Order After Hearing POSCal. Super. - 6th Dist.March 25, 2021\DOONJOUI-wafl ._.,_. I-‘O [\J N N [\J N [\J [\J N ’-- >- v-- :-- u-n ._n ._‘ ,_. NJ O\ U1 L DJ [\J h-I O \D m \J ON U] ~h DJ [\J [\J 00 ""‘ 'a' ._- l . FEELEE SEP $02021" Baffler mgwam ots 0:; 1! 0' \ba WV-m..-LLU7,_L SUPERIOR COURT 0F CALEFOIRNIA COUNTY OF SANTA CLARA ROBERT SANNER, ct al’ Case No. 21CV381328 plaintiffs, ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES VS- FROM COMPLAINT FOR NUISANCE SYED AON MUJTABA, Defendant. The Motion t0 Strike Claim 0f Punitive Damages from Complaint for Nuisance by Defendant Syed Aon Mujtaba came 0n for hearing before the Honorable Christopher Rudy 011 September 28, 2021, at 9:00 am. in Department 7. The matter having been submitted, the Court finds and orders as follows: I. Introduction According to the allegations in the complaint (“Complaint”), Plaintiffs and Defendant are neighbors. Defendant purchased the property adj acent to Plaintiffs’ with the knowledge that the roots 0f three redwood trees located on Defendant’s property were growing in such a way as to cause damage to portions of Plaintiffs’ property. Based 0n the foregoing allegations, Plaintiffs initiated this action 0n March 25, 2021 with the filing 0f the Complaint, which asserts a single cause 0f action for nuisance. A proof of 1 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE U1 L LA Ix.) 0005-10 10 11 12 14 15 16 17 18 19 20 21 22 24 25 26 27 service indicates that the Complaint was served 0n Defendant via personal service 0n May 6, 2021. On June 21 , 2021, Defendant filed the instant motion t0 strike. On June 27, 2021, Defendant filed an amended notice of motion. Plaintiffs oppose the motion and Defendant has filed a reply. II. Defendant’s Motion t0 Strike A. Preliminary Matters i. Defendant’s Requests for Judicial Notice In support 0f his reply brief, Defendant requests judicial notice of the following items under Evidence Code section 452, subdivisions (c),(d), (g) and/or (h): Exhibit A: Palo Alto Municipal Code Section 8.10.050 Exhibit B: City 0f Palo Alto Planning Division Tree Removal Procedure Exhibit C: Defendant’s Application for Permit for Tree Removal and the City of Palo Alto Planning Division Denial Generally, “[w]here the motion t0 strike is based on matter 0f which the court may take judicial notice pursuant t0 Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice 0f motion, 0r in the supporting points and authorities, except as the court may otherwise permit.” (§ 437, subd. (b).) Defendant did not request judicial notice of these items in the notice of motion. However, the court will overlook this procedural irregularity to the extent these items are relevant and the proper subject ofjudicial notice. The court may take judicial notice 0f the relevant municipal code section under Evidence Code section 452, subdivision (b). (See Hofinan Street, LLC v. Ciiy ofWesf Hollywood (2009) 179 Cal.App.4th 754, 763, fn. 4 [taking judicial notice 0f city ordinance under Evidence Code section 452, subdivision (b)]; Madrigal v. Ciljy ofHunIingfon Beach (2007) 147 Cal.App.4th 1375, 1384, fn. 1 [same].) Defendant’s request for judicial notice is granted as it penains t0 Exhibit A. It appears that Defendant seeks judicial of the tree removal procedure document for the purpose 0f showing that he was required t0 submit an arborist’s report with the application t0 remove the tree. But, the city ordinance already provides that “In the absence of development, 2 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE [\J \OooxJONU’I-bm 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 protected trees shall not be removed unless determined by the director 0f planning and development services, 0n the basis 0f a tree report prepared by a certified arborist for the applicant and other relevant information, that the tree should be removed because it is dead, is hazardous, is a detriment to 0r crowding an adj acent protected tree, 0r constitutes a nuisance under Section 8.04.050(2) 0fthis code.” (P310 Alto 0rd. No. 8.10.050(a).) Accordingly, the request for judicial notice is denied as unnecessary as it pertains t0 Exhibit B, the tree removal procedures. Finally, Defendant seeks judicial notice 0f his application for tree removal and the City’s denial of that application. It appears that Defendant seeks judicial notice of these items for the purposes 0f showing that he applied for the permit t0 remove the trees and that his application was denied. He does not appear to seek judicial notice 0f the hearsay content therein. Accordingly, the court