Judge Ronald F. Frank, Case 21TRCV00531 2023-02-28 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00531, Date: 2023-02-28 Tentative Ruling

Case Number: 21TRCV00531 Hearing Date: February 28, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: February 28, 2023¿¿

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CASE NUMBER: 21TRCV00531

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CASE NAME: Mohammed Abdoun v. South Bay Center SPE, LLC, et al .¿¿¿

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MOVING PARTY: Defendants, CBRE, Inc. and CBRE Group, Inc.

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RESPONDING PARTY: Plaintiff, Mohammed Abdoun

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TRIAL DATE: October 3, 2023

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MOTION:¿ (1) Demurrer¿

(2) Motion to Strike punitive damages allegations

Tentative Rulings: (1) Defendant’s Demurrer is overruled in part, and sustained in part

(2) Granted

I. BACKGROUND¿¿

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A. Factual¿¿

On October 19, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) against South Bay Center SPE, LLC, QIC Properties US, Inc, QIC US Management, Inc, CBRE, Inc, CBRE Group, Inc, L Catterton Real Estate, and DOES 1 through 20. Plaintiffs allege the following causes of action: (1) Breach of Written Contract; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Negligence; (4) Negligent Interference with Prospective Economic Advantage; (5) Intentional Interference with Prospective Economic Relations; (6) Fraud; (7) Defamation/Trade Libel; (8) Negligent Infliction of Emotional Distress; and (9) Intentional Infliction of Emotional Distress.

The FAC is based on the following facts: Defendants and Plaintiff have a license agreement for the use of restaurant space in Defendants’ food court. Plaintiffs claim that Defendants prevented Plaintiffs from properly addressing pest and vermin issues. Therefore, Plaintiff contends compliance with the terms of the license was not possible. Plaintiffs further contend that Defendants unfairly targeted Plaintiffs and have threatened to evict Plaintiffs. Defendants CBRE, Inc. and CBRE Group, Inc. (“CBRE”) now demur to the FAC and have filed a motion to strike portions of Plaintiff’s FAC.

B. Procedural¿¿

On January 13, 2023, Defendants, CBRE filed a Demurrer. On February 14, 2023, Plaintiff filed an opposition to the Demurrer. On February 21, 2023, Defendants filed reply briefs to both.

¿II. MOVING PARTY’S GROUNDS FOR DEMURRER

Defendant CBRE demurs to the Third, Fourth, Fifth, Seventh, Eighth, and Ninth Causes of Action. The SBC Defendants separately and previously demurrer to all causes of action, which was the subject of the Court’s written tentative ruling several weeks ago.

CBRE (and the SBC Defendants) assert that Plaintiff’s third cause of action for negligent infliction of emotional distress fails because Plaintiff failed to allege any facts that would support a special relationship between Defendants and Plaintiff that would trigger a duty to prevent purely economic losses.

CBRE contends that Plaintiff’s fourth cause of action for negligent interference with prospective economic advantage fails because the incorporated facts (namely, the July 5, 2019, Temporary License Agreement entered between South Bay Center SPE, LLC and Burger Spot and attached as Exhibit 1 to the First Amended Complaint), which must be accepted as true for purposes of CBRE’s Demurrer, establish that it was Plaintiff’s duty alone to maintain Plaintiff’s restaurant in a sanitary condition.

Further, CBRE (and the SBC Defendants) argue that Plaintiff’s fifth cause of action for intentional interference with prospective economic advantage fails because Plaintiff failed to allege any facts that demonstrate that (1) CBRE committed an independently wrongful act or (2) CBRE’s alleged acts were designed to disrupt the relationship between Plaintiff and third parties.

CBRE (and the SBC Defendants) also assert that Plaintiff’s seventh cause of action for “defamation / trade libel” fails because Plaintiff failed to allege any kind of statement or publication attributable to CBRE. Plaintiff’s eighth cause of action for “negligent infliction of emotional distress” fails because (1) it is not an independent cause of action and (2) CBRE owed Plaintiff no duty.

Lastly, CBRE (and the SBC Defendants) argue that Plaintiff’s ninth cause of action for intentional infliction of emotional distress fails because Plaintiff failed to allege any facts that CBRE’s conduct was “extreme and outrageous” or that Plaintiff suffered severe emotional distress.

