Notice of Hearing no fee

Cal. Super. - 6th Dist.March 25, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381 328 Santa Clara - Civil M. Sc John R. Brydon (Bar N0. 83365) EleCtron'cally F'led Dalen Saludes (Bar No. 251963) by SUperlor court Of CA’ Amber Lee Kelly (Bar No. 117006) COUntY 0f Santa C'araa DEMLER, ARMSTRONG & ROWLAND, LLP on 6/21/2021 4:21 PM 101 Montgomery Street, Suite 1800 Reviewed By: M. Sorum San Francisco, CA 94014 Case #21 CV381 328 Telephone: (415) 949-1900 Envelope: 6691673 Facsimile: (4 1 5) 354-8380 Emails: brv@darlaw.com; alk@darlaw.com Attorneys for Defendant Syed Aon Mujtaba, Trustee of the Syed Aon Mujtaba Revocable Trust SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA ROBERT C. SANNER and BARBARA ) CASE NO. 21CV381328 MOOR SANNER, Trustees of The Robert ) and Barbara Sanner Family Trust of 1983, ) DEFENDANT SYED AON MUJTABA'S dated December 28, 1983, ) NOTICE OF MOTION AND MOTION ) TO STRIKE CLAIM FOR PUNITIVE Plaintiffs, ) DAMAGES FROM COMPLAINT FOR ) NUISANCE; MEMORANDUM OF V. POINTS AND AUTHORITIES IN ) SUPPORT THEREOF SYED AON MUJTABA, Trustee ofthe ) Syed Aon Mujtaba Revocable Trust; and ) DATE: DOES 1 - 10 , inclusive, ) TIME: ) DEPT: 7 Defendants. ) ) Action Filed: March 25, 2021 ) Trial Date: Not Set TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on , 2021, at 9:00 a.m., 0r as soon thereafter as the matter may be heard, in Department 7 of the above-entitled court located at 191 N. First Street, San Jose, CA 951 13, defendant Syed Aon Mujtaba, Trustee 0f the Syed Aon Mujtaba Revocable Trust ("Defendant") will move the Court for an order to strike the following portions of Plaintiffs’ Complaint for Nuisance pursuant to Code of Civil Procedure sections 435(b)(1) and 436 and Civil Code section 3294: 1 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF rum 9:00am 9-28-21 September 28 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. At page 6 of the Complaint, paragraph 29 in its entirety (lines 7-10). 2. At page 6 of the Complaint, line 19, item 4 “for punitive and exemplary damages in an amount according to proof.” Good cause exists t0 grant this motion because the Complaint lacks the requisite specificity 0f facts for punitive damages to survive this challenge. This motion is based upon this notice, declaration of compliance With Code of Civil Procedure sections 435(a), the attached memorandum 0f points and authorities in support thereof, all of the pleadings, documents and records on file herein, along with such other and further arguments and evidence as may be presented at the hearing. Dated: June 21, 2021 DEMLER, ARMSTRONG & ROWLAND, LLP By:W guilt ?zé/MQ JOHN R. BRYDON DALEN SALUDES AMBER LEE KELLY Attorneys for Defendant Syed Aon Mujtaba, Trustee 0f the Syed Aon Mujtaba Revocable Trust 2 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES Defendant Syed A011 Mujtaba, Trustee 0f the Syed Aon Mujtaba Revocable Trust ("Defendant") submits the following points and authorities in support 0f his motion t0 strike portions 0f Plaintiffs Complaint. 1. Introduction Plaintiffs Robert C. Sanner and Barbara Moor Sanner, Trustees 0f The Robert and Barbara Sanner Family Trust (“Plaintiffs”) allege that tree roots from the Defendant’s three redwood trees have damaged their property. Syed Aon Mujtaba, as trustee of Syed Aon Mujtaba Revocable Trust (“Defendant”), purchased 975 Shauna Lane, Palo Alto, CA in March 0f 2018 With the fully grown redwood trees in place. Plaintiffs purchased 3925 E1 Cerrito Road, Palo Alto, CA in 1979. At that time, the three subject redwood trees were in place at 975 Shauna Lane, Palo Alto, CA. The three redwood trees are in Defendant’s backyard which shares a fence with Plaintiffs. In August of 2017, there was a prior claim by the Plaintiffs against the previous owners of 975 Shauna Lane, for damage from the roots 0f the three subj ect redwood trees, Which was settled for nearly $85,000. Defendant applied to the City for permission t0 have the trees removed, however, the City did not approve his application for removal. On March 25, 2021, Plaintiffs filed the current complaint for nuisance, alleging that tree