Case Name: Stewart v. Comcast Corp., et al.
Case No.: 1-14-CV-272710
Plaintiff Marcus Stewart (“Plaintiff”) asserts claims for intentional misrepresentation, negligent misrepresentation, negligence, and conversion, and seeks punitive damages against defendant Comcast of California II, LLC (“Comcast”). Plaintiff alleges that on March 9, 2009, Comcast damaged his property (“the Property”) while digging a trench, and willfully/maliciously converted parts of the Property by leaving tubing-encased wires exposed. (Compl., ¶¶ 1-2, 5-6, & 29-32.) Comcast allegedly made a knowingly false promise to pay to repair the damage with intent to deceive/defraud Plaintiff and induce his reliance, and he relied on the promise by waiting years for payment while the Property remained damaged; however, Comcast then refused to pay “a fair and reasonable amount to repair the damage”—which is estimated to cost $13,534 to $18,647—and offered $3,481.74 in July 2013. (Id., ¶¶ 7-9 & 11-16.) Plaintiff alleges that the false promise was oppressive, malicious, and fraudulent. (Id., ¶ 17.)

Comcast moves to strike the prayer for punitive damages and its supporting allegations from the complaint. (Code Civ. Proc., §§ 435-437.) Most of Comcast’s arguments pertain to malice and oppression, but the punitive damages claim is based in part on fraud. (See Civ. Code, § 3294 [oppression, malice, or fraud supports punitive damages].) With respect to fraud, Comcast only takes issue with allegations regarding its “awareness,” i.e. knowledge, and “intent to harm.” The Court will only discuss arguments raised by Comcast. (See Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2, quoting In re Steiner (1955) 134 Cal.App.2d 391, 399 [“a point . . . with no supporting argument . . . requires no discussion”].)

A properly pleaded fraud claim will support punitive damages. (Stevens v. Super. Ct. (1986) 180 Cal.App.3d 605, 610.) Although fraud must be particularly pled, the plaintiff may generally allege the defendants’ intent and knowledge. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1060, 1062; Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638-639.) Fraud based on a false promise requires that a promise was made without any intention of performing and with intent to induce reliance, but not intent to harm. (Joanaco Projects, Inc. v. Nixon & Tierney Constr. Co. (1967) 248 Cal.App.2d 821, 831 [“[a] promise to do something necessarily implies the intention to perform, and, where such an intention is absent, there is an implied misrepresentation of fact, which is actionable fraud”]; Civ. Code, §§ 1709 & 1710.) Plaintiff generally alleges Comcast’s knowledge and intent, and specifically alleges that Comcast failed to perform by refusing to pay a reasonable value for repairs for several years. (Compl., ¶¶ 7-8 & 11-16.) Such allegations, if proved, would support the intent element. (Las Palmas Assocs. v. Las Palmas Center Assocs. (1991) 235 Cal.App.3d 1220, 1239 [failure to immediately carry out pledge is evidence of false promise]; Petersen v. Allstate Indem. Co. (2012) 281 F.R.D. 413, 420 [“decision to deny coverage only after further performance would become very costly supports the inference that its initial promise of coverage was made without intent to perform”]; see also Tenzer v. Superscope (1985) 39 Cal.3d 18, 30 [other evidence of intent]; see also Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7 [alleging “oppression, fraud, or malice” is proper where other allegations “if proven, would sustain a finding of” either oppression, fraud, or malice].) Thus, Plaintiff’s allegations support his punitive damages claim.
Comcast’s motion to strike is therefore DENIED.