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Electronically FILED by Superior Court of California, County of Los Angeles on 09/08/2022 10:41 AM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk
1 TERRY J. KENT (BAR NO. 248098)
tkent@levatolaw.com
2 LevatoLaw, LLP
2029 Century Park East, Suite 400
3 Los Angeles, California 90067
Telephone: (310) 734-2027
4
Attorneys for Defendant/Cross-Complainant
5 DANIEL M. PARZIVAND
6
7 SUPERIOR COURT OF CALIFORNIA
8 COUNTY OF LOS ANGELES, CENTRAL DISTRICT
9
10 ILANA ZELENER, an individual, Case No. 20STCV26377
11 Plaintiff, [Assigned for all purposes to the
Hon. Gail Killefer, Dept. 37]
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 vs.
MOTION TO STRIKE PORTIONS OF
13 DANIEL M. PARZIVAND, an individual, SECOND AMENDED COMPLAINT
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(310) 734-2027
ALL PERSONS UNKNOWN, IN INTERVENTION
14 CLAIMING ANY LEGAL OR
EQUITABLE RIGHT, TITLE, ESTATE, Date: October 20, 2022
15 LIEN, OR INTEREST IN THE Time: 8:30 a.m.
PROPERTY DESCRIBED IN THE Dept.: 37
16 COMPLAINT; DOES 1 through 10,
inclusive, Reservation ID: 027252587326
17
Defendants. Complaint Filed: July 14, 2020
18 Trial Date: November 29, 2022
19
And cross actions
20
21
TO PLAINTIFF AND HER ATTORNEY OF RECORD:
22
PLEASE TAKE NOTICE that on October 20, 2022 at 8:30 a.m., or as soon
23
thereafter as counsel may be heard, in Department 37 of the above-entitled Court,
24
located at 111 N. Hill St., Los Angeles, California, 90012, defendant/cross-
25
complainant Daniel M. Parzivand (“Defendant”) will move to strike portions of the
26
Second Amended Complaint in Intervention filed in this action by plaintiff in
27
intervention Jacqueline Parzivand (“Plaintiff”).
28
MOTION TO STRIKE FIRST AMENDED COMPLAINT IN INTERVENTION
1 This Motion to Strike is based on the grounds that the Second Amended
2 Complaint contains improper matter and is not drawn or filed in conformity with the
3 laws of this state.
4 This Motion more specifically seeks an Order striking the following portions of
5 the Complaint:
6 1. The prayer’s fourth paragraph stating “For exemplary damages in the
7 amount according to proof at trial;”
8 2. The entirety of paragraph 32.
9 This Motion To Strike is made pursuant to the provisions of Code of Civil
10 Procedure §§431.10 and 436, and as otherwise allowed by law, on the grounds that
11 Plaintiff seeks impermissible relief in its complaint.
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 This Motion is based upon this Notice of Motion, the Motion to Strike, The
13 Request for Judicial Notice, the attached Memorandum of Points and Authorities, the
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14 complete file in this matter, and upon such oral and documentary evidence as may be
15 presented at the hearing of this matter.
16 Pursuant to Code of Civil Procedure section 430.41, Daniel’s counsel met and
17 conferred with Jacqueline’s counsel prior to the filing of the present demurrer.
18 (Declaration of Terry J. Kent, ¶3.)
19
20 DATED: September 8, 2022 LEVATOLAW, LLP
21
22 By:
23 Terry J. Kent
Attorneys for Defendant/Cross-Complainant
24 DANIEL M. PARZIVAND
25
26
27
28
2
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 The Second Amended Complaint in Intervention (the “SAC”) alleges exemplary
4 damages as to each and every cause of action. Under Civil Code section 3294, no
5 exemplary damages are available for Declaratory Relief and Breach of Contract as
6 those claims arise from contract. As to Fraudulent Inducement, the supposedly
7 malicious act or acts complained of does not meet any standard for malicious,
8 fraudulent, or oppressive behavior.
9 The impropriety of Plaintiff’s request is shown by the sham pleading doctrine,
10 wherein the SAC has omitted contrary allegations of fact that run against the SAC’s
11 idea that Plaintiff was tricked into agreeing to contributing money toward the
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 condominium she wanted to have purchased for her and in which she wanted to live.
13 The SAC strategically omits the following allegations from her preceding First
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14 Amended Complaint (“FAC”):
15 - That Defendant obtained a loan with Plaintiff to help purchase a condominium
16 that Plaintiff and Defendant were to share as husband and wife;
17 - That Plaintiff conditioned her marriage to Defendant upon him agreeing to
18 live in the Los Angeles area
19 - Plaintiff wired the loan’s proceeds to escrow so that it could be used to
20 purchase the subject condominium she desired.
21 - Defendant telling Plaintiff that as a co-borrower, Plaintiff is liable for
22 repayment of the loan.
23 - That the obtained loan was necessary in order to get the condo Plaintiff
24 wanted for her marital home.
