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., ) DEFENDANT SHEILA PRICE (AS
16 ) REPRESENTATIVE OF HOMER
DEFENDANTS. ) SHEFFIELD)
17 )
) DATE: October 23, 2023
18 ) TIME: 10:00 a.m.
) DEPT: SB5
19 )
20
______________________________________)
21 PRELIMINARY STATEMENT
22 Defendant, SHEILA PRICE (AS REPRESENTATIVE OF HOMER SHEFFIELD)
23 (hereinafter “Defendant” or “Sheffield”) has filed a motion to strike the prayers for “general
24 damages according to proof”, “exemplary and punitive damages” and “Attorney’s Fees” in
25 pages 72-73 of the Complaint. There is no request to strike any individual allegations anywhere
26 in the body of the Complaint, nor is there any attempt to isolate the prayer to particular causes
27 of action. Therefore, if the allegations of any cause of action supports the prayer, the motion
28 should be denied.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
STRIKE
1 I.
2
ARGUMENT
3 A. STANDARDS FOR MOTIONS TO STRIKE, INCLUDING THOSE
4 RELATING TO A PRAYER FOR PUNITIVE DAMAGES
5
Moving Defendant cites boilerplate case authority which support the notion that a
6
complaint may be subject to strike if it contains any “irrelevant or improper matter” inserted in
7
any pleading”. However, she fails to isolate or refer to specific allegations and causes of
8
actions in the Complaint which are connected to the prayers she is asking the court to strike.
9
The Complaint’s Prayer sections are not subject to strike in isolation on their own unless the
10
relevant causes of actions that give rise to said prayers for damages are subject to strike.
11
A pleading shall be liberally construed. (C.C.P., Section 452)
12
13 C.C.P. Section 437 provides:
14 “(a) The grounds for a motion to strike shall appear on the face of the
15
challenged pleading or from any matter of which the court is required
16
to take judicial notice....”
17
In addition, like the sustaining of a demurrer, unless the court concludes that an asserted
18
19 defect cannot be cured by amendment, if a motion to strike is granted, leave to amend shall be
20 liberally granted. (Board of Trustees of the Leland Stanford University v Superior Court
21
(Umana) (2007) 149 Cal. App. 4th 1154, 57 Cal. Rptr. 3d 755; also see: Velez v Smith (2006)
22
142 Cal. App. 4th 1154, 48 Cal. Rptr. 3d 642 [“‘Where the defect raised by a motion to strike or
23
24
by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to
25 give the plaintiff a chance to cure the defect in question.’ [Citations.] A pleading may be
26 stricken only upon terms the court deems proper [citation], that is, terms that are just.
27
[Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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1 step of denial of the opportunity to correct the curable defect effectively terminates the
2
pleader's action.” (Citation)....” (Emphasis added)].)
3
In Perkins v Superior Court (1981) 117 Cal. App. 3d 1, 172 Cal. Rptr. 427, the reviewing
4
5
court held it was an abuse of discretion to strike references to exemplary damages, to the phrase
6 “wrongfully and intentionally”, the word, “retaliation”, and the words, “oppression, fraud and
7 malice”, from a complaint involving invasion of plaintiff’s privacy and interference with
8
business interests. The court stated that the Complaint provided notice to the Defendant of the
9
precise claims and adequately pleaded a cause of action supporting a punitive damage award.
10
11 The court stated:
12 “In order to plead a cause of action, the complaint must
13
contain a “statement of the facts constituting the cause
14
of action, in ordinary and concise language.” (Code
15
Civ.Proc., s 425.10, subd. (a).) While it is true that
16
17 pleading conclusions of law does not fulfill this
18 requirement, it has long been recognized that “(t)he
19
distinction between conclusions of law and ultimate
20
facts is not at all clear and involves at most a matter of
21
22
degree. (Citations.) For example, the courts have
23 permitted allegations which obviously included
24 conclusions of law and have termed them ‘ultimate
25
facts' or ‘conclusions of facts.’ ” (Burks v. Poppy
26
Construction Co., 57 Cal.2d 463, 473, 20 Cal.Rptr. 609,
27
28 370 P.2d 313.) What is important is that the
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
STRIKE
1 complaint as a whole contain sufficient facts to
2
apprise the Defendant of the basis upon which the
3
plaintiff is seeking relief. (Youngman v. Nevada
4
5
Irrigation Dist., 70 Cal.2d 240, 74 Cal.Rptr. 398, 449
6 P.2d 462; Semole v. Sansoucie, 28 Cal.App.3d 714,
7 104 Cal.Rptr. 897.) The stricken language must be
8
read not in isolation, but in the context of the facts
9
alleged in the rest of petitioner's complaint. Taken in
10
11 context, the words “wrongfully and intentionally” in
12 paragraph eight describe a knowing and deliberate state
13
of mind from which a conscious, disregard of
14
petitioner's rights might be inferred a state of mind
15
which would sustain an award of punitive damages.
