Case Number: 19STCV12134    Hearing Date: July 07, 2020    Dept: 31

Background 

On April 8, 2019 Plaintiffs Henrietta Easley, in her individual capacity and in her capacity as Trustee of the Henrietta Easley Living Trust filed the instant action against Defendants Bank of New York Mellon; MERS; Bay View Loan Servicing, LLC; Zieve, Brodnax & Steele LLP; all persons known and unknown claiming any legal or equitable title, or interest in the property described in the complaint adverse to the Plaintiffs’ or any cloud on Plaintiffs’ title to that property; and Does 1 to 10. The action concerns property located at 1654 East Altadena Drive, Altadena, California 91001.

On May 14, 2019, Plaintiffs filed an Amendment to Complaint (Fictitious/Incorrect Name) substituting 1654 E. Altadena LLC as Doe 1. On November 27, 2020, Plaintiffs filed the Verified Second Amended Complaint (“SAC”). The SAC asserts causes of action for:

  1. Wrongful Foreclosure;
  2. Quiet Title;
  3. Intentional Infliction of Emotional Distress;
  4. Negligent Infliction of Emotional Distress; and
  5. Declaratory Relief.

On January 15, 2020, Defendants Bank of New York Mellon; Mortgage Electronic Systems, Inc. (erroneously sued as MERS); Bay View Loan Servicing, LLC; and Zieve, Brodnax & Steele LLP (hereinafter collectively referred to as “Defendants”) filed the instant demurrer with motion to strike.

The matter was called for hearing on March 11, 2020 where Plaintiffs informed the Court that they had untimely filed an Opposition on March 4, 2020. The Court continued the hearing to allow the Court to consider Plaintiffs’ Opposition.

Legal Standard on Demurrer 

A demurrer for sufficiency tests whether the complaint states a cause of action. Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747. When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. vAccountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) However, it does not accept as true deductions, contentions, or conclusions of law or fact.  (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.) A demurrer may be sustained “only if the complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

Legal Standard on Motion to Strike 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 

Request for Judicial Notice 

In ruling upon demurrers, courts may consider matters that are proper for judicial notice.  (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 834.)

Evidence Code Section 452 provides that judicial notice may be taken for facts and propositions that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Cal. Evid. Code § 452(h).) The court may also take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c), (d), and (h).) Further, “a court may take judicial notice of [recorded documents and] the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 745-755.)

Defendants request that the Court take judicial notice of the following documents:

  1. The Deed of Trust recorded on December 6, 2004 in the official records of the County of Los Angeles as document number 043143448;
  2. The Bank of America, N.A.’s loan modification recorded on November 8, 2013 in the official records of the County of Los Angeles as document number 20131598062;
  3. The Assignment of Deed of Trust recorded on September 12, 2011 in the official records of the County of Los Angeles as document number 20111235066;
  4. The Substitution of Trustee recorded on June 7, 2016 in the official records of the County of Los Angeles as number 20160652526;
  5. The Notice of Default recorded on May 18, 2017 in the official records of the County of Los Angeles as number 20170551992;
  6. The Notice of Trustee Sale recorded on September 8, 2017 in the official records of the County of Los Angeles as number 20171020249;
  7. The Trustee’s Deed Upon Sale recorded on October 10, 2018 in the official records of the County of Los Angeles as number 20181028140;
  8. Contreras v. JPMorgan Chase (C.D. Cal. Aug. 28, 2014, No. EDCV14-01145JGB (DTBx)) 2014 U.S. Dist. LEXIS 123308;
  9. Amdee v. CitiMortgage, Inc. (N.D. Cal. Mar. 17, 2014, No. C13-3040CW) 2014 U.S. Dist. LEXIS 35472;
  10. Bell v. Wells Fargo Bank, NA (9th Cir. 2016) 663 F.App’x 549;
  11. Major v. Wells Fargo, N.A. (S.D. Cal. Aug. 15, 2014 No. 14-CV-998-LAB-RBB) 2014 U.S. Dist. LEXIS 114977;
  12. Juarez v. Wells Fargo Bank, N.A. (C.D. Cal. Nov. 11, 2009, No. CV09-3104AHM (AGRx)) 2009 U.S. Dist. LEXIS 110892;
  13. Maguca v. Aurora Loan Servs. (C.D. Cal. Oct. 28, 2009, No. SACV09-1086JVS (ANx)) 2009 U.S. Dist. LEXIS 104251;
  14. Metzger v. Wells Fargo Bank, N.A. (C.D. Cal. Apr. 28, 2014, No. LACV14-00526JAK (SSx)) 2014 U.S. Dist. LEXIS 59427;
  15. Sandri v. Capital One, N.A. (In re Sandri) (Bankr. N.D. Cal. 2013) 501 B.R. 369; and
  16. The Court’s November 6, 2019 Minute Order.