25 Apart from being a confusing mishmash, the behavior alleged, taken at face
26 value without any context, does not rise to the level of malicious behavior required
27 for an award of exemplary damages. People borrowing money to purchase real
28 property happens hundreds of times a day in California. The idea that loan proceeds
MOTION TO STRIKE FIRST AMENDED COMPLAINT IN INTERVENTION
1 allegedly borrowed to purchase a condo actually being used to buy that condo is
2 somehow a malicious act is unsupportable. If it were, then every real property
3 purchase made with borrowed funds would itself be a malicious act. Plaintiff has not
4 alleged that she did not understand the concept of needing to repay money she
5 borrowed for her own benefit, so an allegation that Defendant told her that borrowed
6 money needs repayment is not a malicious act. And so on.
7 The acts complained alone, taken as true, do not support exemplary damages.
8 But when put into context, it should be clear to the Court what the claims are. As
9 Plaintiff artfully omits, she divorced Defendant. (See FAC, ¶25). The SAC
10 represents a post-divorce attempt to use the legal system to try to harm Defendant
11 by fabricating supposed claims that could and should have been raised in Plaintiff’s
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 and Defendant’s marital dissolution matter years ago if they had been real. In
13 context, we see that Plaintiff is throwing out brand-new, contradictory, post-divorce
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14 claims, with relief unsupported by law in order to gin up a ground for attorney’s fees,
15 exemplary damages, and other financial burdens to be placed on Defendant in this
16 action. And after a prior motion to strike was filed, Plaintiff has now filed
17 contradictory allegations and omitted prior allegations in order to attempt to
18 preserve an unsupportable exemplary damages claim.
19 Because the SAC lacks the grounds necessary to support any claims for
20 exemplary damages, Defendant respectfully requests that its motion to strike be
21 granted.
22 II. LEGAL ARGUMENT
23 A. Authority For Motion To Strike.
24 Code of Civil Procedure § 436 provides:
25 The court may, upon a motion made pursuant to Section
435, or at any time in its discretion, and upon terms it
26 deems proper:
27 (a) Strike out any irrelevant, false, or improper matter
inserted in any pleading.
28
2
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 (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,
2 or an order of the court.
3 The appropriate procedural device for challenging a portion of a cause of action
4 seeking an improper remedy is a motion to strike. (Caliber Bodyworks, Inc. v.
5 Superior Court (2005) 134 Cal.App.4th 365, 385.) When a substantive defect is clear
6 from the face of a complaint, such as a purported claim of right which is legally
7 invalid, a defendant may attack that portion of the cause of action by filing a motion
8 to strike. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.)
9 B. Plaintiff’s Prayers For Punitive Damages With Regard To Its
10 First And Second Causes Of Action Are Unsupportable As Civil
11 Code Section 3294 Prohibits Them.
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 1. Declaratory Relief
13 Exemplary damages are awardable for a cause of action in which there is
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14 “breach of an obligation not arising from contract.” (Civ. Code, §3294(a).) The
15 primary purpose of Civil Code section 3294 “is to avoid injecting questions of fraud,
16 malice, or oppression into contract actions.” (Jaurat v. Superior Court for Los
17 Angeles County (1966) 241 Cal.App.2d 330, 335.)
18 The SAC’s declaratory relief action ostensibly seeks a declaration as to the
19 parties’ rights with respect to and arising from an alleged guarantee of a loan
20 agreement whereby Plaintiff and Defendant allegedly promised to each other to
21 repay a joint loan they borrowed from a third party. (SAC, ¶¶10 and 14.) As the
22 declaratory relief claim seeks an interpretation of a contract Plaintiff also claims to
23 be breached, and thus arises from contract, Civil Code section 3294 does not permit
24 exemplary damages to be awarded here.
25 2. Breach of Contract
26 For the same reasoning above, Civil Code section 3294(a) bars any award of
27 exemplary damages in an action arising from contract. A cause of action for breach
28 of contract certainly falls under section 3294(a)’s prohibition.
3
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 D. Plaintiff’s Prayer For Punitive Damages With Regard To Its
2 Third Cause Of Action Is Unsupportable For Failing To Allege
3 Facts Showing Malice, Fraud, Or Oppression.
4 1. Standard Of Review As To Punitive Damages
5 To justify an award of punitive damages, a plaintiff must set out the facts that
6 constitute oppression, fraud or malice. Facts, not mere conclusions, must be pled.
7 (Roth v. Shell Oil Company (1960) 185 Cal.App.2d 676, 682.) The Court of Appeal in
8 Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, set forth the willful and malicious
9 standard under which such damages may be awarded:
10 The cases interpreting section 3294 make it clear that in order to
warrant the allowance of punitive damages the act complained of must
11 not only be willful in the sense of intentional, but it must also be
accompanied by aggravating circumstances, amounting to
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 malice…There must be an intent to vex, annoy or injure. Mere
spite or ill will is not sufficient, and mere negligence, even gross
13 negligence, is not sufficient to justify an award of punitive
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damages…(Id. at 894)[emphasis added.]
