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1 Sheila E. Fix (State Bar No. 138613) ELECTRONICALLY FILED
sfix@wshblaw.com Superior Court of California
2 S. Joanna Dyriam (State Bar No. 320995) County of Santa Barbara
sdyriam@wshblaw.com Darrel E. Parker, Executive Officer
3 WOOD, SMITH, HENNING & BERMAN LLP 9/10/2021 3:34 PM
2815 Townsgate Road, Suite 215 By: Miroslava Pena-Bautista, Deputy
4 Thousand Oaks, California 91361-5827, United States
Phone: (820) 333-4250 ♦ Fax: (820) 333-4249
5
Attorneys for Defendants, CLEARVIEW PROPERTY SERVICES, INC. and CHRISTOPHER
6 HULME
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SANTA BARBARA, COOK DIVISION
10
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 THOMAS KOPITNIK, an individual, Case No. 21CV02266
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249
[Assigned for All Purposes to Judge James F. Rigali, Dept. 2]
12 Plaintiff,
2815 TOWNSGATE ROAD, SUITE 215
13 v. DEFENDANTS CLEARVIEW
Attorneys at Law
PROPERTY SERVICES, INC. AND
14 CLEARVIEW PROPERTY SERVICES, INC. CHRISTOPHER HULME'S MOTION TO
a California Corporation; CHRISTOPHER STRIKE PLAINTIFF'S REQUESTS FOR
15 HULME, and individual; and DOES 1 PUNITIVE AND EXEMPLARY
THROUGH 10 DAMAGES FROM THE COMPLAINT;
16 DECLARATION OF S. JOANNA
Defendant. DYRIAM IN SUPPORT THEREOF;
17 [PROPOSED] ORDER
18 [Filed Concurrently with Defendants'
Demurrer]
19
DATE: October 12, 2021
20 TIME: 8:30 a.m.
DEPT.: 2
21
22
23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that on October 12, 2021 at 8:30 a.m., or soon thereafter as the
25 matter may be heard in Department 2 of the above-entitled court, located 312-C East Cook Street,
26 Santa Maria, CA 93454, Defendants, CLEARVIEW PROPERTY SERVICE, INC. and
27 CHRISTOPHER HULME (hereinafter "Defendants") will and do hereby move the Court to strike
28 Plaintiff THOMAS KOPITNIK's (“Plaintiff”) claims for punitive and exemplary damages from
22183931.1:05819-0110 -1- Case No. 21CV02266
DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 Plaintiff's Complaint pursuant to California Code Of Civil Procedure ("C.C.P.") §§ 435, 436, 437.
2 Specifically, Defendants move this Court to strike the following portions of Plaintiff's
3 Complaint without leave to amend:
4 1. Plaintiff's general allegations that he "also is entitled to punitive and exemplary
5 damages pursuant to Civil Code section 3294." (Plaintiff's Complaint [“Compl.”] at Pg. 17, ¶ 66,
6 Lines 1-2.)
7 2. As against Defendants, the request for "punitive damages and exemplary damages
8 according to proof at trial" in Plaintiff's prayer for relief (Compl. at Pg. 21, ¶ 4, line 23.)
9 The instant motion to strike is made on the grounds that Plaintiff's requests for punitive and
10 exemplary damages cannot be supported by bald legal conclusions and based on Plaintiff's beliefs
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 alone. Plaintiff's requests for punitive and exemplary damages must be supported by specific factual
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249
12 allegations establishing the evil motive necessary to prove the Defendants acted with the statutorily
2815 TOWNSGATE ROAD, SUITE 215
13 required fraud. Conclusory claims of alleged fraud cannot support a claim for punitive and exemplary
Attorneys at Law
14 damages alone. Plaintiff's Complaint is completely devoid of any specific factual allegations that
15 moving Defendants acted with the requisite fraud with regard to Plaintiff and further fails to set forth
16 Defendants' specific conduct that would give rise to a finding of fraud. Accordingly, because there are
17 no facts to support a claim for punitive and exemplary damages, Defendants’ Motion to Strike
18 Plaintiff's claim for punitive and exemplary damages must be granted, without leave to amend.
19 This motion is based upon this pleading, the Memorandum of Points and authorities filed
20 concurrently herewith, all pleadings, records, and documents on file with the Court, and upon such
21 further oral argument and documentary evidence as may be presented by counsel at the hearing of this
22 matter.