The request is GRANTED.

Discussion

 

Defendant Mortgage Electronic Systems, Inc. 

Defendants demur to the entire SAC as to Defendant Mortgage Electronic Systems, Inc. (“MERS”) arguing that no cause of action is directed at Defendant MERS and there are no allegations of any wrongdoing by Defendant MERS. Defendants assert that Plaintiffs tacitly concede that they can no longer maintain a claim against Defendant MERS.

In their opposition, Plaintiffs concede that there are no allegations levied against MERS and represent that they will move to dismiss it from the matter.

Based on the foregoing, Defendant MERS’ demurrer to the entire SAC is SUSTAINED without leave to amend.

 

First Cause of Action for Wrongful Foreclosure

 

“The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They are: ‘(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184.) “‘[M]ere technical violations of the foreclosure process will not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the facts of the case.’ [Citation.]” (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 562.)

“A primary reason for California’s comprehensive regulation of foreclosure in the Civil Code is to ensure stability of title after a trustee’s sale. (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1249–1250, 26 Cal.Rptr.3d 413 [“comprehensive statutory scheme” governing foreclosure has three purposes, one of which is “to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser” (internal quotations omitted) ].)

There is nothing in section 2923.5 that even hints that noncompliance with the statute would cause any cloud on title after an otherwise properly conducted foreclosure sale. We would merely note that under the plain language of section 2923.5, read in conjunction with section 2924g, the only remedy provided is a postponement of the sale before it happens.” (Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 235.)

There is “no further remedy for an alleged violation of Civil Code section 2923.5.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1617.)

Defendants demur to the first cause of action for wrongful foreclosure first arguing that Plaintiffs have failed to allege any basis that the foreclosure of the property was illegal, fraudulent, or willfully oppressive. Defendants note that Plaintiffs’ SAC alleges that “[D]efendants’ failure to comply with Civil Code section 2923 . . . was intentional or reckless, or resulted from willful misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent.” (SAC ¶ 34.) Defendants assert that pursuant to Mabrysupra, the only remedy provided for a failure to comply with Section 2923 is a postponement of the sale before it happens. Defendants contend that because it is uncontested that the property was foreclosed (SAC ¶ 27), Section 2923.5 fails to support a cause of action for wrongful foreclosure or any other cause of action.

In opposition, Plaintiffs argue that they have sufficiently alleged their cause of action for wrongful foreclosure. Plaintiffs assert that they amended their complaint to include allegations that they had been harmed by the harmful acts of Defendants and that they had tendered payment or exhibited a willingness to tender payment of the debt, which were noted by the Court in its November 6, 2019 Minute Order sustaining the demurrer to this cause of action with leave to amend. Plaintiffs contend that these supposed defects are clearly amenable to further amendment based on facts already alleged.

The Court finds that Plaintiffs have failed to allege facts sufficient to state a cause of action for wrongful foreclosure. As noted by Defendants, the only remedy for a violation of Section 2923.5 is a postponement of a sale; a violation of Section 2923.5 cannot cause any cloud on title such that an alleged violation fails to support a cause of action for wrongful foreclosure. Plaintiffs fail to allege any other “wrongful” conduct aside from the failure to comply with Section 2923 and Plaintiffs fail to address any other wrongful conduct in their opposition.

Based on the foregoing, Defendants’ demurrer to the first cause of action for wrongful foreclosure is SUSTAINED without leave to amend.

Second Cause of Action for Quiet Title 

  California Code of Civil Procedure § 761.020 requires a complaint for quiet title to be verified and to include the following elements: (1) a legal description of the property; (2) the basis of title as to which determination is sought; (3) the adverse claims to the title as to which determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of title. (Code Civ. Proc. § 761.020; 5 Witkin, Cal. Pro. (4th ed. 1997) Pleading § 622.) There has been a long-standing equitable rule that “a mortgagor of real property cannot, without paying his debt, quiet his [or her] title against the mortgagee.” (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707; McElroy v. Chase Manhattan Mortg. Corp. (2005) 134 Cal.App.4th 388, 394; Mix v. Sodd (1981) 126 Cal.App.3d 386, 390; Santos v. Countrywide Home Loans (E.D.Cal. 2009) 2009 WL 3756337, *4 (the element of quiet title of being the rightful owners of the property requires that plaintiffs have satisfied their obligations under the deed of trust by paying the debt owed); but see Newson v. Countrywide Home Loans, Inc. (N.D.Cal. 2010) 2010 WL 2034769, 12 (a quiet-title cause of action need not allege that plaintiffs actually tendered the amount of the loan proceeds, but sufficiently allege a willingness to tender the amount).)

Defendants demur to the second cause of action arguing that Plaintiffs cannot establish title. Defendants assert that as Plaintiffs have failed to allege a wrongful foreclosure, Plaintiffs have failed to identify any basis upon which to invalidate the recorded and judicially noticeable components of the chain of title or the properly conducted foreclosure sale.

In opposition, Plaintiffs argue that they have amended their complaint to address the shortcomings addressed in the Court’s November 6, 2019 Minute Order sustaining the demurrer to this cause of action with leave to amend. Plaintiffs assert that their claim to title arises from the title acquired by the Grant Deed recorded December 6, 2004. (SAC ¶ 4.) Plaintiffs argue that adverse claims to title exist by virtue of the wrongful recordation of notice of default, the recordation of a trustee’s deed upon sale, and the subsequent sale of the property to 1654 East Altadena Drive, LLC.

The Court finds that Plaintiffs have failed to allege facts sufficient to state a cause of action for quiet title. Because Plaintiffs have failed to allege a cause of action for wrongful foreclosure, Plaintiffs have failed to allege a basis for title superior to that of Defendants’.

Based on the foregoing, Defendants’ demurrer to the second cause of action for quiet title is SUSTAINED without leave to amend.

            Third Cause of Action for Intentional Infliction of Emotional Distress 

“The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

“While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) Courts have held that conduct must be “so outrageous that it exceeds all bounds of that usually tolerated in a civilized community.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Id.)

Courts have also held that “[s]evere emotional distress means . . . emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” (Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 476.)

Defendants demur to the third cause of action for intentional infliction of emotional distress first arguing that Plaintiffs have failed to allege facts to show Defendants acted outrageously. Defendants contend that Plaintiffs’ only allegation as to the “outrageousness” of Defendants conduct is a single paragraph that provides that Defendants allegedly failed to contact Plaintiffs within 30 days prior to filing a Notice of Default. (SAC ¶ 42.) Defendants argue that Plaintiffs have failed to allege that the alleged procedural irregularities were illegal, caused any prejudice, or provide the basis for any recovery. Defendants assert that Plaintiffs do not even allege that they did not receive the information or notices, only that they did not receive all information within 30 days of being served with a Notice of Default.

Defendants contend that Plaintiffs have also not been able to present a cognizable theory of how the alleged procedural defects led to any harm. Defendants argue that even taking the allegations in the worst light possible, the SAC seeks to recover for little more than a procedural irregularity, which does not provide a basis for a private right of action. Defendants assert that these allegations cannot constitute outrageous conduct.

Defendants assert that moreover, “[a] party is not subject to liability for infliction of emotional distress when it has merely pursued its own economic interests and properly asserted its legal rights. [Citaiton.]” (Kruse v. Bank of America (1988) 201 Cal.App.3d 38, 67.) Defendants argue that here, the lender/borrower relationship is purely contractual. Defendants assert that even if Defendants fail to provide information regarding foreclosure alternatives, Plaintiffs have not alleged any facts to show how these alleged actions were outside the realm of the lender/borrower relationship. Defendants contend that Plaintiffs are therefore left without a viable remedy or cause of action.

In their opposition, Plaintiffs concede that it cannot make out an action for intentional infliction of emotional distress.

The Court finds that Plaintiffs have failed to allege facts sufficient to state a cause of action for intentional infliction of emotional distress. Defendants’ alleged conduct of failing to provide adequate notice as required by Civil Code section 2923 cannot be reasonably regarded as so extreme and outrageous as to permit recovery. Such conduct does not exceed all bounds of that usually tolerated in a civilized community.

Based on the foregoing, Defendants’ demurrer to the third cause of action for intentional infliction of emotional distress is SUSTAINED without leave to amend.

Fourth Cause of Action for Negligent Infliction of Emotional Distress 

“‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence ….’ [Citation.] “The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.” [Citation.]” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

“‘The distinction between the ‘bystander’ and the ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff.’ [Citation.] “Bystander” claims are typically based on breach of a duty owed to the public in general [citation], whereas a right to recover for emotional distress as a “direct victim” arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant’s preexisting relationship with the plaintiff [citation].” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129–130.)

“Moreover, as the Supreme Court has held, “[T]here is no duty to avoid negligently causing emotional distress to another.” [Citations.] As the Supreme Court explained in Potter, “[D]amages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” [Citation.] The independent duty may be imposed by law, assumed by the defendant, or exist by virtue of a special relationship between the parties. [Citations.]” (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 464.)

