Preview
1 Tamineh Roshanian, Esq. (SBN 139216)
Roshanian Payman, PC
2
30721 Russell Ranch Road, Suite 140
3 Westlake Village, CA 91362-7383
Tel: (818) 330-5162
4 Email: tami@roshanianpayman.com
5
Attorney for Plaintiff Nicole Jordan
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SANTA BARBARA
9 ANACAPA DIVISION
10
) Case No.: 23CV02702
11 NICOLE EMILY JORDAN, etc., et al, )
)
12 PLAINTIFF, ) [Assigned to Hon. Hon. Colleen K. Sterne, Dept.
) SB5]
13 )
-v- ) MEMORANDUM OF POINTS AND
14 ) AUTHORITIES IN OPPOSITION TO
ROGERS, SHEFFIELD & CAMPBELL, LLP, ) MOTION TO STRIKE COMPLAINT OF
15 etc., et al., ) ROGERS, SHEFFIELD & CAMPBELL,
16 ) LLP
DEFENDANTS. )
17 ) DATE: October 16, 2023
) TIME: 10:00 a.m.
18 ) DEPT: SB5
)
19 )
20
______________________________________)
21 PRELIMINARY STATEMENT
22 Defendant, ROGERS, SHEFFIELD & CAMPBELL, LLP (hereinafter “Defendant” or
23 RSC”) has filed a motion to strike the prayers for “general damages according to proof” and
24 “exemplary and punitive damages” in the Complaint. There is no request to strike any
25 individual allegations anywhere in the body of the Complaint, nor is there any attempt to isolate
26 the prayer to particular causes of action. Therefore, if the allegations of any cause of action
27 supports the prayer, the motion should be denied.
28 //
//
-1-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1 DISCUSSION
2 I.
3
NICOLE IS ENTITLED TO ATTORNEYS’S FEE UNDER CCP §1021.5
4
RSC argues that Nicole is not entitled to Attorney’s Fees under the Fourth Cause of
5
Action for Breach of Contract. However, under Code of Civil Procedure § 1021.5, a prevailing
6
party is entitled to attorneys’ fees and costs even if there is no contractual provision entitling the
7
client to attorney’s fees and costs. Under § 1021.5 (a), if Plaintiffs prevails at trial, she will be
8
entitled to file a motion for award od attorneys’ fees and costs. The significant benefit to the
9
public is to maintain the sanctity of the attorney-client relationship and deter attorneys from
10
harming the best interests of their clients or stealing from them.
11
Discovery is required to determine if any retainer agreement signed between RSC and
12
the Jordans contained a provision for attorneys’ fees and costs. It is not appropriate to strike the
13
prayer for attorney’s fees and costs at the pleading stage because no discovery has yet been
14
made in this case. Defendant’s arguments are more appropriate for the trial on issue of facts and
15
law.
16
The court in Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819 has
17
examined the test in Wutchumna Water Co.v. Bailey (1932) 216 Cal. 564, 573-574 [which held
18
that "an attorney is forbidden to do either of two things after severing his relationship with a
19
former client. He may not do anything which will injuriously affect his former client in any
20
manner in which he formerly represented him nor may he at any time use against his former
21
client knowledge or information acquired by virtue of the previous relationship".
22
California Rule of Professional Conduct 3-700 (A) (2) and (D), as well as ABA Model
23
Rule 1.16 (d), require that attorneys take reasonable steps to avoid prejudice to their clients’
24
rights when a representation ends, including giving the client due notice of termination,
25
allowing time for a client to get other counsel, and promptly returning unearned advance fees
26
and other papers and property of the client that the client has requested be returned.
