TENTATIVE RULING

Calendar:    7

Date:          6/21/2024 

Case No: 24 NNCV00307 Trial Date: None Set 

Case Name: Zargarian v. Suarez, et al.

MOTION TO STRIKE

Moving Party:            Defendant Shelia Suarez 

Responding Party: Plaintiff Saro Zargarian  (No Opposition)  

RELIEF REQUESTED:

CAUSES OF ACTION: from Complaint   

1) Gross Negligence 

2) Nuisance 

3) Trespass 

SUMMARY OF FACTS:

Plaintiff alleges that in October of 2023, plaintiff was notified by his tenant who resides in plaintiff’s property that the floors of the kitchen, hallways and dining room felt wet, and the home was beginning to smell.  Plaintiff immediately inspected the property, discovered that there was likely significant water intrusion, and contacted RestoKleen, a cleanup remediation contractor.   RestoKleen inspected the property and concluded that water was coming from the neighbor’s property, defendant Suarez’s unit, and it was then discovered that defendant Suarez’s water pipe in the bathroom had burst.  Defendant’s bathroom and plaintiff’s property share a wall.   Plaintiff requested that defendant Suarez provide her insurance information, but Suarez refused to cooperate, and, as the president of the HOA, did not provide the HOA’s insurance information.  

After several unsuccessful attempts to have defendants cooperate, Suarez finally provided plaintiff with her insurance information.  The insurer, Travelers Insurance Company, has submitted a repair offer which is inadequate, covering not even fifteen percent of plaintiff’s property damages.   Plaintiff alleges that defendants negligently owned operated, controlled, maintained or managed the building, when it was their duty to maintain the plumbing of the building in working condition, and also failed to prevent tenants such as plaintiff from being exposed to perilous and unsafe conditions, endangering plaintiff’s health and the property.  It is also alleged that the delay in addressing the damages has subjected plaintiff’s property to foul odors and mold. 

ANALYSIS:

Procedural

Untimely Motion 

Under CCP §436, the court may “upon motion made pursuant to Section 435, or at any time in its discretion” strike out “all or any 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.”  

CRC Rule 3.1322 (b) provides: “A notice of motion to strike must be given within the time allowed to plead…” 

CRC Rule 3.110(d) provides:

“The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period prescribed for the response after service of the initial complaint.”

Unless the parties agree to at least a fourteen-day extension for response, the court will consider whether the motion to strike will be denied as untimely.  

Substantive 

Moving defendant Shelia Suarez seeks to strike from the complaint the prayer for and allegations supporting punitive damages. 

Under CCP § 435, a party may serve and file a motion to strike a part of a pleading.  

Under CCP § 436:

“The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any 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.”

Under CCP § 431.10(c), an “immaterial allegation,” as defined in that section, “means ‘irrelevant matter’ as that term is used in Section 436.”

CCP § 431.10(b) defines an immaterial allegation as follows:

“(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  

CCP § 437 provides, it pertinent part:

(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The process for the trial court in ruling on a motion to strike is summarized by the Second District in Clauson v. Superior Court (1998 2nd Dist.) 67 Cal.App.4th 1253: 

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519, 11 Cal.Rptr.2d 161; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91, 168 Cal.Rptr. 319; see California Judges Benchbook, Civil Proceedings Before Trial (1995) § 12.94, p. 611.)”

Clauson, at 1255.   

Specifically, with respect to the claims for punitive damages, Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…”  “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Civil Code § 3294 (c)(2).   “Malice” is defined to mean “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.”  Civil Code § 3294 (c)(a).   

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible”.   College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.  Such conduct has been described as “[having] the character of outrage frequently associated with crime.”  Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894, quotation omitted.  Punitive damages are appropriate if the defendant’s acts are “reprehensible, fraudulent or in blatant violation of law or policy.”  Tomiselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287. 

It is held that claims for punitive damages cannot be alleged by conclusory allegations that defendant acted intentionally, willfully or fraudulently.  Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.  It is also held that a punitive damages claim must include factual allegations of wrongful motive, intent, or purpose.  Cyrus v. Haveson (1976, 2nd Dist.) 65 Cal.App.3d 306, 317.  

"[A] conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.   In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences." 

Taylor, at 895 896, citations omitted.

 

With respect to the claim for punitive damages against the snowboarder North, the court of appeal observed that since the Supreme Court decision in Taylor, the punitive damages statute had been amended in 1980 to add the definition of malice, and that, “As amended, malice, based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’”  Lackner, at 1211.  The court of appeal noted, “The statute’s reference to ‘despicable conduct’ represents ‘a new substantive limitation on punitive damage awards.’”  Lackner, at 1211, quoting College Hospital, Inc. v. Superior Court (1984) 8 Cal.4th 704, 725.  