Defendants demur to the fourth cause of action for negligent infliction of emotional distress arguing that while the cover page of the SAC includes a header for such a cause of action, Plaintiffs have not otherwise included any facts to state a claim for negligent infliction of emotional distress. Defendants assert that it thus appears Plaintiffs have abandoned this cause of action and it should be dismissed.

In opposition, Plaintiffs argue that they inadvertently omitted their cause of action for negligent infliction of emotional distress and should be allowed to amend the complaint to allege the cause of action. Plaintiffs assert that here, they will allege that Defendants’ failure to give her the statutory notice prior to filing a notice of default and serving a Notice of Default, was a violation of the Homeowner’s Bill of Rights.

The Court finds that Plaintiffs have failed to allege facts sufficient to state a cause of action for negligent infliction of emotional distress. While Plaintiffs include negligent infliction of emotional distress in the heading of the SAC, Plaintiffs fail to allege any facts to support such a cause of action.

Based on the foregoing, Defendants’ demurrer to the fourth cause of action for negligent infliction of emotional distress is SUSTAINED with leave to amend.

            Fifth Cause of Action for Declaratory Relief 

Code of Civil Procedure section 1060 provides that a person may bring an action for declaratory relief if he or she “desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . .” (Code Civ. Proc., § 1060.) A request for declaratory relief may be brought alone or with other relief. (See id.)

To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

To state a cause of action for declaratory relief under CCP § 1060, a complaint must allege facts from which the court may determine that an actual controversy relating to the legal rights and duties of the respective parties exists. (Alturas v. Gloster (1940) 16 Cal.2d 46, 48.) “An actual controversy is ‘one which admits of definitive and conclusive relief by judgment . . .  The judgment must decree, not suggest, what the parties may or may not do.’” (In re Claudia E. (2008) 163 Cal.App.4th 627, 638 (citation omitted).)

“The court . . . may sustain a demurrer without leave to amend if it determines that a judicial declaration is not ‘necessary or proper at the time under all the circumstances.”’ (DeLaura v. Beckett (2006) 137 Cal.App.4th 542, 545; see also Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 648 (demurrer properly sustained where no allegations that declaratory relief would “have any practical consequences.”).)

“The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” (General of America Ins. Co. v. Lilly (1968) 258 Cal.App.2d 465, 470.)

Defendants finally demur to the fifth cause of action for declaratory relief arguing that it is duplicative of Plaintiffs’ other claims. Defendants assert that here, Plaintiffs’ declaratory relief claim is duplicative of the quiet title cause of action. Defendants contend that accordingly, Plaintiffs’ declaratory relief cause of action should be dismissed as duplicative. Defendants argue that moreover, Plaintiffs’ declaratory relief claim fails because all of Plaintiffs’ other claims also fail.

In opposition, Plaintiffs argue that the declaratory relief cause of action is necessary in the event that she is successful on her wrongful foreclosure and quite title action.

The Court finds that Plaintiffs have failed to allege facts sufficient to state a cause of action for declaratory relief. Given the Court’s ruling sustaining Defendants’ demurrer to all but one cause of action asserted in the SAC without leave to amend, the Court finds that a judicial declaration as to the rights and obligations of the parties relative to the subject property is not necessary or proper under all the circumstances.

Based on the foregoing, Defendants’ demurrer to the fifth cause of action for declaratory relief is SUSTAINED without leave to amend.

            Motion to Strike 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) “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. (Civ. Code, § 3294, subd. (c).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

Defendants move to strike allegations in the SAC related to punitive damages on the grounds that Plaintiffs’ complaint contains no facts that would support such a claim for punitive damages.

Plaintiffs fail to address this argument in their opposition.

The Court finds that Plaintiffs have failed to state facts sufficient to state a prima facie claim for punitive damages. As noted above, mere negligence, even gross negligence, is not sufficient to justify an award for punitive damages. Here, the only remaining cause of action is Plaintiffs’ cause of action for negligent infliction of emotional distress.

Based on the foregoing, Defendants’ motion to strike allegations related to punitive damages is GRANTED without leave to amend.

Conclusion 

Defendants’ demurrer to the first, second, third, and fifth causes of action is SUSTAINED without leave to amend. Defendants’ demurrer to the fourth cause of action is SUSTAINED with leave to amend. Defendants’ motion to strike is GRANTED without leave to amend.

The parties are strongly encouraged to attend all scheduled hearings by telephone or CourtCall. All social distancing protocols will be observed at the Courthouse and in the courtrooms.

Moving parties to give notice.