjoinder in pleadings. Accordingly, Pereira Defendants’ argument on the basis of misjoinder of parties is denied as moot.

Pereira Defendants argue Plaintiff calls the purported robbery the “Hawthorne Heist” starting at SAC ¶2 at page 25:11. Pereira Defendants fail to argue why this term should be stricken from Plaintiff’s SAC. Accordingly, Pereira Defendants’ motion to strike this term is denied.

Pereira Defendants argue the mention of Pereira Defendants “is limited to Plaintiff’s hearsay statements” at SAC page 34:15-18, that his “dearest friend paid the source of the stamps, Vidal $1,700 on May 22, 2018, and that ‘he lost on the deal,’” and on pages 32:25-26 that he “visited the store on three occasions, once on September 10, 2018 . . . ; once in mid-October 2018 and once in early January 2019.” (Motion Pereira Defendants, pg. 8.) Pereira Defendants argue Plaintiff’s statements at pages 34:24-35:11 should be stricken because they do not state facts sufficient to state a cause of action and are based entirely on hearsay statements. (Motion Pereira Defendants, pg. 8.) Pereira Defendants argue there is nothing to support the allegations in SAC ¶¶139, 140, 143, or 144 because Plaintiff has failed to state facts sufficient to support the contentions raised in the paragraphs. (Motion Pereira Defendants, pgs. 8-10.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court’s own files or records). (C.C.P. §437.) The Court must therefore take Plaintiff’s allegations in his pleading as true. Accordingly, Pereira Defendants’ motion to strike the allegations is denied.

USSC Defendants filed the instant motion on December 16, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, USSC Defendants filed their reply. Plaintiff argues USSC Defendants’ motion was late filed and should be denied without consideration of the merits. The Court, in its discretion, will consider USSC Defendants’ late-filed motion. This Court ruled on USSC Defendants’ demurrer to Plaintiff’s SAC, filed contemporaneously with this motion to strike, on March 23, 2023. (3/23/2023 Ruling.)