23 DATED: September 10, 2021 WOOD, SMITH, HENNING & BERMAN LLP
24
25
By:
26 SHEILA E. FIX
S. JOANNA DYRIAM
27 Attorneys for Defendants, CLEARVIEW PROPERTY
SERVICES, INC. and CHRISTOPHER HULME
28
22183931.1:05819-0110 -2- Case No. 21CV02266
DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This lawsuit arises out of a June 28, 2019 home improvement contract between Plaintiff
4 Thomas Kopitnik ("Plaintiff") and Defendant Clearview Property Services, Inc. ("Clearview") for
5 landscaping services at Plaintiff's ranch in Buellton, California. (See Complaint, Ex. 1.) The
6 Contract, which was negotiated by Defendant Christopher Hulme ("Hulme"), the President and CEO
7 of Clearview, was based on a proposal for design services for $10,000 and an overall construction
8 budget of $750,000 - $1,000,000, which Plaintiff signed and accepted on January 24, 2019.
9 (Declaration of S. Joanna Dyriam, ¶ 2 (hereafter "Dyriam Decl.").) The contract was subsequently
10 signed by Plaintiff and Hulme on or about July 1, 2019. (See Complaint, Ex. 1.) Clearview then
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 begin its work on Plaintiff's ranch in July 2019 through approximately mid October of 2020, when
WOOD, SMITH, HENNING & BERMAN LLP
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12 Plaintiff terminated his contract with Clearview. (Dyriam Decl., ¶ 3.)
2815 TOWNSGATE ROAD, SUITE 215
13 On or about Plaintiff filed his Complaint alleging the following causes of action: (1) Recission
Attorneys at Law
14 as to Defendant Clearview; (2) Breach of Contract as to Defendant Clearview; (3) Negligence as to
15 Defendant Clearview; (4) Fraud in the Inducement as to Defendants Clearview and Hulme; (5)
16 Negligent Misrepresentation as to Defendants Clearview and Hulme; and (6) Unfair Business
17 Practices under business & professions code section 17200 et seq. as to Defendants Clearview and
18 Hulme. Plaintiff’s alleged damages include a request for punitive and exemplary damages under his
19 fraud in the inducement cause of action and within his prayer for relief. However, Plaintiff does not
20 plead the specific allegations necessary to support a claim for punitive and exemplary damages.
21 Rather, Plaintiff seeks to initiate a claim for punitive and exemplary damages with nothing more than
22 a series of broad allegations and legal conclusions directed at Defendants Clearview and Hulme
23 (collectively, "Defendants") as a whole.
24 As established below, the pleading standard for advancing a prayer for punitive damages is
25 stringent. At a minimum, a plaintiff must advance specific facts that, if true, would establish “clear
26 and convincing evidence” of “oppression, fraud or malice” rising to the level of “despicable conduct.”
27 (See California Civil Code ["Cal. Civ. Code"] § 3294.) Our Courts have consistently agreed that “clear
28 and convincing evidence” means evidence sufficient to "command the unhesitating assent of every
22183931.1:05819-0110 -3- Case No. 21CV02266
DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 reasonable mind.” (Christian Research Inst. v. Alnor (2007) 148 Cal.App.4th 71, 84).
2 In his Complaint, Plaintiff falls far shy of meeting the threshold for advancing a prayer for
3 punitive and exemplary damages. In fact, Plaintiff does not make any specific factual allegations
4 necessary to support a claim for punitive and exemplary damages. As such, Plaintiff's claim for
5 punitive and exemplary damages falls below the standard set forth in the California Code of Civil
6 Procedure and the California Civil Code. Accordingly, for these reasons, and those stated below,
7 Defendants respectfully request that this Motion to Strike (“Motion”) be granted without leave to
8 amend.
9 II. PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLAR DAMAGES MUST
10 BE STRICKEN FROM THE COMPLAINT
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 California Code of Civil Procedure § 435 provides, in pertinent part:
WOOD, SMITH, HENNING & BERMAN LLP
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12 (b)(1) Any party, within the time allowed to respond to a pleading may serve
2815 TOWNSGATE ROAD, SUITE 215
and file a notice of motion to strike the whole or any part thereof.
13
Attorneys at Law
California Code of Civil Procedure § 436 provides:
14
The court may, upon a motion made pursuant to section 435, or at any time in its
15 discretion, and upon terms it deems proper;
16 (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.
17 (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 any order of the court.
18
A motion to strike is an appropriate way to attack an improper request for relief. (Saberi v.
19
Bakhtiari (1985) 169 Cal App.3d 509, 517.) In light of the above, Defendants move for an order to
20
strike Plaintiff's improper claim and prayer for punitive and exemplary damages.
21
A. Plaintiff's Request For Punitive and Exemplary Damages Must Be Stricken From
22
The Complaint As To Defendants Because It Is Improperly Pled Under the Law
23
A motion to strike the punitive damage allegations from a complaint is appropriate if the
24
complaint is devoid of factual assertions supporting a conclusion that the defendant acted with
25
oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “Not
26
only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the
27
pleading to support such a claim.” (Grieves v. Superior Court (1997) 157 Cal.App.3d 162, 166.)