¿III. ANALYSIS¿

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿

B. Discussion

Negligence

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, the FAC alleges that by virtue of their ownership, supervision, operation, management, and control of the Property, the Food Court, and the Mall Spaces, the Owners owed an independent duty of care to Plaintiff, separate and apart from SBC’s obligations under the Agreements, to conduct themselves in a manner to avoid injury and damage to Plaintiff while he occupied the Premises and operated his restaurant in the space. (FAC, ¶ 41.) In particular, Plaintiff asserts that the Owners had the duty to operate, supervise, manage, and control their Property and the Mall Areas in such a way to avoid a pest and vermin infestation which would impact and cause damage to Plaintiff while he occupied the Premises. (FAC, ¶ 41.) Plaintiff further asserts that the Owners affirmatively took on the duty to provide pest control treatment to the Premises, a duty which is not spelled out in the Agreements. (FAC, ¶ 42.) And when the Owners took on this duty, they affirmatively prevented Plaintiff from undertaking his own pest control treatment of the Premises. (FAC, ¶ 42.) By its actions, Plaintiff contends that the Owners took on the duty to perform such pest control treatment in a manner to avoid injury and damage to Plaintiff while he occupied the Premises and operated his restaurant in the space. (FAC, ¶ 42.)

Plaintiff contends that the Owners and Property Managers breached this duty when the negligently owned, supervised, operated, managed, and controlled the Mall areas in allowing a pest and vermin infestation to exist. (FAC, ¶ 44.) Plaintiff argues that this negligence was the proximate cause of pest and vermin invading Plaintiff’s premises, making it impossible for Plaintiff to operate his restaurant, and proximately resulting in Plaintiff being unable to operate his restaurant and his restaurant being shut down by the Los Angeles County Department of Health. (FAC, ¶ 45.) As such, Plaintiff claims he has suffered damages. (FAC, ¶¶ 45, 46.)

The Demurrer asserts that Plaintiff fails to allege any facts that support a special relationship between Plaintiff and CBRE. Defendant asserts that Plaintiff merely alleges that the “Owners employed, directed, and otherwise delegated to its agents, the Property Managers [including CBRE], the duty to provide pest control treatment for the Premises.” (FAC at ¶ 43.)

While it is true that the economic loss doctrine generally bars a negligence cause of action where a party to a contract fails to allege an independent tort duty, the FAC here does allege an independent tort duty and its breach. A landlord or property owner owes the tenant /licensee a tort duty independent of any contractual duty to address pests and vermin that may exist in and around other Mall tenants’ units near the Plaintiff’s to act as a reasonably prudent property owner or property manager as to whom actual or constructive notice of an infestation was given to act with due care to prevent the spread of the pests and/or vermin to other Mall tenants’ premises. Unlike the original Complaint where plaintiff failed to adequate allege a tort duty independent of the Plaintiff’s own lease contract, the FAC alleges in multiple paragraphs facts asserting that Defendants owed an independent duty of care to maintain the adjacent portions of the Mall and Food Court areas surrounding Plaintiff’s leased premises to ensure those areas, the ceiling, and the floor were adequately pest controlled to prevent collateral damage to Plaintiff’s hamburger restaurant. That duty of due care is independent of CBREs’ contractual duties owed to Plaintiff.

“[A] commercial landowner cannot totally abrogate its landowner responsibilities merely by signing a lease. As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781; see Civil Code §1714(a)(“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself” [emphasis added].) The same holds true for the owner’s property manager, under whose auspices the owner’s tenant-related duties may have been ceded by contract with the owner. But the scope of the owner’s and property manager’s negligence duty of due care is limited in many ways. “The duty to inspect should charge the defendant only with those matters which would have been disclosed by a reasonable inspection.” (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 469, overruled as to its strict liability holding in Peterson v. Superior Court (1995) 10 Cal.4th 1185.) A property owner or its property manager can prove that it exercised ordinary care “by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Further, a store owner is not an insurer of the safety of its patrons or, by logical extension, to its tenants. (Id.) In addition, a landlord or property manager “should not be held liable for injuries from conditions over which he has no control. [¶] On the other hand, if a landlord has such a degree of control over the premises that it fairly may be concluded that he can obviate the presence of the dangerous animal and he has knowledge thereof, an enlightened public policy requires the imposition of a duty of ordinary care.” (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 512.)

