17-CIV-05553 LINDSEY BRUCE vs. KENDRA NASH, et al.
LINDSEY BRUCE RICHARD PARIS
KENDRA NASH LANCE BURROW
5. motion to strike KERI NICHOLAS AND LOREN DAKIN’S MOTION TO STRIKE PORTIONS OF THE COMPLAINT
TENTATIVE RULING:
The Motion to Strike brought by defendants Keri Nicholas and Loren Dakin (collectively, “Nicholas/Dakin”) is granted in part and denied in part. It is granted as to the following passages as set forth in the motion, and denied as to the remainder:
· page(s) 7:26-8:1,
· page(s) 8:2-3,
· page(s) 8:4-8, and
· page(s) 8:22-24.
A party may move to strike a matter that is false, improper, or irrelevant. C.C.P. § 436(a). Each of the grounds upon which Nicholas/Dakin seek to strike allegations of the complaint are addressed below.
Whether the Privileges of Civil Code § 47 Apply. Two privileges are raised in the briefing. The first, under Civil Code § 47(b), is an absolute privilege, while the second, under Civil Code § 47(c), is a qualified privilege. Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360. The difference between an absolute privilege and a qualified privilege is that the latter can be overcome by a showing of malice, while former cannot. Civil Code § 47(b) and (c).
The absolute privilege under Subsection (b) has been extended to encompass “statements made when a citizen contacts law enforcement personnel to report suspected criminal activity on the part of another person.” Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 355. As such, any allegations of communications to police should be stricken as improper. C.C.P. § 436(a).
The qualified privilege under Subsection (c) applies to communications made without malice, and specifically includes communications regarding job performance or qualifications. The various categories enumerated in Subsection (c) are fact-intensive, as follows:
1. by one who is also interested;
2. by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive and for the communication to be innocent; or
3. by one who is requested by the person interested to give the information.
C.C.P. § 47(c). On a motion to strike, the facts alleged must be construed in the plaintiff’s favor, though they must also be read as a whole with all parts in their context. Clauson v. Sup. Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255 (citations omitted). While some of these categories may apply, they are fact-intensive as to how the parties “stand in… relation to the person interested” or as to whether the information was “requested” by the recipient. Moreover, a privilege operates as an affirmative defense (see Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368-1369), and thus the burden of proving that that privilege applies rests with the defendant invoking it—who cannot introduce facts (other than judicially-noticeable facts) on a motion to strike. Therefore, the Court does not find it appropriate at this stage of the litigation to strike any matter that might be subject to the qualified privilege.
As such, any allegations of communications with clients, realtors, or other third parties (other than police) shall not be stricken.
Punitive Damages. “{T}he law does not favor punitive damages and they should be granted with the greatest caution.” Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1392, quoting Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347, 355. Punitive damages must be proven to a “clear and convincing” standard. C.C.P. § 3294. Finally, specific facts must be pled to support a claim of punitive damages—legal conclusions are insufficient. Hilliard v. A.H. Robbins (1983) 148 Cal.App.3d 374, 391.
To allege punitive damages, a party must allege facts that show that fraud, oppression, or malice occurred. In the context of punitive damages, malice is defined as either: (1) an intent to cause injury to the plaintiff, or (2) despicable conduct that is carried on with willful and conscious disregard of the rights or safety of others. Civil Code § 3294(c)(1).
Once the allegations of filing a report with the police are stricken from the instant complaint, what remains is a more garden-variety business dispute wherein an employee attempted to break-off from a former employer and start her own business, while that employer responded by attempting to tarnish that employee’s reputation and squelch the fledgling business. However, Nicholas/Dakin were not the employers. Instead, they are alleged to be the sister and brother-in-law of defendant Kendra Nash—an owner of PARC. There are allegations that both Nicholas and Dakin made phone calls to specific clients to inform disparage Plaintiff, and, in context of the familial relationship between Keri Nicholas and Kendra Nash, there are sufficient facts alleged here to describe the intent that Nicholas and Dakin had when making those phone calls. The disparagement at issue went a bit outside of the norms of business competition in that the former employer is alleged to have not simply stated that the employee did bad work or was unreliable, but, rather, that she was a thief and a criminal. Nonetheless, this disparagement does not rise to the level of “despicable” conduct.
However, “despicable” conduct is only one of two pathways for establishing “malice.” The other pathway is “intent to injure.” Civil Code § 3294(c)(1). The facts here, particularly when taken in context, describe a scenario in which a business was disparaging a new competitor with the intent to injure that competitor’s business. For example, the complaint alleges:
Plaintiff is informed and believes that after Defendants learned of Plaintiff’s business, beginning in the month of January 2017 and continuing thereafter, Defendants contacted Plaintiff’s clients for the purpose of discouraging them from using Plaintiff’s staging services. Defendants (and each of them) intentionally induced the realtor-clients to terminate services with Plaintiff by alleging to the customers that Plaintiff was criminally charged with stealing furniture and money from Defendants Kendra and Jared Nash. Defendants (and each of them) contacted Plaintiff’s clients and made a defamatory statement that Plaintiff is a thief who used stolen inventory in their staging projects in addition to stealing and/or embezzling money from PARC Staging. Defendants told realtor-clients that if there were any active staging projects recently completed by Plaintiff, those projects were likely staged with stolen inventory from PARC.