14
It is well established that punitive damages are allowed only in the rarest
15
case. They are not favored in the law, and the pleading and proof thereof must be
16
done with great caution. (See, e.g., Woolstrum v. Mailloux (1983) 141 Cal.App.3d
17
Supp., 1, 9-10.) Therefore, to justify an award of punitive damages, a party must
18
allege facts, and not mere conclusions, to show that a defendant is guilty of
19
despicable or intentionally fraudulent conduct. (Civ. Code § 3294; G.D. Searle v.
20
Superior Court (1975) 49 Cal.App.3d 22, 29.) Conclusory pleading is insufficient and
21
will not sustain a punitive damages claim without factual support. (Marin v. Jacuzzi
22
(1964) 224 Cal.App.2d 549, 552.) The conduct complained of must have “the
23
character of outrage frequently associated with a crime.” (American Airlines, Inc. v.
24
Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.)
25
A plaintiff must prove by “clear and convincing evidence” that the defendant
26
has engaged in intentional and despicable conduct constituting malice or oppression
27
or committing fraud. Courts agree that the Legislature’s intent behind the 1987
28
4
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 amendments to Civil Code section 3294 was to impose a new statutory limit on the
2 award of punitive damages. (Mock v. Michigan Millers Mutual Insurance Company
3 (1992) 4 Cal.App.4th 306, 331.)
4 Something more than the mere commission of a tort is always required for
5 punitive damages. There must be circumstances of such a conscious and deliberate
6 disregard of the interests of others that a defendant’s conduct may be called willful or
7 wanton. (Taylor v. Superior Court (1979) 24 Cal.3d 980, 894-95.) Consequently, to
8 establish malice and oppression, it is not sufficient to show only that Defendants’
9 alleged conduct was negligent, grossly negligent, or even reckless. (Bell v. Sharp
10 Cabrillo Hosp. (1989) 212 Cal.App.3d 1034, 1044.) Rather, to properly plead a claim
11 for punitive damages, the ultimate facts of Defendants’ wrongful motive, intent, or
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 purpose must be alleged. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6,
13 emphasis added.)
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14 2. The Facts Alleged To Support Punitive Damages Fall Well
15 Short Of Being Malicious, Fraudulent, Or Oppressive.
16 The SAC’s narrative that supposedly supports a claim for exemplary damages
17 is that
18 - Defendant and Plaintiff’s sister Ilana Zelener agreed to purchase a
19 condominium. (SAC, ¶9.)
20 - To purchase the property, Defendant and Plaintiff jointly borrowed $150,000
21 from a lender. (SAC, ¶10.)
22 - Defendant and Plaintiff later guaranteed to each other that they would be
23 jointly and severally liable for the $150,000 loan. (SAC, ¶11.)
24 - Defendant tricked Plaintiff into using the $150,000 for its alleged purpose: to
25 help purchase the condominium; (SAC, ¶27.)
26 - Plaintiff was tricked by Defendant into agreeing to guarantee to Defendant
27 that she would be jointly liable for the $150,000 loan Plaintiff and Defendant
28 jointly took out. (SAC, ¶28.)
5
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 Thus, the apparent narrative painted by Plaintiff is that she was tricked by her
2 husband-to-be Defendant and her sister, plaintiff Ilana Zelener into entering into an
3 oral guarantee of a loan which Plaintiff had already promised to repay so that
4 Defendant and Ms. Zelener could purchase the condo. Further, the SAC’s narrative
5 is that Plaintiff received no benefit from this condo purchase or loan.
6 Under the sham pleading doctrine, plaintiffs are precluded from amending
7 complaints to omit harmful allegations, without explanation, from previous
8 complaints to avoid attacks raised in subsequent motions or demurrers. (Hendy v.
9 Losse (1991) 54 Cal.3d 723, 742-743 [affirming an order sustaining defendants'
10 demurrer without leave to amend when the plaintiff filed an amended complaint
11 omitting harmful allegations from the original unverified complaint]; see also
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151[“If a party files an
13 amended complaint and attempts to avoid the defects of the original complaint by
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14 either omitting facts which made the previous complaint defective or by adding facts
15 inconsistent with those of previous pleadings, the court may take judicial notice of
16 prior pleadings and may disregard any inconsistent allegations.”].) A noted
17 commentator has explained, “Allegations in the original pleading that rendered it
18 vulnerable to demurrer or other attack cannot simply be omitted without explanation
19 in the amended pleading. The policy against sham pleadings requires the pleader
20 to explain satisfactorily any such omission.” (Weil & Brown, Cal. Practice Guide:
21 Civil Procedure Before Trial (The Rutter Group 2005) ¶ 6.708.)
22 The SAC omits allegations from the FAC that demonstrate that what Plaintiff
23 was supposedly defrauded into doing, agreeing to borrow money to purchase a
24 condominium, was something that Plaintiff expressly wished to do. It cannot be that
25 Plaintiff was defrauded into doing something she wanted to do and for which she has
26 received the benefit intended.
27 Specifically, the allegations omitted from the FAC include that
28 - The subject condominium was purchased by Defendant and plaintiff Ilana
6
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 Zelener expressly for Plaintiff’s benefit and to serve as Plaintiff’s marital
2 residence. (See Request for Judicial Notice (“RJN”), ¶1; FAC, ¶9.)