27
28
-2-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1 A lawyer has an “other pecuniary interest adverse to a client” within the meaning of this
2 rule when the lawyer possesses a legal right to significantly impair or prejudice the client’s
3 rights or interests without court action. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 68 [14
4 Cal.Rptr.3d 58]
5 In this case RSC and Sheffield did both. As alleged in the Complaint (¶¶ 87-89, pages
6 26-27), they dropped Borimir and Virginia as clients when she refused to bend under pressure to
7 abandon revising and signing of the Sixth Amendment which would have left the main
8 residence and a rental income property to Nicole, and after they abandoned her as a client,
9 conspired with others to harm their former client and continued to act as their trustee and
10 appointing a successor trustee. RSC and Sheffield’s conduct was both in breach of their
11 contract, breach of fiduciary and in violation of the Rule of Professional Conduct. Under these
12 circumstances, Plaintiff’s prayer for attorneys’ fees is properly stated in the Complaint.
13
14 II.
15 RSC IS INCORRECT IN ASSERTING THAT NICOLE IS NOT ENTITLED TO NON-
16 ECONOMIC DAMAGES AGAISNT RSC
17 RSC cites Holliday v. Jones (1989) 215 Cal.App.3d 102, 105 in arguing that in action
18 against an attorney, emotional distress (and other non-economic general damages) is not
19 recoverable. To the contrary, the Court in Holiday v. Jones stated:
20
“We reject the defendants' argument as to Holliday, however,
21
concluding that there is no reason to deny damages to a client,
22
including damages for emotional distress, proximately caused by
23
the attorney's negligence in failing to perform as a reasonably
24
competent defense lawyer in a criminal case. We therefore hold
25
that Holliday is entitled to the $400,000 he was awarded for the
26
emotional distress damages he suffered as a direct result of Jones's
27
professional negligence. As so modified we affirm the judgment.”
28
-3-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1 In another case cited by Defendant, Camenisch v. Superior Court (1996) 44 Cal.App.4th
2 1689, 1693-94, the court stated that:
3
“Damages for serious mental suffering may now be recovered
4 without physical injury or impact and depend upon whether a
defendant owes a duty of care. In deciding this issue of law, courts
5 will consider "`. . . "the foreseeability of harm to the plaintiff, the
6
degree of certainty that plaintiff suffered injury, the closeness of
the connection between the defendant's conduct and the injury
7 suffered, the moral blame attached to the defendant's conduct, the
policy of preventing future harm, the extent of the burden to
8 the defendant and consequences to the community of imposing a
9
duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
10 involved.["]'" ( Christensen v. Superior Court (1991) 54 Cal.3d
868, 885-886 [ citation]; Macy's California, Inc. v. Superior Court,
11
supra,41 Cal.App.4th at p. 749.)”
12
13
Only at trial, after a due enquiry is made about Plaintiff’s economic losses, the degree of
14
emotional stress and the extent to which RSC/Sheffield should have foreseen their actions might
15
affect Nicole who was the intended beneficiary of Borimir and Virginia’s Trust, the court will
16
be able to make a determination as to Plaintiff’s entitlement to recover such damages.
17
In addition, both the Thirteenth and Fourteenth Causes of Action for Dependent Adult
18
Emotional Abuse and Elder Emotional Abuse, whether the defendant is an attorney or not,
19
entitle Plaintiff to non-economic damages.
20
Finally, "[W]here a plaintiff sufficiently alleges intentional or affirmative misconduct by
21
an attorney or noneconomic injury resulting from an attorney's professional negligence,
22
recovery of emotional distress damages is permitted." Smith v. Super. Court, 10 Cal. App. 4th
23
1033, 1040 (1992). A legal malpractice plaintiff need not establish "physical impact or injury"
24
or "intentional wrongdoing or bad faith" in order to recover emotional distress
25
damages. Pleasant v. Celli, 18 Cal. App. 4th 841, 51 (1993), disapproved of on other grounds by
26
Adams v. Paul, 11 Cal. 4th 583 (1995).
27
28
-4-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1
2 III.
3 STANDARDS FOR MOTIONS TO STRIKE, INCLUDING
4 THOSE RELATING TO A PRAYER FOR PUNITIVE
5 DAMAGES
6 A pleading shall be liberally construed. (C.C.P., Section 452)
7
C.C.P. Section 437 provides:
8
“(a) The grounds for a motion to strike shall appear on the face of the
9
10
challenged pleading or from any matter of which the court is required
11 to take judicial notice....”