Complaint, ¶ 29 (emphasis added). These facts are sufficient to state an intent to injure Plaintiff and her business.
If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.
6. motion to strike KENDRA NASH AND JARED NASH’S MOTION TO STRIKE PORTIONS OF THE COMPLAINT
TENTATIVE RULING:
The Motion to Strike brought by defendants Kendra Nash aka/dba PARC Staging aka/dba Nash Design Group and Jared Nash (collectively, “PARC”) is granted in part and denied in part. It is granted as to the following passages as set forth in the motion, and denied as to the remainder:
· page(s) 7:26-8:1,
· page(s) 8:2-3,
· page(s) 8:4-8, and
· page(s) 8:22-24.
A party may move to strike a matter that is false, improper, or irrelevant. C.C.P. § 436(a). Each of the grounds upon which PARC seeks to strike allegations of the complaint are addressed below.
Whether the Privileges of Civil Code § 47 Apply. Two privileges are raised in the briefing. The first, under Civil Code § 47(b), is an absolute privilege, while the second, under Civil Code § 47(c), is a qualified privilege. Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 360. The difference between an absolute privilege and a qualified privilege is that the latter can be overcome by a showing of malice, while former cannot. Civil Code § 47(b) and (c).
The absolute privilege under Subsection (b) has been extended to encompass “statements made when a citizen contacts law enforcement personnel to report suspected criminal activity on the part of another person.” Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 355. As such, any allegations of communications to police should be stricken as improper. C.C.P. § 436(a).
The qualified privilege under Subsection (c) applies to communications made without malice, and specifically includes communications regarding job performance or qualifications. The various categories enumerated in Subsection (c) are fact-intensive, as follows:
1. by one who is also interested;
2. by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive and for the communication to be innocent; or
3. by one who is requested by the person interested to give the information.
C.C.P. § 47(c). On a motion to strike, the facts alleged must be construed in the plaintiff’s favor, though they must also be read as a whole with all parts in their context. Clauson v. Sup. Ct. (Pedus Services, Inc.) (1998) 67 Cal.App.4th 1253, 1255 (citations omitted). While some of these categories may apply, they are fact-intensive as to how the parties “stand in… relation to the person interested” or as to whether the information was “requested” by the recipient. Moreover, a privilege operates as an affirmative defense (see Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1368-1369), and thus the burden of proving that that privilege applies rests with the defendant invoking it—who cannot introduce facts (other than judicially-noticeable facts) on a motion to strike. Therefore, the Court does not find it appropriate at this stage of the litigation to strike any matter that might be subject to the qualified privilege.
As such, any allegations of communications with clients, realtors, or other third parties (other than police) shall not be stricken.
Punitive Damages. “{T}he law does not favor punitive damages and they should be granted with the greatest caution.” Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379, 1392, quoting Beck v. State Farm Mut. Auto. Ins. Co. (1976) 54 Cal.App.3d 347, 355. Punitive damages must be proven to a “clear and convincing” standard. C.C.P. § 3294. Finally, specific facts must be pled to support a claim of punitive damages—legal conclusions are insufficient. Hilliard v. A.H. Robbins (1983) 148 Cal.App.3d 374, 391.
To allege punitive damages, a party must allege facts that show that fraud, oppression, or malice occurred. In the context of punitive damages, malice is defined as either: (1) an intent to cause injury to the plaintiff, or (2) despicable conduct that is carried on with willful and conscious disregard of the rights or safety of others. Civil Code § 3294(c)(1).
Once the allegations of filing a report with the police are stricken from the instant complaint, what remains is a more garden-variety business dispute wherein an employee attempted to break-off from a former employer and start her own business, while that employer responded by attempting to tarnish that employee’s reputation and squelch the fledgling business. The disparagement at issue went a bit outside of the norms of business competition in that the former employer is alleged to have not simply stated that the employee did bad work or was unreliable, but, rather, that she was a thief and a criminal. Nonetheless, this disparagement does not rise to the level of “despicable” conduct.
However, “despicable” conduct is only one of two pathways for establishing “malice.” The other pathway is “intent to injure.” Civil Code § 3294(c)(1). The facts here, particularly when taken in context, describe a scenario in which a business was disparaging a new competitor with the intent to injure that competitor’s business. For example, the complaint alleges:
Plaintiff is informed and believes that after Defendants learned of Plaintiff’s business, beginning in the month of January 2017 and continuing thereafter, Defendants contacted Plaintiff’s clients for the purpose of discouraging them from using Plaintiff’s staging services. Defendants (and each of them) intentionally induced the realtor-clients to terminate services with Plaintiff by alleging to the customers that Plaintiff was criminally charged with stealing furniture and money from Defendants Kendra and Jared Nash. Defendants (and each of them) contacted Plaintiff’s clients and made a defamatory statement that Plaintiff is a thief who used stolen inventory in their staging projects in addition to stealing and/or embezzling money from PARC Staging. Defendants told realtor-clients that if there were any active staging projects recently completed by Plaintiff, those projects were likely staged with stolen inventory from PARC.
Complaint, ¶ 29 (emphasis added). These facts are sufficient to state an intent to injure Plaintiff and her business.
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