16
17 (Taylor v. Superior Court, supra; G. D. Searle & Co. v.
18 Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218.)”
19
(emphasis added)
20
Punitive and exemplary damages may be recovered for malice, which includes
21
22
despicable conduct carried on in conscious disregard of the rights or safety of another. (Civil
23 Code, Section 3294; also see: Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299
24 [164 Cal.Rptr.3d 112, 134] [“...As defined in the punitive damages statute, “[m]alice”
25
encompasses “despicable conduct which is carried on by the defendant with a willful
26
and conscious disregard of the rights and safety of others,”...”]; also see: Blegen v. Superior
27
28 Court (1981) 125 Cal.App.3d 959 [178 Cal.Rptr. 470] [whether defendant’s conduct was
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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1 despicable and in conscious disregard was a question of fact, even where Complaint did not use
2
the words willful or intentional, and the trial court’s order striking punitive damages from legal
3
malpractice complaint was reversed by writ].)
4
5
Punitive damages are available for the tort of intentional infliction of emotional
6
distress. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,
7
1055 [90 Cal.Rptr.3d 453, 493]; also see: Angie M. v Superior Court (1995) 37 Cal. App. 4th
8
1217, 44 Cal. Rptr. 2d 197; Fletcher v Western National Life Ins. Co. (1970) 10 Cal. App. 3d
9
376, 89 Cal. Rptr. 78.)
10
A cause of action for fraud will support the prayer for punitive damages in and of itself,
11
i.e., “Fraud” for purposes of a punitives award means “an intentional misrepresentation, deceit,
12
or concealment of a material fact known to the defendant with the intention on the part of the
13
defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”
14
(Civil Code § 3294(c)(3))
15
If a cause of action for fraud is pled, it is clear that punitive damages are available as a
16
matter of law. (E.g., see: 2 Cal. Real Est. Digest 3d Fraud and Deceit § 34.)
17
“Failure to state facts sufficient to state a cause of action is ground for general demurrer,
18
but not for a CCP § 436 motion to strike. [Ferraro v. Camarlinghi, supra, 161 CA4th at 529, 75
19
CR3d at 35]” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-B, Section 7:173; Warren v.
20
Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24 [96 Cal.Rptr. 317] [Ground that counts
21
did not state facts sufficient to constitute cause of action was ground for demurrer but was not
22
proper ground for motion to strike. ]; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509 [75
23
Cal.Rptr.3d 19] [Motion to strike filed by testator's natural children was not the proper vehicle to
24
challenge stepdaughter's complaint on denied probate claim asserting that testator's will violated
25
agreement between testator and testator's predeceased husband that husband's children were to
26
also share in testator's estate; motions to strike were authorized to challenge irrelevant, false, or
27
improper matter inserted in a pleading, or to strike all or portions of a pleading that were not
28
drawn in conformity with court rules or a court order, but testator's children were not challenging
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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1 stepdaughter's pleadings on such grounds and were instead alleging that stepdaughter failed to
2 state facts, which was a ground for a general demurrer.].)
3
4
II.
NICOLE IS ENTITLED TO ATTORNEYS’S FEE UNDER CCP §1021.5
5
6 Moving Defendant argues that Nicole is not entitled to Attorney’s Fees under all causes
7 of action because there is no public benefit for such award of attorney’s fees. However, under
8 Code of Civil Procedure § 1021.5, a prevailing party is entitled to attorneys’ fees and costs even
9 if there is no contractual provision entitling the client to attorney’s fees and costs. Under §
10 1021.5 (a), if Plaintiffs prevails at trial, she will be entitled to file a motion for award od
11 attorneys’ fees and costs. The significant benefit to the public is to maintain the sanctity of the
12 attorney-client relationship and deter attorneys from harming the best interests of their clients or
13 stealing from them, in pursuit of self-interest, and deter law firms to not allow mentally
14 diminished attorney to continue practicing law.
