Case Number: BC513242    Hearing Date: April 24, 2014    Dept: 58

JUDGE ROLF TREU
DEPARTMENT 58
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Hearing Date: Thursday, April 24, 2014
Calendar No: 5
Case Name: Michaelian, et al. v. Sherle Wagner International, et al.
Case No.: BC513242
Motion: Motions to Strike
Moving Party: (1) Defendants Sherle Wagner International, 839 N. La Cienega Realty LLC, and Tara Rosenbaum
(2) Defendant NWGC, Inc.
Responding Party: Plaintiffs Yafa Soofer Michaelian and Noorola/Yafa Soofer Family Trust
Notice: OK

Tentative Ruling: Motions to strike punitive damages are granted with 15 days leave to amend.
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Background –
On 6/25/13, Plaintiffs Yafa Soofer Michaelian (as trustee) and Noorola/Yafa Soofer Family Trust filed this action against Defendants Sherle Wagner International, Sherle Design, Tara Rosenbaum, and 839 N. La Cienega Realty LLC arising out of the alleged damages resulting from renovations to neighboring property. On 7/18/13, prior to the appearance of any defendant, Plaintiffs filed a First Amended Complaint which asserted causes of action for (1) negligence, (2) negligent retention, (3) trespass, and (4) nuisance. Additionally, the FAC named Carlos Stuardo Ovalle, NWGC Inc., and Ming-Yang Yeh as additional defendants. On 8/22/13, Plaintiffs voluntarily dismissed Ovalle without prejudice. On 1/15/14, this action was assigned to this Court. On 3/27/14, Plaintiffs filed Doe Amendments naming Sean Knibb, Knibb Design Corporation, and Michael Satoh as Does 1-3 respectively.

Motions to Strike –
Sherle Wagner International, 839 N. La Cienega Realty LLC, and Tara Rosenbaum (“Owner Defendants” (FAC ¶¶ 4-7)) and NWGC, Inc. (alleged to be the contractor (FAC ¶ 9)) move to strike Plaintiffs’ claim for punitive damages which is claimed in the 3rd COA (FAC ¶ 36).

1. Factual Allegations of the FAC
Renovations took place at a building owned by Owner Defendants (“839 Building”) which is adjacent to Plaintiffs’ building (“833 Building”). ¶¶ 15-16. The driveway of the 839 Building was demolished, which caused damaged to the wall of the 833 Building. ¶ 17. Additionally, construction traffic caused deep scratches to the 833 Building’s wall. ¶ 18. Lastly, the 839 Building’s water drainage was also sloped towards the 839 Building and gravel has been placed to hide the runoff and accumulation of water. ¶¶ 19-20.

2. Punitive Damages
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. 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. In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (citations omitted).

Owner Defendants and NWGC argue that Plaintiffs fail to allege facts to support punitive damages based on oppression, fraud, or malice (Civil Code § 3294(a)); and fail to allege facts to impose liability against the entity defendants (Civil Code § 3294(b)). The Court agrees in part.

Malice requires despicable conduct in addition to the willful and conscious disregard of a plaintiff’s interests. See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725). Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code § 3294(c)(2). “’Despicable conduct’ is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331 (citation omitted).

Plaintiffs allege that the demolition of the 839 Building’s driveway was doe with any right, consent, permission, or discretion to the 833 Building (FAC ¶ 17); and that the design of the 839 Building’s water drainage resulted in water runoff into the 833 Building which Defendants have attempted to hide by the placement of gravel (id. ¶¶ 19-20). Plaintiffs allege they did not consent to this conduct; and that the construction activities were intentional, knowing, deliberate, and done with disregard for the foreseeable contact and exposure to the 833 Building. Id. ¶¶ 33-34. At the pleading stage, this is sufficient to support malice or oppression.

However, Plaintiffs fail to allege facts to support liability against the entity defendants. Other than the general conclusory allegation that each of the defendants were agents and employees of the other defendants (id. ¶ 13), Plaintiffs fail to allege facts as to advance knowledge, authorization, ratification, or act on the part of an officer, director, or managing agent for the entity defendants (Civil Code § 3294(b)). Notably, Plaintiffs do not distinguish between the conduct of the defendants despite alleging their different roles (see FAC ¶¶ 4-10 (appearing to distinguish between owners, an architect, a contractor, and an engineer)).

Therefore, the motions to strike punitive damages are granted with leave to amend.

Procedural Note –
Owner Defendants and NWGC argue that Plaintiffs’ oppositions were untimely and improperly served. These arguments are directed at Plaintiffs’ prior opposition filed on 11/26/13 (which admittedly is identical to Plaintiffs’ oppositions filed on 4/3/14). However, the procedural history of this action reveals that this action has been transferred and reassigned to different departments while the motions to strike were pending which resulted in a re-notices of the motions. Under these circumstances, the Court does not find that Plaintiffs’ oppositions to these re-noticed motions are untimely or improperly served.