“Additionally, the 1987 amendment increased the burden of proof. Malice or oppression must now be established “by clear and convincing evidence.” (Stats.1987, ch. 1498, § 5.) That standard “requires a finding of high probability .... ‘ “so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.” ’ [Citation.]” In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198, superseded by statute on other grounds as stated in Orange County Social Services Agency v. Jill V. (1994) 31 Cal.App.4th 221, 229, 36 Cal.Rptr.2d 848; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.(2000) 78 Cal.App.4th 847, 891, 93 Cal.Rptr.2d 364.)

Lackner, at 1211-1212. 

Defendant argues that the complaint falls short of alleging any facts to warrant punitive damages here and fails to sufficiently allege despicable or willful conduct. 

The complaint as to Suarez alleges that a water pipe in her bathroom had burst, and that she initially refused to cooperate with plaintiff and provide her personal insurance information or that of the HOA.  [Complaint, para. 10].  It is also alleged that Suarez finally provided the insurance information, but that plaintiff’s efforts to obtain relief from Suarez’s insurer were at first unsuccessful, and then disappointing.  [Complaint, paras.  10-17].  No facts are alleged suggesting how Suarez would be responsible for the conduct of her insurer, and it is not clearly alleged that Suarez engaged in any intentional misconduct in connection with the water leak or was at any point aware of any danger to plaintiff which would constitute conscious disregard of plaintiff’s rights or safety supported by facts showing that defendant’s conduct was despicable and willful.  

There are vague allegations that the delay in addressing the damages subjected plaintiff’s property to “foul odors and mold.”  [Complaint, para. 20].  It appears that most of the alleged delay was attributable to the insurer, and there are no clear allegations that defendant was aware of mold issues, or of what the insurer was doing.   The complaint also concedes that plaintiff was not in fact residing at the property at the time, as it is alleged that he was notified about water issues, “by his tenant who resides in his Property.”  [Complaint, para. 9].  

Punitive damages are evidently sought only in connection with the third cause of action for trespass.  The cause of action alleges that “as a direct result of Defendants’ willful, reckless, and careless” operation and maintenance of the water pipes, water intruded onto plaintiff’s property, damaging the property, that requests to address these issues were ignored, and that personal items were also damaged, “as a result of water intrusion and Defendant’s negligence.”  [Complaint, paras. 46-49].   The cause of action accordingly appears to be based on “careless” and negligent conduct, not intentional or malicious conduct.  The cause of action alleges:

“Mr. Zargarian is informed and believes and based thereon alleges that Defendants’ conduct in allowing these dangerous conditions to exist and interfering with Mr. Zargarian’s use of his Property was done maliciously, with intent to oppress Mr. Zargarian, and in conscious disregard of Mr. Zargarian’s rights. Mr. Zargarian is therefore entitled to exemplary and punitive damages in an amount to be determined at trial.”

[Complaint, para. 50]. 

However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion, irrespective of whether leave to amend is requested or not.”  King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.  The court of appeal in King cited to CCP section 472c, which provides, in pertinent part, “the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.”    

This complaint is plaintiff’s first attempt to seek punitive damages and it is not entirely clear from the face of the complaint that it could not be amended to state a claim for punitive damages based on additional facts.   One opportunity to amend will be permitted, if possible. 

The caption of the motion also appears to seek to strike the “improper spelling of defendant’s name.”  This is not addressed in the notice of motion or memorandum.  It appears that defendant is taking the position that her first name stated in the pleading as “Shilla” should be corrected to read “Shelia.” 

It is not clear if this is a proper subject for a motion to strike, and no legal discussion is offered.  The court will, however, order the parties to meet and confer concerning whether, on amendment, plaintiff should correct the spelling of moving defendant’s name. 

RULING:

[No Opposition]

Defendant’s Motion to Strike Improper Spelling of Defendant’s Name and Plaintiff’s Prayer for Punitive Damages:

The Court in its discretion has reluctantly considered the untimely motion to strike, served and filed fourteen days late.  Defendant is cautioned, however, that in the future the court may refuse to consider papers which are not filed in conformity with the statutes, rules, procedures, and deadlines governing this litigation. 

Motion to Strike is GRANTED IN PART WITH LEAVE TO AMEND.   The Court strikes the allegations and prayer for punitive damages on the ground the pleading fails to sufficiently allege specific facts supporting a claim that moving defendant acted with malice, oppression, or fraud. 

Ten days leave to amend, if possible. 

The parties are ordered to meet and confer concerning whether on amendment plaintiff will correct the spelling of moving defendant’s name. 

The parties are ordered to meet and confer in full compliance with CCP §435.5 before any further motion to strike may be filed.  

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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