3 - That Plaintiff desired to live and have their marital home in Los Angeles.
4 (Id.; FAC, ¶26.)
5 - That Plaintiff made clear to Defendant that marriage to him would be
6 conditioned on Defendant living in Los Angeles. (Id.)
7 - That because Defendant lacked the financial ability to purchase the condo
8 on his own, assistance from the $150,000 loan and from plaintiff Ilana
9 Zelener were required to purchase the condo. (Id.)
10 The FAC directly contradicts the SAC’s allegation that Defendant fraudulently
11 tricked Plaintiff into guaranteeing a loan obligation that she never wanted and for
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 which she never received any benefit. The FAC makes evident that at all times,
13 Defendant wanted and agreed to be liable for the $150,000 loan and that she did
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14 receive the benefit she wanted, to live with her husband in a condominium in the Los
15 Angeles area.
16 The FAC’s allegations irreconcilably conflict with the SAC’s grounds for
17 exemplary damages, showing that SAC’s ground to be a pretense. The sham pleading
18 doctrine prompts this Court to disregard the SAC’s conflicting allegations. The FAC’s
19 allegations demonstrate that the supposedly malicious, fraudulent, and oppressive
20 acts are either so common in society that they could never serve as malicious acts or
21 so implausible and not backed by allegations of fact that could ever support a finding
22 of malice.
23 As to being supposedly tricked into getting a loan to purchase the Property,
24 Plaintiff alleges that she was the intended beneficiary of the purchase of the
25 Property. (RJN, ¶1; FAC, ¶9.) Plaintiff alleges the existence of the $150,000 loan
26 agreement with lender Leon Oransky and the $150,000 loan’s necessity. (RJN, ¶1;
27 FAC, ¶¶11; 26.) But to support the fraudulent inducement, Plaintiff asserts that she
28 was deceived into guaranteeing the $150,000 loan and by extension getting the
7
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 benefit of the house that she and her then-husband Defendant shared. And Plaintiff
2 alleges that when Defendant allegedly told her that the $150,000 loan would
3 eventually need to be repaid, Plaintiff was supposedly deceived by this statement,
4 meaning that Plaintiff believed that the $150,000 purchase money loan from a
5 commercial lender would never need to be repaid. (FAC, ¶25.)
6 None of the acts complained of amount to malice, oppression, or fraud. People
7 borrow money to help buy real property thousands and thousands of times a year in
8 California, if not per month. The act of saying that a loan would need to be repaid is
9 not fraud; it is the most basic fact of how loans work. Allegedly saying that the
10 money from a loan to buy the condominium should be given to escrow to buy the
11 condominium is not fraud; sending purchase money to escrow is how escrow works.
2029 Century Park East, Suite 400
LOS ANGELES, CALIFORNIA 90067
12 We have an alleged Defendant representation. Per the SAC, the act of saying
13 that a loan needed to be repaid was itself a malicious misrepresentation meriting
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14 exemplary damages. (SAC, ¶26.) It is commonly understood that this statement is
15 true; when someone borrows money, it generally must be repaid. Something that the
16 general population would know to be true axiomatically cannot serve as a malicious
17 misrepresentation. True statements are not misrepresentations.
18 We also have the allegation that Defendant allegedly fraudulently induced
19 Plaintiff into agreeing that $120,000 of the $150,000 loan would be used as a down
20 payment to buy the subject condominium. (FAC, ¶25.) And then, per the SAC, that
21 is exactly what happened. (SAC, ¶27.) That is, the alleged fraudulent
22 misrepresentation from the FAC is now alleged to be something that Defendant
23 actually represented accurately and did indeed do. And somehow, per the SAC, doing
24 the thing that Defendant and Plaintiff agreed to do is now supposed to be evidence of
25 fraudulent intent. (SAC, ¶27.) It cannot be that doing what one promised to do
26 serves as a fraudulent inducement.
27 Plainly stated, the Complaint’s allegations with respect to fraudulent
28 inducement are a jumble of incomprehensible statements, which now in the SAC
8
MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION
1 directly contradict the allegations in Plaintiffs’ FAC. Further, none of the alleged
2 acts rise to acts which have the necessary “character of outrage frequently associated
3 with a crime.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton
4 (2002) 96 Cal.App.4th 1017, 1050.)
5 E. The Complaint’s Paragraph 32 Should Also Be Stricken.
6 Paragraph 32 consists of conclusory statements, without any actual facts,
7 leading to the conclusion that Plaintiff is entitled to exemplary damages. Specifically,
8 Paragraph 32 asserts that
9 “Intervenor is informed and believes that Parzivand committed
the aforementioned acts maliciously, fraudulently, and
10 oppressively, with the wrongful intention of injuring Intervenor,
11 from an improper and evil motive amounting to malice, and in
conscious disregard of Intervenor rights. Intervenor is thus
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LOS ANGELES, CALIFORNIA 90067
12 entitled to recover punitive damages from Defendant in the
amount according to proof at trial.”