28
22183931.1:05819-0110 -4- Case No. 21CV02266
DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 Therefore, Plaintiff's Complaint is fatally deficient under the provisions set forth in California Civil
2 Code § 3294(a) and (b), which provide that a plaintiff cannot maintain a claim for punitive damages
3 absent a showing, by “clear and convincing evidence,” of oppression, fraud or malice.
4 California Civil Code § 3294 forms the statutory basis for exemplary and punitive damages.
5 California Civil Code § 3294(c)(1) strictly defines “malice” as “[c]onduct which is intended…to cause
6 injury…or despicable conduct which is carried on…with a willful and conscious disregard of the
7 rights or safety of others.” “Oppression” is defined as “despicable conduct that subjects a person to
8 cruel and unjust hardship in conscious disregard of that person’s rights.” (Cal. Civ. Code §
9 3294(c)(2).) Lastly, fraud “means an intentional misrepresentation…of a material fact known to the
10 defendant with the intention on the part of the defendant of thereby depriving a person of property or
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 legal rights or otherwise causing injury.” (Cal. Civ. Code § 3294(c)(3).)
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249
12 California Civil Code § 3294 and the cases interpreting it require that there be a specific
2815 TOWNSGATE ROAD, SUITE 215
13 evidentiary showing when a party alleges exemplary damages. A punitive damages claim cannot be
Attorneys at Law
14 maintained without clear and convincing evidence of “a willingness to vex, harass, or injure consistent
15 with a wrongful intent to injure.” (Kendall Yacht Corp. v. United California Bank (1975) 50
16 Cal.App.3d 949, 958; see also Thomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269,
17 1288.) “Mere negligence, even gross negligence, is not sufficient” to support a claim for punitive
18 damages. (Kendall Yacht Corp, 50 Cal.App.3d at 958). Further, a conclusory characterization of
19 defendants’ conduct as intentional, willful and fraudulent is a patently insufficient statement of
20 oppression, fraud, malice, express or implied within the meaning of §3294.” (Brousseau v. Jarrett
21 (1977) 73 Cal.App.3d 864, 872.)
22 Fundamental fairness requires that a plaintiff allege punitive damages specifically in their
23 pleadings to allow a defendant the opportunity to investigate the claim to determine if it is subject to
24 such extreme liability that would afford a jury an option of awarding damages designed to punish
25 them. Without any allegation of names, specific conduct, or dates when such conduct occurred, a
26 defendant is unable to determine the veracity of the allegations, nor can it prepare an adequate
27 defense.
28 Following this settled rule of specificity, courts have affirmed the granting of a motion to
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DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 strike a plaintiff’s punitive damage claim on the ground that specific factual allegations are required
2 to support a punitive claim. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) In Brousseau,
3 the court held that a plaintiff cannot simply tack on conclusory non-specific allegations in order to
4 support a punitive damages claim. (Id. at 871.) There, the Court found the conclusory allegations to be
5 the paradigm example of what pleading is insufficient to support a claim for punitive damages:
6 It is unnecessary for us to determine whether the second count alleges
facts showing the noncontractual obligation required by [Civil Code]
7 section 3294. We need not reach that issue because the second count’s
conclusory characterization of defendant’s conduct as intentional,
8 willful and fraudulent is a patently insufficient statement of
“oppression, fraud or malice,” express or implied,’ within the meaning
9 of section 3294.
10 (Id. at 872.) (Emphasis added.)
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 As shown above, California case law has established the following settled rules: (1) a claim for
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249
12 punitive damages cannot be plead generally and is not supported by simply tacking on bald legal
2815 TOWNSGATE ROAD, SUITE 215
13 conclusions; (2) a claim for punitive damages must be supported by specific factual allegations
Attorneys at Law
14 establishing the evil motive necessary to prove the defendant acted with the statutorily required
15 malice, oppression or fraud; and (3) a case of alleged negligence or gross negligence cannot support a
16 punitive damage claim. (See Brousseau, 73 Cal.App.3d at 872; see also McDonnell v. American Trust
17 Company (1955) 130 Cal.App.2d 296, 299-300.)
18 Here, the Complaint fails to set forth the specific, despicable acts that were allegedly
19 consciously committed by each Defendant with the intent to defraud and/or cause injury to Plaintiff.
20 Rather, Plaintiff makes conclusory allegations, based on Plaintiff's beliefs, that Defendant Hulme
21 intentionally made false representations about Clearview's skill and experience in an effort to make
22 Plaintiff sign an agreement with Clearview. However, Plaintiff fails to cite to any statements and/or
23 facts reflecting that Clearview actually lacked the skill and experience for the project and that the
24 representations Defendant Hulme made regarding same were genuinely false that would support a
25 claim for punitive and exemplary damages against Defendants. Thus, Plaintiff's Complaint only
26 contains broad, conclusory allegations and conclusions regarding Defendants' conduct and mindset but
27 is lacking specific and detailed facts that would support an award of punitive damages. (See Smith v.
