Judge: Walter P. Schwarm, Case: 30-2021-01234105, Date: 2022-08-16 Tentative Ruling
Defendant’s (Noralee Paulson) Motion to Strike Portions of Plaintiff’s Complaint (Motion), filed on 3-25-22 under ROA No. 13, is GRANTED.
Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out 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.” Code of Civil Procedure section 435, subdivision (b)(1), states, “Any party, within the time allowed to respond to a pleading may serve and file, a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]”
Civil Code section 3294 states in part, “(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. [¶] (b) 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.”
Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 (Broussard), provides, “It is unnecessary for us to determine whether the second count alleges facts showing the noncontractual obligation required by section 3294. We need not reach that issue because the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294. [Citations.]”
Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042 (Smith), states, “The second count incorporated the allegations of the first count, plus other factual allegations, described defendant as acting intentionally, willfully, fraudulently, and with a wanton, reckless disregard for the possible injury to plaintiff and sought recovery of punitive damages exceeding the jurisdictional limit. The Court of Appeal found the second cause of action defective stating, ‘the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of “oppression, fraud, or malice, . . .” within the meaning of section 3294. [Citations.]’ [Citation.]”
Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, states, “ ‘In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.] [¶] In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.] ‘ “Fraud” ’ is ‘an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.’ [Citation.]”
The Motion seeks to paragraph 37 of the Complaint and paragraph 6 in the Prayer for Relief on page 7 of the Complaint. In considering the entire Complaint (filed on 12-1-21 under ROA No. 2), the punitive damages allegations are too vague to support a punitive damages claim. The Complaint simply alleges the presence of toxic mold, that Plaintiff informed Defendant, that Defendant failed to remediate, and Plaintiff has suffered health consequences. (Complaint, ¶¶ 8-12.) To the extent that Plaintiff relies on intent to harm, there are no causes of action for an intentional tort or other allegations to support a claim of intentional harm. For non-intentional conduct, the complaint fails to allege when the mold was discovered, when Plaintiff informed Defendant, and what Defendant did or failed to do that demonstrates a conscious disregard for the rights and safety of Plaintiff.
Based on the above, the court GRANTS Defendant’s (Noralee Paulson) Motion to Strike Portions of Plaintiff’s Complaint, filed on 3-25-22 under ROA No. 13 with 14 days leave to amend from the date of service of the notice of the court’s decision. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)
Defendant is to give notice.