Jason Christ v. Jordan Hannah

3. CU0001813 USA Bath California Remodeling, Inc. vs. David Sweat

One of the parties apparently reserved this date for the filing of a motion; none was filed. This matter is removed from calendar.

4. CU0002305 Jason Christ v. Jordan Hannah

Plaintiff/Cross-Defendant Jason Christ’s motion to strike portions of defendant’s answer and cross-complaint is granted in part.

Meet and Confer

Defendant argues that Plaintiff failed to meet and confer prior to filing the motion to strike. Defendant appears correct. “Before filing a motion to strike pursuant to [Code of Civil Procedure sections 435 to 437b], the moving party shall meet and confer ....” Code Civ. Proc., § 435.5(a). There is no evidence that Plaintiff did do here. That said, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” Code Civ.

Proc., § 435.5(a)(4). “If, upon review of a declaration under section [435.5(a)(3)] a court learns no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355, fn.

3. Here, the Court does not believe further conferences are necessary and turns to the merits. Plaintiff shall comply with all required meet and confer requirements hereafter under the Rules of Civil Procedure.

Legal Standard

"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 Civ. Proc. § 435(b)(1). "The court may, upon a motion made pursuant to Section 435, ..., 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." Code Civ. Proc. § 436.

Answer

Frivolous Claim

Plaintiff moves to strike Defendant’s “frivolous claim” affirmative defense arguing it is not an affirmative defense and that it is a legal conclusion. Point one of this argument has merit.

“An affirmative defense is ‘new matter constituting a defense’ ... and is defined as ‘[a] defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.’ ” Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC (2021) 67 Cal.App.5th 1149, 1158, 2

citing Code Civ. Proc. § 431.30(b)(2)), and Black's Law Dict. (11th ed. 2019) p. 528, col. 2. “Because an affirmative defense can only defeat a plaintiff's claim, and [a]ffirmative relief is ‘an award, such as damages, that goes beyond merely defeating the plaintiff's recovery’, it follows logically that an affirmative defense cannot give rise to affirmative relief such as damages.” Ibid., citing City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746, fn.

12.

Such is the case here. Defendant alleges as a defense that Plaintiff’s claim is frivolous, reserves the right to dismiss the same, and reserves the right to seek fees and costs “pursuant to statute,” apparently a reference to Code of Civil Procedure section 128.5. This “defense,” as articulated, will not defeat Plaintiff’s claims per se. Moreover, the defense potentially seeks affirmative relief—fees and costs. The frivolous claim defense, therefore, is properly stricken from the answer, without prejudice. Both parties may, as they deem warranted, seek relief under Code of Civil Procedure section 128.5 by noticing, filing and serving an appropriate motion.

Indemnification and Apportionment of Fault

Plaintiff moves to strike Defendant’s “allegations of cross-complaint” affirmative defense, arguing the paragraph is uncertain and not drawn in conformity with California pleading requirements. The Court agrees.

“The answer to a complaint shall contain: (1) [t]he general or specific denial of the material allegations of the complaint controverted by the defendant ... [and] (2) [a] statement of any new matter constituting a defense.” Code Civ. Proc. 431.30(b).

Defenses should be relevant to a plaintiff’s legal claims and averred carefully, and with as much detail as the facts constituting the corresponding causes of action in the complaint. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384. They should not be proffered in the form of “terse legal conclusions.” Ibid. “The defenses shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” Code Civ. Proc., 431.30(g).

“However, [n]o error or defect in a pleading is to be regarded unless it affects substantial rights .... The primary function of a pleading is to give the other party notice so that it may prepare its case ..., and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240 [internal citations and quotation marks omitted].

At bar, the affirmative defense of “allegations of cross-complaint” does not state any specific facts; moreover, it is unclear which allegations are asserted as an affirmative defense as to which cause of action. The motion to strike is granted as to this affirmative defense.

Cross-Complaint

Indemnification and Apportionment of Fault

Plaintiff argues indemnification and apportionment of fault are not cognizable causes of action. The Court disagrees. 3

Plaintiff summarily argues that the causes of action are not cognizable and fail to state facts sufficient to constitute claims but does not provide the Court with meaningful, legal authority or cogent argument to support his request for relief. The motion to strike as to these causes of action is denied.