28 Superior Court (1992) 10 Cal.App.4th 1033, 1042; See also Brousseau v. Jarrett (1977) 73
22183931.1:05819-0110 -6- Case No. 21CV02266
DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 Cal.App.3d 864, 872.) Further, the Complaint is woefully devoid of any facts that Defendants
2 engaged in any conduct that would support an inference of fraud. Finally, glaringly absent from
3 Plaintiff's Complaint is any evidence that Defendants specifically intended to defraud and/or harm
4 Plaintiff. Therefore, Plaintiff has failed to provide any factual basis of fraudulent conduct whatsoever
5 on the part of moving Defendants.
6 Simply put, Plaintiff's Complaint is devoid of any specific facts demonstrating that Defendants
7 acted with any of the requisite evil intent needed to substantiate the punitive and exemplary damages
8 claims. Thus, it would be unfair and improper to charge Defendants with the task of defending against
9 punitive and exemplary damage claims without any notice of the specific type of fraudulent conduct
10 they allegedly engaged in.
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 Taken as a whole, Plaintiff's Complaint presents vague and overbroad conclusory claims that
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249
12 ultimately demonstrate that Plaintiff has no factual basis for punitive and exemplary damages and that
2815 TOWNSGATE ROAD, SUITE 215
13 Plaintiff cannot establish with clear and convincing evidence that Defendants acted with any of the
Attorneys at Law
14 requisite intent to support his punitive and exemplary damages claim. Accordingly, this Motion must
15 be granted and the Court should strike Plaintiff's request for punitive and exemplary damages.
16 B. Plaintiff's Complaint Alleges Negligent Conduct, At Best, Not Fraudulent
17 Conduct
18 “Mere negligence, even gross negligence is not sufficient to justify an award of punitive
19 damages [citations omitted].” (Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894-95.) Furthermore,
20 the mere commission of a tort does not always allow a party to seek punitive damages against another
21 party. "There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a
22 fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of
23 the interests of others that his conduct may be called willful or wanton." (Taylor v. Superior Court
24 (1979) 24 Cal. 3d 890, 894.) The defendant “must act with the intent to vex, injure, or annoy, or with a
25 conscious disregard of the plaintiff’s rights.” (Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910,
26 922.) As such, the Courts have ruled that “[t]he mere carelessness or ignorance of the defendant does
27 not justify the imposition of punitive damages. Unhappily, as a society, we must tolerate, without
28 added retribution, these all too common lapses in ourselves.” (Flyer’s Body Shop Profit Sharing Plan
22183931.1:05819-0110 -7- Case No. 21CV02266
DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO
STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES
1 v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1154.)
2 The crux of Plaintiff's fraud in the inducement cause of action is that Clearview lacked the skill
3 and experience for the landscape project at Plaintiff's ranch and that Mr. Hulme intentionally made
4 false representations about Clearview's skill and experience in an effort to make Plaintiff sign an
5 agreement with Clearview. However, these allegations are made without factual support and in a
6 conclusory manner. Plaintiff alleges that he is entitled to seek punitive and exemplary damages based
7 on his beliefs alone that Clearview lacked the necessary skill and experience for the project.
8 However, even assuming Plaintiff's factual allegations were true, Defendants' conduct was not
9 “extreme or outrageous” and there is no evidence that Defendants' intent was to defraud and/or injure
10 Plaintiff. As such, the imposition of punitive and exemplary damages would be inappropriate. As
THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES
11 indicated in Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894-95, “[m]ere negligence, even gross
WOOD, SMITH, HENNING & BERMAN LLP
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12 negligence is not sufficient to justify an award of punitive damages [citations omitted].” Here, at best
2815 TOWNSGATE ROAD, SUITE 215
13 and assuming the allegations in the Complaint are true, Plaintiff has alleged negligence. However,
Attorneys at Law
14 allegations of negligence and even gross negligence, are insufficient to warrant punitive damages.
15 Accordingly, each an every reference to punitive and exemplary damages in the Complaint must be
16 stricken.
17 C. Granting Plaintiff Leave to Amend Shall Be Denied Because It Would Be Futile
18 Plaintiff bears the burden of explaining how he could potentially amend his pleadings to
19 sufficiently allege punitive damages. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal. App. 4th
20 390, 400-01) “Leave to amend may be denied where permitting an amendment would be futile.”