In support of their motion, USSC Defendants move to strike the following portions of Plaintiff’s SAC: (1) SAC Page 7 ¶15, stating, “The aforementioned heist was carried out through a fraud and conversion scheme organized by the staff of the US Storage Centers – South Bay storage facility in Hawthorne, CA. The storage facility’s corporate management enabled and ratified the heist that, for all intents and purposes, consisted of numerous criminal acts including no less than breaking and entering, burglary, grand theft, larceny, receipt and sale of stolen property, trespass and conversion”; (2) SAC Page 75 ¶372, stating, “This Cause of Action is brought under the California Civil Code and under California Penal Code section 602”; (3) SAC Page 79 ¶379, stating, “Plaintiff’s emotional distress due to the trespass and concomitant heist loss was proximately caused by the intentional trespass and conspiracy by WILLIAMS, PATTILLO, BP, EP and DOE[S]. The trespass was pre-meditated, willful, outrageous, cruel and made with fraud, malice and oppression”; (4) SAC Page 79 ¶380, stating, “Plaintiff is entitled to actual – both special and general – and punitive damages”; (5) SAC Page 79 ¶381, stating, “Where allowed by law, Plaintiff is entitled to treble damages”; (6) SAC Page 84 ¶428, stating, “All acts by WESTPORT, USSC, MINI, WILLIAMS and DOE[S] were done with oppression and malice”; (7) SAC Page 84 ¶429, stating, “Plaintiff requests actual damages – both special and general – and punitive damages”; (8) SAC Page 84 ¶430, stating, “Plaintiff claims treble damages under California Penal Code 496”; (9) SAC Page 89 ¶449, stating, “The aforementioned fraudulent acts harmed Plaintiff in both an economic and non-economic fashion, were willful, outrageous, cruel and done with dirty hands, guile, malice and oppression, were not negligent and were done in conspiracy by Defendants PATTILLO, QSS, ORCO, PEREIRA, SCCAS and others, i.e., DOE[S], for their own unjust enrichment”; (10) SAC Page 89 ¶450, stating, “Intentional infliction of emotional harm and distress is a consequence of the conversion by aforementioned co-conspirator Defendants”; (11) SAC Page 89 ¶451, stating, “Plaintiff is entitled to actual – both special and general – and punitive damages”; (12) SAC Page 89 ¶452, stating, “Plaintiff claims treble damages”; (13) SAC Page 91 ¶468, stating, “All acts by aforementioned Defendants were willful, outrageous, cruel and done with malice and oppression”; (14) SAC Page 91 ¶470, stating, “Actual damages – both special and general – and punitive damages are requested”; (15) SAC Page 91 ¶471, stating, “Treble actual damages under California Penal Code 496(a) and 496(b) are requested”; (16) SAC Page 91 ¶471, stating, “Similarly, attorney’s fees and costs of suit are requested”; (17) SAC Page 91 ¶472, stating, “An order by this court for all aforementioned Defendants in the conversion pipeline to account for and return the Inventory in full is appropriate, equitable and just”; (18) SAC Page 95 ¶513, stating, “The intentional interference through the above torts by WILLIAMS, and any assisting DOE[S], was willful, outrageous and cruel conduct, done with malice and oppression, that intentionally inflicted injury, loss of stolen property, economic harm, non-economic harm and emotional distress upon Plaintiff”; (19) SAC Page 95 ¶516, stating, “Plaintiff is entitled to actual – both special and general – and punitive damages”; (20) SAC Page 95 ¶517, stating, “Where allowed by law, treble damages are claimed”; (21) SAC Page 104 ¶557, stating, “All misrepresentations, concealments, deceit and fraud by Defendants WESTPORT, USSC, MINI, WILLIAMS and DOE[S], in conspiracy, were intentional, willful, outrageous, cruel and done with malice and oppression”; (22) SAC Page 104 ¶558, stating, “Plaintiff is entitled to actual – both special and general – and punitive damages”; (23) SAC Page 104 ¶559, stating, “Where allowed by law, Plaintiff claims treble damages”; (24) SAC Page 110 ¶593, stating, “Defendants’ actions and omissions were in conspiracy with others, willful, outrageous, cruel and done with malice, oppression and with reckless disregard for the truth and Plaintiff’s rights; (25) SAC Page 110 ¶594, stating, “Defendants’ actions caused and contributed to Plaintiff’s severe emotional distress due to the theft of the Inventory”; (26) SAC Page 110 ¶595, stating, “The level of negligence on the part of Defendants is so egregious that it must be reasonably attributed to gross negligence”; (27) SAC Page 110 ¶598, stating, “Actual and compensatory damages equal to any funds provided by Plaintiff to Defendants for use of Unit C94, according to proof, are claimed by Plaintiff”; (28) SAC Page 110 ¶600, stating, “Punitive damages are also claimed”; (29) SAC Page 110 ¶601, stating, “Treble damages, where allowed by law, are claimed”; (30) SAC Page 114 ¶645 in its entirety; (31) SAC Page 114 ¶646, stating, “Plaintiff alleges that the specified Defendants below engaged in outrageous conduct – including numerous instances of threats of physical or future physical harm – and such intentional, guileful, oppressive and malicious conduct caused Plaintiff severe emotional distress”; (32) SAC Page 117 ¶649 in its entirety; (33) SAC Page 118 ¶650 in its entirety; (34) SAC Page 118 ¶651, stating, “Said torts were willful, outrageous, cruel and committed with fraud, malice and oppression”; (35) SAC Page 118 ¶652, stating, “Said torts are barred by the California Penal Code section 422 under Criminal Threats”; (36) SAC Page 118 ¶665, stating, “Plaintiff is entitled to actual – both special and general – and punitive damages”; (37) SAC Page 118 ¶656 [sic], stating, “Where allowed by law, Plaintiff is entitled to treble damages”; (38) SAC Page 123 ¶678, stating, “Plaintiff brings this Cause of Action under the California Penal Code sections 496(a) and 496(b)”; (39) SAC Page 123 ¶679, stating, “Said torts described above were contrived and perpetrated with fraud, malice and oppression to harm Plaintiff, to inflict emotional distress and to unjustly enrich all Defendants noted in this Cause of Action”; (40) SAC Page 123 ¶681, stating, “Plaintiff is entitled to treble actual damages – both special and general – and punitive damages”; (41) SAC Page 123 ¶682, stating, “Plaintiff is also entitled to reasonable attorney’s fees and costs of suit”; (42) SAC Page 125 ¶708 in its entirety; (43) SAC Page 126 ¶709(a), stating, “For immediate return and accounting for all of Plaintiff’s property, i.e., Inventory, or, in the alternative, for all of Plaintiff’s compensatory and actual damages in the amount of no less than $4,000,000 and, if applicable under law, for three times actual damages”; (44) SAC Page 126 ¶709(b), stating, “For interest on actual damages at the maximum interest rate permitted by law”; (45) SAC Page 126 ¶709(c), stating, “For exemplary and punitive damages as allowed by law [including under California Penal Code sections 459, 487, 496 and 602 and California Civil Code section 3294] and interest”; (46) SAC Page 126 ¶710, stating, “All sums paid by Plaintiff for the use of Unit C94 from November 12, 2015 to August 31, 2018”; (47) SAC Page 128 ¶715(a), stating, “For three times actual damages – where allowed by law”; (48) SAC Page 128 ¶715(b), stating, “For punitive damages – where allowed by law”; (49) SAC Page 128 ¶715(c), stating, “For all of Plaintiff’s legal fees including reasonable attorney’s fees”; and (50) SAC Page 128 ¶715(d), stating, “For all of Plaintiff’s costs of suit.” (Notice of Motion USSC, pgs. 2-6.)