roots have grown away from the root barrier system installed in 2018, allegedly resulting in damage t0 their landscaping, and City water meter. Plaintiffs claim they have lost use and enjoyment of their property and that “the tree roots have diminished the property value by $1 million.” In addition t0 compensatory damages, Plaintiffs are also seeking punitive damages 0n the basis that “In maintaining the nuisance, Defendants are acting with full knowledge 0f the consequences and damage being caused t0 Plaintiffs, and their conduct is willful, oppressive and malicious; accordingly, Plaintiffs are entitled t0 punitive damages against Defendants. . . ." However, these conclusory allegations are insufficient to justify the imposition 0f punitive 3 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 damages because the facts pled d0 not amount t0 "despicable conduct" or meet the rigorous pleading and proof standards imposed by Courts. Consequently, Defendant's motion t0 strike punitive damages from the Complaint should be granted. Accordingly, Defendants request that the Court strike the following improper portions 0f the Complaint: 1. At page 6 of the Complaint, paragraph 29 in its entirety (lines 7-10) stating: “In maintaining the nuisance, Defendants are acting with full knowledge 0f the consequences and damage being caused t0 Plaintiffs, and their conduct is willful, oppressive and malicious; accordingly, Plaintiffs are entitled t0 punitive damages against Defendants and each of them." 2. At page 6 0f the Complaint, line 19, Item 4 stating: “For punitive and exemplary damages in an amount according t0 proof.” 2. Authority for Motion to Strike Code of Civil Procedure section 435(b)(l) provides: Any party, within the time allowed t0 respond t0 a pleading, may serve and file a notice 0f motion t0 strike the whole or any part thereof. Code of Civil Procedure § 436 further states: The court may, upon a motion made pursuant to section 435, or at any time on its discretion and upon terms it deems proper: (a) Strike out any irrelevant, false 0r improper matter inserted in any pleading; (b) Strike out all 0r any part of any pleading not drawn 0r filed in conformity with the laws of this state, a court rule, 0r an order of the court. 3. Rigorous Pleading and Proof Standards Are Imposed Historically Disfavored Punitive Damages Claims California courts have historically disfavored punitive damages claims, and so impose rigorous pleading and proof standards. (See McDonnell v. American Trust (1955) 130 Cal.App.2d 269,298; Beck v. State Farm Mutual Auto Ins. C0. (1976) 54 Cal.App.3d 347, 355- 356.) In Flyers Body Shop Profit Sharing Plan v. Ticor Title Ins. C0. (1986) 185 Cal.App.3d 1149, the Court 0f Appeal reversed an award 0f punitive damages, observing: //// 4 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The mere carelessness 0r ignorance of the defendant does not justify the imposition of punitive damages. Unhappily, as a society we must tolerate Without added retribution these all too common lapses on ourselves. Punitive damages are proper only where the tortious conduct rises to the level of extreme indifference to the plaintiffs rights, a level Which decent citizens should not have to tolerate. However, something more than the mere commission of a tort is always required for punitive damages. [Citations omitted] T0 establish malice, it is not sufficient to only show that the defendant's conduct was negligent, grossly negligent 0r even reckless. [Citations omitted] There must be evidence that the defendant acted With knowledge 0f the probable dangerous consequences to plaintiffs interests and deliberately failed t0 avoid those consequences. (Id. at 1154-55 [emphasis added]; see also Beck, supra, 54 Cal.App.3d at 355 [punitive damages "should be granted With the greatest caution") Two years after Flyer, the Legislature amended Civil Code section 3294 to add the requirement that a defendant's conduct be "despicable" t0 justify the imposition 0f punitive damages. These amendments were recognized as an "important statutory limitation 0n the availability ofpunitive damages." (Mock v. Michigan Millers (1992) 4 Cal.App.4th 306, 331.) Civil Code section 3294 defines the fraud, oppression or malice that may support punitive damages award as follows in subdivision (c): (1) "Malice" means conduct Which in intended by the defendant t0 cause injury to the plaintiffs or despicable conduct which is carried 0n by defendant With a willful and conscious disregard 0f the rights or safety 0f others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant With the intention 0n the part 0f the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. In College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725, the Supreme Court reviewed this new requirement and squarely held that even a "conscious disregard" 0f plaintiff‘s rights is n0 longer sufiiciem t0 support a punitive damages award. Even if it can be shown that the defendant acted with a "willful and conscious disregard of the plaintiffs interests," punitive damages should not be awarded unless there is also evidence 0f "despicable conduct": By adding the word "willful" t0 the "conscious disregard" prong 0f malice, the Legislature has arguably conformed the literal words 0f the statute t0 existing case 5 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 law formulations. [Citations omitted] However, the statute's reference t0 "despicable" conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective "despicable" is a powerful term that refers to circumstances that are "base," "Vile," 0r “contemptible.” [Citations omitted] As amended t0 include this word, the statute plainly indicates that absent an intent t0 injure the plaintiff, "malice" requires more than a "willful and conscious" disregard 0fthe plaintiffs interests. The additional component 0f “despicable conduct" must befound. [Citations omitted] (College Hospital, supra, 8 Cal.4th at 725 [emphasis added].) To obtain punitive damages under the "despicable conduct" standard, a defendant must be guilty of conduct that "has the character of outrage frequently associated with crime." (Mock v. Michigan Millers Mutual Ins. C0. (1992) 4 Cal.App.4th 306, 328.) It is conduct so extreme as t0 rouse the contempt and outrage 0f reasonable people. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.) The adjective "despicable" connotes conduct "so Vile, base, contemptible, miserable, wretched 0r loathsome that it would be looked down upon and despised by ordinary decent people." (Mock, supra, 4 Cal.App.4th at 331; see also Cloud v. Casey (1999) 76 Ca1.App.4th 895, 912.) California courts routinely use "despicable" t0 describe aggravated crime. (See, e.g., People v. McElrath (1975) 175 Cal.App.3d 178 [rape, oral copulation and sodomy described as "outrageous, shocking and despicable"]; People v. Adams (1982) 137 Cal.App.3d 346 [racially motivated shooting described as a "despicable deed"]; People v. Carter (1983) 144 Ca1.App.3d 534 [sexual assault and stabbing of child described as a "despicable series of crimes"].) In Tomaselli v. Transamerica (1994) 25 Cal.App.4th 1269, the court reversed a punitive damage award because defendant Transamerica had done nothing "Which could be described as evil, criminal, recklessly indifferent to the rights 0f the insured, or with a vexatious intention t0 injure." (Id. at 1288.) It found that the mere carelessness 0r ignorance 0n the part offhe defendant did notjustifi/ the imposition ofpunitive damages, reasoning that "punitive damages are only proper when the tortious conduct rises to the levels of extreme indifference t0 the plaintiffs rights, a level Which decent citizens should not have t0 tolerate." (Id. at 1287; see also Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95 ["Something more than the mere commission of a tort is always required for punitive damages."].) 