21 (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 828.) Further, a motion to strike portions of a
Preview
1 Sheila E. Fix (State Bar No. 138613) ELECTRONICALLY FILED sfix@wshblaw.com Superior Court of California 2 S. Joanna Dyriam (State Bar No. 320995) County of Santa Barbara sdyriam@wshblaw.com Darrel E. Parker, Executive Officer 3 WOOD, SMITH, HENNING & BERMAN LLP 9/10/2021 3:34 PM 2815 Townsgate Road, Suite 215 By: Miroslava Pena-Bautista, Deputy 4 Thousand Oaks, California 91361-5827, United States Phone: (820) 333-4250 ♦ Fax: (820) 333-4249 5 Attorneys for Defendants, CLEARVIEW PROPERTY SERVICES, INC. and CHRISTOPHER 6 HULME 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SANTA BARBARA, COOK DIVISION 10 THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 THOMAS KOPITNIK, an individual, Case No. 21CV02266 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 [Assigned for All Purposes to Judge James F. Rigali, Dept. 2] 12 Plaintiff, 2815 TOWNSGATE ROAD, SUITE 215 13 v. DEFENDANTS CLEARVIEW Attorneys at Law PROPERTY SERVICES, INC. AND 14 CLEARVIEW PROPERTY SERVICES, INC. CHRISTOPHER HULME'S MOTION TO a California Corporation; CHRISTOPHER STRIKE PLAINTIFF'S REQUESTS FOR 15 HULME, and individual; and DOES 1 PUNITIVE AND EXEMPLARY THROUGH 10 DAMAGES FROM THE COMPLAINT; 16 DECLARATION OF S. JOANNA Defendant. DYRIAM IN SUPPORT THEREOF; 17 [PROPOSED] ORDER 18 [Filed Concurrently with Defendants' Demurrer] 19 DATE: October 12, 2021 20 TIME: 8:30 a.m. DEPT.: 2 21 22 23 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE that on October 12, 2021 at 8:30 a.m., or soon thereafter as the 25 matter may be heard in Department 2 of the above-entitled court, located 312-C East Cook Street, 26 Santa Maria, CA 93454, Defendants, CLEARVIEW PROPERTY SERVICE, INC. and 27 CHRISTOPHER HULME (hereinafter "Defendants") will and do hereby move the Court to strike 28 Plaintiff THOMAS KOPITNIK's (“Plaintiff”) claims for punitive and exemplary damages from 22183931.1:05819-0110 -1- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 Plaintiff's Complaint pursuant to California Code Of Civil Procedure ("C.C.P.") §§ 435, 436, 437. 2 Specifically, Defendants move this Court to strike the following portions of Plaintiff's 3 Complaint without leave to amend: 4 1. Plaintiff's general allegations that he "also is entitled to punitive and exemplary 5 damages pursuant to Civil Code section 3294." (Plaintiff's Complaint [“Compl.”] at Pg. 17, ¶ 66, 6 Lines 1-2.) 7 2. As against Defendants, the request for "punitive damages and exemplary damages 8 according to proof at trial" in Plaintiff's prayer for relief (Compl. at Pg. 21, ¶ 4, line 23.) 9 The instant motion to strike is made on the grounds that Plaintiff's requests for punitive and 10 exemplary damages cannot be supported by bald legal conclusions and based on Plaintiff's beliefs THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 alone. Plaintiff's requests for punitive and exemplary damages must be supported by specific factual WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 allegations establishing the evil motive necessary to prove the Defendants acted with the statutorily 2815 TOWNSGATE ROAD, SUITE 215 13 required fraud. Conclusory claims of alleged fraud cannot support a claim for punitive and exemplary Attorneys at Law 14 damages alone. Plaintiff's Complaint is completely devoid of any specific factual allegations that 15 moving Defendants acted with the requisite fraud with regard to Plaintiff and further fails to set forth 16 Defendants' specific conduct that would give rise to a finding of fraud. Accordingly, because there are 17 no facts to support a claim for punitive and exemplary damages, Defendants’ Motion to Strike 18 Plaintiff's claim for punitive and exemplary damages must be granted, without leave to amend. 19 This motion is based upon this pleading, the Memorandum of Points and authorities filed 20 concurrently herewith, all pleadings, records, and documents on file with the Court, and upon such 21 further oral argument and documentary evidence as may be presented by counsel at the hearing of this 22 matter. 23 DATED: September 10, 2021 WOOD, SMITH, HENNING & BERMAN LLP 24 25 By: 26 SHEILA E. FIX S. JOANNA DYRIAM 27 Attorneys for Defendants, CLEARVIEW PROPERTY SERVICES, INC. and CHRISTOPHER HULME 28 22183931.1:05819-0110 -2- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This lawsuit arises out of a June 28, 2019 home improvement contract between Plaintiff 4 Thomas Kopitnik ("Plaintiff") and Defendant Clearview Property Services, Inc. ("Clearview") for 5 landscaping services at Plaintiff's ranch in Buellton, California. (See Complaint, Ex. 1.) The 6 Contract, which was negotiated by Defendant Christopher Hulme ("Hulme"), the President and CEO 7 of Clearview, was based on a proposal for design services for $10,000 and an overall construction 8 budget of $750,000 - $1,000,000, which Plaintiff signed and accepted on January 24, 2019. 