12 In addition, like the sustaining of a demurrer, unless the court concludes that an asserted
13
defect cannot be cured by amendment, if a motion to strike is granted, leave to amend shall be
14
liberally granted. (Board of Trustees of the Leland Stanford University v Superior Court
15
16 (Umana) (2007) 149 Cal. App. 4th 1154, 57 Cal. Rptr. 3d 755; also see: Velez v Smith (2006)
17 142 Cal. App. 4th 1154, 48 Cal. Rptr. 3d 642 [“‘Where the defect raised by a motion to strike or
18
by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to
19
give the plaintiff a chance to cure the defect in question.’ [Citations.] A pleading may be
20
stricken only upon terms the court deems proper [citation], that is, terms that are just.
21
22 [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic
23 step of denial of the opportunity to correct the curable defect effectively terminates the
24
pleader's action.” (Citation)....” (Emphasis added)].)
25
In Perkins v Superior Court (1981) 117 Cal. App. 3d 1, 172 Cal. Rptr. 427, the reviewing
26
27
court held it was an abuse of discretion to strike references to exemplary damages, to the phrase
28 “wrongfully and intentionally”, the word, “retaliation”, and the words, “oppression, fraud and
-5-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1 malice”, from a complaint involving invasion of plaintiff’s privacy and interference with
2
business interests. The court stated that the Complaint provided notice to the Defendant of the
3
precise claims and adequately pleaded a cause of action supporting a punitive damage award.
4
5
The court stated:
6 “In order to plead a cause of action, the complaint must
7 contain a “statement of the facts constituting the cause
8
of action, in ordinary and concise language.” (Code
9
Civ.Proc., s 425.10, subd. (a).) While it is true that
10
11 pleading conclusions of law does not fulfill this
12 requirement, it has long been recognized that “(t)he
13
distinction between conclusions of law and ultimate
14
facts is not at all clear and involves at most a matter of
15
degree. (Citations.) For example, the courts have
16
17 permitted allegations which obviously included
18 conclusions of law and have termed them ‘ultimate
19
facts' or ‘conclusions of facts.’ ” (Burks v. Poppy
20
Construction Co., 57 Cal.2d 463, 473, 20 Cal.Rptr. 609,
21
22
370 P.2d 313.) What is important is that the
23 complaint as a whole contain sufficient facts to
24 apprise the Defendant of the basis upon which the
25
plaintiff is seeking relief. (Youngman v. Nevada
26
Irrigation Dist., 70 Cal.2d 240, 74 Cal.Rptr. 398, 449
27
28 P.2d 462; Semole v. Sansoucie, 28 Cal.App.3d 714,
-6-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1 104 Cal.Rptr. 897.) The stricken language must be
2
read not in isolation, but in the context of the facts
3
alleged in the rest of petitioner's complaint. Taken in
4
5
context, the words “wrongfully and intentionally” in
6 paragraph eight describe a knowing and deliberate state
7 of mind from which a conscious, disregard of
8
petitioner's rights might be inferred a state of mind
9
which would sustain an award of punitive damages.
10
11 (Taylor v. Superior Court, supra; G. D. Searle & Co. v.
12 Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218.)”
13
(emphasis added)
14
Punitive and exemplary damages may be recovered for malice, which includes
15
despicable conduct carried on in conscious disregard of the rights or safety of another. (Civil
16
17 Code, Section 3294; also see: Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299
18 [164 Cal.Rptr.3d 112, 134] [“...As defined in the punitive damages statute, “[m]alice”
19
encompasses “despicable conduct which is carried on by the defendant with a willful
20
and conscious disregard of the rights and safety of others,”...”]; also see: Blegen v. Superior
21
22
Court (1981) 125 Cal.App.3d 959 [178 Cal.Rptr. 470] [whether defendant’s conduct was
23 despicable and in conscious disregard was a question of fact, even where Complaint did not use
24 the words willful or intentional, and the trial court’s order striking punitive damages from legal
25
malpractice complaint was reversed by writ].)