Each separately stated cause of action, count, or defense must specifically state:

(3) The party asserting it if more than one party is represented on the pleading (e.g., “by plaintiff Jones”); and

(4) The party or parties to whom it is directed (e.g., “against defendant Smith”).

USSC Defendants argue Plaintiff’s SAC violates the C.R.C. rule requiring “separate causes of action” by “cramming” several causes of action into what is presented as one cause of action although this Court noted this same issue of “confusion” in Plaintiff’s initial Complaint, which has not been adequately amended in the SAC. (12/15/21 Minute Order, pg. 22.) Specifically, USSC Defendants argue Plaintiff’s 6th, 7th, 8th, 9th, and 10th causes of action cram several causes of action into what is presented as one cause of action. In light of this Court’s ruling on USSC Defendants’ demurrer to SAC, the motion to strike on this issue is moot as to the 8th, 9th, and 10th causes of action. However, the 6th cause of action for trespass, SAC page 75, ¶372 states, “This Cause of Action is brought under the California Civil Code and under California Penal Code section 602,” and SAC page 79 ¶379 states, “Plaintiff’s emotional distress due to the trespass and concomitant heist loss was proximately caused by the intentional trespass and conspiracy by WILLIAMS, PATTILLO, BP, EP and DOE[S]. The trespass was pre-meditated, willful, outrageous, cruel and made with fraud, malice and oppression.” (SAC ¶¶372, 379.) USSC Defendants fail to identify specific lines and page numbers or paragraphs in Plaintiff’s 7th cause of action for conversion regarding this same issue.

USSC Defendants’ motion to strike SAC page 75, ¶372 and SAC page 79 ¶379 is denied as not drawn in conformity with C.R.C., Rule 2.112.

C.C.P. §425.10(a) states: “A complaint or cross-complaint shall contain . . . [a] statement of the facts constituting the cause of action, in ordinary and concise language.” (C.C.P. §425.10(a)(1).)

USSC Defendants argue Plaintiff’s SAC is not written in “ordinary and concise language,” because it runs over one hundred twenty (120) pages not counting the evidentiary material appended as exhibits (which on its own is more than three-hundred pages). (Motion USSC Defendants, pg. 13.) USSC Defendants argue most of the SAC is unintelligible including where it is replete with irrelevant argument, commentary, rhetorical questions, legal conclusions, and personal opinions. (Motion USSC Defendants, pg. 13.)

While the Court agrees Plaintiff’s SAC is not concise and at times includes unnecessary and irrelevant commentary and personal opinions, USSC Defendants fail to identify specific lines and page numbers or paragraphs in their argument indicating language to be stricken. Accordingly, USSC Defendants’ motion to strike portions of the SAC as not drawn in conformity with C.C.P. §425.10(a)(1) is denied.