9 (Declaration of S. Joanna Dyriam, ¶ 2 (hereafter "Dyriam Decl.").) The contract was subsequently 10 signed by Plaintiff and Hulme on or about July 1, 2019. (See Complaint, Ex. 1.) Clearview then THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 begin its work on Plaintiff's ranch in July 2019 through approximately mid October of 2020, when WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 Plaintiff terminated his contract with Clearview. (Dyriam Decl., ¶ 3.) 2815 TOWNSGATE ROAD, SUITE 215 13 On or about Plaintiff filed his Complaint alleging the following causes of action: (1) Recission Attorneys at Law 14 as to Defendant Clearview; (2) Breach of Contract as to Defendant Clearview; (3) Negligence as to 15 Defendant Clearview; (4) Fraud in the Inducement as to Defendants Clearview and Hulme; (5) 16 Negligent Misrepresentation as to Defendants Clearview and Hulme; and (6) Unfair Business 17 Practices under business & professions code section 17200 et seq. as to Defendants Clearview and 18 Hulme. Plaintiff’s alleged damages include a request for punitive and exemplary damages under his 19 fraud in the inducement cause of action and within his prayer for relief. However, Plaintiff does not 20 plead the specific allegations necessary to support a claim for punitive and exemplary damages. 21 Rather, Plaintiff seeks to initiate a claim for punitive and exemplary damages with nothing more than 22 a series of broad allegations and legal conclusions directed at Defendants Clearview and Hulme 23 (collectively, "Defendants") as a whole. 24 As established below, the pleading standard for advancing a prayer for punitive damages is 25 stringent. At a minimum, a plaintiff must advance specific facts that, if true, would establish “clear 26 and convincing evidence” of “oppression, fraud or malice” rising to the level of “despicable conduct.” 27 (See California Civil Code ["Cal. Civ. Code"] § 3294.) Our Courts have consistently agreed that “clear 28 and convincing evidence” means evidence sufficient to "command the unhesitating assent of every 22183931.1:05819-0110 -3- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 reasonable mind.” (Christian Research Inst. v. Alnor (2007) 148 Cal.App.4th 71, 84). 2 In his Complaint, Plaintiff falls far shy of meeting the threshold for advancing a prayer for 3 punitive and exemplary damages. In fact, Plaintiff does not make any specific factual allegations 4 necessary to support a claim for punitive and exemplary damages. As such, Plaintiff's claim for 5 punitive and exemplary damages falls below the standard set forth in the California Code of Civil 6 Procedure and the California Civil Code. Accordingly, for these reasons, and those stated below, 7 Defendants respectfully request that this Motion to Strike (“Motion”) be granted without leave to 8 amend. 9 II. PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLAR DAMAGES MUST 10 BE STRICKEN FROM THE COMPLAINT THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 California Code of Civil Procedure § 435 provides, in pertinent part: WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 (b)(1) Any party, within the time allowed to respond to a pleading may serve 2815 TOWNSGATE ROAD, SUITE 215 and file a notice of motion to strike the whole or any part thereof. 13 Attorneys at Law California Code of Civil Procedure § 436 provides: 14 The court may, upon a motion made pursuant to section 435, or at any time in its 15 discretion, and upon terms it deems proper; 16 (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. 17 (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 any order of the court. 18 A motion to strike is an appropriate way to attack an improper request for relief. (Saberi v. 19 Bakhtiari (1985) 169 Cal App.3d 509, 517.) In light of the above, Defendants move for an order to 20 strike Plaintiff's improper claim and prayer for punitive and exemplary damages. 21 A. Plaintiff's Request For Punitive and Exemplary Damages Must Be Stricken From 22 The Complaint As To Defendants Because It Is Improperly Pled Under the Law 23 A motion to strike the punitive damage allegations from a complaint is appropriate if the 24 complaint is devoid of factual assertions supporting a conclusion that the defendant acted with 25 oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “Not 26 only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the 27 pleading to support such a claim.” (Grieves v. Superior Court (1997) 157 Cal.App.3d 162, 166.) 28 22183931.1:05819-0110 -4- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 Therefore, Plaintiff's Complaint is fatally deficient under the provisions set forth in California Civil 2 Code § 3294(a) and (b), which provide that a plaintiff cannot maintain a claim for punitive damages 3 absent a showing, by “clear and convincing evidence,” of oppression, fraud or malice. 4 California Civil Code § 3294 forms the statutory basis for exemplary and punitive damages. 