26
Punitive damages are available for the tort of intentional infliction of emotional
27
distress. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,
28
1055 [90 Cal.Rptr.3d 453, 493]; also see: Angie M. v Superior Court (1995) 37 Cal. App. 4th
-7-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
1 1217, 44 Cal. Rptr. 2d 197; Fletcher v Western National Life Ins. Co. (1970) 10 Cal. App. 3d
2 376, 89 Cal. Rptr. 78.)
3 A cause of action for fraud will support the prayer for punitive damages in and of itself,
4 i.e., “Fraud” for purposes of a punitives award means “an intentional misrepresentation, deceit,
5 or concealment of a material fact known to the defendant with the intention on the part of the
6 defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”
7 (Civil Code § 3294(c)(3))
8 If a cause of action for fraud is pled, it is clear that punitive damages are available as a
9 matter of law. (E.g., see: 2 Cal. Real Est. Digest 3d Fraud and Deceit § 34.)
10 “Failure to state facts sufficient to state a cause of action is ground for general demurrer,
11 but not for a CCP § 436 motion to strike. [Ferraro v. Camarlinghi, supra, 161 CA4th at 529, 75
12 CR3d at 35]” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-B, Section 7:173; Warren v.
13 Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24 [96 Cal.Rptr. 317] [Ground that counts
14 did not state facts sufficient to constitute cause of action was ground for demurrer but was not
15 proper ground for motion to strike. ]; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509 [75
16 Cal.Rptr.3d 19] [Motion to strike filed by testator's natural children was not the proper vehicle to
17 challenge stepdaughter's complaint on denied probate claim asserting that testator's will violated
18 agreement between testator and testator's predeceased husband that husband's children were to
19 also share in testator's estate; motions to strike were authorized to challenge irrelevant, false, or
20 improper matter inserted in a pleading, or to strike all or portions of a pleading that were not
21 drawn in conformity with court rules or a court order, but testator's children were not challenging
22 stepdaughter's pleadings on such grounds and were instead alleging that stepdaughter failed to
23 state facts, which was a ground for a general demurrer.].)
24
25 Dated: 10/03/2023 Roshanian Payman, PC
26
___________________________
27
By: Tamineh Roshanian
28 Attorney for Plaintiffs/Nicole Jordan
-8-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE
Preview
1 Tamineh Roshanian, Esq. (SBN 139216) Roshanian Payman, PC 2 30721 Russell Ranch Road, Suite 140 3 Westlake Village, CA 91362-7383 Tel: (818) 330-5162 4 Email: tami@roshanianpayman.com 5 Attorney for Plaintiff Nicole Jordan 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SANTA BARBARA 9 ANACAPA DIVISION 10 ) Case No.: 23CV02702 11 NICOLE EMILY JORDAN, etc., et al, ) ) 12 PLAINTIFF, ) [Assigned to Hon. Hon. Colleen K. Sterne, Dept. ) SB5] 13 ) -v- ) MEMORANDUM OF POINTS AND 14 ) AUTHORITIES IN OPPOSITION TO ROGERS, SHEFFIELD & CAMPBELL, LLP, ) MOTION TO STRIKE COMPLAINT OF 15 etc., et al., ) ROGERS, SHEFFIELD & CAMPBELL, 16 ) LLP DEFENDANTS. ) 17 ) DATE: October 16, 2023 ) TIME: 10:00 a.m. 18 ) DEPT: SB5 ) 19 ) 20 ______________________________________) 21 PRELIMINARY STATEMENT 22 Defendant, ROGERS, SHEFFIELD & CAMPBELL, LLP (hereinafter “Defendant” or 23 RSC”) has filed a motion to strike the prayers for “general damages according to proof” and 24 “exemplary and punitive damages” in the Complaint. There is no request to strike any 25 individual allegations anywhere in the body of the Complaint, nor is there any attempt to isolate 26 the prayer to particular causes of action. Therefore, if the allegations of any cause of action 27 supports the prayer, the motion should be denied. 