Judge Thomas D. Long, Case Number: 23STCV30339, Date: 2024-08-20 Tentative Ruling

On December 13, 2023, Plaintiff Eva Bernece Melendez Velasco filed this action against Defendants Loss Prevention Services LLC (“LPS”) and Nations Recovery Services Inc. (“NRS”). Plaintiff later named Toyota Motor Credit Corporation (“Toyota”)as Doe 1.

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).)

Plaintiff’s request for judicial notice of complaints and orders filed in other cases is denied as irrelevant.

Plaintiff’s request for judicial notice of LPS’s repossession agency license is denied as irrelevant.

The motions filed by LPS and Toyota are substantially similar. LPS and Toyota seek to strike Paragraphs 2, 3, 26, 39, and 42, as well as the Prayer for punitive damages.

Paragraph 2 alleges, “This is also an action for injunctive relief, civil fines and damages against defendant Loss Prevention Services, LLC (‘LPS’), a national repossession agency based in Michigan, for its unlicensed repossession activities in California.” Paragraph 3 elaborates on the unlicensed repossession work and alleges that LPS was on notice that its activities were unlawful. Paragraph 42 further elaborates on LPS’s knowledge of their unlawful activities through prior lawsuits. LPS argues that “[a]ll allegations mentioning grand theft are improper and unfounded,” and Toyota argues that “[a]ll of these allegations are improper as this case is a civil matter and a criminal case related to this matter does not exist.” (LPS Motion at p. 11; Toyota Motion at p. 7.) These arguments are based on the merits of the allegations, not the sufficiency of the pleadings. The motion is denied for paragraphs 2, 3, and 42.

Paragraph 26 alleges, “Defendants violated Civil Code § 1788.10(a) by using, or threatening to use, any criminal means, including grand theft in violation of Penal Code § 487, to cause harm . . . .” LPS and Toyota seek to strike “including grand theft in violation of Penal Code § 487.” Civil Code section 1788.10, subdivision (a) states that no debt collector shall attempt to collect a consumer debt by means of “[t]he use, or threat of use, of physical force or violence or any criminal means to cause harm to the person, or the reputation, or the property of any person.” Plaintiff’s allegation that LPS and Toyota violated Penal Code section 487 is the “criminal means” supporting the alleged violation of Civil Code section 1788.10. The motion is denied for this portion of Paragraph 26.

Paragraph 39 alleges that Plaintiff is entitled to recover punitive damages and that “Defendants’ corporate officers, directors, or managing agents are personally guilty of oppression, fraud, or malice with respect to plaintiff.” The Prayer for Relief requests “[t]he maximum punitive damages allowed by law.” 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).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) Plaintiff alleges that LPS and Toyota knowingly engaged in grand theft when they worked with each other and NRS to unlawfully repossess her vehicle. If proven, this could support a finding of malice or oppression. The motion is denied for Paragraph 39 and the prayer for punitive damages.

Paragraph 26 alleges, “Defendants violated Civil Code § 1788.10(a) by using, or threatening to use, any criminal means, including grand theft in violation of Penal Code § 487, to cause harm to the person, or the reputation, or the property of any person.” After raising this ground in the Notice of Motion, NRS did not provide any specific argument. “[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat [an] issue as waived.” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.) Moreover, Plaintiff’s allegation that NRS violated Penal Code section 487 is the “criminal means” supporting the alleged violation of Civil Code section 1788.10. The motion is denied for Paragraph 26.

Paragraph 30 alleges, “Defendants’ violations of the Rosenthal Act were willful and knowing.” After raising this ground in the Notice of Motion, NRS did not provide any specific argument. The motion is denied for this portion of Paragraph 30.

Paragraph 39 alleges that Plaintiff is entitled to recover punitive damages and that “Defendants’ corporate officers, directors, or managing agents are personally guilty of oppression, fraud, or malice with respect to plaintiff.” 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).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) Plaintiff alleges that NRS knowingly engaged in grand theft when it unlawfully repossessed her vehicle. If proven, this could support a finding of malice or oppression. The motion is denied for Paragraph 39.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court