Judge: Randy Rhodes, Case: 23CHCV00016, Date: 2023-05-02 Tentative Ruling
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Case Number: 23CHCV00016 Hearing Date: May 2, 2023 Dept: F51
Dept. F-51
Date: 5/2/23
Case #23CHCV00016
DEMURRER WITH MOTION TO STRIKE
Demurrer with Motion to Strike Filed: 2/3/23
MOVING PARTY: Defendant Ma Soledad Gomez Palomino (“Defendant”)
RESPONDING PARTY: Plaintiff Jesus Nunez (“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire complaint. Defendant also seeks an order striking portions of Plaintiff’s complaint referencing punitive damages and emotional distress.
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TENTATIVE RULING: The demurrer is overruled as to Plaintiff’s first cause of action and sustained as to Plaintiff’s second and third causes of action with 20 days leave to amend. The motion to strike is denied in part, and moot in part.
BACKGROUND¿
Plaintiff alleges that on or around 6/1/22, Defendant stole Plaintiff’s 2015 Chevy Silverado (“Subject Vehicle”). (Compl. ¶¶ 4–5.) Plaintiff allegedly recovered possession of the Subject Vehicle in October 2022 with aid of police intervention. (Id. at ¶ 8.)
On 1/4/23, Plaintiff, in pro per, filed his original complaint against Defendant, alleging the following causes of action: (1) Conversion of Personal Property; (2) Emotional Distress; and (3) Punitive Damages.
On 2/3/23, Defendant filed the instant demurrer and motion to strike. On 4/18/23, Plaintiff filed a Substitution of Attorney showing that he had retained counsel and was no longer self-represented. On 4/25/23, Plaintiff filed his opposition. On 4/25/23, Defendant filed her reply.
DEMURRER
Timeliness
The Court observes that Plaintiff’s oppositions to the demurrer and motion to strike were filed late under Code of Civil Procedure section 1005, subdivision (b). Under the statute, “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (Code Civ. Proc. § 1005, subd. (b).)
Here, the deadline for Plaintiff to file and serve his opposition was 4/19/23, nine court days before the date of the instant hearing. Plaintiff filed and served his opposition papers on 4/25/23, four court days late. Consequently, Defendant argues that she “has been unduly prejudiced by PLAINTIFF’s late filing and service as DEFENDANT has only had one (1) calendar day to prepare and file Reply Briefs to both opposition papers.” (Def.’s Reply, 3:17–19.)
Notwithstanding the foregoing, “the law respects form less than substance.” (Civ. Code § 3528.) Additionally, the public policy of California favors adjudicating cases on the merits. (Elston v. City of Turlock¿(1985) 38 Cal.3d 227, 235; Hernandez v. Superior Court¿(2004) 115 Cal.App.4th 1242, 1246.) The Court thus exercises its discretion, under Rule 3.110 of the California Rules of Court, to excuse the untimely filed opposition, particularly where Plaintiff has only recently engaged the representation of counsel.
Moving forward, Plaintiff is advised to take note of the filing deadlines under the statute, as future filings made past the statutory deadlines may result in the Court declining to consider the late-filed papers at the hearing.
Meet-and-Confer
Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)
Here, Defendant’s counsel declares that he met and conferred with Plaintiff telephonically on 2/2/23, the same day he was retained by Defendant, but Plaintiff or his counsel did not respond by the 2/3/23 deadline for Defendant to respond to the complaint. (Decl. of Berc Agopoglu, ¶¶ 5–6.) Therefore, it is unclear whether Defendant’s counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). Nevertheless, a finding “that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41, subd. (a)(4).)
Legal Standard
As a general matter, a party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Here, Defendant¿demurs to Plaintiff’s entire complaint on the grounds that it fails¿to allege facts sufficient to¿state¿a cause of action for conversion, and improperly pleads emotional distress and punitive damages as causes of action.
A. Conversion
Plaintiff’s first cause of action alleges Conversion against Defendant. “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)
Here, Plaintiff alleges that: (1) “at all times herein alleged Plaintiff was and is the registered owner and was and is entitled to possession of a certain: Chevy Silverado 2015;” (2) “on or about from June 01, 2022 to and including that Defendant, Soledad Gomez and Does 1 through 50 did wrongfully and against the will of the Plaintiff did steal, take, and convert to their own use the aforesaid Automobile;” and (3) Plaintiff expended $388 to recover the vehicle, to which Defendant accrued 2,309 miles and physical damage resulting in loss of value of $10,000. (Compl. ¶¶ 4–5, 8–9.)
Defendant argues that “Plaintiff insufficiently pleaded factual allegations to support his conversion claim. First, the Complaint fails to allege a particular description of the property by VIN number failing to show his right to possession of such property. Also, the Complaint filed to state where the alleged wrongful taking the property occurred or how the property was wrongfully taken by Defendant against Plaintiff’s will. Plaintiff also failed to give estimated dates of when Plaintiff demanded Defendant returns the possession of the property.” (Dem. 4:20–25.)