13
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14 Because the SAC’s allegations do not give r
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 09/08/2022 10:41 AM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 1 TERRY J. KENT (BAR NO. 248098) tkent@levatolaw.com 2 LevatoLaw, LLP 2029 Century Park East, Suite 400 3 Los Angeles, California 90067 Telephone: (310) 734-2027 4 Attorneys for Defendant/Cross-Complainant 5 DANIEL M. PARZIVAND 6 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF LOS ANGELES, CENTRAL DISTRICT 9 10 ILANA ZELENER, an individual, Case No. 20STCV26377 11 Plaintiff, [Assigned for all purposes to the Hon. Gail Killefer, Dept. 37] 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 vs. MOTION TO STRIKE PORTIONS OF 13 DANIEL M. PARZIVAND, an individual, SECOND AMENDED COMPLAINT LevatoLaw, LLP (310) 734-2027 ALL PERSONS UNKNOWN, IN INTERVENTION 14 CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, Date: October 20, 2022 15 LIEN, OR INTEREST IN THE Time: 8:30 a.m. PROPERTY DESCRIBED IN THE Dept.: 37 16 COMPLAINT; DOES 1 through 10, inclusive, Reservation ID: 027252587326 17 Defendants. Complaint Filed: July 14, 2020 18 Trial Date: November 29, 2022 19 And cross actions 20 21 TO PLAINTIFF AND HER ATTORNEY OF RECORD: 22 PLEASE TAKE NOTICE that on October 20, 2022 at 8:30 a.m., or as soon 23 thereafter as counsel may be heard, in Department 37 of the above-entitled Court, 24 located at 111 N. Hill St., Los Angeles, California, 90012, defendant/cross- 25 complainant Daniel M. Parzivand (“Defendant”) will move to strike portions of the 26 Second Amended Complaint in Intervention filed in this action by plaintiff in 27 intervention Jacqueline Parzivand (“Plaintiff”). 28 MOTION TO STRIKE FIRST AMENDED COMPLAINT IN INTERVENTION 1 This Motion to Strike is based on the grounds that the Second Amended 2 Complaint contains improper matter and is not drawn or filed in conformity with the 3 laws of this state. 4 This Motion more specifically seeks an Order striking the following portions of 5 the Complaint: 6 1. The prayer’s fourth paragraph stating “For exemplary damages in the 7 amount according to proof at trial;” 8 2. The entirety of paragraph 32. 9 This Motion To Strike is made pursuant to the provisions of Code of Civil 10 Procedure §§431.10 and 436, and as otherwise allowed by law, on the grounds that 11 Plaintiff seeks impermissible relief in its complaint. 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 This Motion is based upon this Notice of Motion, the Motion to Strike, The 13 Request for Judicial Notice, the attached Memorandum of Points and Authorities, the LevatoLaw, LLP (310) 734-2027 14 complete file in this matter, and upon such oral and documentary evidence as may be 15 presented at the hearing of this matter. 16 Pursuant to Code of Civil Procedure section 430.41, Daniel’s counsel met and 17 conferred with Jacqueline’s counsel prior to the filing of the present demurrer. 18 (Declaration of Terry J. Kent, ¶3.) 19 20 DATED: September 8, 2022 LEVATOLAW, LLP 21 22 By: 23 Terry J. Kent Attorneys for Defendant/Cross-Complainant 24 DANIEL M. PARZIVAND 25 26 27 28 2 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 The Second Amended Complaint in Intervention (the “SAC”) alleges exemplary 4 damages as to each and every cause of action. Under Civil Code section 3294, no 5 exemplary damages are available for Declaratory Relief and Breach of Contract as 6 those claims arise from contract. As to Fraudulent Inducement, the supposedly 7 malicious act or acts complained of does not meet any standard for malicious, 8 fraudulent, or oppressive behavior. 9 The impropriety of Plaintiff’s request is shown by the sham pleading doctrine, 10 wherein the SAC has omitted contrary allegations of fact that run against the SAC’s 11 idea that Plaintiff was tricked into agreeing to contributing money toward the 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 condominium she wanted to have purchased for her and in which she wanted to live. 13 The SAC strategically omits the following allegations from her preceding First LevatoLaw, LLP (310) 734-2027 14 Amended Complaint (“FAC”): 15 - That Defendant obtained a loan with Plaintiff to help purchase a condominium 16 that Plaintiff and Defendant were to share as husband and wife; 17 - That Plaintiff conditioned her marriage to Defendant upon him agreeing to 18 live in the Los Angeles area 19 - Plaintiff wired the loan’s proceeds to escrow so that it could be used to 20 purchase the subject condominium she desired. 21 - Defendant telling Plaintiff that as a co-borrower, Plaintiff is liable for 22 repayment of the loan. 23 - That the obtained loan was necessary in order to get the condo Plaintiff 24 wanted for her marital home. 25 Apart from being a confusing mishmash, the behavior alleged, taken at face 26 value without any context, does not rise to the level of malicious behavior required 27 for an award of exemplary damages. People borrowing money to purchase real 28 property happens hundreds of times a day in California. The idea that loan proceeds MOTION TO STRIKE FIRST AMENDED COMPLAINT IN INTERVENTION 1 allegedly borrowed to purchase a condo actually being used to buy that condo is 2 somehow a malicious act is unsupportable. If it were, then every real property 3 purchase made with borrowed funds would itself be a malicious act. Plaintiff has not 4 alleged that she did not understand the concept of needing to repay money she 5 borrowed for her own benefit, so an allegation that Defendant told her that borrowed 6 money needs repayment is not a malicious act. And so on. 7 The acts complained alone, taken as true, do not support exemplary damages. 