Case Name: Pearl Indiveri v. Rubil Ahmadi, et al.

Case No.: 17CV316895

Motion to Strike Portions of Cross-Complainants Rubil Ahmadi and Nargol Rezvani’s First Amended Cross-Complaint

Factual and Procedural Background

This action arises from a dispute over the location of a boundary line between property owned by plaintiff Pearl Indiveri (“Plaintiff”) and property owned by defendants Rubil Ahmadi and Nargol Rezvani (collectively “Defendants”).

As alleged in the Complaint, Plaintiff has held title to her property since 1965. (Complaint, ¶ 5.) At the time of purchase, a fence separated the driveway on Plaintiff’s property from the driveway of the adjacent property and Plaintiff understood the fence to mark the boundary line between the two properties. (Id. at ¶¶ 8-9.)

From 1965 to November 2016, Plaintiff maintained and enjoyed the fence and the property on her side without interference or objection from the owner of the neighboring property. (Id. at ¶ 10.) During that time, she rebuilt the fence twice on the same line. (Id. at ¶ 11.) In November 2016, Defendants purchased the adjacent property and now assert their property extends past the fence and encroaches on the driveway that has belonged to Plaintiff for the past 50 years (the “Disputed Property”). (Id. at ¶ 12.)

On October 5, 2017, Plaintiff filed a complaint against Defendants asserting causes of action for: (1) declaratory relief; (2) quiet title; (3) injunctive relief; and (4) equitable easement.

On December 27, 2017, Defendants filed a demurrer to Plaintiff’s complaint. On March 19, 2018, the court issued an order overruling Defendants’ demurrer as to the first, second, and fourth causes of action, but sustained, without leave to amend, Defendants’ demurrer to the third cause of action.

On April 3, 2018, Defendants filed an answer to Plaintiff’s complaint and also filed a cross-complaint against Plaintiff asserting causes of action for: (1) ejectment; (2) declaratory relief; and (3) quiet title.

On June 5, 2018, Plaintiff filed an answer to Defendants’ cross-complaint.

After obtaining leave of court to file an amended cross-complaint, Defendants filed the operative first amended cross-complaint (“FAXC”) on February 20, 2019 adding causes of action for trespass and nuisance. The FAXC alleges Defendants are the owners of real property commonly known as 240 North 15th Street in San Jose. (FAXC, ¶2.) Plaintiff is the owner of an adjoining real property commonly known as 238 North 15th Street San Jose. (FAXC, ¶4.)

On or about September 28, 2017, Defendants obtained a survey of their property which indicates Plaintiff is in exclusive possession of a portion of the Defendants’ property consisting of a strip of land approximately 1.5-1.8 feet wide and 100 feet long bordering Plaintiff’s property and to which Defendants are denied all access by a fence. (FAXC, ¶9.) After obtaining the survey, Defendants informed Plaintiff of the results and requested the fence be moved to the boundary line but Plaintiff refused. (FAXC, ¶10.)

Defendants’ cross-complaint now asserts causes of action for:

(1) Trespass
(2) Nuisance
(3) Ejectment
(4) Declaratory relief
(5) Quiet title

On March 25, 2019, Plaintiff filed the motion now currently before the court, a motion to strike portions of Defendants’ FAXC.

I. Plaintiff’s motion to strike portions of cross-complainants Rubil Ahmadi and Nargol Rezvani’s first amended cross-complaint is GRANTED.

A. Request for judicial notice.

In support of the motion to strike, Plaintiff requests judicial notice the FAXC. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” This section of the statute has been interpreted to mean that the trial court may take judicial notice of the existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People v. Woodell (1998) 17 Cal.4th 448, 455.)
Accordingly, the request for judicial notice in support of cross-defendant Pearl Indiveri’s motion to strike portions of cross-complainants Rubil Ahmadi and Nargol Rezvani’s first amended cross-complaint is GRANTED but only insofar as the court takes judicial notice of the existence of the document, not necessarily the truth of any matters asserted therein.
B. Merits.

Plaintiff’s motion seeks to strike Defendants’ allegations regarding punitive damages. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 (Searle), the court wrote, “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’” “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at p. 29; internal citations omitted.)

