Judge: Monica Bachner, Case: 22STCV02513, Date: 2022-09-29 Tentative Ruling

Case Number: 22STCV02513    Hearing Date: September 29, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Shafran Construction Inc.’s motion to strike certain allegations from the Complaint is granted as to Plaintiff’s prayer for exemplary damages and ¶57 in its entirety, and denied as to the word “intentionally” in ¶52. Plaintiff may amend as to the punitive damages claim only, within 20 days.

Background

          On January 21, 2022, Plaintiff John Hadjar (“Hadjar”) (“Plaintiff”) filed a complaint against Defendant Shafran Construction Inc. (“Shafran”) (“Defendant”) arising from a residential remodeling project, alleging causes of action for (1) breach of contract, (2) breach of covenant of good faith and fair dealing, (3) breach of implied warranties, (4) negligence, (5) conversion, and (6) money had and received. On March 22, 2022 Defendant filed the instant Motion to Strike. Plaintiff filed his Opposition on September 12, 2022.  Defendant filed its Reply on September 21, 2022.

Motion to Strike

Defendant moves to strike Plaintiff’s prayer for exemplary damages in its entirety, the word “intentionally” in ¶52, and ¶57 in its entirety. (Motion, pg. 3.)

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” 

Claims for punitive damages must be based in a “breach of an obligation not arising from contract,” and the complaint must allege facts showing “oppression, fraud, or malice.”  (Civ. Code § 3294(a), (c).)  The facts alleged may not be merely conclusory.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [holding that, without more, the “characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice.’”]; Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042 [“[C]onclusory allegations . . . devoid of any factual assertions,” are insufficient.”].)  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.)

“‘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. ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  ‘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.”  (Civil Code §3294(c)(1)-(3).) 

Plaintiff fails to allege sufficient facts to support their prayer for punitive damages.  Plaintiff’s allegation of misconduct are conclusory and fail to allege malice, oppression or fraud, to support the claim for punitive damages.  The only conduct that Plaintiff suggests is evidence of malice, oppression or fraud the retention of $9,154.39 of City permit fees is insufficient..  (See Opp., pg. 4.) Accordingly, Defendant’s motion to strike ¶ 57 and the request for punitive damages is granted.  Defendant’s request, however, to strike the word “intentionally” from ¶ 52 is denied.

Dated:  September _____, 2022

Hon. Monica Bachner

Judge of the Superior Court