28 // // -1- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 DISCUSSION 2 I. 3 NICOLE IS ENTITLED TO ATTORNEYS’S FEE UNDER CCP §1021.5 4 RSC argues that Nicole is not entitled to Attorney’s Fees under the Fourth Cause of 5 Action for Breach of Contract. However, under Code of Civil Procedure § 1021.5, a prevailing 6 party is entitled to attorneys’ fees and costs even if there is no contractual provision entitling the 7 client to attorney’s fees and costs. Under § 1021.5 (a), if Plaintiffs prevails at trial, she will be 8 entitled to file a motion for award od attorneys’ fees and costs. The significant benefit to the 9 public is to maintain the sanctity of the attorney-client relationship and deter attorneys from 10 harming the best interests of their clients or stealing from them. 11 Discovery is required to determine if any retainer agreement signed between RSC and 12 the Jordans contained a provision for attorneys’ fees and costs. It is not appropriate to strike the 13 prayer for attorney’s fees and costs at the pleading stage because no discovery has yet been 14 made in this case. Defendant’s arguments are more appropriate for the trial on issue of facts and 15 law. 16 The court in Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819 has 17 examined the test in Wutchumna Water Co.v. Bailey (1932) 216 Cal. 564, 573-574 [which held 18 that "an attorney is forbidden to do either of two things after severing his relationship with a 19 former client. He may not do anything which will injuriously affect his former client in any 20 manner in which he formerly represented him nor may he at any time use against his former 21 client knowledge or information acquired by virtue of the previous relationship". 22 California Rule of Professional Conduct 3-700 (A) (2) and (D), as well as ABA Model 23 Rule 1.16 (d), require that attorneys take reasonable steps to avoid prejudice to their clients’ 24 rights when a representation ends, including giving the client due notice of termination, 25 allowing time for a client to get other counsel, and promptly returning unearned advance fees 26 and other papers and property of the client that the client has requested be returned. 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 A lawyer has an “other pecuniary interest adverse to a client” within the meaning of this 2 rule when the lawyer possesses a legal right to significantly impair or prejudice the client’s 3 rights or interests without court action. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 68 [14 4 Cal.Rptr.3d 58] 5 In this case RSC and Sheffield did both. As alleged in the Complaint (¶¶ 87-89, pages 6 26-27), they dropped Borimir and Virginia as clients when she refused to bend under pressure to 7 abandon revising and signing of the Sixth Amendment which would have left the main 8 residence and a rental income property to Nicole, and after they abandoned her as a client, 9 conspired with others to harm their former client and continued to act as their trustee and 10 appointing a successor trustee. RSC and Sheffield’s conduct was both in breach of their 11 contract, breach of fiduciary and in violation of the Rule of Professional Conduct. Under these 12 circumstances, Plaintiff’s prayer for attorneys’ fees is properly stated in the Complaint. 13 14 II. 15 RSC IS INCORRECT IN ASSERTING THAT NICOLE IS NOT ENTITLED TO NON- 16 ECONOMIC DAMAGES AGAISNT RSC 17 RSC cites Holliday v. Jones (1989) 215 Cal.App.3d 102, 105 in arguing that in action 18 against an attorney, emotional distress (and other non-economic general damages) is not 19 recoverable. To the contrary, the Court in Holiday v. Jones stated: 20 “We reject the defendants' argument as to Holliday, however, 21 concluding that there is no reason to deny damages to a client, 22 including damages for emotional distress, proximately caused by 23 the attorney's negligence in failing to perform as a reasonably 24 competent defense lawyer in a criminal case. We therefore hold 25 that Holliday is entitled to the $400,000 he was awarded for the 26 emotional distress damages he suffered as a direct result of Jones's 27 professional negligence. As so modified we affirm the judgment.” 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 In another case cited by Defendant, Camenisch v. Superior Court (1996) 44 Cal.App.4th 2 1689, 1693-94, the court stated that: 3 “Damages for serious mental suffering may now be recovered 4 without physical injury or impact and depend upon whether a defendant owes a duty of care. In deciding this issue of law, courts 5 will consider "`. . . "the foreseeability of harm to the plaintiff, the 6 degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury 7 suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to 8 the defendant and consequences to the community of imposing a 9 duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk 10 involved.