Motion to Strike Cross-Complaint (Judge Dan Thomas Oki)

Case Number: KC067340??? Hearing Date: August 30, 2016??? Dept: J

Re: James I. Nakano, etc. v. Kamron O. King, et al. (KC067340)

MOTION TO STRIKE KING FITNESS, INC.?S CROSS-COMPLAINT

Moving Party: Cross-Defendants James I. Nakano, as Trustee of the Nakano Family Trust, and M.J. Nakano, Limited dba The Donut Man

Respondent: Cross-Complainant King?s Fitness, Inc.

POS: Moving OK; Opposing OK

This is a quiet title action involving a driveway, thoroughfare and parking spaces between the two adjoining commercial properties owned by the parties. Plaintiffs seek an easement on Defendants? driveway, thoroughfare and parking spaces pursuant to an alleged equitable easement, irrevocable license and/or prescriptive easement. Plaintiff commenced this action on 12/12/14. The Third Amended Complaint (“TAC”) filed on 1/11/16, asserts causes of action for:

1. Quiet Title (Equitable Easement)
2. Quiet Title (Irrevocable License)
3. Declaratory Relief
4. Injunctive Relief
5. Intentional Interference with an Economic Advantage
6. Civil Extortion
7. Violation of Bus & Prof C ? 17200

On 3/22/16, this court sustained Defendants? demurrer to the sixth cause of action, without leave to amend. On 4/1/16 Defendant King?s Fitness, Inc. filed a Cross-Complaint against Plaintiffs, asserting causes of action for:

1. Trespass
2. Intentional Misrepresentation
3. Unfair Business Practice

Plaintiff?s Motion to Strike Defendants? Answer to the TAC is set for 8/31/16. Plaintiff?s Motion Seeking an Order to Show Cause re Contempt is set for 9/1/16. The Final Status Conference is set for 10/7/16. A jury trial is set for 10/18/16.

Cross-Defendants James I. Nakano, as Trustee of the Nakano Family Trust and M.J. Nakano, Limited dba The Donut Man (?cross-defendants?) move to strike the following portions of King?s Fitness, Inc.?s (cross-complainant?) cross-complaint:

1. ? 10, 3:11-14 (regarding use of restroom facilities)
2. ? 15, 4:3-5 (regarding purported damage to water line/property improvements)
3. ? 22, 4:26-28 (regarding alleged deprivation of parking spaces)
4. ? 23, 4:__ (last line)-5:2 (punitive damages)
5. ? 31, 5:2-6 (punitive damages)
6. ? 33, 5:16-17 (regarding alleged deprivation of parking spaces)
7. Prayer, ? 3, 5:27 (punitive damages)
8. Prayer, ? 5, 5:__ (last line) (attorney?s fees)

?The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.? CCP ? 436.

Although Cross-Defendants James I. Nakano, as Trustee of the Nakano Family Trust?s and M.J. Nakano, Limited dba The Donut Man?s (?cross-defendants?) notice of motion indicates that they seek to strike out ? 10, 3:11-14 (regarding use of restroom facilities), ? 15, 4:3-5 (regarding purported damage to water line/property improvements) and ? 22, 4:26-28 (regarding alleged deprivation of parking spaces) from Cross-Complainant King Fitness, Inc. (?cross-
complainant?)?s cross-complaint, they have failed to address how these allegations are ?irrelevant, false or improper? or ?not drawn or filed in conformity? with the law or court rules/orders in their points and authorities. Cross-defendants? request, then, to strike these allegations is summarily denied.

Cross-defendants? request to strike out cross-complainant?s punitive damages language, however, is appropriate. ?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 plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.? Civil Code ? 3294(a). ??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.? Civil Code ? 3294(c)(1). ??Oppression? means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.? Civil Code ? 3294(c)(2). ??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.? Civil Code ? 3294(c)(3).

A ?conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ?oppression, fraud, or malice, express or implied,? within the meaning of section 3294.? Brousseau v. Jarrett (1977) 73 C.A.3d 864, 872.

Punitive damages ?are never awarded as a matter of right (Shumate v. Johnson Publishing Co. [(1956)] 139 Cal.App.2d 121, 135; Browand v. Scott Lumber Co. [(1954)] 125 Cal.App.2d 68, 73; they are not favored by the law and they should be granted with the greatest of caution (Beck v. State Farm Mut. Auto. Ins. Co. [(1976)] 54 Cal.App.3d 347, 355; Gombos v. Ashe [(1958)] 158 Cal.App.2d 517, 526); they will be allowed only in the clearest of cases (Gombos v. Ashe, supra, p. 526). To justify their award there must be proof of malice in fact; such malice will not be implied by law (Toole v. Richardson-Merrell Inc. [(1967)] 251 Cal.App.2d 689, 713; Sturges v. Charles L. Harney, Inc. [(1958)] 165 Cal.App.2d 306, 321; Gombos v. Ashe, supra, pp. 526-527); and such malice will never be established by ?mere speculation? (McAfee v. Ricker [(1961)] 195 Cal.App.2d 630, 633). The malice essential to an award of exemplary damages requires an evil motive or intent (Fidelity etc. Co. v. Federal etc. Co. [(1933)] 217 Cal. 307, 319; Davis v. Hearst [(1911)] 160 Cal. 143, 163; Gruner v. Barber [(1962)] 207 Cal.App.2d 54, 59; it ??denotes ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it?? (Simmons v. Southern Pac. Transportation Co. [(1976)] 62 Cal.App.3d 341, 368; Ebaugh v. Rabkin [(1972)] 22 Cal.App.3d 891, 895; McAfee v. Ricker, supra, 195 Cal.App.2d 630, 634). Essential to any award of exemplary damages is a finding that the plaintiff was subjected to ?cruel and unjust hardship? by the defendant. (Trammel v. Western Union Tel. Co. [(1976)] 57 Cal.App.3d 538, 577). And in any case, the evil motive and desire to harm the plaintiff must be attended by ??outrageous conduct.?? (Coats v. Construction & Gen. Laborers Local No. 185 [(1971)] 15 Cal.App.3d 908, 916; Di Giorgio Fruit Corp. v. AFL-CIO [(1963)] 215 Cal.App.2d 560, 580).? Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 771-772. Something more than the mere commission of a tort is always required for punitive damages. Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.

Cross-Complainants have made conclusory and generalized allegations against cross-defendants, rather than ultimate facts regarding malice, oppression or fraud. There is no basis to determine that cross-defendants sought to specifically injure
cross-complainant. Cross-defendants? request, then, to strike out these allegations is granted.

Finally, cross-defendants? request to strike out cross-complainant?s prayer for attorney?s fees is granted. ?Except as attorney?s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties?? CCP ? 1021. Cross-complainant has not articulated any statutory or contractual basis for an award of attorney?s fees.