15 Further discovery is required to determine (1) the extent Sheffield committed a
16 conspiracy to defraud, or at all, (1) dud he blatantly disregard the instructions of the Jordans to
17 amend the Trust documents in accordance with their wishes while Sheffield was still acting as
18 their Trust attorney, or (3) the extent of Sheffield’s awareness that his actions were harming
19 Nicole and her beneficiary interest in the Trust assets, or (4) did Sheffield have diminished
20 mental capacity such as early signs of dimentia when he represented the Jordans in 2018, or
21 when he act as their co-trustee 2020 when he appointed Mark Watson as his successor trustee.
22 Further discovery is also required to determine if any retainer agreement signed between
23 RSC and Sheffield and the Jordans contained a provision for payment of attorneys’ fees and
24 costs in the event of disputes.
25 It is not appropriate to strike the prayer for attorney’s fees and costs at the pleading stage
26 because no discovery has yet been made in this case. Defendant’s arguments are more
27 appropriate for the trial on issue of facts and law.
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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1 The court in Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819 has
2 examined the test in Wutchumna Water Co.v. Bailey (1932) 216 Cal. 564, 573-574 [which held
3 that "an attorney is forbidden to do either of two things after severing his relationship with a
4 former client. He may not do anything which will injuriously affect his former client in any
5 manner in which he formerly represented him nor may he at any time use against his former
6 client knowledge or information acquired by virtue of the previous relationship".
7 California Rule of Professional Conduct 3-700 (A) (2) and (D), as well as ABA Model
8 Rule 1.16 (d), require that attorneys take reasonable steps to avoid prejudice to their clients’
9 rights when a representation ends, including giving the client due notice of termination,
10 allowing time for a client to get other counsel, and promptly returning unearned advance fees
11 and other papers and property of the client that the client has requested be returned.
12 A lawyer has an “other pecuniary interest adverse to a client” within the meaning of this
13 rule when the lawyer possesses a legal right to significantly impair or prejudice the client’s
14 rights or interests without court action. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 68 [14
15 Cal.Rptr.3d 58]
16 In this case RSC and Sheffield did both. As alleged in the Complaint (¶¶ 87-89, pages
17 26-27), they dropped Borimir and Virginia as clients when she refused to bend under pressure to
18 abandon revising and signing of the Sixth Amendment which would have left the main
19 residence and a rental income property to Nicole, and after they abandoned her as a client,
20 conspired with others to harm their former client and continued to act as their trustee and
21 appointing a successor trustee. RSC and Sheffield’s conduct was both in breach of their
22 contract, breach of fiduciary and in violation of the Rule of Professional Conduct. Under these
23 circumstances, Plaintiff’s prayer for attorneys’ fees is properly stated in the Complaint.
24 III.
25 DEFENDANT IS INCORRECT IN ASSERTING THAT NICOLE
26 IS NOT ENTITLED TO NON-ECONOMIC DAMAGES AGAISNT RSC
27 Defendant cites Holliday v. Jones (1989) 215 Cal.App.3d 102, 105 in arguing that in
28 action against an attorney, emotional distress (and other non-economic general damages) is not
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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1 recoverable. To the contrary, the Court in Holiday v. Jones stated:
2
“We reject the defendants' argument as to Holliday, however,
3
concluding that there is no reason to deny damages to a client,
4
including damages for emotional distress, proximately caused by
5
the attorney's negligence in failing to perform as a reasonably
6
competent defense lawyer in a criminal case. We therefore hold
7
that Holliday is entitled to the $400,000 he was awarded for the
8
emotional distress damages he suffered as a direct result of Jones's
9
professional negligence. As so modified we affirm the judgment.”
10
In another case cited by Defendant, Camenisch v. Superior Court (1996) 44 Cal.App.4th
11
1689, 1693-94, the court stated that:
12
13
“Damages for serious mental suffering may now be recovered
without physical injury or impact and depend upon whether a
14 defendant owes a duty of care. In deciding this issue of law, courts
will consider "`. . . "the foreseeability of harm to the plaintiff, the
15
degree of certainty that plaintiff suffered injury, the closeness of
16 the connection between the defendant's conduct and the injury
suffered, the moral blame attached to the defendant's conduct, the
17 policy of preventing future harm, the extent of the burden to
the defendant and consequences to the community of imposing a
18
duty to exercise care with resulting liability for breach, and the
19 availability, cost, and prevalence of insurance for the risk
involved.["]'" ( Christensen v. Superior Court (1991) 54 Cal.3d
20 868, 885-886 [ citation]; Macy's California, Inc. v. Superior Court,
supra,41 Cal.App.4th at p. 749.)”