8 But when put into context, it should be clear to the Court what the claims are. As 9 Plaintiff artfully omits, she divorced Defendant. (See FAC, ¶25). The SAC 10 represents a post-divorce attempt to use the legal system to try to harm Defendant 11 by fabricating supposed claims that could and should have been raised in Plaintiff’s 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 and Defendant’s marital dissolution matter years ago if they had been real. In 13 context, we see that Plaintiff is throwing out brand-new, contradictory, post-divorce LevatoLaw, LLP (310) 734-2027 14 claims, with relief unsupported by law in order to gin up a ground for attorney’s fees, 15 exemplary damages, and other financial burdens to be placed on Defendant in this 16 action. And after a prior motion to strike was filed, Plaintiff has now filed 17 contradictory allegations and omitted prior allegations in order to attempt to 18 preserve an unsupportable exemplary damages claim. 19 Because the SAC lacks the grounds necessary to support any claims for 20 exemplary damages, Defendant respectfully requests that its motion to strike be 21 granted. 22 II. LEGAL ARGUMENT 23 A. Authority For Motion To Strike. 24 Code of Civil Procedure § 436 provides: 25 The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it 26 deems proper: 27 (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. 28 2 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 (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, 2 or an order of the court. 3 The appropriate procedural device for challenging a portion of a cause of action 4 seeking an improper remedy is a motion to strike. (Caliber Bodyworks, Inc. v. 5 Superior Court (2005) 134 Cal.App.4th 365, 385.) When a substantive defect is clear 6 from the face of a complaint, such as a purported claim of right which is legally 7 invalid, a defendant may attack that portion of the cause of action by filing a motion 8 to strike. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) 9 B. Plaintiff’s Prayers For Punitive Damages With Regard To Its 10 First And Second Causes Of Action Are Unsupportable As Civil 11 Code Section 3294 Prohibits Them. 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 1. Declaratory Relief 13 Exemplary damages are awardable for a cause of action in which there is LevatoLaw, LLP (310) 734-2027 14 “breach of an obligation not arising from contract.” (Civ. Code, §3294(a).) The 15 primary purpose of Civil Code section 3294 “is to avoid injecting questions of fraud, 16 malice, or oppression into contract actions.” (Jaurat v. Superior Court for Los 17 Angeles County (1966) 241 Cal.App.2d 330, 335.) 18 The SAC’s declaratory relief action ostensibly seeks a declaration as to the 19 parties’ rights with respect to and arising from an alleged guarantee of a loan 20 agreement whereby Plaintiff and Defendant allegedly promised to each other to 21 repay a joint loan they borrowed from a third party. (SAC, ¶¶10 and 14.) As the 22 declaratory relief claim seeks an interpretation of a contract Plaintiff also claims to 23 be breached, and thus arises from contract, Civil Code section 3294 does not permit 24 exemplary damages to be awarded here. 25 2. Breach of Contract 26 For the same reasoning above, Civil Code section 3294(a) bars any award of 27 exemplary damages in an action arising from contract. A cause of action for breach 28 of contract certainly falls under section 3294(a)’s prohibition. 3 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 D. Plaintiff’s Prayer For Punitive Damages With Regard To Its 2 Third Cause Of Action Is Unsupportable For Failing To Allege 3 Facts Showing Malice, Fraud, Or Oppression. 4 1. Standard Of Review As To Punitive Damages 5 To justify an award of punitive damages, a plaintiff must set out the facts that 6 constitute oppression, fraud or malice. Facts, not mere conclusions, must be pled. 7 (Roth v. Shell Oil Company (1960) 185 Cal.App.2d 676, 682.) The Court of Appeal in 8 Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, set forth the willful and malicious 9 standard under which such damages may be awarded: 10 The cases interpreting section 3294 make it clear that in order to warrant the allowance of punitive damages the act complained of must 11 not only be willful in the sense of intentional, but it must also be accompanied by aggravating circumstances, amounting to 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 malice…There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient, and mere negligence, even gross 13 negligence, is not sufficient to justify an award of punitive LevatoLaw, LLP (310) 734-2027 damages…(Id. at 894)[emphasis added.] 