6 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Lackner v. North (2006) 135 Cal.App.4th 1188, the defendant, an expert skier and advanced snowboarder, raced down a particularly steep slope at Mammoth Mountain and continued racing into a "rest area" Where several skiers were standing. (Id. At 1194-95.) Despite the Clear Visibility and the presence 0f skiers in the rest area plainly before him, the defendant did not even attempt to brake until moments before he collided With the plaintiff, breaking her lower leg into 16 pieces, shattering her ankle, fracturing her right tibia and pelvis and tearing the muscles and tendons from her thigh. (Id. at 1195.) The impact was so great that the plaintiffwas thrown 50 feet into the air and her husband heard her bones crush. (Id.) The plaintiff sought punitive damages, the defendant moved for summary adjudication 0n the punitive damages claim, and the trial court granted the motion. (Id.) The Court 0f Appeal affirmed, finding that even though the defendant's behavior may have been reckless, the plaintiffs "claim for punitive damages fails as a matter 0f law." (Id. at 1209.) In addition, Lackner reiterated the California Supreme Court's ruling in Taylor v. Superior Court (1979) 24 Cal. 3d 890, that "[t]he central spirit 0f the exemplary damage statute, the demand for evil motive, is violated by an award founded upon recklessness alone." (Lackner, 135 Cal. App. 4th at 121 1.) It also thoroughly examined the Taylor decision, which held that punitive damages may be recoverable in personal injury cases against intoxicated drivers. (Lackner, 135 Ca1.App.4th at 121 1- 1 3.) It emphasized the fact that Taylor was decided prior t0 the imposition of the "despicable" conduct requirement. The court found that the conduct in Taylor (driving while under the influence) was far worse than the facts in Lackner and insinuated that even driving while under the influence of drugs or alcohol would not be enough t0 satisfy the "despicable" conduct requirement. (Id. at 121 1-12.) 4. Plaintiffs' Claims for Punitive Damages Requires More Than Vague Conclusory Allegations Conclusory allegations 0f malicious, oppressive, or fraudulent conduct are n_ot sufficient to state a punitive damage claim; oan specific factual allegations Will d0. (See, e.g., Brosseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [emphasis added] [finding that conclusory characterization 0f defendant's conduct "patently insufficient statement 0f 'oppression, fraud 0r 7 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 malice" within meaning 0f section 3294"]; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042 [punitive damages claim insufficient where devoid of any factual assertion supporting conclusion that party acted With oppression, malice 0r fraud]; Lehto v. Underground Constr. C0. (1977) 69 Ca1.App.3d 933, 944 [facts and circumstances 0f fraud must be set out With sufficiently particularity to support punitive damages].) With respect to cases Where punitive damages are attacked at the pleading stage, Weil and Brown, California Practice Guide: Civil Procedure Before Trial, 6: 158 (The Rutter Group, 2004), provides: A claim for punitive damages cannot be pleaded generally, i.e., allegations that defendant acted with oppression; fraud 0r malice toward plaintiff are merely legal conclusions. Likewise "despicable conduct" is a conclusion. Specific factual allegations are required to support a punitive claim. Therefore, it is insufficient for plaintiffs t0 simply make cursory allegations that defendants' conduct was "intentional, malicious, outrageous" etc. Here, the facts alleged by Plaintiffs in support 0f punitive damages, which Defendant challenges, are as follows: The Complaint, page 6, paragraph 29 in its entirety (lines 7-10) : “In maintaining the nuisance, Defendants are acting with full knowledge 0f the consequences and damage being caused t0 Plaintiffs, and their conduct is willful, oppressive and malicious; accordingly, Plaintiffs are entitled t0 punitive damages against Defendants and each 0f them." Plaintiffs use general blanket statements paired with conclusory buzzwords but fail to provide sufficient and specific facts t0 support their claim for punitive damages. Even With the routine inflammatory descriptions like "willful, oppressive and malicious" it is obvious that this case, at worst, is nothing more than a claim for negligent maintenance 0f Defendant's property. Allegations 0f damage from the roots of the three subj ect redwood trees cannot by any stretch of