In the Court’s view, at the demurrer stage, plaintiff has sufficiently alleged the existence of pests and vermin in and around the common areas or adjacent Food Court tenants’ units to justify imposition of a tort duty owed to plaintiff as to the potential hazards and dangers analogous to those of a dangerous animal (Uccello) or secondhand smoke (see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4^th 1540, 1548), if shown to be known by the owner or property manager to exist in the properties of adjacent tenants and lessees or in the common areas. It is for discovery after the pleadings are settled for the parties to develop evidence bearing on what the Defendants may have had actual or constructive notice of and at what time. Accordingly, Plaintiff has alleged facts sufficient to establish that CBRE and the SBC Defendants owed Plaintiff a duty sounding in negligence. For this reason, CBREs’ demurrer to Plaintiff’s third cause of action should be overruled.

Negligent Interference with Prospective Economic Advantage

“The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) the defendant’s knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant’s failure to act with reasonable care; (5) actual disruption of the relationship; and (6) economic harm proximately caused by the defendant’s negligence.” (Redfearn v. Trader Joe’s Co. (2018) 20 Cal.App.5th 989, 1005.)

Here, Plaintiff’s FAC alleges that “SBC and Plaintiff were in an economic relationship. .” (FAC, ¶ 48.) Plaintiff further alleges that “the owners, other than SBC (the “noncontracting owners”), the Property Managers, and DOES 6-12, negligently interfered with the economic relationship between Plaintiff and SBC.” (FAC, ¶ 49.) Plaintiff alleges that the Noncontracting owners, property managers, and DOES 6-12 knew or should have known of this economic relationship, in they were either an owner of the property which includes the premises or they were employed to manage the property, which included the premises.” (FAC, ¶ 50.) Plaintiff contends that the noncontracting owners, property managers, and DOES 6-12 knew or should have knew that this relationship would be disrupted if they failed to act with reasonable care in the ownership, operation management, and control of the Property, including the failure to ensure that the Property, the Mall Areas, and the Premises remained free of pest and vermin infestations which a reasonable person would know would adversely impact the Premises and Plaintiff’s ability to operate his restaurant, and would adversely impact SBC’s ability to provide the Premises in a condition suitable for the operation of a restaurant. (FAC, ¶ 51.)

Plaintiff further alleges that the noncontracting owners, property managers, and DOES 6-12 failed to act with reasonable care in allowing a pest and vermin infestation to exist at the Property, the Mall Areas the Food Court, and the Premises. (FAC, ¶ 52.) Plaintiff contends that due to the actions of the stated defendants, the relationship between SBC and Plaintiff was disrupted, as SBC was unable to provide the Premises in a suitable condition for the operation of a restaurant, and Plaintiff was unable to operate his restaurant. (FAC, ¶ 53.) Plaintiff claims that as a direct and proximate result of the negligent actions, Plaintiff was harmed in that he was unable to operate his restaurant, his restaurant was shut down, and SBC terminated the First Agreement. (FAC, ¶ 54.) Lastly, Plaintiff alleges the wrongful conduct of the noncontracting owners, the property managers, and DOES 6-12 was a substantial factor in causing Plaintiff’s harm, in that if they avoided their conduct that resulting in the pest and vermin infestation at the Property, Mall Areas, and Premises, the relationship would not have been disrupted. (FAC, ¶ 55.)

As noted in its earlier, shorter tentative ruling on the SBC Defendants’ Demurrer, the Court requests that the parties and particularly plaintiff present oral argument at the hearing on February 28, 2023 as to the issue of the relationship of the defendants to each other. On the one hand plaintiff alleges that each of these noncontracting parties were the agents and employees of each other (FAC, ¶9) but for purposes of alleging the tortious interference causes of action they were allegedly acting independently of the contracting parties. These allegations appear to be at odds with the principle that co-defendants who are the alleged agent or employee of the contracting party cannot conspire with nor be held liable for inducing or interfering with contractual relations. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 25; Minz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1604. As such, the Court will take oral argument as to how to reconcile these seemingly inconsistent allegations.