21
22
Only at trial, after a due enquiry is made about Plaintiff’s economic losses, the degree
23
of emotional stress and the extent to which RSC/Sheffield should have foreseen their actions
24
might affect Nicole who was the intended beneficiary of Borimir and Virginia’s Trust, the
25
court will be able to make a determination as to Plaintiff’s entitlement to recover such
26
damages.
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
STRIKE
1 In addition, both the Thirteenth and Fourteenth Causes of Action for Dependent Adult
2 Emotional Abuse and Elder Emotional Abuse, whether the defendant is an attorney or not,
3 entitle Plaintiff to non-economic damages.
4
Finally, "[W]here a plaintiff sufficiently alleges intentional or affirmative misconduct by
5
an attorney or noneconomic injury resulting from an attorney's professional negligence,
6
recovery of emotional distress damages is permitted." Smith v. Super. Court, 10 Cal. App. 4th
7
1033, 1040 (1992). A legal malpractice plaintiff need not establish "physical impact or injury"
8
or "intentional wrongdoing or bad faith" in order to recover emotional distress
9
damages. Pleasant v. Celli, 18 Cal. App. 4th 841, 51 (1993), disapproved of on other grounds by
10
Adams v. Paul, 11 Cal. 4th 583 (1995).
11
12
IV.
13
FAILURE TO MEET AND CONFER
14
Price’s attorney Kenny Brooks did not specifically meet and confer on the merits of
15
filing a Motion to Strike on behalf of Sheffield’s personal representative. See Roshanian’s
16
Declaration.
17
V.
18
CONCLUSION
19
Moving Defendant’s Motion to Strike is frivolous and filed in bad faith causing
20
economic waste and must be denied.
21
22
Dated: 10/10/2023 Roshanian Payman,
y , PC
23
24 ___________________________
_________________
25
By: Tamineh Roshanian
Roshani
Attorney for Plaintiffs
Plaintiffs/Nicole Jordan
26
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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PROOF OF SERVICE
1
2
Nicole Jordan v. Rogers Sheffield & Campbell, et al.
Case No.: 23CV02702
3 I, Tamineh Roshanian, am a citizen of the United States and employed in the county aforesaid; I am
over the age of 18 years and not a party to the within action; my business address is 30721 Russell Ranch
4
Rd, Suite 140, Westlake Village, CA 91362.
5
I served the foregoing documents described as followed:
6
NICOLE JORDAN’S MEMORANDUM OF POINTS AND AUTHORITIES IN
7 OPPOSITION TO THE MOTION TO STRIKE OF SHEILA PRICE (AS
REPRESENTATIVE OF THE ESTATE OF HOMER SHEFFIELD)
8
9
Upon the interested parties in the action as follows:
10
KENNY C. BROOKS (SBN 254842)
11 MICHAEL MCCARTHY (SBN 89588)
NEMECEK & COLE
12 16255 Ventura Boulevard, Suite 300
Encino, California 91436-2300
13 Email: KBrooks@nemecek-cole.com
14
Rachel Van Mullem, County Counsel
15 Jennifer J. Lee, Deputy
COUNTY OF SANTA BARBARA
16 105 E. Anapamu Street, Suite 201
Santa Barbara, CA 93101
17 Email: jlee@countyofsb.org
18 _X__ BY ELECTRONIC MAIL [to individual person(s)]: By electronically transmitting the
document(s) listed above to the e-mail address(es) of the person(s) set forth on the attached
19
service list from the e-mail address mstoecker@nemecek-cole.com To my knowledge, the
20
transmission was reported as completed and without error. See, California Rules of Court,
Rule 2.25 l.
21
__X_ BY ELECTRONIC FILING AND SERVICE: I caused the document(s) listed above to
22 be filed and served via the Court's Electronic Filing System through an approved third party
vendor, and such document(s) were electronically served on the addressee(s) at the
23 email addresses noted above.
24
25
I declare under penalty of perjury that the forgoing is true and correct, and that this declaration
26
was executed 10/10/2023, at Westlake Village, California.