5 California Civil Code § 3294(c)(1) strictly defines “malice” as “[c]onduct which is intended…to cause 6 injury…or despicable conduct which is carried on…with a willful and conscious disregard of the 7 rights or safety of others.” “Oppression” is defined as “despicable conduct that subjects a person to 8 cruel and unjust hardship in conscious disregard of that person’s rights.” (Cal. Civ. Code § 9 3294(c)(2).) Lastly, fraud “means an intentional misrepresentation…of a material fact known to the 10 defendant with the intention on the part of the defendant of thereby depriving a person of property or THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 legal rights or otherwise causing injury.” (Cal. Civ. Code § 3294(c)(3).) WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 California Civil Code § 3294 and the cases interpreting it require that there be a specific 2815 TOWNSGATE ROAD, SUITE 215 13 evidentiary showing when a party alleges exemplary damages. A punitive damages claim cannot be Attorneys at Law 14 maintained without clear and convincing evidence of “a willingness to vex, harass, or injure consistent 15 with a wrongful intent to injure.” (Kendall Yacht Corp. v. United California Bank (1975) 50 16 Cal.App.3d 949, 958; see also Thomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 17 1288.) “Mere negligence, even gross negligence, is not sufficient” to support a claim for punitive 18 damages. (Kendall Yacht Corp, 50 Cal.App.3d at 958). Further, a conclusory characterization of 19 defendants’ conduct as intentional, willful and fraudulent is a patently insufficient statement of 20 oppression, fraud, malice, express or implied within the meaning of §3294.” (Brousseau v. Jarrett 21 (1977) 73 Cal.App.3d 864, 872.) 22 Fundamental fairness requires that a plaintiff allege punitive damages specifically in their 23 pleadings to allow a defendant the opportunity to investigate the claim to determine if it is subject to 24 such extreme liability that would afford a jury an option of awarding damages designed to punish 25 them. Without any allegation of names, specific conduct, or dates when such conduct occurred, a 26 defendant is unable to determine the veracity of the allegations, nor can it prepare an adequate 27 defense. 28 Following this settled rule of specificity, courts have affirmed the granting of a motion to 22183931.1:05819-0110 -5- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 strike a plaintiff’s punitive damage claim on the ground that specific factual allegations are required 2 to support a punitive claim. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) In Brousseau, 3 the court held that a plaintiff cannot simply tack on conclusory non-specific allegations in order to 4 support a punitive damages claim. (Id. at 871.) There, the Court found the conclusory allegations to be 5 the paradigm example of what pleading is insufficient to support a claim for punitive damages: 6 It is unnecessary for us to determine whether the second count alleges facts showing the noncontractual obligation required by [Civil Code] 7 section 3294. We need not reach that issue because the second count’s conclusory characterization of defendant’s conduct as intentional, 8 willful and fraudulent is a patently insufficient statement of “oppression, fraud or malice,” express or implied,’ within the meaning 9 of section 3294. 10 (Id. at 872.) (Emphasis added.) THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 As shown above, California case law has established the following settled rules: (1) a claim for WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 punitive damages cannot be plead generally and is not supported by simply tacking on bald legal 2815 TOWNSGATE ROAD, SUITE 215 13 conclusions; (2) a claim for punitive damages must be supported by specific factual allegations Attorneys at Law 14 establishing the evil motive necessary to prove the defendant acted with the statutorily required 15 malice, oppression or fraud; and (3) a case of alleged negligence or gross negligence cannot support a 16 punitive damage claim. (See Brousseau, 73 Cal.App.3d at 872; see also McDonnell v. American Trust 17 Company (1955) 130 Cal.App.2d 296, 299-300.) 18 Here, the Complaint fails to set forth the specific, despicable acts that were allegedly 19 consciously committed by each Defendant with the intent to defraud and/or cause injury to Plaintiff. 20 Rather, Plaintiff makes conclusory allegations, based on Plaintiff's beliefs, that Defendant Hulme 21 intentionally made false representations about Clearview's skill and experience in an effort to make 22 Plaintiff sign an agreement with Clearview. However, Plaintiff fails to cite to any statements and/or 23 facts reflecting that Clearview actually lacked the skill and experience for the project and that the 24 representations Defendant Hulme made regarding same were genuinely false that would support a 25 claim for punitive and exemplary damages against Defendants. Thus, Plaintiff's Complaint only 26 contains broad, conclusory allegations and conclusions regarding Defendants' conduct and mindset but 27 is lacking specific and detailed facts that would support an award of punitive damages. (See Smith v. 28 Superior Court (1992) 10 Cal.App.4th 1033, 1042; See also Brousseau v. Jarrett (1977) 73 22183931.1:05819-0110 -6- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 Cal.App.3d 864, 872.) Further, the Complaint is woefully devoid of any facts that Defendants 2 engaged in any conduct that would support an inference of fraud. Finally, glaringly absent from 3 Plaintiff's Complaint is any evidence that Defendants specifically intended to defraud and/or harm 4 Plaintiff. Therefore, Plaintiff has failed to provide any factual basis of fraudulent conduct whatsoever 5 on the part of moving Defendants. 