However, the Court notes that Defendant cites to no legal authority requiring these details. This lack of authority is underlined by Defendant’s own statement that “we believe that these facts must be specifically alleged when considering the fact that PLAINTIFF is seeking punitive damages and emotional distress based on the conversion claim.” (Def.’s Reply, 4:7–8.) While the Court agrees with Defendant as to the basic pleading standards required to pursue the relief sought by Plaintiff, it nevertheless finds it sufficient that Plaintiff has alleged facts to support each of the elements required for a cause of action for conversion at this juncture.
Accordingly, the demurrer is overruled as to Plaintiff’s first cause of action.
B. Emotional Distress
Plaintiff’s second cause of action appears to allege against Defendant Emotional Distress. As Defendant notes, “emotional distress is not a cause of action but a form of damages.” (Dem. 5:2.) Moreover, to the extent that Plaintiff seeks to allege a cause of action against Defendant for Intentional Infliction of Emotional Distress, he has not sufficiently alleged facts to support such a cause of action.
“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant's alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047–1048.)
Here, Plaintiff merely alleges that “as a result [of] the wanton, malicious and reckless and intentional acts of the Defendants, Plaintiff has suffered extreme and outrageous emotional and mental distress caused by the acts of the Defendants.” (Compl. ¶ 11.) Plaintiff seemingly concedes that his second cause of action is insufficiently supported by factual allegations, as he requests leave to amend it. (Pl.’s Opp. 5:21–22.)
Based on the foregoing, the Court sustains the demurrer as to Plaintiff’s second cause of action.
C. Punitive Damages
Plaintiff’s third cause of action appears to allege against Defendant Punitive Damages. As with Plaintiff’s second cause of action, punitive damages are a form of monetary damages stemming from a valid underlying cause of action and is not a standalone cause of action.
Defendant argues that “for the same reasons above, assuming arguendo punitive damages is a form of a cause of action, the cause is alleged in speculative and conclusory fashion.” (Dem. 6:9–10.) The Court discusses the pleading standard for punitive damages in further detail below, and notes that here, Plaintiff does not address his third cause of action in his opposition. Accordingly, the Court sustains the demurrer as to Plaintiff’s third cause of action.
LEAVE TO AMEND
Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).¿
Here, the Court notes that this is the first demurrer brought against Plaintiff’s original complaint, and Plaintiff has specifically requested leave to amend the complaint if the Court finds merit in any of Defendant’s arguments. (Pl.’s Opp., 4:1–3.) Accordingly, under the Court’s liberal policy of granting leave to amend, the Court grants Plaintiff 20 days leave to amend the complaint to cure the defects set forth herein.¿
MOTION TO STRIKE
Meet and Confer
“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are required to meet and confer at least five days before the date a motion to strike must be filed, otherwise the moving party is granted a 30-day extension to file the motion. (Ibid.)
Here, as previously mentioned, Defendant’s counsel declares that he met and conferred with Plaintiff by telephone on 2/2/23, the same day he was retained by Defendant, but Plaintiff or his counsel did not respond by the 2/3/23 deadline for Defendant to respond to the complaint. (Agopoglu Decl., ¶¶ 5–6.) Therefore, it is unclear to the Court whether counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 435.5, subdivision (a). Nevertheless, a finding “that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a)(4).)
A. Punitive Damages
Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (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 Cent. Cal., 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. (Ibid.) “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. (Ibid.)
Punitive damages must be supported by factual allegations. 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; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)
Here, Defendant argues that “the Complaint does not specifically and factually plead any malicious, oppressive, or fraudulent conduct of Defendant.” (MTS 6:4–5.) Plaintiff alleges in his complaint that the Subject Vehicle “was and is [at all times herein alleged] the sole means of transportation for work for Plaintiff,” and that he “lost work income and opportunities for work in the sum of $40,000 as a result of the theft and conversion of his Automobile.” (Compl. ¶¶ 7–8.) Consequently, Plaintiff seeks punitive damages resulting from Defendant’s “malicious, reckless and intentional” conduct. (Id. at ¶ 14.)
Based on the foregoing, the Court finds that at this stage, Defendant’s alleged conduct as pled may be considered malicious and oppressive as defined by Civil Code section 3294. Further investigation of the merits of Plaintiff’s allegations can be resolved in discovery. Accordingly, the Court denies Defendant’s motion to strike portions of Plaintiff’s complaint which reference punitive damages.
B. Emotional Distress
Defendant further argues that Plaintiff’s prayer for monetary damages resulting from “emotion and mental distress” should be stricken because “Plaintiff failed to show extreme circumstances to show his entitlement to emotional distress damages.” (MTS 6:16–17.) Additionally, Defendant seeks to strike the entirety of Plaintiff’s second and third causes of action for failure to state valid causes of action.
Based on the Court’s foregoing grant allowing Plaintiff leave to amend his complaint to successfully allege, inter alia, intentional infliction of emotional distress, the remaining issues in the motion to strike are moot.
CONCLUSION¿
The demurrer is overruled as to Plaintiff’s first cause of action and sustained as to Plaintiff’s second and third causes of action with 20 days leave to amend. The motion to strike is denied in part, and moot in part.