C.C.P. §425.10(a)(2) requires: “A demand for judgment for the relief to which the pleader claims to be entitled.” (C.C.P. §425.10(a)(2).)

USSC Defendants argue Plaintiff’s SAC violates C.C.P. §425.10(a)(2) because SAC ¶¶703 and 704 in Plaintiff’s Prayer for Relief states that Plaintiff is seeking relief against USSC Defendants on the 12th cause of action for Intentional Infliction of Emotional Distress and 15th cause of action for Receipt of Stolen Property without pleading any facts against USSC Defendants to support such claims. (Motion USSC Defendants, pg. 14.) In light of USSC Defendants’ demurrer, USSC Defendants’ motion as to the 12th cause of action is moot. However, Plaintiff sufficiently includes allegations against USSC Defendants in his 15th cause of action. Accordingly, USSC Defendants’ motion to strike portions of the SAC as not drawn in conformity with C.C.P. §425.10(a)(2) is denied.

USSC Defendants argue, as stated in the Rental Agreement, “US Storage Centers - South Bay” is a fictitious business name of Hawthorne Mini Venture, LLC, and a fictitious business name is not a separate legal entity. (Providence Washington Insurance Co. v. Valley Forge Insurance Co. (1996) 42 Cal.App.4th 1194, 1200.) USSC Defendants argue Plaintiff incorrectly named US Storage Centers, Inc., as a Defendant and was directed by this Court to “cure the confusion as it relates to these Defendants.” (12/15/22 Minute Order.) In light of this Court’s ruling on the demurrer, USSC Defendants’ motion to strike is granted as to SAC ¶18, alleging USSC as “US Storage Centers, Inc.”

USSC Defendants’ argument regarding Defendant Williams’ alleged actions in his official capacity, as well as USSC’s, Westport’s, and Hawthorne Mini Venture’s vicarious liability for Williams’ alleged conduct has been addressed in the Court’s ruling on USSC Defendants’ demurrer and is therefore denied as moot.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code §3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Id.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Id.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) Punitive damages may not be sought based on breach of an obligation arising out of a contract. (Civ. Code §3294(a) [“In an action for the breach of an obligation not arising from contract . . . .”]; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960.)

USSC Defendants argue Plaintiff’s claims for punitive damages are insufficient because Plaintiff does not allege malice, oppression, or fraud on the part of any of the USSC Defendants. (See ¶¶380, 429, 600.) USSC Defendants argue Plaintiff only alleges “[a]ll misrepresentations, concealments, deceit and fraud by Defendants WESTPORT, USSC, MINI, WILLIAMS and DOE[S], in conspiracy, were intentional, willful, outrageous, cruel and done with malice and oppression.” (SAC ¶557.) Further, USSC Defendants argue Plaintiff’s claims against USSC Defendants based on breach of contract cannot, as a matter of law, also seek punitive damages. In light of this Court’s ruling on the demurrer, USSC Defendants’ motion to strike Plaintiff’s claims for punitive damages is granted against USSC Defendants.

“Claims based upon statutes which provide for mandatory recover of damages additional to actual losses incurred, such as treble damages, are considered penal in nature, and thus are governed by the one-year limitations period under [C.C.P. §340].” (G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277.)

USSC Defendants argue Plaintiff seeks treble damages but does not plead a basis to seek treble damages against USSC Defendants. (SAC ¶¶381, 430, 452, 471, 517, 559, 601, 656, 681.) Plaintiff’s claims for treble damages are supported by his 15th cause of action for receiving stolen property. Penal Code §496(c) provides that “[a]ny person who has been injured by a violation of [§496](a) or (b) may bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees.” Accordingly, Plaintiff’s claim for treble damages is proper only as to the 15th cause of action. As such, USSC Defendant’s motion to strike is granted as to ¶¶381, 430, 452, 471, 517, 559, 601, and 656, and denied as to ¶681.

An award of attorney’s fees is proper when authorized by contract, statute, or law. (C.C.P. §§1032(b), 1033.5(a)(10).)

