Cedar v. Hunt, et al.

defendant's conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.)

In the case at bench, Defendant Brian Daniel Rosas demurs to the fourth cause of action on the grounds that it fails to state sufficient facts to constitute a cause of action and is uncertain. Both grounds for demurrer are premised on the inclusion of a reference to the officers owing a duty of care when discharging their fire arms found in paragraph 38.

Plaintiffs’ fourth cause of action alleges violations of Code of Civil Procedure sections 733 and 3346 by defendants Daniel Hunt, Jennifer, Hunt and Jason Hunt by their having cut down plaintiff’s trees. Defendant argues the allegations do not state a claim for violations against defendant Rosas and is subject to demurrer. The plain language of the complaint indicates the fourth cause of action is not pled against defendant Rosas or the other named officer defendants. The fourth cause of action is pled in ordinary language.

The facts underlying the claim are clear. The inclusion of an allegation referencing the officers, who are alleged to have been guests on the Hunt property at the time of the Gun Fire, does not create a cause of action against the officers and by the omission of these officer defendants from the named defendants in the cause of action was not intended to. The general demurrer rand special demurrer for uncertainty are overruled. (Code Civ. Proc. § 430.10, subds. (e) and (f).)

Motion to Strike

Defendant Rosas move to strike the allegations, language and prayer for relief related to attorney’s fees, treble damages, and punitive damages against him.

“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.” (Code Civ. Proc., § 436.)

To the extent the motion relates to damages related to the fourth cause of action, which is not pled against him, the motion is denied. In contrast, plaintiffs’ prayer for punitive damages at page 10, lines 24-25 against both the Hunts and Officers fairly implicates defendant Rosas, an officer, to be the target of this request.

A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, Inc. v. Superior Court (2003) 110 CalApp.4th 1145; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696.)

Civil Code section 3294, subdivision (a) provides:

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.

Plaintiffs seek punitive damages in connection with the second and third causes of action based in negligence. The plaintiffs allege that in firing their weapons under fireprone conditions the officers grossly deviated from their training. (Complaint, ¶¶ 19, 31, 35.) These allegations are intended to support the conclusion that the officers acted with malice, oppression, or fraud to support the imposition of punitive damages, (Id., ¶¶ 31, 35.) Although plaintiffs argue the punitive damages in connection with the second and third causes of action are outside the scope of the motion, the notice of motion encompasses all punitive damage allegations alleged against Defendant Rosas.

The conclusory allegations that the officers’ actions were done “with malice, oppression, or fraud” do not adequately support the claimed punitive damages.

As such, the motion to strike is granted in part as to the references and prayer for punitive damages against defendant Rosas. The motion is denied as to the damages sought in connection with the fourth cause of action which is not pled against the moving defendant. Leave to amend is granted.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/09/26. (Judge’s initials) (Date)

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