Judge: Thomas D. Long, Case: 22STCV16977, Date: 2022-08-25 Tentative Ruling

Case Number: 22STCV16977    Hearing Date: August 25, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On May 23, 2022, Plaintiffs Jessica de Rothschild, Sacha Gervasi, and Industria (USA) LLC (collectively, “Plaintiffs”) filed this action against Defendants Diana Lands and Diana Lands Nathanson Design Inc. (collectively, “Defendants”).  On July 25, 2022, Defendants filed a motion to strike.

The Court may, upon a motion or at any time in its discretion: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b).)

A.        Conclusory Allegations

Defendants move to strike Plaintiffs’ repeated use of “wrongfully” and “improperly” as conclusory.  (Moton at pp. 2-3, 5.)  Defendants also move to strike the phrases “as leverage in a fee dispute with Plaintiffs” and “and instead are attempting to use the property as leverage in a fee dispute with Plaintiff concerning invoices issued by Defendants for services” for being irrelevant conclusions and not ultimate facts.  (Id. at pp. 5-6.)  Defendants are not entitled to a “line item veto” of these allegations.  (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  Furthermore, these allegations are relevant to Plaintiffs’ claims that require a showing of wrongful conduct.  The motion is denied.

B.        Punitive Damages and Related Allegations

Defendants move to strike allegations to and the prayer for punitive damages.  (Motion at p. 6.)  A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.”  (Civ. Code § 3294, subd. (a).)  Punitive damages thus require more than the mere commission of a tort.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895.)  Specific facts must be pleaded in support of punitive damages.  (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042 [conclusory allegations without sufficient facts are not enough to support a request for punitive damages].)

The Complaint alleges Defendants invoiced Plaintiffs for items required to complete the renovation project, but Defendants never turned over the items.  (Complaint ¶¶ 2, 28-29.)  Plaintiffs allege that Defendants falsely represented that she would use their funds to purchase the items and instead intended to use the funds for other means.  (Complaint ¶¶ 50-52.)  Lands also “decided to fabricate a story that she had been ‘sexually harassed’ by Sacha” and “falsely portray[ed] herself as victim of harassment while simultaneously extorting the [Plaintiffs] to pay her money she is not legitimately owed.”  (Complaint ¶¶ 3, 31.)  These are sufficient facts to show Defendants’ fraud or malice to support punitive damages.  The motion is denied.

C.        Attorney Fees and Costs

Defendants move to strike Plaintiffs’ prayer for attorney fees and costs.  (Motion at p. 6.)  Attorney fees are recoverable only when authorized by contract or law.  (Code Civ. Proc., § 1033.5, subd. (a)(10).)  Plaintiffs have not alleged a statutory or contractual basis for attorney fees.  The motion is granted with 20 days’ leave to amend.

D.        Other Relief

Defendants move to strike Plaintiffs’ prayer for a writ of possession, an order of claim and delivery, and injunctive relief.  (Motion at pp. 6-7.)

Defendants argue they have already turned over all of the property at issue, so the request is irrelevant.  (Ibid.)  This contention is unsupported and requires facts outside the face of the Complaint.  The motion is denied on this ground.

Defendants also argue that Plaintiffs “failed to allege ultimate facts that they are entitled to this relief.”  (Id. at p. 6.)  Defendants do not further brief this issue.

Nevertheless, a writ of possession may be sought through a separate application during the course of the litigation.  (Code Civ. Proc., § 512.010.)  Similarly, “[c]laim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment.”  (Waffer Internat. Corp. v. Khorsandi (1999) 69 Cal.App.4th 1261, 1271.)  The motion is granted without leave to amend to the prayer for a writ of possession and an order of claim and delivery, as these are processes and remedies for pretrial and prejudgment possession, not relief that can be granted upon judgment on the Complaint.

With respect to the prayer for “preliminary and permanent injunctive relief ordering Defendants to turn over the property purchased by Defendants on behalf of Plaintiffs,” Defendants have shown no basis for striking this language.  Plaintiffs’ failure to file another motion for injunctive relief (see Reply at p. 5) does not preclude them from seeking permanent injunctive relief with their Complaint.  The motion is denied on this ground.

E.        Conclusion

The motion is GRANTED IN PART and DENIED IN PART.  The Court grants Plaintiffs 20 days’ leave to amend the basis for attorney fees.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 25th day of August 2022