Case Name: Alexander E. Lehr, et al. v. Biel Properties, Inc.
Case No.: 2015-1-CV-288077

Factual and Procedural Background

This is an easement dispute involving trespass and vandalism. Cross-Complainant Biel Properties, Inc. (“Biel”) and cross-defendants Alexander Lehr and Denise Lehr (“Lehr”) have adjoining properties that connect at the northeast corner of Lehr’s parcel. (See First Amended Cross-Complaint [“FACC”] at ¶ 6.) In March 1990, Biel executed and recorded an express Easement Agreement with Lehr’s predecessor in interest that created an easement of convenience for the predecessor and included limitations on the uses to which the easement could be put. (Id. at ¶ 7.) Under the agreement, Biel had the right to control access to the easement by locking the gate. (Ibid.)

In July 2015, Biel terminated the easement and thereafter locked the gates accessing the easement. (See FACC at ¶ 12.) In September 2015, Lehr, through counsel, contacted Biel claiming that the easement had been wrongfully terminated and demanded that Biel rescind the termination and reopen the easement for Lehr’s unrestricted access and use. (Id. at ¶ 14.) Biel refused Lehr’s request and the court subsequently declined to issue a temporary restraining order that would have required Biel to allow access to the easement. (Id. at ¶¶ 15-16.) Thereafter, Lehr allegedly vandalized Biel’s real and personal property by cutting the locks and chains controlling the easement and stole a camera used to monitor access to the easement. (Id. at ¶¶ 17, 28, 42, and 67.)

On December 22, 2015, Biel filed the operative FACC setting forth the following causes of action: (1) nuisance; (2) trespass; (3) vandalism/theft’ (4) quiet title; (5) permanent injunction; and (6) declaratory relief.

Currently before the Court is Lehr’s motion to strike punitive damages from the FACC. (See Code Civ. Proc., §§ 435, 436.) Biel filed written opposition. Lehr filed reply papers.

Lehr’s Motion to Strike

Lehr moves to strike paragraph 67 and paragraph 5 in the prayer for relief on the ground that Biel fails to support its claim for punitive damages with specific facts. In opposition, Biel argues that sufficient facts have been pled to support an award for punitive damages.

Timeliness

As a preliminary matter, Biel argues that the motion to strike is untimely filed as it was filed more than 35 days after service of the FACC. A motion to strike any pleading must be filed “within the time allowed to respond to a pleading” – e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. (Code Civ. Proc., § 435, subd. (b)(1).) Contrary to Biel’s argument, Lehr claims that the summons was not properly served until March 7, 2016. In adding five days for service by mail (see Code Civ. Proc., § 1013), Lehr argues that the motion to strike was timely filed on April 11, 2016. Even if the motion to strike was untimely filed, the Court would still have discretion to hear the motion on its merits. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281-282 [there is no absolute right to have a pleading stricken for lack of timeliness in filing where no question of jurisdiction is involved and the late filing was a mere irregularity; the granting or denial of the motion is a matter which lies within the discretion of the court].)

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) 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).)

Analysis

“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. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute 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.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘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.’” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations omitted].)

“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.” (See Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.)

Here, the FACC sets forth claims for vandalism, theft and trespass. Within these claims, Biel alleges that Lehr vandalized its property by cutting and removing chains and locks and stealing a camera from the premises. (See FACC at ¶¶ 17, 28, 41, 42, 43 and 67.) Biel further alleges that Lehr’s actions in removing or carrying away personal property were intended to injure or harass Biel. (Id. at ¶ 67.) As the conduct was intended to injure or harass Biel, such actions establish a finding of malice to support an award for punitive damages. (See Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462 [to be liable for exemplary damages, a defendant must act with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights].)

Consequently, the motion to strike punitive damages is DENIED.