14 It is well established that punitive damages are allowed only in the rarest 15 case. They are not favored in the law, and the pleading and proof thereof must be 16 done with great caution. (See, e.g., Woolstrum v. Mailloux (1983) 141 Cal.App.3d 17 Supp., 1, 9-10.) Therefore, to justify an award of punitive damages, a party must 18 allege facts, and not mere conclusions, to show that a defendant is guilty of 19 despicable or intentionally fraudulent conduct. (Civ. Code § 3294; G.D. Searle v. 20 Superior Court (1975) 49 Cal.App.3d 22, 29.) Conclusory pleading is insufficient and 21 will not sustain a punitive damages claim without factual support. (Marin v. Jacuzzi 22 (1964) 224 Cal.App.2d 549, 552.) The conduct complained of must have “the 23 character of outrage frequently associated with a crime.” (American Airlines, Inc. v. 24 Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) 25 A plaintiff must prove by “clear and convincing evidence” that the defendant 26 has engaged in intentional and despicable conduct constituting malice or oppression 27 or committing fraud. Courts agree that the Legislature’s intent behind the 1987 28 4 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 amendments to Civil Code section 3294 was to impose a new statutory limit on the 2 award of punitive damages. (Mock v. Michigan Millers Mutual Insurance Company 3 (1992) 4 Cal.App.4th 306, 331.) 4 Something more than the mere commission of a tort is always required for 5 punitive damages. There must be circumstances of such a conscious and deliberate 6 disregard of the interests of others that a defendant’s conduct may be called willful or 7 wanton. (Taylor v. Superior Court (1979) 24 Cal.3d 980, 894-95.) Consequently, to 8 establish malice and oppression, it is not sufficient to show only that Defendants’ 9 alleged conduct was negligent, grossly negligent, or even reckless. (Bell v. Sharp 10 Cabrillo Hosp. (1989) 212 Cal.App.3d 1034, 1044.) Rather, to properly plead a claim 11 for punitive damages, the ultimate facts of Defendants’ wrongful motive, intent, or 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 purpose must be alleged. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, 13 emphasis added.) LevatoLaw, LLP (310) 734-2027 14 2. The Facts Alleged To Support Punitive Damages Fall Well 15 Short Of Being Malicious, Fraudulent, Or Oppressive. 16 The SAC’s narrative that supposedly supports a claim for exemplary damages 17 is that 18 - Defendant and Plaintiff’s sister Ilana Zelener agreed to purchase a 19 condominium. (SAC, ¶9.) 20 - To purchase the property, Defendant and Plaintiff jointly borrowed $150,000 21 from a lender. (SAC, ¶10.) 22 - Defendant and Plaintiff later guaranteed to each other that they would be 23 jointly and severally liable for the $150,000 loan. (SAC, ¶11.) 24 - Defendant tricked Plaintiff into using the $150,000 for its alleged purpose: to 25 help purchase the condominium; (SAC, ¶27.) 26 - Plaintiff was tricked by Defendant into agreeing to guarantee to Defendant 27 that she would be jointly liable for the $150,000 loan Plaintiff and Defendant 28 jointly took out. (SAC, ¶28.) 5 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 Thus, the apparent narrative painted by Plaintiff is that she was tricked by her 2 husband-to-be Defendant and her sister, plaintiff Ilana Zelener into entering into an 3 oral guarantee of a loan which Plaintiff had already promised to repay so that 4 Defendant and Ms. Zelener could purchase the condo. Further, the SAC’s narrative 5 is that Plaintiff received no benefit from this condo purchase or loan. 6 Under the sham pleading doctrine, plaintiffs are precluded from amending 7 complaints to omit harmful allegations, without explanation, from previous 8 complaints to avoid attacks raised in subsequent motions or demurrers. (Hendy v. 9 Losse (1991) 54 Cal.3d 723, 742-743 [affirming an order sustaining defendants' 10 demurrer without leave to amend when the plaintiff filed an amended complaint 11 omitting harmful allegations from the original unverified complaint]; see also 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151[“If a party files an 13 amended complaint and attempts to avoid the defects of the original complaint by LevatoLaw, LLP (310) 734-2027 14 either omitting facts which made the previous complaint defective or by adding facts 15 inconsistent with those of previous pleadings, the court may take judicial notice of 16 prior pleadings and may disregard any inconsistent allegations.”].) A noted 17 commentator has explained, “Allegations in the original pleading that rendered it 18 vulnerable to demurrer or other attack cannot simply be omitted without explanation 19 in the amended pleading. The policy against sham pleadings requires the pleader 20 to explain satisfactorily any such omission.” (Weil & Brown, Cal. Practice Guide: 21 Civil Procedure Before Trial (The Rutter Group 2005) ¶ 6.708.) 22 The SAC omits allegations from the FAC that demonstrate that what Plaintiff 23 was supposedly defrauded into doing, agreeing to borrow money to purchase a 24 condominium, was something that Plaintiff expressly wished to do. It cannot be that 25 Plaintiff was defrauded into doing something she wanted to do and for which she has 26 received the benefit intended. 27 Specifically, the allegations omitted from the FAC include that 28 - The subject condominium was purchased by Defendant and plaintiff Ilana 6 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 Zelener expressly for Plaintiff’s benefit and to serve as Plaintiff’s marital 2 residence. (See Request for Judicial Notice (“RJN”), ¶1; FAC, ¶9.) 3 - That Plaintiff desired to live and have their marital home in Los Angeles. 4 (Id.; FAC, ¶26.) 