Judge: Stephen Morgan, Case: 23AVCV00793, Date: 2023-10-10 Tentative Ruling

Case Number: 23AVCV00793    Hearing Date: October 10, 2023    Dept: A14

Background

This is a defamation action. Plaintiff Hugo Avina (“Plaintiff”) alleges that he entered into a leasing agreement with Defendant Porfirio Antonio Flores aka Antonio Flores (“Flores”) on March 20, 2021. Plaintiff presents that, during the time he rented the commercial space, it had damage as well as no toilet or telephone line and, because of this, Plaintiff decided to cancel the leasing agreement. Plaintiff contends that, upon cancelling the lease, Flores accused Plaintiff of causing the damage and not paying monthly rent, and refused to refund Plaintiff’s security deposit. Plaintiff contends that these statements caused harm to his reputation within the business community.

On July 25, 2023, Plaintiff filed his Complaint alleging two causes of action for (1) Defamation, and (2) Slander.

On August 28, 2023, Defendant filed his Answer. The Court notes that, while the Complaint appears to distinguish Flores and Flores Auto Care DBA, Flores has responded as “Porfirio Antonio Flores, an individual, dba Flores Auto Care.” The Court will address both Flores and Flores Auto Care as “Defendant.”

On September 29, 2023, Plaintiff filed his Opposition. “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. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” (Ibid.) The hearing is set for October 10, 2023. Accordingly, an Opposition was due by September 27, 2023. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) The Court, in its discretion, considers the late filed Reply.

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Legal Standard

Standard for Motion to Strike –“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, but this time limitation shall not apply to [a motion for the judgment on the pleadings as specified in Cal. Code Civ. Proc. §438(i)(1)(A)].” (Cal. Code Civ. Proc. §435(b)(1).) Such a motion shall specify a hearing date and, if a motion to strike is brought with a demurrer, the hearing on the motion to strike will be held concurrently with the hearing on the demurrer. (Cal. Code Civ. Proc. §435(b)(2)-(b)(3).) “The filing of a notice of motion to strike an answer or complaint, or portion thereof, shall not extend the time within which to demur.” (Cal. Code Civ. Proc. §435(d).)

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 or 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.)

As with a demurrer, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (Cal. Code. Civ. Proc. § 437.) Allegations are assumed to be true. (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53.)

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Meet and Confer Requirement – Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer or motion to strike.  (Cal. Code Civ. Proc. §430.41 and §435.5.)  The Court notes that this requirement has been met. (Decl. Bruce W. Wagner ¶¶ 4-6.)

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Discussion

Application – Defendant moves to strike portions of the Complaint that reference and request the $5,000.00 security deposit:

1.     “Upon leased (sic) of the space plaintiff Hugo Avina deposited an amount of $5000 to defendant Porfirio Antonio Flores.” (Complaint ¶ 10.)

2.     “.... [A]fter the plaintiff moved out from defendant’s property, defendant Antonio Flores did not refund the deposited amount of $5,000 made by plaintiff. . .” (Complaint ¶ 12.)

3.     “Moreover, it is reasonable that the defendant shall refund the security deposit made by the plaintiff in the amount of $5000.” (Complaint ¶ 31.)

4.     “Security deposit of $5000 shall be refunded back and award (sic) to the plaintiff.” (Complaint, Prayer for Relief.)

Defendant presents that the failure to return Plaintiff’s security deposit is not a detriment proximately caused by the alleged defamation and slander. Defendant argues that because of this, the request for return of the security deposit is improper and should be stricken.

Plaintiff argues that the Motion to Strike is so broad that it should be denied in its entirety. Specifically, Plaintiff presents that the Motion to Strike was not directed to any particular allegation and that an issue within the Prayer of Relief must be settled on a motion for summary judgment. It appears that the basis for this argument is Triodyne, Inc. v. Superior Court of Los Angeles County (1996) 240 Cal.App.2d 536 (“Triodyne”).

The Court notes that Plaintiff relies on federal statutes and case precedent for his legal standard. The Court is a California state court. As such, this Court follows California statutes and case precedent. Federal case precedent may, generally, be used as persuasive, but not binding authority.

Triodyne states: “Insofar as the motion to strike was upon the asserted ground of irrelevancy, it was not directed to any particular allegations and no showing of irrelevancy was made; thus the motion must be considered as one to strike or dismiss the entire count on the basis that it was sham.” (Triodyne, supra, 240 Cal.App.2d at 542.) This is cited by Plaintiff; however, it is taken out of context. In Triodyne, the motion to strike was based “ ‘on the ground that [the third amended complaint] is sham and irrelevant.’ ” (Id. at 539.) The case at hand is distinguished as the Motion to Strike is premised on the argument that the relief that Plaintiff seeks is improper. (See Motion to Strike, Notice, 2:1-2.) California case precedent holds that “[t]he appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365 [disapproved specifically as to any holding that conflicts with the Supreme Court holding that unpaid wages under Cal. Labor Code § 558 may not be recovered through a PAGA action].) A court may “at any time in its discretion. . .and upon terms it deems proper[,]” strike out “any irrelevant, false, or improper matter inserted in any pleading” and/or “all or any part of any pleading not drawn or filed in conformity with the laws of this state … .” (Cal. Code Civ. Proc. § 436.) Accordingly, the Court may strike portions of Plaintiff’s Complaint that seek a remedy that cannot be recovered from the causes of actions pled.

Cal. Civ. Code § 45a, discussing libel, a type of defamation, references Cal. Civ. Code § 48a. (See Cal. Civ. Code § 45a [“Special damage is defined in Section 48a of this code.”].) Cal. Civ. Code § 48a(d) provides: “ ‘General damages’ means damages for loss of reputation, shame, mortification, and hurt feelings[;]” and “ ‘[s]pecial damages’ means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession, or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other.” (See also O'Hara v. Storer Communications (1991) 231 Cal. App. 3d 1101 [discussion of Cal. Civ. Code § 48a(d)(1), its constitutionality, and the difference between general and special damages].) Regarding general damages, Defendants have mentioned Cal. Civ. Code§ 3333 as neither Cal. Civ. Code §§ 45a nor 46 reference Cal. Cal. Civ. Code § 45a for general damages. Cal. Civ. Code § 3333 reads: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

Here, the Complaint alleges that Plaintiff cancelled the lease due to the condition of the commercial space he was renting (see Complaint ¶ 11), then the actions that form the basis of the Defamation and Slander causes of action occurred (see Complaint ¶¶ 12-15). Thus, the security deposit is unrelated to the causes of action alleged and does not constitute general or special damages.

The Court notes that the prayer also requests punitive damages. Punitive or exemplary damages under Cal. Civ. Code § 48a is defined as: “damages that may in the discretion of the court or jury be recovered in addition to general and special damages for the sake of example and by way of punishing a defendant who has made the publication or broadcast with actual malice.” (Cal. Civ. Code § 48a(d)(3).) Under Cal. Code Civ. Proc. § 3294, “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Cal. Code Civ. Proc. § 3294(a).) The security deposit is, thus, unrelated to punitive damages as well under Cal. Civ. Code § 48 and there has been no showing of oppression, fraud, or malice for punitive damages under Cal. Code Civ. Proc. § 3294.

Accordingly, as pled, the prayer for the security deposit of $5,000.00 is an improper remedy for the causes of action alleged. Thus, the Motion to Strike is GRANTED.  

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Conclusion