will take judicial notice of the fact that Defendant submitted an application for tree removal and that that application was denied by the City. Defendant’s request for judicial notice is granted as it pertains to Exhibit C. ii. Timeliness Generally, a motion t0 strike must be brought within 30 days after service of the challenged pleading. (§ 435, subd. (b) [motion to strike may be brought within time allowed to respond t0 pleading].) Here, the motion was filed n10ré than 30 days after the Complaint was served. But, Plaintiffs do not argue that the motion is untimely. And, section 436 specifically allows the court t0 strike a pleading 01‘ any portion 0f the pleading at any time. Accordingly, the court will consider the merits 0fthe motion. B. Legal Standard A court may strike out any irrelevant, false; or improper matter asserted in a pleading. (§ 436, subd. (21).) A court may also strike out all 0r any part 0f a pleading not filed in conformity with the laws 0f the State 0f California. (§ 436, subd. (b).) The grounds for a motion to strike shall appear 0n the face of the challenged pleading 0r from any matter 0f which the court is required t0 take judicial notice. (§ 437, subd. (a).) 3 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE \OOOQQUI-PUJNF‘ [\J N N N [\J N IQ N >-‘ b-I ’-- r-I v-I .-- u-n >--a p-A ’-I fl ON m L L») [\J H O \O 00 \J O\ LI: h LA.) [\J ’-‘ O [\J 00 C. Merits 0f the Motion to Strike Defendant moves t0 strike certain enumerated allegations in the complaint dealing with punitive damages because, he argues, Plaintiffs have failed t0 plead the facts supporting these allegations with the requisite specificity required under Civil Code section 3294. He cites to sections 435, subdivision (b)(l) and 436. Defendant fails t0 specify which ground 0f section 436 he relies on. Specifically, Defendant moves t0 strike: (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.” Pursuant t0 Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty 0f oppression, fraud, or malice.” Plaintiffs contend Defendant acted with malice. The ultimate facts supporting a claim for punitive damages must be specifically alleged. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The failure t0 satisfy that pleading requirement is a proper ground for striking a claim for punitive damages. (See Grieves v. Superior Court (1 984) 157 Cal.App.3d 159, 164; Clauson v. Superior Court, supra, 67 Cal.App.4th at p. 1255.) Malice is defined by section 3294, subdivision (c)(l) as “conduct which is intended by the defendant t0 cause inj ury t0 the plaintiff or despicable conduct which is carried 0n by the defendant with a willful and conscious disregard 0f the rights or safety of others.” “Despicable conduct” is conduct that is “ ‘so vile, base, contemptible, miserable, wretched 0r loathsome that it would be looked down upon and despised by most ordinary decent people.’ ” (Mock v. Michigan Miflers Mutual Ins. C0. (1992) 4 Cal.App.4th 306, 331.) Such conduct has been described as having the character of outrage frequently associated with crime. (Tomaselli v. Transamerica Ins. C0. (1994) 25 Cal.App.4th 1269, 1287.) “Conscious disregard” means “ ‘that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.’ [Citations.]” (Hock v. Allied- Sz'gnal, Inc. (1994) 24 Cal.App.4th 48, 61.) In other words, the defendant must “have actual 4 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE UJN \OWNQUIA knowledge 0f the risk 0f harm it is creating and, in the face 0f that knowledge, fail t0 take steps it knows will reduce 0r eliminate the risk 0f harm.” (Ehrhardt v. Brunswick, Inc. (1 986) 186 Cal.App.3d 734, 742.) The California Supreme Court addressed the then existing malice requirement in Taylor v. Szmerior Court (1979) 24 Cal.3d 890 (Taylor). There, the coun affinned that a conscious disregard for the rights 0r safety of others may constitute malice within the meaning 0f section 3294, but clarified that, “In order to justify an award ofpunitive damages 0n this basis, the plaintiff must establish that the defendant was aware 0f the probable dangerous consequences of his conduct, and that he willfully and deliberately failed t0 avoid those consequences. [Citati0n.]” (Taylor, supra, 24 Cal.3d at pp. 895-896.) In doing so, the Taylor court approved 0f the Supreme Court’s earlier conclusion in GD. Searle & C0. v. Superior Court (1975) 49 Cal.App.3d 22 (GD. Searle & C0.) that mere reckless disregard 0r misconduct cannot be enough to sustain an award 0f punitive damages because, “ ‘The central spirit of the exemplary damage statute, the demand for evil motive, is violated by an award founded upon recklessness alone.’ [Citation.]” (Taylor, supra, 24 Ca1.3d at p. 895.) The Legislature later refined the definition of “malice” by adding the requirement that the defendant’s conduct be “despicable” and “willful.” (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 (Lackner) [“As amended, malice, based upon a conscious disregard 0f the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful’ ”].) “By adding the word ‘willful’ to the ‘conscious-disregard’ prong 0f malice, the Legislature has arguably conformed the literal words 0f the statute to existing case law formulations. (See [Taylor], supra, 24 Cal.3d at pp. 895-896 [malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them].) 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.’ [Citation] 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 0f the plaintiffs’ interests. The additional 5 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE mhww \DOO\]O\ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 component of ‘dcspicable conduct’ must be found. [Citation.]” (College Hospital, Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 725.) “Because punitive damages are imposed ‘for the sake of example and by way of punishing the defendant’ (§ 3294, subd. (a)), they are typically awarded for intentional torts such as assault and battery, false imprisonment, intentional infliction 0f emotional distress, defamatiou, nuisance intentionally maintained, fiaud, trespass, conversion, civil rights violations, insurer’s breach of covenant of good faith, wrongful termination and job discrimination, and products liability cases. [Citati0n.]” (Lackner, Supra, 135 Cal.App.4th at p. 1212.) By contrast, “cases involving unintentional torts are far fewer and the courts have had t0 consider various factors in detennining whether the defendant’s conduct was despicable. Thus, punitive damage awards have been reversed where the defendant’s conduct was merely in bad faith and overzealous [citations], or‘the defendant took action to protect or minimize the injury t0 the plaintiff.” (Ibid) “In order to survive a motion t0 strike an allegation 0f punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations] In passing 0n the correctness 0f a ruling 0n a motion t0 strike, judges read allegations 0f a pleading subj ect t0 a motion t0 strike as a whole, all parts in their context, and assume their truth. [Citations] In ruling on a motion to stn'ke, courts d0 not read allegations in isolation. [Citation.]” (Clauson v. Super. CL, supra, 67 Cal.App.4th at p. 1255.) Relying primarily 0n Lackner, Defendant argues that the conduct Plaintiffs allege he engaged in does not qualify as despicable conduct as a matter of law and, therefore the punitive damages allegatio’ns in the Complaint must be stricken. In Lackner, the Court 0f Appeal held that the evidence bpfore it was insufficient to establish despicable conduct as a matter 0f law where an experienced skier, racing others, collided with the plaintiff, another Skier who was stopped at the bottom of a course, resulting in serious injuries. (Lackner, supra, 135 Cal.App.4th at p. 1213.) In that case, it was undisputed that the defendant did not intend to collide with the plaintiff and, although he was being reckless by looking back at other skiers in his attempt t0 race them, when he saw the plaintiff, he made efforts t0 avoid the collision but he was unable t0 6 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE Ix.) O\OOO\]O\UI.h 11 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 do so. (Ibid) The 001m held that the attempt t0 avoid inj uring the plaintiff was “entirely inconsistent with evil or criminal intent.” (12nd) Thus, the court’s holding that the defendant’s actions were not despicable is based 0n the fact that he did not intend t0 injure the plaintiff and he made efforts to avoid colliding with her when he realized that a collision was about to occur. Here, the maj 01‘ challenged portion 0f the Complaint provides: “In maintaining the nuisance, Defendants are acting with full knowledge of 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.” (Complaint at 1] 29.) Defendant also moves to strike a portion 0f the prayer for relief stating “for punitive and exemplary damages in an amount according t0 proof.” (Complaint at p. 6, 1n. 19.) As mentioned above, those allegations must be read in the context of the facts alleged in the Complaint. The Complaint alleges that Defendant purchased the real propeny with knowledge of the damage that was being caused by the