“Punitive damage allegations cannot be pleaded generally. The complaint must allege facts showing statutory ‘oppression,’ ‘malice’ or ‘fraud’ (Civil Code §3294(a), (c)).” (Flahavan, Rea & Kelly, CAL. PRAC. GUIDE: PERSONAL INJURY (The Rutter Group 2005) ¶5:428, p. 5-165.) “In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503 citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 – 7.)

“‘Malice’ means 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.” (Civil Code §3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civil Code §3294, subd. (c)(2).) In the FAXC, there are no allegations that Plaintiff intended to cause injury to Defendants. [Defendants point out there are allegations that Plaintiff intentionally entered Defendants’ property. An intent to enter onto Defendants’ property is not equivalent to an intent to injure.] Instead, Defendants allege Plaintiff refused to move the fence in response to receiving the survey and refused to obtain a survey of her property. Defendants’ reference to other extrinsic evidence is improper on a motion to strike. Just as with a demurrer, the court considers only matters contained in the pleading and matters of judicial notice. “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., §437, subd. (a).)

To plead a “willful and conscious disregard of the rights of others,” a plaintiff need only allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 (Lackner).) However, the definition of malice also requires that the conduct be despicable. “‘Despicable conduct’ has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “[I]n cases involving conduct performed without intent to harm, a finding of ‘malice’ for punitives purposes requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to ‘despicable conduct’ and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 (College Hospital).)

“Malice” is defined as conduct “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.” [Citation.] As noted earlier, the italicized words were added by the 1987 Reform Act. We assume they are not surplusage. [Citation.]

By adding the word “willful” to the “conscious-disregard” prong of malice, the Legislature has arguably conformed the literal words of the statute to existing case law formulations. [Citation.] However, the statute’s reference to “despicable” conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective “despicable” is a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.” [Citation.] As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs’ interests. The additional component of “despicable conduct” must be found.

(College Hospital, supra, 8 Cal.4th at p. 725.)

Even if Defendants have alleged that Plaintiff willfully and consciously disregarded their rights by refusing to consider their survey and failing to obtain her own survey, the alleged conduct does not amount to “despicable” conduct. “The adjective ‘despicable’ connotes conduct that is ‘ “… so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210 (Lackner).) “Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages…. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Ibid.)

Defendants place some emphasis on a federal trial court ruling in City of San Jose v. Monsanto Company (N.D. Cal. 2017) 231 F.Supp.3d 357 (Monsanto) where several cities sued various manufacturers of products containing environmental contaminants called polychlorinated biphenyls (PCBs), alleging the defendant manufacturer’s PCBs pollute the San Francisco Bay (the “Bay”) through stormwater and dry weather runoff, forcing the plaintiff cities to spend money to reduce PCB discharge in order to comply with state and federal regulations. The Monsanto court denied the defendants’ motion to dismiss. With regard to the plaintiffs’ claim for punitive damages, the Monsanto court wrote:

Punitive damages are available when a defendant acts with “oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Contrary to Monsanto’s assertion, punitive damages are available even if Monsanto did not specifically intend to cause harm to Oakland, Berkeley, and San Jose. Id. § 3294(c)(1) (defining “malice” to mean “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”) (emphasis added). The Cities have alleged facts showing that Monsanto may have acted maliciously. See, e.g., San Jose FAC ¶¶ 103–07 (alleging that Monsanto concealed the hazards of PCBs while seeking to maximize profits from PCB sales).

(Monsanto, supra, 231 F.Supp.3d at p. 366.)

Defendants contend Plaintiff concealed the injury by failing to obtain her own survey. The court does not read such an allegation to be equivalent to concealment. Here, we have a legal dispute between two neighbors regarding the ownership of property. The allegations, even accepted as true, do not amount to despicable conduct from which this court can derive any vile, base, evil, or criminal intent sufficient to support a claim for punitive damages.

Accordingly, Plaintiff’s motion to strike portions of cross-complainant Rubil Ahmadi and Nargol Rezvani’s first amended cross-complaint is GRANTED. To the extent Defendants are able to obtain some other factual support during discovery, Defendants may thereafter seek leave to amend to pursue punitive damages.