Intentional Interference with Prospective Economic Relations

The elements of a claim for intentional interference with prospective economic advantage include “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, citations, brackets, and quotation marks omitted.) Further, “the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. For an act to be sufficiently independently wrongful, it must be unlawful, that is, it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Ibid., citation, ellipsis, and quotation marks omitted.)

Plaintiff’s FAC alleges that SBC and Plaintiff were in an economic relationship: that of SBC renting the Premises to Plaintiff and Plaintiff’s renting of the Premises from SBC, and Plaintiff’s operation of a restaurant at the Premises in which SBC obtained rent from Plaintiff, benefitted from Plaintiff’s restaurant in SBC’s Food Court which attracted customers to the Mall, and in which Plaintiff obtained an income from his restaurant. (FAC, ¶ 57.) Plaintiff further alleges that Noncontracting Owners, the Property Managers and DOES 6-12, intentionally interfered with the economic relationship between Plaintiff and SBC. (FAC, ¶ 58.) Again, Plaintiff claims the Noncontracting Owners, the Property Managers, and DOES 6-12 knew of this economic relationship, because they were either an owner of the Property which includes the Premises or they were employed to manage the Property which included the Premises. (FAC, ¶ 59.)

Defendants’ demurrer asserts that Plaintiff’s cause of action fails for two reasons. First, Plaintiff fails to allege any facts that demonstrate that CBRE committed an independently wrongful act. Plaintiff merely alleges that CBRE somehow “wrongfully allowed a pest and vermin infestation to exist at the Property . . . .” (FAC, ¶ 60.) Second, Defendants allege that Plaintiff failed to allege any facts that demonstrate that CBRE’s allegedly wrongful acts were designed to disrupt the relationship between Plaintiff and third parties. Plaintiff alleges that CBRE “knew of [the] economic relationship” and “that disruption of the relationship was certain . . . to occur if they wrongfully allowed a pest and vermin infestation to exist” (FAC, ¶¶ 59, 61); however, Plaintiff failed to allege that the alleged wrongful acts were specifically designed to disrupt the relationship between Plaintiff and the owners of the premises.

Again, based on the above, the Court requests that the parties present oral argument at the hearing on February 28, 2023 as to the relationship of the defendants to each other. On the one hand plaintiff alleges that each of these noncontracting parties were the agents and employees of each other (FAC, ¶9) but for purposes of alleging the tortious interference causes of action they were allegedly acting independently of the contracting parties. These allegations appear to be at odds with the principle that co-defendants who are the alleged agent or employee of the contracting party cannot conspire with nor be held liable for inducing or interfering with contractual relations. The Court is inclined to sustain the demurrer but will await the completion of oral argument to confirm that inclination.

Defamation/Trade Libel

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. The defamatory statement must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312, quotation marks and citation omitted.)

Plaintiff claims that Defendants’ inactions caused the Los Angeles County Department of Health to post a notice on April 21, 2021 on Plaintiff’s restaurant, closing the restaurant. (FAC, ¶ 78.) Plaintiff notes that in response to this, he posted a sign at the front of his restaurant next to the county’s closure notice which stated:

“CLOSURE NOTE At The Burger Spot, we have worked hard to uphold the highest standards in every aspect of our service. As a small business, we have been devastated by this closure. We have not been permitted to contract our own pest control services. Instead, we have been forced to rely on the mall and their contracted pest control services. We want to ensure our customers that this closure is not a result of negligence on the part of The Burger Spot. We appreciate our customers and their continued support during this time. Sincerely, Management”

(FAC, ¶ 79.) Plaintiff fails to allege any kind of statement or publication attributable to CBRE. Instead, Plaintiff alleges that “Susan Grant, acting in her scope of employment with CBRE . . . removed this note without the permission of Plaintiff.” (FAC, ¶ 80.) Plaintiff argues that this action caused him to be defamed and for his trade name to be disparaged to the public and customers of the Mall when the Los Angeles County Department of Health posted its closure sign. (FAC, ¶ 81.)