the imagination rise to the extreme and outrageous despicable conduct necessary to Withstand this challenge. /// 8 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. The Facts Alleged Do Not Rise t0 the Level 0f "Despicable Conduct" Even if Plaintiffs stated sufficient factual allegations, the facts alleged do not rise to the heightened level 0f despicable conduct. As noted above, in Lackner, supra, 35 Cal.App.4th 1188, the plaintiffwas injured at Mammoth Mountain when she was struck by a snowboarder. In addition to suing for negligence, plaintiff Lackner also sought punitive damages, alleging that the defendant's conduct was reckless since he raced his snowboard into a rest area at a high rate 0f speed Without looking Where he was heading, causing catastrophic injuries t0 the plaintiff. (Id. at 1200-1201.) While the Court of Appeal found that plaintiff had raised a triable issue of material fact as to Whether the defendant's conduct was reckless, it upheld the trial court's granting of summary judgment 0n the issue of punitive damages. (Id. at 1209.) Defendant's alleged conduct in the instant case does not begin to compare with the conscious recklessness 0f the defendant in Lackner. The mere statements that Defendant acted With "conscious, willful, and despicable disregard for Plaintiffs rights" are insufficient for this Court to conclude defendant has acted in a manner supporting a finding 0f "despicable conduct." Plaintiffs’ complaint fails to set forth any specific allegations that would support an inference that defendant's actions were malicious or evidenced some type of "evil" 0r "criminal" motive. The vague and conclusory allegations 0f the complaint fall short of the heightened pleading standard for punitive damages because they lack any factual showing 0f despicability and malice, fraud, or oppression. As noted above, Plaintiff has not pled the requisite facts, but rather, has alleged unsupported conclusions 0f law. (See Brosseau, supra, 73 Cal.App.3d at 872; Grieves, supra, 157 Cal.App.3d at 166; Spinks v. Equity Residential BriarwoodApartments (2009) 171 Cal.App.4th 1004, 1055.) Finally, not only are Plaintiffs' allegations vague, generic, and conclusory, taken as a Whole, the allegations, if true, amount t0 nothing more than mere negligence at best. Moreover, California has "uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient t0 warrant an award 0f punitive damages." (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) Evenm the addition 0f the "despicable conduct" requirement 0f Civil Code section 3294, California appellate decisions squarely held that where a 9 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendant's conduct is "negligent," "grossly negligent," 0r "reckless," punitive damage are inappropriate. (See, e.g., Woo/strum v. Mailloux (1983) 141 Ca1.App.3d Supp. 1, 10) ["Conduct which may be characterized as unreasonable, negligent, grossly negligent 0r reckless does not satisfy the highly culpable state 0fmind warrantingpunitive damages. "].) Even if defendant's conduct is to be considered grossly negligent, or even reckless, this is not enough t0 warrant punitive damages. No reasonable person could infer "despicable conduct" from plaintiffs' bare bone allegations and therefore, the claim for punitive damages should be stricken. 6. Conclusion This neighbor dispute arose out of alleged damage from the roots of three redwood trees. Plaintiffs are improperly attempting t0 raise the stakes 0f the lawsuit by seeking punitive damages. Conclusory allegations in the complaint regarding Defendant's alleged conduct and baseless allegations that Defendant’s conduct is “willful, oppressive and malicious” Without any factual basis whatsoever are not sufficient t0 show "despicable conduct" justifying the imposition 0f punitive damages. Consequently, the punitive damages claim should be stricken. Dated: June 21, 2021 DEMLER, ARMSTRONG & ROWLAND, LLP By:W gilt 7%xLéQ JOHN R. BRYDON AMBER L. KELLY Attorneys for Defendant Syed Aon Mujtaba, Trustee of the Syed Aon Mujtaba Revocable Trust 10 DEFENDANT SYED AON MUJTABA'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF