Judge: Ronald F. Frank, Case: 21TRCV00801, Date: 2022-10-25 Tentative Ruling

Case Number: 21TRCV00801    Hearing Date: October 25, 2022    Dept: 8

Tentative Ruling

HEARING DATE:    Tuesday, October 25, 2022                             JUDGE /DEPT:        Frank/8 

CASE NAME:           Yesenia Muratella vs Public Storage Inc.

CASE NUMBER:     21TRCV00801                                              COMPL. FILED:     11/1/21              

PROCEEDINGS:     MOTION TO STRIKE

MOVING PARTY:   Defendant Public Storage, Inc.

RESP. PARTY:         Plaintiffs Yesenia Muratalla and Danilo Velasquez

MOTION TO STRIKE COMPLAINT IN ITS ENTIRETY 

TENTATIVE RULING:   Grant with leave to amend if Plaintiff proffers a good faith basis to cure the defective allegations

OPPOSITION:          Yes, filed October 12, 2022               

REPLY:                     Yes, filed October 18, 2022               

I.          INTRODUCTION 

This action arises out of an alleged theft of Plaintiffs’ Can-Am Maverick X3 MAX DS Turbo and its trailer, a Zieman F-714 Flatbed (“the Property”). Plaintiffs allege that Defendant, Public Storage, Inc. (“Defendant”) was negligent in the safety and storage of their property. On November 1, 2021, Plaintiffs filed their Complaint alleging:  (1) Negligence; (2) Negligent Infliction of Emotional Distress; and (3) Breach of Contract. In addition, Plaintiffs seek punitive damages and attorney’s fees.

On September 20, 2022, Defendant filed this motion to strike portions of Plaintiffs’ Complaint, and served the motion by email or electronic transmission on Plaintiffs’ attorneys of record.

On October 12, 2022, Plaintiffs filed an opposition to Defendant’s motion to strike portions of Plaintiffs’ complaint and served Defendants via electronic service to its attorney of record.  On October 19, 2022, Defendant filed a reply to Plaintiffs’ opposition and served Plaintiffs by email or electronic service to Plaintiffs’ attorneys of record.  

II.        MEET AND CONFER 

“Before filing a motion to strike . . . 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).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).) The failure to sufficiently meet and confer is not a ground to grant or deny the motion to strike. (Id., subd. (a)(4).) 

Defendant’s counsel sent a meet and confer letter regarding deficiencies in Plaintiffs’ complaint. (Craig L. Dunkin Declaration “Dunkin Decl.” ¶ 4.) Plaintiffs were given to September 2, 2022, in which to respond to the meet and confer letter (Ibid.) Plaintiffs’ counsel did not respond. (Ibid.) Accordingly, Defendant complied with the meet-and-confer requirement before filing this motion to strike.

III.       LEGAL STANDARDS 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

V.        DISCUSSION 

Negligent Infliction of Emotional Distress

Defendant moves to strike the following portions of Plaintiffs’ complaint for Negligent Infliction of Emotional Distress because Plaintiffs’ Complaint does not allege any damage to their personal property: (1) “The Gardena Police called Muratalla at or around 5:30 a.m. that morning to notify her of the theft. This phone call greatly started Muratalla and caused emotional distress to her and Velasquez.” (Compl. p. 2:26-27.); (2) “As a result of the actions of Defendant, Plaintiffs have suffered anxiety, sleepless nights, frustration, and other emotional distress. They have also been damaged in an amount to be determined at trial for their emotional distress.” (Compl. p. 3:14-15, 17-18.); (3) Plaintiffs’ entire Second Cause of Action for Negligent Infliction of Emotional Distress. (Compl. p. 4:11-21.); and (4) “As a direct and proximate result of Defendant’s breaches as described herein, Plaintiffs have been damaged in an amount to conform to proof at trial…and attorneys’ fees and costs as provided by law. (Compl. p. 5:11-13.)

Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation, and damages apply. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) The existence of a duty is a question of law. (Id.)  The distinction between the "bystander" and the "direct victim" cases is found in the source of the duty owed by the defendant to the plaintiff. (Id.) "Bystander" claims are typically based on a breach of a duty owed to the public in general. In contrast, a right to recover for emotional distress as a "direct victim" arises from the breach of a duty assumed by the defendant or imposed on the defendant as a matter of law or that arises out of the defendant's preexisting relationship with the plaintiff. (Id.) Thus, the negligence at issue must be directed primarily at the plaintiff. (Id., at 131.) 

Defendant argues that Plaintiffs’ claim fails as because negligent infliction of emotional distress is not a separate cause of action and that Plaintiffs’ claim failed to show some preexisting relationship or intentional tort. Defendant also relies on Cooper v. Superior Court, where the Court noted that “[n]o California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort. This case involves no preexisting relationship between the parties.” (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008.)

