Carmen Cerciello vs. Crestline Homeowners association

Motion to Strike

Cal. Super. - 4th Dist.September 13, 2016

Oo 0 NN S N nn B W W N = NN N O N DN DN r m p e p d e m m d e m e m e d p d I 8 XA R E I R E T IT 5 & 2 0 0 o 5 James M. Baratta (SBN 054890) Jason S. Roberts (SBN 221978) Robert Oliver (SBN 180318) GRANT, GENOVESE & BARATTA, LLP 2030 Main Street, Suite 1600 Irvine, CA 92614 Telephone: (949) 660-1600 Facsimile: (949) 660-6060 Email: jsr@ggb-law.com Attorneys for Defendant ELECTRONICALLY FILED Superior Court of California, County of Orange 11/30/2016 at 10:35:00 Au Clerk of the Superior Court By Diana Cuevas, Deputy Clerk CRESTLINE HOMEONWNERS ASSOCIATION SUPERIOR COURT OF COUNTY OF ORANGE, CARMEN CERCIELLO, an individual; LENA ANN CERCIELIO, an individual; JEFFREY R. CERCIELLO, an individual; KRISTEN ANN CERCIELLO, an individual, Plaintiffs, VS. CRESTLINE HOMEOWNERS ASSOCIATION, a California corporation; ALL PERSONS UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; and DOES 1-50, inclusive, Defendants. THE STATE OF CALIFORNIA CENTRAL JUSTICE CENTER Case No. 30-2016-00874719-CU-OR-CJC Assigned to: Hon. Geoffrey T. Glass DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION’S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM PUNITIVE DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: January 23, 2017 Time: 1:30 p.m. Dept.: C-32 Complaint filed: March 18, 2015 Trial date: None set [Filed concurrently with Demurrer; Declaration of Jason §. Roberts] 1 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION'S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM PUNITIVE DAMAGES OO 0 N N hh A W N = N N me d p m e m e m e m mt e m md e m TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on January 23, 2017 at 1:30 p.m. or as soon thereafter as the matter may be heard in Department C-32 of the above-entitled Court located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendant CRESTLINE HOMEOWNERS ASSOCIATION, (“Crestline”), will and hereby does move the Court for an order striking the following allegations in the Complaint: 1. Paragraph 25: “PLAINTIFF are therefore entitled to an award of punitive damages from Defendants in an amount according to proof.” 2. Paragraph 39: “Defendants” conduct is willful, oppressive and malicious; accordingly, Plaintiffs are entitled to punitive damages according to proof.” 3. Prayer, paragraph 3: “For punitive and exemplary damages.” This Motion is based upon Code of Civil Procedure sections 435 and 436 on the grounds that the Complaint contains irrelevant, false or improper matters that should be stricken. Specifically, Plaintiffs’ prayer for punitive damages is not supported by the allegations of the Complaint. Since there is no legal basis for such damages, the prayer should be stricken. The Motion will be based upon this Notice, the Memorandum of Points and Authorities attached hereto, all documents on file herein, and upon such oral and documentary evidence as may be presented at the time of the hearing on this motion. DATED: November 30, 2016 GRANT, GENOVESE & BARATTA, LLP on Hp JASON S. ROBERTS BERT OLIVER Attorneys for Defendant CRESTLINE HOMEOWNERS ASSOCIATION 2 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION’S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM PUNITIVE DAMAGES oO o o Nd AN bh W N = BN O N N O N NN M r em mm b b a e k em em MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION As set forth in the accompanying demurrer, Plaintiffs Carmen Cerciello, Lena Ann Cerciello, Jeffrey R. Cerciello, and Kristin Ann Cerciello (collectively, “Plaintiffs™) bring sundry claims against Defendant Crestline Homeowners Association concerning the boundary lines of a vacant lot. In what amounts to making a mountain out of a molehill, Plaintiffs allege Crestline encroached on their vacant property by an area 60 feet deep, using that space as an outdoor storage area for its condominium complex. In what is a simple, straightforward boundary line matter, Plaintiffs have filed a pleading containing improper causes of action and a prayer for punitive damages. But missing from Plaintiffs’ Complaint in this neighborly dispute are facts that would support any conclusion that Crestline’s conduct was malicious, despicable, oppressive or fraudulent. There are cases where the facts at issue in the action justify the assertion of punitive damages. This case is not one of them. This motion to strike should be granted. IL SUMMARY OF FACTS ALLEGED IN COMPLAINT Plaintiffs allege they are the fee owners of certain real property in the City of Laguna Hills (the “Subject Property”). Complaint, 12. Plaintiffs allege that the Subject Property consists primarily of vacant land enclosed within a chain-link fence and is bordered on one side by Crestline, a multi-unit condominium complex, and on the other side by Moulton Niguel Water District. Id., I 14. Plaintiffs allege that the Subject Property was “created” in approximately 1980, id., and that Plaintiffs took ownership of the Subject Property in 1992. Id, q 15. 