5 - That Plaintiff made clear to Defendant that marriage to him would be 6 conditioned on Defendant living in Los Angeles. (Id.) 7 - That because Defendant lacked the financial ability to purchase the condo 8 on his own, assistance from the $150,000 loan and from plaintiff Ilana 9 Zelener were required to purchase the condo. (Id.) 10 The FAC directly contradicts the SAC’s allegation that Defendant fraudulently 11 tricked Plaintiff into guaranteeing a loan obligation that she never wanted and for 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 which she never received any benefit. The FAC makes evident that at all times, 13 Defendant wanted and agreed to be liable for the $150,000 loan and that she did LevatoLaw, LLP (310) 734-2027 14 receive the benefit she wanted, to live with her husband in a condominium in the Los 15 Angeles area. 16 The FAC’s allegations irreconcilably conflict with the SAC’s grounds for 17 exemplary damages, showing that SAC’s ground to be a pretense. The sham pleading 18 doctrine prompts this Court to disregard the SAC’s conflicting allegations. The FAC’s 19 allegations demonstrate that the supposedly malicious, fraudulent, and oppressive 20 acts are either so common in society that they could never serve as malicious acts or 21 so implausible and not backed by allegations of fact that could ever support a finding 22 of malice. 23 As to being supposedly tricked into getting a loan to purchase the Property, 24 Plaintiff alleges that she was the intended beneficiary of the purchase of the 25 Property. (RJN, ¶1; FAC, ¶9.) Plaintiff alleges the existence of the $150,000 loan 26 agreement with lender Leon Oransky and the $150,000 loan’s necessity. (RJN, ¶1; 27 FAC, ¶¶11; 26.) But to support the fraudulent inducement, Plaintiff asserts that she 28 was deceived into guaranteeing the $150,000 loan and by extension getting the 7 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 benefit of the house that she and her then-husband Defendant shared. And Plaintiff 2 alleges that when Defendant allegedly told her that the $150,000 loan would 3 eventually need to be repaid, Plaintiff was supposedly deceived by this statement, 4 meaning that Plaintiff believed that the $150,000 purchase money loan from a 5 commercial lender would never need to be repaid. (FAC, ¶25.) 6 None of the acts complained of amount to malice, oppression, or fraud. People 7 borrow money to help buy real property thousands and thousands of times a year in 8 California, if not per month. The act of saying that a loan would need to be repaid is 9 not fraud; it is the most basic fact of how loans work. Allegedly saying that the 10 money from a loan to buy the condominium should be given to escrow to buy the 11 condominium is not fraud; sending purchase money to escrow is how escrow works. 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 We have an alleged Defendant representation. Per the SAC, the act of saying 13 that a loan needed to be repaid was itself a malicious misrepresentation meriting LevatoLaw, LLP (310) 734-2027 14 exemplary damages. (SAC, ¶26.) It is commonly understood that this statement is 15 true; when someone borrows money, it generally must be repaid. Something that the 16 general population would know to be true axiomatically cannot serve as a malicious 17 misrepresentation. True statements are not misrepresentations. 18 We also have the allegation that Defendant allegedly fraudulently induced 19 Plaintiff into agreeing that $120,000 of the $150,000 loan would be used as a down 20 payment to buy the subject condominium. (FAC, ¶25.) And then, per the SAC, that 21 is exactly what happened. (SAC, ¶27.) That is, the alleged fraudulent 22 misrepresentation from the FAC is now alleged to be something that Defendant 23 actually represented accurately and did indeed do. And somehow, per the SAC, doing 24 the thing that Defendant and Plaintiff agreed to do is now supposed to be evidence of 25 fraudulent intent. (SAC, ¶27.) It cannot be that doing what one promised to do 26 serves as a fraudulent inducement. 27 Plainly stated, the Complaint’s allegations with respect to fraudulent 28 inducement are a jumble of incomprehensible statements, which now in the SAC 8 MOTION TO STRIKE SECOND AMENDED COMPLAINT IN INTERVENTION 1 directly contradict the allegations in Plaintiffs’ FAC. Further, none of the alleged 2 acts rise to acts which have the necessary “character of outrage frequently associated 3 with a crime.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton 4 (2002) 96 Cal.App.4th 1017, 1050.) 5 E. The Complaint’s Paragraph 32 Should Also Be Stricken. 6 Paragraph 32 consists of conclusory statements, without any actual facts, 7 leading to the conclusion that Plaintiff is entitled to exemplary damages. Specifically, 8 Paragraph 32 asserts that 9 “Intervenor is informed and believes that Parzivand committed the aforementioned acts maliciously, fraudulently, and 10 oppressively, with the wrongful intention of injuring Intervenor, 11 from an improper and evil motive amounting to malice, and in conscious disregard of Intervenor rights. Intervenor is thus 2029 Century Park East, Suite 400 LOS ANGELES, CALIFORNIA 90067 12 entitled to recover punitive damages from Defendant in the amount according to proof at trial.” 13 LevatoLaw, LLP (310) 734-2027 14 Because the SAC’s allegations do not give r