27 Tamineh Roshanian
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO
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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., ) DEFENDANT SHEILA PRICE (AS 16 ) REPRESENTATIVE OF HOMER DEFENDANTS. ) SHEFFIELD) 17 ) ) DATE: October 23, 2023 18 ) TIME: 10:00 a.m. ) DEPT: SB5 19 ) 20 ______________________________________) 21 PRELIMINARY STATEMENT 22 Defendant, SHEILA PRICE (AS REPRESENTATIVE OF HOMER SHEFFIELD) 23 (hereinafter “Defendant” or “Sheffield”) has filed a motion to strike the prayers for “general 24 damages according to proof”, “exemplary and punitive damages” and “Attorney’s Fees” in 25 pages 72-73 of the Complaint. There is no request to strike any individual allegations anywhere 26 in the body of the Complaint, nor is there any attempt to isolate the prayer to particular causes 27 of action. Therefore, if the allegations of any cause of action supports the prayer, the motion 28 should be denied. -1- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 I. 2 ARGUMENT 3 A. STANDARDS FOR MOTIONS TO STRIKE, INCLUDING THOSE 4 RELATING TO A PRAYER FOR PUNITIVE DAMAGES 5 Moving Defendant cites boilerplate case authority which support the notion that a 6 complaint may be subject to strike if it contains any “irrelevant or improper matter” inserted in 7 any pleading”. However, she fails to isolate or refer to specific allegations and causes of 8 actions in the Complaint which are connected to the prayers she is asking the court to strike. 9 The Complaint’s Prayer sections are not subject to strike in isolation on their own unless the 10 relevant causes of actions that give rise to said prayers for damages are subject to strike. 11 A pleading shall be liberally construed. (C.C.P., Section 452) 12 13 C.C.P. Section 437 provides: 14 “(a) The grounds for a motion to strike shall appear on the face of the 15 challenged pleading or from any matter of which the court is required 16 to take judicial notice....” 17 In addition, like the sustaining of a demurrer, unless the court concludes that an asserted 18 19 defect cannot be cured by amendment, if a motion to strike is granted, leave to amend shall be 20 liberally granted. (Board of Trustees of the Leland Stanford University v Superior Court 21 (Umana) (2007) 149 Cal. App. 4th 1154, 57 Cal. Rptr. 3d 755; also see: Velez v Smith (2006) 22 142 Cal. App. 4th 1154, 48 Cal. Rptr. 3d 642 [“‘Where the defect raised by a motion to strike or 23 24 by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to 25 give the plaintiff a chance to cure the defect in question.’ [Citations.] A pleading may be 26 stricken only upon terms the court deems proper [citation], that is, terms that are just. 27 [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 step of denial of the opportunity to correct the curable defect effectively terminates the 2 pleader's action.” (Citation)....” (Emphasis added)].) 3 In Perkins v Superior Court (1981) 117 Cal. App. 3d 1, 172 Cal. Rptr. 427, the reviewing 4 5 court held it was an abuse of discretion to strike references to exemplary damages, to the phrase 6 “wrongfully and intentionally”, the word, “retaliation”, and the words, “oppression, fraud and 7 malice”, from a complaint involving invasion of plaintiff’s privacy and interference with 8 business interests. The court stated that the Complaint provided notice to the Defendant of the 9 precise claims and adequately pleaded a cause of action supporting a punitive damage award. 10 11 The court stated: 12 “In order to plead a cause of action, the complaint must 13 contain a “statement of the facts constituting the cause 14 of action, in ordinary and concise language.” (Code 15 Civ.Proc., s 425.10, subd. (a).) While it is true that 16 17 pleading conclusions of law does not fulfill this 18 requirement, it has long been recognized that “(t)he 19 distinction between conclusions of law and ultimate 20 facts is not at all clear and involves at most a matter of 21 22 degree. (Citations.) For example, the courts have 23 permitted allegations which obviously included 24 conclusions of law and have termed them ‘ultimate 25 facts' or ‘conclusions of facts.’ ” (Burks v. Poppy 26 Construction Co., 57 Cal.2d 463, 473, 20 Cal.Rptr. 609, 27 28 370 P.2d 313.) What is important is that the -3- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 complaint as a whole contain sufficient facts to 2 apprise the Defendant of the basis upon which the 3 plaintiff is seeking relief. (Youngman v. Nevada 4 5 Irrigation Dist., 70 Cal.2d 240, 74 Cal.Rptr. 398, 449 6 P.2d 462; Semole v. Sansoucie, 28 Cal.App.3d 714, 7 104 Cal.Rptr. 897.) The stricken language must be 8 read not in isolation, but in the context of the facts 9 alleged in the rest of petitioner's complaint. Taken in 10 11 context, the words “wrongfully and intentionally” in 12 paragraph eight describe a knowing and deliberate state 13 of mind from which a conscious, disregard of 14 petitioner's rights might be inferred a state of mind 15 which would sustain an award of punitive damages. 16 17 (Taylor v. Superior Court, supra; G. D. Searle & Co. v. 18 Superior Court, 49 Cal.App.3d 22, 122 Cal.Rptr. 218.)” 19 (emphasis added) 20 Punitive and exemplary damages may be recovered for malice, which includes 21 22 despicable conduct carried on in conscious disregard of the rights or safety of another. (Civil 23 Code, Section 3294; also see: Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299 24 [164 Cal.Rptr.3d 112, 134] [“...As defined in the punitive damages statute, “[m]alice” 25 encompasses “despicable conduct which is carried on by the defendant with a willful 26 and conscious disregard of the rights and safety of others,”...”]; also see: Blegen v. Superior 27 28 Court (1981) 125 Cal.App.3d 959 [178 Cal.Rptr. 470] [whether defendant’s conduct was -4- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 despicable and in conscious disregard was a question of fact, even where Complaint did not use 2 the words willful or intentional, and the trial court’s order striking punitive damages from legal 3 malpractice complaint was reversed by writ].) 4 5 Punitive damages are available for the tort of intentional infliction of emotional 6 distress. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 7 1055 [90 Cal.Rptr.3d 453, 493]; also see: Angie M. v Superior Court (1995) 37 Cal. App. 4th 8 1217, 44 Cal. Rptr. 2d 197; Fletcher v Western National Life Ins. Co. (1970) 10 Cal. App. 3d 9 376, 89 Cal. Rptr. 78.) 10 A cause of action for fraud will support the prayer for punitive damages in and of itself, 11 i.e., “Fraud” for purposes of a punitives award means “an intentional misrepresentation, deceit, 12 or concealment of a material fact known to the defendant with the intention on the part of the 13 defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” 14 (Civil Code § 3294(c)(3)) 15 If a cause of action for fraud is pled, it is clear that punitive damages are available as a 16 matter of law. (E.g., see: 2 Cal. Real Est. Digest 3d Fraud and Deceit § 34.) 17 “Failure to state facts sufficient to state a cause of action is ground for general demurrer, 18 but not for a CCP § 436 motion to strike. [Ferraro v. Camarlinghi, supra, 161 CA4th at 529, 75 19 CR3d at 35]” (Cal. Prac. Guide Civ. Pro. Before Trial Ch. 7(I)-B, Section 7:173; Warren v. 20 Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24 [96 Cal.Rptr. 317] [Ground that counts 21 did not state facts sufficient to constitute cause of action was ground for demurrer but was not 22 proper ground for motion to strike. ]; Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509 [75 23 Cal.Rptr.3d 19] [Motion to strike filed by testator's natural children was not the proper vehicle to 24 challenge stepdaughter's complaint on denied probate claim asserting that testator's will violated 25 agreement between testator and testator's predeceased husband that husband's children were to 26 also share in testator's estate; motions to strike were authorized to challenge irrelevant, false, or 27 improper matter inserted in a pleading, or to strike all or portions of a pleading that were not 28 drawn in conformity with court rules or a court order, but testator's children were not challenging -5- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 stepdaughter's pleadings on such grounds and were instead alleging that stepdaughter failed to 2 state facts, which was a ground for a general demurrer.].) 