1 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION’S DEMURRER TO COMPLAINT Oo 0 J O N b w = R N O N N O N N N P = ee e m e m e m e m Plaintiffs allege that, at some time in or about 2015, they discovered that Crestline was allegedly encroaching upon an area approximately 60 feet deep of the Subject Property and was allegedly using the area for outdoor storage for the condominium complex. Id., q 16. IIL GROUNDS FOR MOTION This motion is made pursuant to Code of Civil Procedure sections 435 and 436. Under Code of Civil Procedure section 436, the Court may strike out any irrelevant, false, or improper matter inserted in any pleading. Irrelevant matter includes allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. Civ. Proc. Code § 431.10(b). IV. A CLAIM FOR PUNITIVE DAMAGES REQUIRES A SHOWING OF DESPICABLE OR FRAUDULENT CONDUCT, WHICH IS NOT ALLEGED IN THE COMPLAINT A complaint must plead specific and ultimate facts and cannot recite mere conclusions to justify an award of punitive damages. Blegen v. Superior Court (1981) 125 Cal. App.3d 959, 962-63; Perkins v. Superior Court (1981) 117 Cal. App.3d 1, 6-7; Taylor v. Superior Court (1979) 24 Cal.3d 890. Because of this higher burden of proof at trial (“clear and convincing evidence” of “despicable conduct,” etc.), courts often strike claims for which punitive damages are not clearly authorized. See, Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 11; Weil & Brown, CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016), § 7:187. To maintain a claim for punitive damages, Plaintiff must allege conduct which, if supported by clear and convincing evidence, demonstrates that each named defendant is guilty of oppression, fraud or malice. Civ. Proc. Code 3294.1 I Civil Code section 3294(a) provides: “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the 2 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION’S DEMURRER TO COMPLAINT OO 00 1 S v A W N = BRN DN N O N m m e m e a e m e m e d e m e m ee d S E N R R O E R B I R E I a ® 2 o n o = 3 Section 3294 plainly indicates that absent intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiff's interest. The additional component of “despicable conduct” must be found. College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725. “Clear and convincing evidence” consists of evidence “so clear as to leave no substantial doubt” and “sufficiently strong to command the unhesitating assent of every reasonable mind.” In Re Angela P (1981) 28 Cal.3d 908, 919.2 Plaintiffs’ Complaint simply contains insufficient allegations of despicable, malicious, oppressive or actual fraudulent conduct. To this end, examples of "despicable" conduct, as the term is ordinarily used by the appellate courts, include People v. McElrath (1985) 175 Cal. App.3d 178, 195 (the court described the offenses of rape, oral copulation and sodomy as “outrageous, shocking and despicable”); People v. Carter (1983) 144 Cal. App.3d 534 (a sexual assault and stabbing was described as a “despicable series of crimes”); and People v. Adams (1982) 137 Cal. App.3d 346, 352 (defendants screamed racial epithets at their victims before shooting them). This conduct was described as “despicable deeds”. The court in Mock v. Michigan Millers Mutual Ins. Co., (1992) 4 Cal.App.4th 306, stated that punitive damages now require a showing of conduct of a criminal nature as the result of the “despicable” requirement. Id. at 328. It is axiomatic that where the complaint, on its face, plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Furthermore, Civil Code section 3294(c) provides the following definitions: (1) “Malice” means conduct which is 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. (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 on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. 2 CACI 201 recognizes that “clear and convincing” evidence is a “higher burden of proof” meaning “the party must persuade [a juror] that it is highly probable that the fact is true.” A jury should be instructed that “clear and convincing evidence” is “evidence so clear as to leave no substantial doubt and which “is sufficiently strong so as to command the unhesitating assent of every reasonable mind.” Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App.4™ 306, 332. 