["]'" ( Christensen v. Superior Court (1991) 54 Cal.3d 868, 885-886 [ citation]; Macy's California, Inc. v. Superior Court, 11 supra,41 Cal.App.4th at p. 749.)” 12 13 Only at trial, after a due enquiry is made about Plaintiff’s economic losses, the degree of 14 emotional stress and the extent to which RSC/Sheffield should have foreseen their actions might 15 affect Nicole who was the intended beneficiary of Borimir and Virginia’s Trust, the court will 16 be able to make a determination as to Plaintiff’s entitlement to recover such damages. 17 In addition, both the Thirteenth and Fourteenth Causes of Action for Dependent Adult 18 Emotional Abuse and Elder Emotional Abuse, whether the defendant is an attorney or not, 19 entitle Plaintiff to non-economic damages. 20 Finally, "[W]here a plaintiff sufficiently alleges intentional or affirmative misconduct by 21 an attorney or noneconomic injury resulting from an attorney's professional negligence, 22 recovery of emotional distress damages is permitted." Smith v. Super. Court, 10 Cal. App. 4th 23 1033, 1040 (1992). A legal malpractice plaintiff need not establish "physical impact or injury" 24 or "intentional wrongdoing or bad faith" in order to recover emotional distress 25 damages. Pleasant v. Celli, 18 Cal. App. 4th 841, 51 (1993), disapproved of on other grounds by 26 Adams v. Paul, 11 Cal. 4th 583 (1995). 27 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 2 III. 3 STANDARDS FOR MOTIONS TO STRIKE, INCLUDING 4 THOSE RELATING TO A PRAYER FOR PUNITIVE 5 DAMAGES 6 A pleading shall be liberally construed. (C.C.P., Section 452) 7 C.C.P. Section 437 provides: 8 “(a) The grounds for a motion to strike shall appear on the face of the 9 10 challenged pleading or from any matter of which the court is required 11 to take judicial notice....” 12 In addition, like the sustaining of a demurrer, unless the court concludes that an asserted 13 defect cannot be cured by amendment, if a motion to strike is granted, leave to amend shall be 14 liberally granted. (Board of Trustees of the Leland Stanford University v Superior Court 15 16 (Umana) (2007) 149 Cal. App. 4th 1154, 57 Cal. Rptr. 3d 755; also see: Velez v Smith (2006) 17 142 Cal. App. 4th 1154, 48 Cal. Rptr. 3d 642 [“‘Where the defect raised by a motion to strike or 18 by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to 19 give the plaintiff a chance to cure the defect in question.’ [Citations.] A pleading may be 20 stricken only upon terms the court deems proper [citation], that is, terms that are just. 21 22 [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic 23 step of denial of the opportunity to correct the curable defect effectively terminates the 24 pleader's action.” (Citation)....” (Emphasis added)].) 25 In Perkins v Superior Court (1981) 117 Cal. App. 3d 1, 172 Cal. Rptr. 427, the reviewing 26 27 court held it was an abuse of discretion to strike references to exemplary damages, to the phrase 28 “wrongfully and intentionally”, the word, “retaliation”, and the words, “oppression, fraud and -5- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 malice”, from a complaint involving invasion of plaintiff’s privacy and interference with 2 business interests. The court stated that the Complaint provided notice to the Defendant of the 3 precise claims and adequately pleaded a cause of action supporting a punitive damage award. 4 5 The court stated: 6 “In order to plead a cause of action, the complaint must 7 contain a “statement of the facts constituting the cause 8 of action, in ordinary and concise language.” (Code 9 Civ.Proc., s 425.10, subd. (a).) While it is true that 10 11 pleading conclusions of law does not fulfill this 12 requirement, it has long been recognized that “(t)he 13 distinction between conclusions of law and ultimate 14 facts is not at all clear and involves at most a matter of 15 degree. (Citations.) For example, the courts have 16 17 permitted allegations which obviously included 18 conclusions of law and have termed them ‘ultimate 19 facts' or ‘conclusions of facts.’ ” (Burks v. Poppy 20 Construction Co., 57 Cal.2d 463, 473, 20 Cal.Rptr. 609, 21 22 370 P.2d 313.) What is important is that the 23 complaint as a whole contain sufficient facts to 24 apprise the Defendant of the basis upon which the 25 plaintiff is seeking relief. (Youngman v. Nevada 26 Irrigation Dist., 70 Cal.2d 240, 74 Cal.Rptr. 398, 449 27 28 P.2d 462; Semole v. Sansoucie, 28 Cal.App.3d 714, -6- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 104 Cal.Rptr. 897.) The stricken language must be 2 read not in isolation, but in the context of the facts 3 alleged in the rest of petitioner's complaint. Taken in 4 5 context, the words “wrongfully and intentionally” in 6 paragraph eight describe a knowing and deliberate state 7 of mind from which a conscious, disregard of 8 petitioner's rights might be inferred a state of mind 9 which would sustain an award of punitive damages. 10 11 (Taylor v. Superior Court, supra; G. D. Searle & Co. v. 12 Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218.)” 13 (emphasis added) 14 Punitive and exemplary damages may be recovered for malice, which includes 15 despicable conduct carried on in conscious disregard of the rights or safety of another. (Civil 16 17 Code, Section 3294; also see: Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 18 [164 Cal.Rptr.3d 112, 134] [“...As defined in the punitive damages statute, “[m]alice” 19 encompasses “despicable conduct which is carried on by the defendant with a willful 20 and conscious disregard of the rights and safety of others,”...”]; also see: Blegen v. Superior 21 22 Court (1981) 125 Cal.App.3d 959 [178 Cal.Rptr. 470] [whether defendant’s conduct was 23 despicable and in conscious disregard was a question of fact, even where Complaint did not use 24 the words willful or intentional, and the trial court’s order striking punitive damages from legal 25 malpractice complaint was reversed by writ].) 26 Punitive damages are available for the tort of intentional infliction of emotional 27 distress. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 28 1055 [90 Cal.Rptr.3d 453, 493]; also see: Angie M. v Superior Court (1995) 37 Cal. App. 4th -7- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE 1 1217, 44 Cal. Rptr. 2d 197; Fletcher v Western National Life Ins. Co. (1970) 10 Cal. App. 3d 2 376, 89 Cal. Rptr. 78.) 3 A cause of action for fraud will support the prayer for punitive damages in and of itself, 4 i.e., “Fraud” for purposes of a punitives award means “an intentional misrepresentation, deceit, 5 or concealment of a material fact known to the defendant with the intention on the part of the 6 defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” 7 (Civil Code § 3294(c)(3)) 8 If a cause of action for fraud is pled, it is clear that punitive damages are available as a 9 matter of law. (E.g., see: 2 Cal. Real Est. Digest 3d Fraud and Deceit § 34.) 10 “Failure to state facts sufficient to state a cause of action is ground for general demurrer, 11 but not for a CCP § 436 motion to strike. [Ferraro v. Camarlinghi, supra, 161 CA4th at 529, 75 12 CR3d at 35]” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-B, Section 7:173; Warren v. 13 Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24 [96 Cal.Rptr. 317] [Ground that counts 14 did not state facts sufficient to constitute cause of action was ground for demurrer but was not 15 proper ground for motion to strike. ]; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509 [75 16 Cal.Rptr.3d 19] [Motion to strike filed by testator's natural children was not the proper vehicle to 17 challenge stepdaughter's complaint on denied probate claim asserting that testator's will violated 18 agreement between testator and testator's predeceased husband that husband's children were to 19 also share in testator's estate; motions to strike were authorized to challenge irrelevant, false, or 20 improper matter inserted in a pleading, or to strike all or portions of a pleading that were not 21 drawn in conformity with court rules or a court order, but testator's children were not challenging 22 stepdaughter's pleadings on such grounds and were instead alleging that stepdaughter failed to 23 state facts, which was a ground for a general demurrer.].) 24 25 Dated: 10/03/2023 Roshanian Payman, PC 26 ___________________________ 27 By: Tamineh Roshanian 28 Attorney for Plaintiffs/Nicole Jordan -8- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RSC MOTION TO STRIKE