USSC Defendants argue Plaintiff’s claim for attorneys’ fees is improper and should be stricken because he does not plead a basis to seek attorneys’ fees against USSC Defendants. While Plaintiff has a basis for seeking attorneys’ fees under Penal Code §496(c), his cause of action for receiving stolen property, Plaintiff does not provide a basis for seeking attorneys’ fees for the conversion and “possibly associated torts” claims. Accordingly, USSC Defendants’ motion to strike Plaintiff’s claims for attorneys’ fees is granted as to ¶¶471 and 715 and denied as to ¶682.

“Disgorgement as a remedy is broader than restitution or restoration of what the plaintiff lost.” (County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 542.) “There are two types of disgorgement: restitutionary disgorgement, which focuses on the plaintiff’s loss, and nonrestitutionary disgorgement, which focuses on the defendant’s unjust enrichment.” (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1013.)

Plaintiff seeks disgorgement against USSC Defendants but does not state the grounds entitling him to disgorgement. (SAC ¶710.) Plaintiff’s claim for disgorgement as a remedy is improper. USSC Defendants’ motion to strike SAC ¶710 is granted.

Based on the foregoing, USSC Defendants’ motion to strike is granted as to SAC ¶¶372 and 379; SAC ¶18, alleging USSC as “US Storage Centers, Inc.”; Plaintiff’s claims for punitive damages; Plaintiff’s claims for treble damages as to SAC ¶¶381, 430, 452, 471, 517, 559, 601, and 656; Plaintiff’s claims for attorneys’ fees as to ¶¶471 and 715; and Plaintiff’s claim for disgorgement as to SAC ¶710 as to USSC Defendants.

Stephen Defendants filed the instant motion on December 15, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, Stephen Defendants filed their reply. This Court ruled on Stephen Defendants’ demurrer to Plaintiff’s SAC, filed with this motion to strike, on March 23, 2023. (3/23/2023 Ruling.)

In support of their motion, Stephen Defendants move to strike the following portions of Plaintiff’s SAC: (1) ¶77 “malice and oppression”; (2) ¶143 “malice and oppression”; (3) ¶174 “malice and oppression”; (4) ¶175 “punitive damages”; (5) ¶283 “malice and oppression”; (6) ¶285 “punitive”; (7) ¶286 “oppression and malice”; (8) ¶287 “punitive”; (9) ¶379 “malice and oppression”; (10) ¶380 “punitive”; (11) ¶449 “malice and oppression”; (12) ¶451 “punitive”; (13) ¶456 “oppression and malice”; (14) ¶457 “punitive”; (15) ¶464 “oppression and malice”; (16) ¶468 “malice and oppression”; (17) ¶470 “punitive”; (18) ¶471: “attorney’s fees and costs of suite are requested”; (19) ¶504 “malice and oppression”; (20) ¶507 “malice and oppression”; (21) ¶509 “punitive”; (22) ¶644 “malice and oppression”; (23) ¶646 “oppressive and malicious”; (24) ¶651 “malice and oppression”; (25) ¶658 “punitive”; (26) ¶679 “malice and oppression”; (27) ¶681 “punitive”; (28) ¶682 “Plaintiff is also entitled to reasonable attorney’s fees and costs of suit”; (29) ¶691 “malicious”; (30) ¶708 “malicious and oppressive”; (31) ¶709 “exemplary and punitive”; (32) ¶711 “exemplary and punitive”; (33) ¶715 “punitive”; and (34) ¶715 “For all of Plaintiff’s legal fees including reasonable attorney’s fees.” (Notice of Motion Stephen, pgs. 2-3.)

Stephen Defendants argue Plaintiff’s SAC does not meet the heightened pleading standard to obtain punitive damages. (MTS Stephen, pg. 9.) Plaintiff’s conclusory allegations that Defendant Stephen’s conduct was “done with malice and oppression” does not justify the inclusion of a punitive damages claim in the SAC because Plaintiff’s allegations do not allege Defendant Stephen had a conscious disregard for plaintiff’s rights to be more than simple negligence, only that the actions of defendants were “contrived and perpetrated with fraud, malice, and oppression.” (See SAC ¶¶77, 143, 174, 283, 286, 379, 449, 456, 464, 468, 504, 507, 644, 646, 651, 679, 691, 708.) Stephen Defendants’ motion to strike punitive damages is granted as to Stephen Defendants.

