Case Number: SC122366    Hearing Date: August 12, 2014    Dept: M

Tentative Ruling
Martin v. Lynch
SC122366

This is an unfortunate neighbor-versus-neighbor dispute concerning, at bottom, title to a strip of property located between two adjoining Mandeville Canyon parcels (however, the owners of three parcels of property are parties to this action). Judge Allan Goodman issued a TRO against Defendants concerning, inter alia, a wire fence they allegedly erected in order to exercise dominion over the disputed land, which TRO remains in effect. He also set an OSC re Preliminary Injunction, which has been continued to allow for an evidentiary hearing.
In the interim, defendant McMillan, the owner of one of the parcels, moves to strike Plaintiffs’ allegations pertaining to punitive damages in connection with Plaintiffs’ claims against him for interference with property rights and nuisance, asserting that the facts alleged in the complaint do not support the requests for punitive damages.

DENIED:

Having read and considered the moving papers, the court tentatively denies Mcmillan’s motion pursuant to CCP 435-436 and CC 3294, and rules as follows:

1. Evidentiary matters:
a. Defendant’s request for judicial notice is denied. The request was improperly made for the first time on reply; it could have been made with the moving brief; and
b. The Court’s ruling would be the same even if it took judicial notice of the existence of the declaration (it cannot take judicial notice of the truth of the contents of the declaration).
2. A claim for punitive damages must be pleaded in more than just a conclusory fashion; such a claim must be supported by specific factual allegations. E.g., Smith v. Superior Court (1992) 10 CA 4th 1033, 1041- 1042; see also Weil & Brown (2014) 6:158 and 5 Witkin, Procedure (5th ed. 2008), sec. 917;
3. In determining the sufficiency of a punitive damage claim, the complaint will be read as a whole so that even conclusory allegations will suffice when read in context with facts alleged as to the defendant’s wrongful conduct. Weil & Brown, 6:158;
4. For the purpose of punitive damages, “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” – Grimshaw v Ford (1980) 119 Cal App 3d 757, Nolin v National Convenience Stores, Inc 95 Cal App 3d 279, 282, G.D. Searle & Co v Superior Court (1975) 49 Cal App 3d 22, 32, Taylor v Superior Court (1979) 24 Cal 3d 890, 895;
5. “[O]ppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” CC 3294, subd. (c)(1), (2);
6. “Despicable” has a character of outrage frequently associated with crime. American Airlines, Inc. v. Sheppard, Mullin, Richter and Hampton (2002) 96 CA 4th 1017, 1050;
7. Punitive damages are proper only when the tortious conduct rises to the level of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate. Id. at 1051.
8. Specific factual allegations are required to support a punitive damages claim. Brousseau v. Jarrett (1977) 73 CA 3d 864, 872;
9. Even though “courts are increasingly liberal as to what constitutes sufficient ‘fact-pleading’ on a claim for punitive damages” (Perkins v. Superior Ct. (1981) 117 CA 3d 1, 6-7), “there must be aggravating circumstances such as ill-will on the part of the defendant or a desire to do harm for the mere satisfaction of doing it….” Ebaugh v. Rabkin (1972) 22 CA 3d 891, 894;

10. Punitive damages may be alleged when a defendant’s conduct, although not deliberate, rises to the level of a conscious disregard for the rights and/or safety of others. These allegations are sufficient to support a claim for punitive damages.
11. However, as a matter of law, negligence claims and even gross negligence claims will not support punitive damages. “Thus, to establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent, or even reckless.” Bell v. Sharp Cabrillo Hospital (1989) 212 CA 3d 1034;
12. Punitive damages are available for malicious interference with an easement. E.g., Zimmer v. Dykstra (1974) 39 CA 3d 422, 438–439; 6 Miller & Starr, Cal. Real Estate (3d ed. 2000) Easements, § 15.72 (“The owner of the easement whose rights have been impeded can recover damages, which are measured in the same manner as those for any other nuisance… [I]f malice can be shown, exemplary damages can be recovered”); see also, Moylan v. Dykes (1986) 181 CA 3d 561, 574 (“When a person interferes with the use of an easement he deprives the easement’s owner of a valuable property right and the owner is entitled to compensatory damages. The interference is a private nuisance and the party whose rights have been impeded can recover damages as measured in the case of a private nuisance” (emphasis added);
13. The complaint at bar contains the requisite specific factual allegations showing conduct which the trier of fact may conclude constitute malice or oppression under CC 3294. See, e.g., Complaint, paras. 8, 16, 38, 42, and 48-50. Indeed, in his moving brief, McMillan seeks a level of pleading detail not required by law. In this regard, any purported uncertainties in the complaint can be clarified through the discovery process;
14. Answer is to be served and filed within ten days; and
15. Plaintiffs shall give notice of today’s rulings and timely file proof of service thereof.