Plaintiffs’ Complaint provides in pertinent part: “Defendants have a legal duty to safeguard their Facility and the property of those who utilize the Facility. In fact, the safety of the storage unit and Facility is paramount when a customer chooses a storage company.” (Compl. ¶ 24.) Further, Plaintiffs claim that “Defendants breached that duty when they opted to renovate certain portions of their facility and leave Plaintiffs’ space open for theft. Indeed, Defendants failed to take any steps to ensure the protection of Plaintiffs’ property.” (Id. at ¶ 26.)

Although Plaintiffs have pleaded issues of duty and breach, they have failed to discuss the relationship between Plaintiffs and Defendant in order to create such a duty. Nowhere in Plaintiffs’ Complaint or opposition to Defendant’s motion to strike do Plaintiffs allege that the nature of the relationship with Plaintiffs and Defendant as Cooper requires. Thus, Defendant’s motion to strike Plaintiffs’ claim for negligent infliction of emotional distress is GRANTED WITH LEAVE TO AMEND.

Punitive Damages

            Defendant moves to strike portions of Plaintiffs’ complaint for punitive damages because: (1)  Plaintiffs’ Complaint fails to state conduct meeting the standard of oppression, fraud, or malice under Civil Code 3294(a); and (2)  Plaintiffs do not allege conduct by an officer, director or managing agent of Defendant to justify a punitive damages award. Defendant moves to strike the following portions of Plaintiffs’ complaint: (1) Defendant’s conduct was malicious, oppressive, and fraudulent, warranting punitive damages. (Compl. p. 4:9-10.); (2) For punitive damages in an amount upwards of approximately $102,092.70 (Compl. p. 5:17.)

            A motion to strike properly tests the adequacy of allegations concerning punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.)  In order to recover punitive damages, a plaintiff must demonstrate by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294(a).) Oppression, fraud, and malice are statutorily defined and require despicable conduct intended to cause harm to or with reckless disregard to the endangerment of the legal rights or safety of a person or their property. (Id. subd. (c).) Despicable conduct is a substantive limitation on punitive awards and is "a powerful term that refers to circumstances that are 'base,' 'vile,' or 'contemptible.'" (College Hospital Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 725.) It is axiomatic that punitive damages are not available to remedy negligent conduct, such as the conduct alleged in support of the negligent infliction of emotional distress claim.

            In order to state a claim for punitive damages, a plaintiff must plead specific facts establishing that the defendant acted with malice, oppression, or fraud. Courts have long held that a party seeking punitive damages must plead specific facts to support such a claim. (See, e.g., G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; and Smith v. Superior Court (1992) 10 Cal. App.4th 1033, 1041-1042.)  Moreover, “[t]he mere allegation [that] an intentional tort was committed is not sufficient to warrant an award of punitive damages.” (Grieves, 157 Cal.App.3d at164.)

            Here, Plaintiffs allege in their Complaint that their personal property was allegedly stolen from their rental unit at Defendant’s facility, that Defendant “intentionally and recklessly chose to disengage their security cameras,” and how Defendant breached its legal duty to safeguard the storage facility when it opted to renovate certain portions of the facility. In Plaintiffs’ opposition to this motion, Plaintiffs asserted that they “are informed and believe and allege in their complaint that this robbery occurred with help from an employee or representative of Defendant.” However, Plaintiffs’ Complaint does not allege the facts asserted in their opposition regarding Defendants’ employees’ involvement.

            The Court finds Plaintiffs’ argument unconvincing as the Complaint is devoid of specific facts supporting their request for punitive damages. Instead, Plaintiffs merely provide a conclusory allegation. Plaintiffs do not provide facts that show how Defendant acted with malice, oppression, or fraud, nor does its Complaint allege any of the new facts they provided in their opposition regarding Defendant’s employees’ involvement.   Moreover, none of the three causes of action in the Complaint are ones that, as alleged, could support punitive damages.  Punitive damages are not recoverable as a matter of law under the breach of contract cause of action, and the first two causes of action are both labelled “negligence” and “negligent” infliction of emotional distress.  No intentional or reckless tort is alleged.  As such, Defendant’s motion to strike Plaintiffs’ claim for punitive damages is GRANTED WITH LEAVE TO AMEND.

Attorney’s Fees

Defendant moves to strike Plaintiff’s prayer for attorney fees because Plaintiff fails to plead specific facts supporting recovery of attorney fees. 

Generally, each party to a litigation must bear its own attorney fees unless otherwise provided by statute or contract. (Code Civ. Proc., § 1021.)  

Here, Plaintiff does not allege any statute or contractual provision that supports a prayer for attorney fees. 

Accordingly, the Court GRANTS the motion to strike attorney’s fees with LEAVE TO AMEND.

VII.     CONCLUSION 

The Court grants the motion to strike with leave to amend, if plaintiff represents tot eh Court in good faith that they can present an amended pleading that addresses the pleading deficiencies outlined in the Motion and in this Tentative Ruling. 

Unless waived, notice of the ruling is to be given by Defendant.