Judge: Upinder S. Kalra, Case: 21STCV43109, Date: 2023-09-06 Tentative Ruling

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Case Number: 21STCV43109    Hearing Date: September 6, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 6, 2023                                         

CASE NAME:           40723 Murrieta Hot Springs Rd., LLC v. Gio Roofing , Inc.

CASE NO.:                21STCV43109

MOTION TO STRIKE

MOVING PARTY: Defendant Gio Roofing, Inc.

RESPONDING PARTY(S): Plaintiff 40723 Murrieta Hot Springs Rd., LLC

REQUESTED RELIEF:

1.      An order striking various portions of the Complaint that concern punitive damages.

TENTATIVE RULING:

1.      Motion to Strike is GRANTED, with leave to amend.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On November 23, 2021, Plaintiff 40723 Murrieta Hot Springs Rd., LLC (“Plaintiff”) filed a Complaint against Defendant Gio Roofing, Inc., (“Defendant.”) The complaint alleged four causes of action: (1) Breach of Contract, (2) Breach of Implied Warranty, (3) Negligence, and (4) Fraud. The complaint alleges that Plaintiff hired Defendant to install a new silicone roof system on the Property. However, Plaintiff alleges that Defendant failed to properly install the roofing system. Plaintiff requested the correct roofing system be installed or a refund. Defendant did not correctly repair the issues, but instead performed cosmetic repairs.

On May 2, 2022, Default Judgment was entered.

On April 27, 2023, the parties signed a stipulation setting aside default judgment.

On May 17, 2023, Defendant filed an Answer.

On May 17, 2023, Defendant filed a Motion to Strike. Plaintiff’s Opposition was filed on August 23, 2023.

LEGAL STANDARD

Motion to Strike

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 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.)

Meet and Confer:

Prior to filing a motion to strike, the moving party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41, and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3). The Declaration of Matthew S. Shorr indicates that parties met telephonically to discuss whether the Complaint sufficiently alleges punitive damages. Initially, Plaintiff’s counsel agreed to determine if Plaintiff would voluntarily withdraw punitive damages. However, when the date came, Plaintiff’s counsel never responded so Defendant’s counsel filed the current motion. (Dec. Shoor ¶ 4-6.)

ANALYSIS:

            Defendant moves to strike various portions of the Complaint that seek punitive damages. Specifically, Defendant seeks to strike the following:

1.      Fourth Cause of Action at Line 28 to Page 10, Line 9.

2.      Page 10, line 15, paragraph 3 of the Prayer.

Defendant contends that Plaintiff did not properly plead sufficient facts that would give rise to Defendant’s liability as a corporate employer for punitive damages.

            In opposition, Plaintiff concedes that the Complaint does not contain sufficient allegations about ratification by Defendant as a corporate entity of its employee’s actions. However, this can be easily amended to allege that Mr. Giovanni Orantes, Defendant’s managing officer, engaged at the conduct and that Mr. Orantes ratified the conduct.

Civil Code §3294 states that “(a) In 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.”

Subsection (b) of Civil Code § 3294 states:

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.

Here, the Court agrees that the Complaint does not contain sufficient allegations of ratification by Defendant of the employee’s actions. As stated above, an employer is liable if that employer has advanced knowledge or authorized or ratified the conduct. To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages.  (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.) Plaintiff did not sufficiently plead facts to support a cause of action for punitive damages pursuant to Civil Code § 3294(b).

Motion to Strike 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.) As Plaintiff argues, it is likely that the Complaint can be amended to include allegations that Defendant authorized or ratified the conduct of Mr. Orantes.

Leave to Amend is GRANTED.

CONCLUSION:

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

            Motion to Strike is GRANTED, with leave to amend within 20 days service of this order.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             September 6, 2023                  _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court