Judge: Upinder S. Kalra, Case: 21STCV26504, Date: 2022-09-06 Tentative Ruling

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Case Number: 21STCV26504    Hearing Date: September 6, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 6, 2022                             

CASE NAME:           Janice R. Boyd v. VIP Princess Court HOA, an unincorporated association, et al.

CASE NO.:                21STCV26504

DEFENDANT’S MOTION TO STRIKE

MOVING PARTY: Defendant First Light Property Management

RESPONDING PARTY(S): Plaintiff Janice R. Boyd

REQUESTED RELIEF:

1.      An order striking portions of the Plaintiff’s complaint

TENTATIVE RULING:

Motion to Strike is GRANTED, with leave to amend as to Paragraphs 30 and Paragraph 11 of Prayer for Relief – Punitive Damages.

            Motion to Strike is GRANTED, with leave to amend, as to Paragraph 8: Attorney fees.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On July 19, 2021, Plaintiff Janice R. Boyd (“Plaintiff”) filed a complaint against VIP Princess Court HOA and First Light Property Management (“Defendants.”) The complaint alleged two causes of action: (1) Nuisance and (2) Negligence. The complaint alleges that Plaintiff and Defendant’s Property adjoin each other, separated by a large wall. Plaintiff noticed water leaking from the wall, which the City of Redondo Beach Police, Fire and Building and Safety Division all determined was from Defendant’s property. Defendant has failed to fix the problem.

On September 20, 2021, Defendants VIP Princess Court HOA and First Light Property Management filed an Answer.

On May 31, 2022, Defendant First Light Property Management filed a Motion to Strike Portions of Plaintiff’s Complaint. Plaintiff’s Opposition was filed on August 23, 2022. Defendant’s reply was filed on August 30, 2022.

LEGAL STANDARD

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.) “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.)

Procedural Matter:

Meet and Confer:

The Declaration of William G. Sorkin indicates that he sent a letter to Plaintiff’s counsel on September 21, 2021. (Dec. Sorkin, Ex. A.) The declaration also indicates that Plaintiff’s counsel did not respond to this letter as of the filing of this motion.

Service:

The Proof of Service indicates that the motions of each party were sent via email.

ANALYSIS:

Defendant moves to strike portions of Plaintiff’s Complaint. These portions include the following:

·         Paragraph 30: In maintaining the nuisance, Defendants were acting with full knowledge of the consequences and damage being caused to Plaintiff and their conduct is willful, oppressive, and malicious. Therefore, Plaintiff is entitled to punitive damages against Defendant in a sum sufficient to punish Defendants and deter similar future conduct.

·         Paragraph 8 of Prayer for Relief: Attorney fees to the extent provided by law

·         Paragraph 11 of Prayer for Relief: Punitive damages

1.      Paragraph 30 and Paragraph 11: punitive damages 

Defendant contends that the complaint does not allege sufficient facts to constitute punitive damages. Specifically, the complaint does not have any allegations that a managing member of Defendant FLPM was responsible for the actions, as required under Civil Code § 3294(b). Plaintiff contends that the complaint is sufficient as it alleges Defendant acted with “callous disregard of Boyd’s property rights.” (Opp. 1: 27-28.) Specifically, paragraph 9 indicates Plaintiff was referred to “Michelle Hamblin of Defendant First Light Property Management.” (Complaint ¶ 9.) Ms. Hamblin represented that the leak had been repaired (Complaint ¶ 10), but the leak persisted. Further, Plaintiff argues that whether Ms. Hamblin was an acting manager is a question of fact and Defendant has not met its burden.

Civil Code § 3294(b) provides the following:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation

Plaintiff has failed to plead sufficient facts to allow punitive damages with respect to a corporate employer. “For punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant acted with “oppression, fraud, or malice” and that those acts were performed or ratified by an “officer, director or managing agent.”” (Tilkey v. Allstate Insurance Company (2020) 56 Cal.App.5th 521, 554, review denied (Feb. 10, 2021).) As required in CCP § 3294(b), this knowledge or ratification must be on the part of an officer, director or managing agent. The Court in Cruz indicated that these individuals are part of a group whose “intentions guide corporate conduct.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167). “'Managing agents’ are employees who “exercise [ ] substantial discretionary authority over decisions that ultimately determine corporate policy.” [citation] “Corporate policy” is not defined by statute, nor in the case law relating to punitive damages. Dictionary definitions of “policy” include the following: “The general principles by which a government is guided in its management of public affairs.” (Id.) Here, Plaintiff has failed to allege sufficient facts that would indicate that the alleged oppressive or malicious conduct was done by an officer, director, or managing agent, as required under CCP § 3294(b). Plaintiff merely alleges that she was referred to Michelle Hamblin who worked for Defendant First Light Property Management. (Complaint ¶ 9.) Nowhere in the complaint does Plaintiff allege Ms. Hamblin was an officer, director, or managing agent, with authority over decisions or “guide corporate policy,” as stated in Cruz above. Ms. Hamblin could have any position at First Light Property Management.

Motion to Strike is GRANTED, as to paragraphs 30 and prayer for relief paragraph 11.

2.      Attorney’s Fees: Paragraph 8

Defendant argues that the claim for attorneys’ fees fails. Under CCP § 1033.5, attorneys’ fees are allowed when authorized by contract, statute, or law. Here, Defendant contends that the complaint does not allege any contractual causes of action or statutory authority for a claim of attorneys’ fees. Plaintiff did not provide any argument as to why attorney’s fees are appropriate.

“A party may not recover attorney fees unless expressly authorized by statute or contract. [Citations.] In the absence of a statute authorizing the recovery of attorney fees, the parties may agree on whether and how to allocate attorney fees.” (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464, review denied (Oct. 20, 2021).) Here, the complaint does not allege a contract or statute where attorneys’ fees would be allowed. Further, there is nothing in the complaint that indicates the parties agreed to fees.

The Motion to Strike the Prayer for Damages: Attorneys’ Fees is GRANTED.

Leave to Amend:

Leave to amend should be liberally granted if there is a reasonable possibility an amendment could cure the defect.  (County of Santa Clara v. Superior Court (2022) 77 Cal.App.5th 1018,1035.)  The Plaintiff has the burden of demonstrating that leave to amend should be granted, and that the defects can be cured by amendment. (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Here, Plaintiff requests leave to amend. There is an indication that leave to amend should be granted as it relates to punitive damages. Plaintiff may be able to fix the defects. Specifically, Plaintiff may be able to allege Ms. Hamblin’s relationship with Defendant, thereby satisfying the requirements under CCP § 3294(b) as it relates to a corporate defendant. While it is questionable whether Plaintiff may be able to amend to allege a basis for attorney fees, the Court will grant Plaintiff an opportunity to allege a legally valid basis for such a claim.  The Court cautions counsel to only re-plead a prayer for attorneys fees on a basis supported with valid authority, otherwise, the Court may strike such an allegation on its own motion.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Strike is GRANTED, with leave to amend as to Paragraphs 30 and Paragraph 11 of Prayer for Relief – Punitive Damages.

            Motion to Strike is GRANTED, with leave to amend, as to Paragraph 8: Attorney fees.

Amended complaint to be filed within 30 days service of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             September 6, 2022                  __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court