Because Plaintiff alleges only conduct, and not a publication or statement, the Court does not find that Plaintiff alleges sufficient facts to state a cause of action for defamation/trade libel. As such, Defendants’ demurrer is sustained on this cause of action.

Negligent Infliction of Emotional Distress

“The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.)

Here, the FAC alleges that the conduct of Defendants was negligent. (FAC, ¶ 85.) Further, Plaintiff argues that due to Defendants’ conduct, Plaintiff suffered serious emotional distress, including suffering, anguish, anxiety, shock, humiliation and shame, as Defendants conduct caused him to lose his restaurant, and to be subject to disparagement in his business, trade, profession, and long-time occupation of operating a restaurant. (FAC, ¶ 86.) Lastly, Plaintiff alleges that Defendants’ conduct was the sole factor in causing Plaintiff’s serious emotional distress, in that if Defendants had avoided such conduct and conducted themselves in a manner not to cause damage to Plaintiff, Plaintiff could have continued operating his restaurant, and would not have been subjected to such disparagement and distressing circumstances. (FAC, ¶ 87.)

Defendants’ demurrer alleges that this cause of action is not an independent cause of action and is duplicative of Plaintiff’s third cause of action. The Court agrees. As such, Defendants’ demurrer as to the cause of action for Negligent Infliction of Emotional Distress is sustained.

Intentional Infliction of Emotional Distress

“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, citation and ellipses omitted.)

Here, the FAC alleges that the conduct of Defendants, and each of them, as alleged herein, was outrageous and that the failure of Defendants to provide proper pest control treatment for the Property, and especially for the Food Court and the Mall Areas surrounding the Premises and the Premises while Plaintiff operated his restaurant is shocking conduct for parties who are responsible for a facility which rents to and hosts retail food establishments. (FAC, ¶ 89.) Plaintiffs further allege that Defendants acted with reckless disregard of the probability that Plaintiff would suffer emotional distress, knowing that Plaintiff operated a restaurant for which one of the paramount concerns is to have a pest and vermin free location, and that suffering an infestation is one of the worst things to happen to a restaurant owner. (FAC, ¶ 90.) Plaintiff contends that due to Defendants’ conduct, Plaintiff suffered severe emotional distress, as the conduct caused him to lose his restaurant, and to be subjected to disparagement in his business, trade, profession, and long-time occupation of operating a restaurant. (FAC, ¶ 91.) Lastly, Plaintiffs contend that Defendants’ conduct was the sole factor in causing Plaintiff’s severe emotional distress, in that if Defendants had avoided such outrageous conduct, Plaintiff could have continued operating his restaurant, and would not have been subjected to such disparagement and distressing circumstances. (FAC, ¶ 92.)

Here, the Court does not find that Plaintiff’s FAC alleges sufficient facts to meet the pleading standard of conduct 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, citation and ellipses omitted.) As such, CBRE’s demurrer as to the cause of action for Intentional Infliction of Emotional Distress is sustained.

B. Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The court may also strike 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.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that the pleading has irrelevant, false improper matter, or has not been drawn or filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.¿ (Id., § 437.)¿ “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)¿

Here, both the CBRE and SBC Defendant move to strike language referencing punitive damages in Plaintiff’s FAC, including the prayer for relief. Civil Code section 3294, subdivision (a) authorizes punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice.” “Malice [is defined as] 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 for the rights and safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294, subd. (c)(2).) “Fraud” is “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.” (Civ. Code, § 3294, subd. (c)(3).)

Defendant asserts that this case arises out of contract and thus, Plaintiff is not entitled to punitive damages. Defendant further asserts that the tortious allegations led in the complaint do not support recovery of punitive damages because Plaintiff cannot establish that defendant is guilty of either malice, oppression, or fraud. The Court finds the Defendants have the better of the argument, and the Court’s tentative ruling on the demurrers is to excise the intentional tort allegations but retain the negligence cause of action which of course does not support an allegation or jury award of punitive damages. For the foregoing reasons, the Court GRANTS the motion to strike the itemized allegations and prayer for punitive damages.