3 4 II. NICOLE IS ENTITLED TO ATTORNEYS’S FEE UNDER CCP §1021.5 5 6 Moving Defendant argues that Nicole is not entitled to Attorney’s Fees under all causes 7 of action because there is no public benefit for such award of attorney’s fees. However, under 8 Code of Civil Procedure § 1021.5, a prevailing party is entitled to attorneys’ fees and costs even 9 if there is no contractual provision entitling the client to attorney’s fees and costs. Under § 10 1021.5 (a), if Plaintiffs prevails at trial, she will be entitled to file a motion for award od 11 attorneys’ fees and costs. The significant benefit to the public is to maintain the sanctity of the 12 attorney-client relationship and deter attorneys from harming the best interests of their clients or 13 stealing from them, in pursuit of self-interest, and deter law firms to not allow mentally 14 diminished attorney to continue practicing law. 15 Further discovery is required to determine (1) the extent Sheffield committed a 16 conspiracy to defraud, or at all, (1) dud he blatantly disregard the instructions of the Jordans to 17 amend the Trust documents in accordance with their wishes while Sheffield was still acting as 18 their Trust attorney, or (3) the extent of Sheffield’s awareness that his actions were harming 19 Nicole and her beneficiary interest in the Trust assets, or (4) did Sheffield have diminished 20 mental capacity such as early signs of dimentia when he represented the Jordans in 2018, or 21 when he act as their co-trustee 2020 when he appointed Mark Watson as his successor trustee. 22 Further discovery is also required to determine if any retainer agreement signed between 23 RSC and Sheffield and the Jordans contained a provision for payment of attorneys’ fees and 24 costs in the event of disputes. 25 It is not appropriate to strike the prayer for attorney’s fees and costs at the pleading stage 26 because no discovery has yet been made in this case. Defendant’s arguments are more 27 appropriate for the trial on issue of facts and law. 28 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 The court in Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819 has 2 examined the test in Wutchumna Water Co.v. Bailey (1932) 216 Cal. 564, 573-574 [which held 3 that "an attorney is forbidden to do either of two things after severing his relationship with a 4 former client. He may not do anything which will injuriously affect his former client in any 5 manner in which he formerly represented him nor may he at any time use against his former 6 client knowledge or information acquired by virtue of the previous relationship". 7 California Rule of Professional Conduct 3-700 (A) (2) and (D), as well as ABA Model 8 Rule 1.16 (d), require that attorneys take reasonable steps to avoid prejudice to their clients’ 9 rights when a representation ends, including giving the client due notice of termination, 10 allowing time for a client to get other counsel, and promptly returning unearned advance fees 11 and other papers and property of the client that the client has requested be returned. 12 A lawyer has an “other pecuniary interest adverse to a client” within the meaning of this 13 rule when the lawyer possesses a legal right to significantly impair or prejudice the client’s 14 rights or interests without court action. (See Fletcher v. Davis (2004) 33 Cal.4th 61, 68 [14 15 Cal.Rptr.3d 58] 16 In this case RSC and Sheffield did both. As alleged in the Complaint (¶¶ 87-89, pages 17 26-27), they dropped Borimir and Virginia as clients when she refused to bend under pressure to 18 abandon revising and signing of the Sixth Amendment which would have left the main 19 residence and a rental income property to Nicole, and after they abandoned her as a client, 20 conspired with others to harm their former client and continued to act as their trustee and 21 appointing a successor trustee. RSC and Sheffield’s conduct was both in breach of their 22 contract, breach of fiduciary and in violation of the Rule of Professional Conduct. Under these 23 circumstances, Plaintiff’s prayer for attorneys’ fees is properly stated in the Complaint. 24 III. 25 DEFENDANT IS INCORRECT IN ASSERTING THAT NICOLE 26 IS NOT ENTITLED TO NON-ECONOMIC DAMAGES AGAISNT RSC 27 Defendant cites Holliday v. Jones (1989) 215 Cal.App.3d 102, 105 in arguing that in 28 action against an attorney, emotional distress (and other non-economic general damages) is not -7- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 recoverable. To the contrary, the Court in Holiday v. Jones stated: 2 “We reject the defendants' argument as to Holliday, however, 3 concluding that there is no reason to deny damages to a client, 4 including damages for emotional distress, proximately caused by 5 the attorney's negligence in failing to perform as a reasonably 6 competent defense lawyer in a criminal case. We therefore hold 7 that Holliday is entitled to the $400,000 he was awarded for the 8 emotional distress damages he suffered as a direct result of Jones's 9 professional negligence. As so modified we affirm the judgment.” 