Stephen Defendants argue Plaintiff does not set forth a contract, statute, or other law which would allow him to recover his legal fees if he prevails. However, Plaintiff is entitled to attorneys’ fees in his 15th cause of action pursuant to Penal Code §496(c), which he has pled in his SAC. Accordingly, Stephen Defendants’ motion to strike Plaintiff’s claim for attorneys’ fees is granted as to SAC ¶¶471 and 715 and denied as to ¶682.

Based on the foregoing, Stephen Defendants’ motion to strike is granted as to punitive damages and attorneys’ fees as to SAC ¶¶471 and 715 as to Stephen Defendants.

Defendant Briana filed the instant motion on December 15, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, Defendant Briana filed her reply. This Court ruled on Defendant Briana’s demurrer to Plaintiff’s SAC, filed with this motion to strike, on March 23, 2023. (3/23/2023 Ruling.)

In support of her motion, Defendant Briana moves to strike the following portions of Plaintiff’s SAC: (1) ¶143 “malice and oppression”; (2) ¶379 “malice and oppression”; (3) ¶380 “punitive”; (4) ¶468 “malice and oppression”; (5) ¶471: “attorney’s fees and costs of suite are requested”; (6) ¶679 “malice and oppression”; (7) ¶681 “punitive”; (8) ¶682 “Plaintiff is also entitled to reasonable attorney’s fees and costs of suit”; (9) ¶691 “malicious”; (10) ¶708 “malicious and oppressive”; (11) ¶709 “exemplary and punitive”; (12) ¶715 “punitive”; and (13) ¶715 “For all of Plaintiff’s legal fees including reasonable attorney’s fees.” (Notice of Motion Briana, pg. 2.)

Defendant Briana makes the same arguments stated in Stephen Defendants’ motion above. For the same reasons, Defendant Briana’s motion to strike punitive damages is granted as to Defendant Briana.

Defendant Briana makes the same arguments stated in Stephen Defendants’ motion above. For the same reasons, Defendant Briana’s motion to strike Plaintiff’s claim for attorneys’ fees is granted as to SAC ¶¶471 and 715 as to Defendant Briana and denied as to ¶682.

Based on the foregoing, Defendant Briana’s motion to strike is granted as to punitive damages and attorneys’ fees as to SAC ¶¶471 and 715 as to Defendant Briana.

Defendant Eric filed the instant motion on December 15, 2022. On February 22, 2023, Plaintiff filed his omnibus opposition. On March 1, 2023, Defendant Eric filed his reply. This Court ruled on Defendant Eric’s demurrer to Plaintiff’s SAC, filed with this motion to strike, on March 23, 2023. (3/23/2023 Ruling.)

In support of his motion, Defendant Eric moves to strike the following portions of Plaintiff’s SAC: (1) ¶143 “malice and oppression”; (2) ¶379 “malice and oppression”; (3) ¶380 “punitive”; (4) ¶468 “malice and oppression”; (5) ¶471: “attorney’s fees and costs of suite are requested”; (6) ¶679 “malice and oppression”; (7) ¶681 “punitive”; (8) ¶682 “Plaintiff is also entitled to reasonable attorney’s fees and costs of suit”; (9) ¶691 “malicious”; (10) ¶708 “malicious and oppressive”; (11) ¶709 “exemplary and punitive”; (12) ¶715 “punitive”; and (13) ¶715 “For all of Plaintiff’s legal fees including reasonable attorney’s fees.” (Notice of Motion Eric, pg. 2.)

Defendant Eric makes the same arguments stated in Stephen Defendants’ motion above. For the same reasons, Defendant Eric’s motion to strike punitive damages is granted as to Defendant Eric.

Defendant Eric makes the same arguments stated in Stephen Defendants’ motion above. For the same reasons, Defendant Eric’s motion to strike Plaintiff’s claim for attorneys’ fees is granted as to SAC ¶¶471 and 715 as to Defendant Eric and denied as to ¶682.

Based on the foregoing, Defendant Eric’s motion to strike is granted as to punitive damages and attorneys’ fees as to SAC ¶¶471 and 715 as to Defendant Eric.

[1] Demurrers to Plaintiff’s 13th (Burglary) and 14th (Grand Theft) causes of action were previously sustained without leave to amend. (10/12/22 Minute Order, pg. 3.)