3 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION'S DEMURRER TO COMPLAINT oO 0 NN S N RR W N = N O N N O N N N N N m e k e m em e m e m e m e d em fe R Y E R I B I R E B I I I a & ® = o n o 2 s does not even allege acts potentially qualifying as “despicable” conduct, punitive damages cannot be allowed. Here, Plaintiffs have not pled specific and ultimate facts that Crestline’s conduct would come close to justifying an award of punitive damages in this boundary line dispute. The only factual allegations pled in support of the claim for punitive damages against Crestline is as follows: (1) there was a boundary line dispute as to where Plaintiffs’ property, consisting of a vacant lot, ended; (2) Crestline used an area 60 feet deep as outdoor storage that Plaintiffs claim lies on their property; (3) Plaintiffs hired a surveyor to perform a field survey on their property; (4) Plaintiffs’ surveyor allegedly concluded that Crestline was encroaching on Plaintiffs’ property in late 2015 or early 2016; and (5) Crestline allegedly refused and continues to refuse to acknowledge Plaintiffs’ ownership rights in the property and continues to encroach upon the property. Complaint, If 16-19. Even assuming that all of these facts are true, they fail to allege any facts sufficient for a showing of conduct of a criminal nature by Crestline that would rise to the level of despicable conduct. These allegations in a boundary dispute simply do not constitute fraud, oppression, or malice. At most they establish that there is a disagreement and misunderstanding regarding the boundary lines of a vacant lot. They do not amount to “despicable” or criminal conduct necessary to support an award of punitive damages. Accordingly, the punitive damages claim should be stricken from the Complaint. VIL CONCLUSION Plaintiffs assert a blanket prayer for punitive damages as to all causes of action. However, Plaintiffs fail to support their request for punitive damages with factual allegations sufficient to establish any oppressive, fraudulent, malicious, and/or despicable conduct by Crestline for an award of punitive damages. Nor do punitive damages have any place in a legitimate disagreement concerning the boundary lines of a vacant lot such as the one at issue 4 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION’S DEMURRER TO COMPLAINT OO 0 NN O N U t A W N = D D N O N N D = m m e m e m e m e b e m e m e m pe here. For the foregoing reasons, Crestline respectfully requests that the Court strike Plaintiffs’ prayer for punitive damages and any reference of their entitlement to such damages in the Complaint. DATED: November 30, 2016 GRANT, GENOVESE & BARATTA, LLP By. _L Fog 7 4. ROBERTS GEERT OLIVER Attorneys for Defendant CRESTLINE HOMEOWNERS ASSOCIATION 5 DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION'S DEMURRER TO COMPLAINT Ne 0 9 N h RAR W N Y O N N O N N O N N L R OD N e m ke Em pm em mk md dl W@W = A Un A W N = S e 8 a A R W N D = O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is 2030 Main Street, Suite 1600, Irvine CA 92614. On November 30, 2016, I served the foregoing document described as “DEFENDANT CRESTLINE HOMEOWNERS ASSOCIATION’S NOTICE OF MOTION AND MOTION TO STRIKE CLAIM PUNITIVE DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF” on the following person(s) in the manner indicated: SEE ATTACHED SERVICE LIST [X] (BYMAIL) I am familiar with the practice of Grant, Genovese & Baratta, LLP for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope, with postage fully prepaid, addressed as set forth herein, and such envelope was placed for collection and mailing at Grant, Genovese & Baratta, LLP, Irvine, California, following ordinary business practices. [ 1 (BY FEDEX) I am familiar with the practice of Grant, Genovese & Baratta, LLP for collection and processing of correspondence for delivery by overnight courier. Correspondence so collected and processed is deposited in a box or other facility regularly maintained by FedEx that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope designated by FedEx with delivery fees paid or provided for, addressed as set forth herein, and such envelope was placed for delivery by FedEx at Grant, Genovese & Baratta, LLP, Irvine, California, following ordinary business practices. [ 1 (BY FACSIMILE TRANSMISSION) On this date, I transmitted from a facsimile transmission machine, which telephone number is (949) 660-6060, the document described above and an unsigned copy of this declaration to the person, and at the facsimile transmission telephone numbers, set forth herein. The above-described transmission was reported as complete and without error by a properly issued transmission report issued by the facsimile transmission machine upon which the said transmission was made immediately following the transmission. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration Er executed on November 30, 2016, at Irvine, California. a Eal(in oe 0 Na S n A W N N O N O N N N N N N RN em je m em je m e m e m ml md @ NN A N nn E W N = S O QW a N N R W N =m Do SERVICE LIST Elise M. Kern, Esq. Erin K. Oyama, Esq. PALMIERI, TYLER, WIENER, WILHELM, WALDRON LLP 1900 Main Street, Suite 700 Irvine, CA 92614 Tel: (949) 851-9400 Fax: (949) 757-1225 Attorneys for Plaintiffs Carmen Cerciello, Lena Ann |i Cerciello, Jeffery R. Cerciello and Kristin Ann Cerciello