Case Number: EC066929 Hearing Date: January 12, 2018 Dept: NCB

7. EC066929

HILARIO CASADO-FUENTE v OCTAVIO CASADO

Motion to Strike

This case arises from the Plaintiffs’ claim that the Defendants defrauded the Plaintiffs when the Defendants made false statements to induce the Plaintiffs into transferring their property to the Defendants.

This hearing concerns the Defendants’ motion to strike the claim for punitive damages from paragraph 2 of the prayer for relief.

CCP section 436 authorizes the Court to strike any portion of a pleading that is improper or not drawn in conformity with California law. A motion to strike is the procedure to attack an improper remedy. Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562.

A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th

1253, 1255. A properly pleaded fraud claim will itself support recovery of punitive damages. Stevens v. Sup.Ct. (St. Francis Med. Ctr.) (1986) 180 Cal.App.3d 605, 610.

A review of the Complaint reveals that the first and second causes of action are based on fraud. Since there are fraud claims in the pleadings, the Plaintiffs have pleaded facts supporting the claim for punitive damages.

The Defendants argue that the Plaintiffs may not recover punitive damages for the third cause of action for negligent misrepresentation. However, the Defendants did not seek to strike the claim for punitive damages in the third cause of action; instead, the Defendants sought to strike the entire claim for punitive damages in paragraph 2 of the prayer for relief.

In paragraph 2 of their prayer for relief, the Plaintiffs sought punitive damages based on the claims in the first cause of action for intentional misrepresentation, the second cause of action for intentional misrepresentation, the third cause of action for negligent misrepresentation, the fourth cause of action for conversion, the fifth cause of action for financial elder abuse, and the sixth cause of action for financial elder abuse. Since the claim for punitive damages in paragraph 2 of the prayer for relief is based on causes of action that seeks damages based on fraud, i.e., the first and second causes of action, there are no grounds to strike the entire claim for punitive damages.

Therefore, the Court denies the Defendants’ motion to strike because the Plaintiffs’ claim for punitive damages in paragraph 2 of the prayer for relief is based on allegations showing that the Plaintiffs are entitled to recover punitive damages.