10 In another case cited by Defendant, Camenisch v. Superior Court (1996) 44 Cal.App.4th 11 1689, 1693-94, the court stated that: 12 13 “Damages for serious mental suffering may now be recovered without physical injury or impact and depend upon whether a 14 defendant owes a duty of care. In deciding this issue of law, courts will consider "`. . . "the foreseeability of harm to the plaintiff, the 15 degree of certainty that plaintiff suffered injury, the closeness of 16 the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the 17 policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a 18 duty to exercise care with resulting liability for breach, and the 19 availability, cost, and prevalence of insurance for the risk involved.["]'" ( Christensen v. Superior Court (1991) 54 Cal.3d 20 868, 885-886 [ citation]; Macy's California, Inc. v. Superior Court, supra,41 Cal.App.4th at p. 749.)” 21 22 Only at trial, after a due enquiry is made about Plaintiff’s economic losses, the degree 23 of emotional stress and the extent to which RSC/Sheffield should have foreseen their actions 24 might affect Nicole who was the intended beneficiary of Borimir and Virginia’s Trust, the 25 court will be able to make a determination as to Plaintiff’s entitlement to recover such 26 damages. 27 28 -8- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 In addition, both the Thirteenth and Fourteenth Causes of Action for Dependent Adult 2 Emotional Abuse and Elder Emotional Abuse, whether the defendant is an attorney or not, 3 entitle Plaintiff to non-economic damages. 4 Finally, "[W]here a plaintiff sufficiently alleges intentional or affirmative misconduct by 5 an attorney or noneconomic injury resulting from an attorney's professional negligence, 6 recovery of emotional distress damages is permitted." Smith v. Super. Court, 10 Cal. App. 4th 7 1033, 1040 (1992). A legal malpractice plaintiff need not establish "physical impact or injury" 8 or "intentional wrongdoing or bad faith" in order to recover emotional distress 9 damages. Pleasant v. Celli, 18 Cal. App. 4th 841, 51 (1993), disapproved of on other grounds by 10 Adams v. Paul, 11 Cal. 4th 583 (1995). 11 12 IV. 13 FAILURE TO MEET AND CONFER 14 Price’s attorney Kenny Brooks did not specifically meet and confer on the merits of 15 filing a Motion to Strike on behalf of Sheffield’s personal representative. See Roshanian’s 16 Declaration. 17 V. 18 CONCLUSION 19 Moving Defendant’s Motion to Strike is frivolous and filed in bad faith causing 20 economic waste and must be denied. 21 22 Dated: 10/10/2023 Roshanian Payman, y , PC 23 24 ___________________________ _________________ 25 By: Tamineh Roshanian Roshani Attorney for Plaintiffs Plaintiffs/Nicole Jordan 26 27 28 -9- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE PROOF OF SERVICE 1 2 Nicole Jordan v. Rogers Sheffield & Campbell, et al. Case No.: 23CV02702 3 I, Tamineh Roshanian, am a citizen of the United States and employed in the county aforesaid; I am over the age of 18 years and not a party to the within action; my business address is 30721 Russell Ranch 4 Rd, Suite 140, Westlake Village, CA 91362. 5 I served the foregoing documents described as followed: 6 NICOLE JORDAN’S MEMORANDUM OF POINTS AND AUTHORITIES IN 7 OPPOSITION TO THE MOTION TO STRIKE OF SHEILA PRICE (AS REPRESENTATIVE OF THE ESTATE OF HOMER SHEFFIELD) 8 9 Upon the interested parties in the action as follows: 10 KENNY C. BROOKS (SBN 254842) 11 MICHAEL MCCARTHY (SBN 89588) NEMECEK & COLE 12 16255 Ventura Boulevard, Suite 300 Encino, California 91436-2300 13 Email: KBrooks@nemecek-cole.com 14 Rachel Van Mullem, County Counsel 15 Jennifer J. Lee, Deputy COUNTY OF SANTA BARBARA 16 105 E. Anapamu Street, Suite 201 Santa Barbara, CA 93101 17 Email: jlee@countyofsb.org 18 _X__ BY ELECTRONIC MAIL [to individual person(s)]: By electronically transmitting the document(s) listed above to the e-mail address(es) of the person(s) set forth on the attached 19 service list from the e-mail address mstoecker@nemecek-cole.com To my knowledge, the 20 transmission was reported as completed and without error. See, California Rules of Court, Rule 2.25 l. 21 __X_ BY ELECTRONIC FILING AND SERVICE: I caused the document(s) listed above to 22 be filed and served via the Court's Electronic Filing System through an approved third party vendor, and such document(s) were electronically served on the addressee(s) at the 23 email addresses noted above. 24 25 I declare under penalty of perjury that the forgoing is true and correct, and that this declaration 26 was executed 10/10/2023, at Westlake Village, California. 27 Tamineh Roshanian 28 -11- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PRICE’S MOTION TO STRIKE