Case Number: VC064555??? Hearing Date: July 05, 2016??? Dept: SEC
AGUILA v. RECOVERY INVESTMENTS, LLC
CASE NO.: VC064555
HEARING: 07/01/16
#2
TENTATIVE ORDER
Defendant ASSURED NATIONAL TITLE, LLC?s motion to strike the claim for punitive damages is DENIED. C.C.P. ?? 435, 436.
On April 21, this Court heard defendant?s demurrer to and motion to strike portions of the Second Amended Complaint. Plaintiffs were granted 10 days leave to amend on the motion to strike. They were instructed to plead corporate authorization or ratification, a necessary element of a claim for punitive damages against a corporate entity. See Order, 4/21/16; C.C. ? 3294(b).
Plaintiffs timely filed the Third Amended Complaint on April 22, 2016. Defendant Assured filed an answer, but also filed the subject motion again challenging the punitive damages claim.
Plaintiffs filed an opposition on June 7, 2016, which indicates the opposing papers were timely served by mail on June 6, 2016. Defendant Assured contacted plaintiffs? counsel on June 27, 2016 indicating he did not received the opposition. The same day, defendant filed a Notice of Non-opposition, requesting that the matter be continued.
Plaintiffs? counsel also submitted a declaration indicating he received defendant?s message on June 27, 2016 and emailed the opposition to counsel that afternoon (presumably after the Notice was filed by defendant). Reply, Exh. C. Defendant has not filed a reply addressing the merits of the opposing papers. Its request to continue the hearing is denied. The motion presents a simple issue that has been raised in challenges to prior iterations of the complaint. The opposition is 3 pages long, and simply asserts plaintiffs? position that ratification was alleged. TAC, ??5, 6. Any reply to that argument may be asserted at oral argument.
Defendant argues that plaintiffs still have not alleged ratification or authorization (notwithstanding the above-cited paragraphs of the TAC). To the extent the Court can construe the argument as the allegations being insufficient, it notes that plaintiffs may not possess specific facts with respect to defendant?s knowledge or actions taken regarding the underlying fraud by defendants Wilcox and Fuentes. Defendant Assured presumably possesses such knowledge or has the ability to obtain such knowledge. In any event, the Court must read the pleading as a whole to determine whether the facts sufficiently apprise defendant of the basis for the claim. See Perkins v. Superior Court (1981) 117 Cal.App.3d 1. The Court finds that it does. Plaintiffs allege fraud and conversion against Assured arising from its alleged its failure to tender sale proceeds to plaintiffs. Those causes of action support the claim for punitive damages. The motion to strike is denied.