6 Simply put, Plaintiff's Complaint is devoid of any specific facts demonstrating that Defendants 7 acted with any of the requisite evil intent needed to substantiate the punitive and exemplary damages 8 claims. Thus, it would be unfair and improper to charge Defendants with the task of defending against 9 punitive and exemplary damage claims without any notice of the specific type of fraudulent conduct 10 they allegedly engaged in. THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 Taken as a whole, Plaintiff's Complaint presents vague and overbroad conclusory claims that WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 ultimately demonstrate that Plaintiff has no factual basis for punitive and exemplary damages and that 2815 TOWNSGATE ROAD, SUITE 215 13 Plaintiff cannot establish with clear and convincing evidence that Defendants acted with any of the Attorneys at Law 14 requisite intent to support his punitive and exemplary damages claim. Accordingly, this Motion must 15 be granted and the Court should strike Plaintiff's request for punitive and exemplary damages. 16 B. Plaintiff's Complaint Alleges Negligent Conduct, At Best, Not Fraudulent 17 Conduct 18 “Mere negligence, even gross negligence is not sufficient to justify an award of punitive 19 damages [citations omitted].” (Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894-95.) Furthermore, 20 the mere commission of a tort does not always allow a party to seek punitive damages against another 21 party. "There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a 22 fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of 23 the interests of others that his conduct may be called willful or wanton." (Taylor v. Superior Court 24 (1979) 24 Cal. 3d 890, 894.) The defendant “must act with the intent to vex, injure, or annoy, or with a 25 conscious disregard of the plaintiff’s rights.” (Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 26 922.) As such, the Courts have ruled that “[t]he mere carelessness or ignorance of the defendant does 27 not justify the imposition of punitive damages. Unhappily, as a society, we must tolerate, without 28 added retribution, these all too common lapses in ourselves.” (Flyer’s Body Shop Profit Sharing Plan 22183931.1:05819-0110 -7- Case No. 21CV02266 DEFENDANTS CLEARVIEW PROPERTY SERVICES, INC. AND CHRISTOPHER HULME'S MOTION TO STRIKE PLAINTIFF'S REQUESTS FOR PUNITIVE AND EXEMPLARY DAMAGES 1 v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1154.) 2 The crux of Plaintiff's fraud in the inducement cause of action is that Clearview lacked the skill 3 and experience for the landscape project at Plaintiff's ranch and that Mr. Hulme intentionally made 4 false representations about Clearview's skill and experience in an effort to make Plaintiff sign an 5 agreement with Clearview. However, these allegations are made without factual support and in a 6 conclusory manner. Plaintiff alleges that he is entitled to seek punitive and exemplary damages based 7 on his beliefs alone that Clearview lacked the necessary skill and experience for the project. 8 However, even assuming Plaintiff's factual allegations were true, Defendants' conduct was not 9 “extreme or outrageous” and there is no evidence that Defendants' intent was to defraud and/or injure 10 Plaintiff. As such, the imposition of punitive and exemplary damages would be inappropriate. As THOUSAND OAKS, CALIFORNIA 91361-5827, UNITED STATES 11 indicated in Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894-95, “[m]ere negligence, even gross WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE (820) 333-4250 ♦ FAX (820) 333-4249 12 negligence is not sufficient to justify an award of punitive damages [citations omitted].” Here, at best 2815 TOWNSGATE ROAD, SUITE 215 13 and assuming the allegations in the Complaint are true, Plaintiff has alleged negligence. However, Attorneys at Law 14 allegations of negligence and even gross negligence, are insufficient to warrant punitive damages. 15 Accordingly, each an every reference to punitive and exemplary damages in the Complaint must be 16 stricken. 17 C. Granting Plaintiff Leave to Amend Shall Be Denied Because It Would Be Futile 18 Plaintiff bears the burden of explaining how he could potentially amend his pleadings to 19 sufficiently allege punitive damages. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal. App. 4th 20 390, 400-01) “Leave to amend may be denied where permitting an amendment would be futile.” 21 (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 828.) Further, a motion to strike portions of a