Judge: Upinder S. Kalra, Case: 22STCV05575, Date: 2022-09-07 Tentative Ruling

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Case Number: 22STCV05575    Hearing Date: September 7, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 7, 2022                                         

CASE NAME:           Gilbert Ceballos v. Walker R. Flores, et al.

CASE NO.:                22STCV05575

DEFENDANT’S MOTION TO STRIKE

MOVING PARTY: Defendant Walker R. Flores, et al.

RESPONDING PARTY(S): Plaintiff Gilbert Ceballos

REQUESTED RELIEF:

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

TENTATIVE RULING:

1.      Motion to Strike is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On February 14, 2022, Plaintiff Gilbert Ceballos (“Plaintiff”) filed a complaint against Defendants Walker R. Flores and Veronica Rodriguez (“Defendants.”) The operative First Amended Complaint was filed on March 15, 2022. The complaint alleged six causes of action: (1) Trespass, (2) Private Nuisance, (3) Ejection, (4) Damage to Real Property, (5) Declaratory Relief, and (6) Punitive Damages. Plaintiff alleges that Defendants erected a wall between the parties’ property. The wall has cause the flow of storm run-off to damage to property. This wall has created a nuisance and has caused damage to the property.

On May 31, 2022, Defendants filed the current Motion to Strike. Plaintiff filed an Opposition on August 22, 2022. Defendants’ reply was filed on August 24, 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:

Defendant filed form CIV-140, which is a Declaration of Demurring party. In it, Wlater Emil Teague, III indicates that he met an conferred with opposing party at least five days before filing the demurrer or motion to strike. However, it does not indicate how the meet and confer was via phone or in person. Even though this was not indicated, the court will still analyze the motion.

Service:

The proofs of service attached to each the parties’ documents indicate that the the documents were served via email.

ANALYSIS:

Defendants move to strike portions of Plaintiff’s First Amended Complaint (“FAC.”) These portions include the following:

1.      Defendants’ actions, in complete disregard for Plaintiff’s ownership rights, amounts to oppression, fraud, or malice. Plaintiff should therefore be awarded punitive and exemplary damages under Civil Code §3294 sufficient to punish defendants for engaging in this conduct and to deter similar conduct in the future

2.      Defendants took these actions with a willful and conscious disregard for Plaintiff’s rights, amounting to oppression, fraud, or malice. Plaintiff should therefore be awarded punitive and exemplary damages under Civil Code §3294 sufficient to punish Defendants for engaging in this conduct and to deter similar conduct in the future

3.      From Item #3, page 9: For punitive and exemplary damages

4.      From Item #2, page 10: For punitive and exemplary damage

Defendant contends that the claim for punitive damages should be struck from the FAC. The FAC fails to plead with specificity and contains allegations with the words found within the code; the Plaintiff does not provide facts to support the claim for punitive damages. Plaintiff argues that the FAC sufficiently alleges facts that would be considered malicious. In paragraphs 12, 31, 34, 38, and 51, the FAC sufficiently alleges that Plaintiffs asked Defendants to remove encroaching structures but failed to take them down; Defendant’s refusal was willful.

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 c of § 3294 defines malice as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Oppression is defined as “conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.”

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.)  In addition, punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”  (Civ. Code, § 3294, subd. (a).)  Courts have viewed despicable conduct as conduct “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Scott v. Phoenix Schools, Inc., (2009) 175 Cal.App.4th 702, 715.)

            Here, the FAC does not contain allegations of conduct that would trigger punitive damages. The alleged conduct, erecting a fence that is encroaching on Plaintiff’s property, is not conduct that would be vile or wretched, or despicable as to offend an ordinary person.

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 did not ask for leave to amend nor did they indicate in any fashion that they could amend to cure any defects.  As such, . it is difficult for this Court to perceive what facts can be amended to allege conduct that would be sufficient for punitive damages.

Conclusion:

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

            Motion to Strike is GRANTED, without leave to amend.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             September 7, 2022                  __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court