Punitive Damages

Plaintiff argues the cross-complaint fails to allege facts sufficient to support an award of punitive damages.

A plaintiff can recover punitive damages in tort cases where “the defendant has been guilty of oppression, fraud, or malice.” Civ. Code §3294(a). “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.

Relevant here, the term “malice” as used in the statute 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.” Civ. 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.” (Civ. Code, § 3294(c)(2). While the term “despicable” is not defined in Civil Code section 3294(c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (College Hospital). “Despicable conduct” for purposes of an award of punitive damages means “conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ ... [Citation.]” McNeal v.

Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872. “ ‘The wrongdoer “must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff’s rights [citations].” ... 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.’ ” Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 (citations omitted).

At bar, the cross-complaint alleges: (1) “Defendant intentionally and unlawfully made harmful and/or offensive physical contact with Plaintiff’s person. Plaintiff did not consent to such contact.” Cross-Complaint, pg. 4. (2) “Defendant accosted and moved toward Plaintiff in a threatening manner. Plaintiff did not consent to Defendant’s conduct.” Id., pg. 5. (3) “Defendant engaged in extreme and outrageous conduct toward Plaintiff, including but not limited to repeated verbal abuse, public humiliation and threats of harm.” Id., pg. 6. (4) “Defendant intentionally and unlawfully restrained, detained, and confined Plaintiff against Plaintiff's will, Defendant’s actions were without lawful privilege, consent, or justification.” Id., pg.

7.

On this record, Cross-Complainant has sufficiently alleged circumstances of malice and oppression. The motion to strike punitive damages is denied.

5. CU0002418 Andrew Ehlers v. Brandon Murray, et al.

Defendants’ unopposed motion for leave to file a cross-complaint is granted. Defendants are ordered to file and serve the proposed cross-complaint attached as Exhibit A to the Declaration within thirty (30) days of the hearing on this motion.

Legal Standard

Code of Civil Procedure § 428.10 provides that a party against whom a cause of action has been asserted may file a cross-complaint setting forth: “(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

Code Civ. Proc. § 428.10(b). A party shall obtain leave of court to file a cross-complaint if it is not concurrently filed with the answer or at any time before the court sets a trial date. Code Civ. Proc. § 428.50(a)-(b). Leave may be granted in the interest of justice at any time during the course of the action. Code Civ. Proc. § 428.50(c).

If a cross-complaint is compulsory, leave must be granted as long as the cross-complainant is acting in good faith, so as to avoid forfeiture of the causes of action. Code Civ. Proc. §426.50; see Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101 (concluding that the late filing of the motion to file a compulsory cross-complaint absent some evidence of bad faith is insufficient evidence to support denial of the motion). To be considered a compulsory crosscomplaint, the related cause of action must have existed at the time defendant served its answer to the complaint. Crocker Nat’l Bank v. Emerald (1990) 221 Cal.App.3d 852, 864.

Analysis

Defendants move to file a cross-complaint, arguing: (1) they recently learned the insurer providing defense counsel would be unable to pursue affirmative cross-claims on their behalf; and (2) they were awaiting the results of their motion to compel mediation and Plaintiff’s motion for leave to file an amended complaint. The Cross-Complaint alleges causes of action for: (1) Breach of Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; and (3) Negligent Violation of Statutory Duty.

First, Plaintiff has filed no opposition to the motion; as such, the Court deems Plaintiff’s failure to oppose the motion as consent to the granting of the same. See Cal. Rules of Court, rule 8.54(c) (“failure to oppose a motion may be deemed a consent to the granting of the motion.”); see, e.g., Amato v. Downs (2022) 78 Cal.App.5th 435, 440, n.3 (unopposed motion can be granted on that basis, citing rule 8.54(c)).

Second, the Court finds the cross-complaint is compulsory because it arises out of the same occurrence, namely, the contracts for construction services and subsequent work performed. 5