redwood trees’ roots. (Complaint at 1] 9.) In 2019, the roots caused damage to Plaintiffs’ sprinkler system. (Complaint at ‘1] 10.) Plaintiffs sought to bill Defendant but he refused t0 pay for the damage. (Complaint at‘fl 10.) In October 2020, Plaintiffs filed a case in small claims coun and Defendant was ultimately ordered t0 pay for the damage. (Complaint atfl 11.) In the summer 0f 2020, the roots damaged Plaintiffs’ sprinkler system two additional times and Defendant refused t0 pay for the damage. (Complaint at 11 12.) In October 2020, Defendant filed an application to remove the trees with the City of Palo Alto, which was rej ected. (Complaint at 1] 13.) Plaintiffs contend that the application was misleading because the required arborist’s report attached t0 the application did not make any mention 0f the damage t0 Plaintiffs’ property. (Complaint at‘fl 13.) The roots have since cause additional damage t0 Plaintiffs’ front yard and landscaping, t0 the concrete floor 0f Plaintiffs’ garage, and the City water meter on Plaintiffs’ property. (Complaint atW 15-17.) Defendant has acknowledged that the roots are causing damage to Plaintiffs’ property but he has refused to remove the trees 0r to reimburse Plaintiffs for damage caused by the roots. (Complaint at fl 19.) These allegations are sufficient to withstand Defendant’s motion t0 strike. Plaintiffs allege that Defendant has full knowledge 0f the fact that the roots are damaging their property, 7 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE A U.) [Q \JONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 yet he refuses t0 remove the trees or to reimburse Plaintiffs for the damages caused by the trees’ roots. Defendant correctly argues that he may not remove the trees without approval from the city and such approval was denied. Plaintiffs contend that the application was misleading because it did not include information about the damages caused to their property by the trees’ roots. Defendant counters that the arborist’s report does not include such information because the arborist was not qualified to give an opinion regarding the damage. However, there is a portion 0f the report that notes that Defendant is aware 0f the value 0f the trees t0 the property and t0 the community and he is undertaking to keep the trees healthy. Thus, it appears that Defendant may have been able to inform the arborist that the reason he was seeking to remove the trees is due to the damage they are causing. In any event, the punitive damages allegations are sufficient because the facts alleged show that Defendant is aware of the damages caused but he refuses to reimburse Plaintiffs for the additional damages caused by the roots despite the fact that he had previously been ordered by the small claims court t0 pay for previous damages also caused by the roots. Thus, the facts in the Complaint adequately show pquoseful behavior on the part of Defendant. Despite knowledge 0f the damage cause by the roots, Defendant has not taken any action to prevent further damage and he has refused to reimburse Plaintiffs for the damages caused by the roots. Accordingly, the motion t0 strike is denied. III. Conclusion Defendant’s request for judicial notice is GRANTED as to Exhibits A and C and DENIED as to Exhibit B. For the reasons discussed above, Defendant’s motion t0 strike is DENIED. It is so ordered. //Wm Ruée/O/ Judge 0f the SuperiO‘ urt Dated: SEP 3 0 2021 8 ORDER RE: MOTION TO STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNLA 951 13 CIVIL DIVISION RE: ROBERT SANNER et al vs SYED AON MUJTABA Case Number: 21 CV381328 PROOF 0F SERVICE ORDER RE: MOTION T0 STRIKE CLAIM OF PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. 1f you. a party represented by you. or a wilness to be ca1led on behalf of that party need an accommodation under the Amen‘can with Disabilities Act. please contact the Court Administrator‘s office at (408) 682-2700. or use the Court‘s TDD line (408) 882-2690 0r the Voice/TDD CaIifomia Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare that I served this notice by enclosing a true copy in a sea1ed envelope. addressed to each person whose name is shown betow, and by depositing the envelope with postage fu1ly prepaid. in the United States Mail at San Jose. CA 0n September 30. 2021. CLERK OF THE COURT. by Richelle Belligan, Deputy. cc: Ronald R Rossi Rossi Hamerslough Reischl & Chuck 1960 The Alameda Suite 200 San Jose CA 95128 Amber Lee Kelly Demler Armstrong Rowland LLP 101 Montgomery St Ste 1800 San Francisco CA 94108 CW-9027 REV 121‘08/16 PROOF OF SERVICE
