Case Name: Richard D. Soukoulis v. Diana A. Southern, et al.
Case No.: 2018-CV-326154

Motion to Strike Punitive Damages Allegations by Defendants Diana A. Southern and Richard Southern

Factual and Procedural Background

This is a property dispute involving use of an easement. Plaintiff Richard D. Soukoulis (“Plaintiff”) is the owner of residential property located at 21296 Cinnabar Hills Road in San Jose, California. (Complaint at ¶ 1.) Defendants Diana A. Southern and Richard Southern, individually and as trustees of the Southern Family Revocable Trust dated 4-15-2003 (collectively, “Defendants”), are owners of real property located at 21283 Cinnabar Hills Road in San Jose, California. (Id. at ¶ 2.)

Cinnabar Hills Road is a roadway parcel (the “Roadway Parcel”) extending from the base of Bertram Road, in Santa Clara, California. (Complaint at ¶ 5.) The Santa Clara County Recorder’s Office recognizes the Roadway Parcel as a recorded 30 foot wide non-exclusive Ingress and Egress easement with a stated purpose of allowing passage to Plaintiff and the community to the homes and properties off the Roadway Parcel. (Ibid.)

Ingress and egress easements and related codes exist primarily for the purpose of ensuring that roads remain free and clear, and are of sufficient width to accommodate vehicles, including emergency vehicles, which must be able to access all of the properties they serve. (Complaint at ¶ 8.) Accordingly, the recording of roadway easements places everyone on notice of their existence and parameters, and prohibits any person from, among other things, altering, constructing and/or maintaining any encroachments upon these easements, and otherwise prohibits persons from interfering with the use of the easement by its co-owners. (Ibid.)

In violation of easement requirements and prohibitions, Defendants have altered the Roadway Parcel easement, and constructed and/or continue to maintain various and significant encroachments upon the Roadway Parcel, including by maintaining a private wrought iron fence in the easement, which deprive Plaintiff and other co-owners of their easement rights, while usurping easement property for Defendants’ private and exclusive use. (Complaint at ¶ 9.)

Plaintiff has contacted Defendants on several occasions to inform them of their encroachments, and to request that they voluntarily clear them. (Complaint at ¶ 10.) Defendants have admitted that they are encroaching onto the Roadway easement, which is confirmed by their own engineers and land surveyors survey. (Ibid.) Despite their admissions, Defendants have refused and continue to refuse to remove their encroachments and comply with the terms of the easement restrictions, thus necessitating Court intervention. (Ibid.)

On April 5, 2018, Plaintiff filed the operative Complaint against Defendants setting forth causes of action for: (1) quiet title; (2) declaratory and injunctive relief; and (3) specific performance.

Motion to Strike Punitive Damages Allegations

Currently before the Court is Defendants’ motion to strike the punitive damages allegations in the Complaint. Plaintiff filed written opposition. Defendants filed reply papers.

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

Defendants argue there are no factual allegations in the Complaint to support an award for punitive damages. In opposition, Plaintiff makes the following procedural and substantive arguments: (1) the motion to strike is untimely; (2) Defendants failed to meet and confer before the filing the motion; and (3) the claim for punitive damages is legally sufficient.

Timeliness of the Motion

Generally, a motion to strike must be brought within 30 days after service of the challenged pleading. (See Cal. Code Civ. Proc., § 435, subd. (b) [motion to strike may be brought within time allowed to respond to pleading].) As stated above, Plaintiff filed his Complaint with the Court on April 5, 2018. Plaintiff thereafter personally served Defendants with the Complaint on April 14 and 17, 2018. (See OPP at p. 2.) Thus, any response to the Complaint was due on or before May 14 and 17, 2018. As Defendants did not file their motion to strike until June 6, 2018, Plaintiff argues the motion is untimely.

Defendants do not dispute service of the Complaint on April 14 and 17, 2018. Defendants however claim they asked Plaintiff for a 15-day extension of time to file their responsive pleading in accordance with California Rules of Court, rule 3.110(d). Plaintiff did not respond to their request for an extension. (See Memo of P’s & A’s at p. 2.) The opposition is silent as to whether Plaintiff did in fact respond to Defendants’ request for an extension to file a responsive pleading. In any case, Plaintiff does not cite any legal authority which allows a court to deny a motion to strike that is untimely filed. In fact, the Code specifically allows the Court to strike a pleading or any portion thereof “at any time in its discretion.” (Code Civ. Proc., § 436.) The Court therefore will consider the merits of the motion.

Meet and Confer Requirement

Before filing a motion to strike, the moving party shall “meet and confer in person or by telephone” with the opposing party to determine “whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) This conference should occur at least five days before the deadline to file the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(2).)

When filing the motion to strike, the moving party must include a declaration stating either “the means by which the moving party met and conferred with [the other party] and that the parties did not reach an agreement resolving the objections raised by the motion to strike” or [the other party] “failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).) “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).)

Plaintiff correctly points out that defense counsel failed to attach a declaration satisfying the requirement to meet and confer before filing the motion. (See OPP at p. 2; see also Declaration of Andrew Castricone at ¶ 2.) Defendants do however state in their moving papers that counsel reached out to Plaintiff’s attorney to seek resolution of the punitive damages issue without the necessity of a motion. (See Memo of P’s & A’s at p. 2.) Nor does Plaintiff dispute this purported attempt to meet and confer in his opposition papers. Regardless, as stated above, the failure to include a meet and confer declaration is not grounds for denying a motion to strike. The Court thus will overlook Defendants’ failure to comply with Code of Civil Procedure section 435.5 in this instance. The Court directs defense counsel to comply with the Code of Civil Procedure with respect to future filings.

Sufficiency of Punitive Damages Allegations

“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. Super. Ct. (1986) 176 Cal.App.3d 503, 510.)

Here, Plaintiff’s prayer for relief includes a request for punitive damages according to proof. In support, Plaintiff alleges, with respect to the first and third causes of action, that “Defendants acted maliciously, willfully, and oppressively, thereby entitling Plaintiff to recover punitive damages in an amount according to proof.” (See Complaint at ¶¶ 17, 25.) Such allegations constitute mere conclusions and are not supported by underlying facts of malice, oppression, or fraud to establish a basis for punitive damages. Therefore, the punitive damages allegations are hereby stricken however Plaintiff will be given an opportunity to amend his pleading. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [with respect to motion to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].)

Disposition

The motion to strike punitive damages allegations is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.