Preview
Electronically Filed
Poliquin Cz DeGrave I.LP 10/26/2020 12:04 PM
Mark P. Poliquin, SBN 94682 Superior Court of California
Jonathan A. Falcioni, SBN 293405 County of Stanislaus
22972 Mill Creek Drive Clerk of the Court
Laguna Hills, CA 92653 By: Nicole Nelson, Deputy
Tel: (949) 716-8230
Fax: (949) 716-4750 $90 PD
Email: m oli uin@ dattorne s.com
Attorneys for Defendants, ALEJANDRO H. HERRERA, an individual; EVAN HESS, an
individual; HERRERA LA W PARTNERS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF STANISLAUS
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) Case No. CV-20-001927
)
12 Plaintiff, ) Hon. Marie S. Silveira
) Judge for all Purpose
13 vs. ) Dept. 21
14 ALE JANDRO H. HERRERA, an individual; ) NOTICE OF MOTION AND MOTION TO
LEE HESS, an individual; EVAN HESS, an ) STRIKE PORTIONS OF PLAINTIFF'S
15 individual; HESS, HESS k HERRERA, P.C., ) FIRST AMENDED COMPLAINT;
a California professional corporation; ) MEMORANDUM OF POINTS AND
16 HERRERA, CLIFTON & HESS, APC, A ) AUTHORITIES; DECLARATION OF
California professional corporation; ) JONATHAN A. FALCIONI
17 HERRERA LAW PARTNERS, a California )
business entity of unknown form; and DOES 1 ) DATE: DECEMBER 2, 2020
18 through 100, inclusive ) TIME: 8:30 A.M.
) DEPT: 21
19 Defendants. )
)
20 ) Complaint Filed: April 1, 2020
) Trial Date: Not set
21 )
23 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that on December 2, 2020 at 8:30 a.m., or as soon thereafter
as the matter may be heard in Department 21 of the above-entitled Court located at 801 10'"
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Street, Modesto, California 95354 Defendants, ALEJANDRO H. HERRERA, an individual;
EVAN HESS, an individual; and HERRERA LAIVv PARTNERS will move the Court for an
order striking the following language from the First Amended Complaint on file herein:
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MOTION TO STRIKE
1. Page 6 line 24 through page 7 line 1: "Defendants have acted oppressively,
maliciously, and fraudulently, with a conscious disregard of Plaintiff s rights,
with the intention of causing, or recklessly disregarding the probability of
causing, injury to Plaintiff, including emotional injury. In so acting, Defendants
intended to and did vex, annoy, injure, and harass Plaintiff and subject him to a
cruel and unjust hardship, thereby entitling his [sic] to punitive and/or treble
damages as a result of said conduct as allowed by law and to be proven at trial."
2. Page 9 lines 9 through I 3:"Defendants have acted oppressively, maliciously, and
fraudulently, with a conscious disregard of Plaintiff's rights, with the intention
10 of causing, or recklessly disregarding the probability of causing, injury to
Plaintiff, including emotional injury. In so acting, Defendants intended to and
12 did vex, annoy, injure, and harass Plaintiff and subject him to a cruel and unjust
13 hardship, thereby entitling his fsic] to punitive and/or treble damages as a result
of said conduct as allowed by law and to be proven at trial."
15 3. Page II lines 20 through 24: "Defendants have acted oppressively, maliciously,
16 and fraudulently, with a conscious disregard of Plaintiff's rights, with the
intention of causing, or recklessly disregarding the probability of causing,
1S injury to Plaintiff, including emotional injury. In so acting, Defendants intended
to and did vex, annoy, injure, and harass Plaintiff and subject him to a cruel and
20 unjust hardship, thereby entitling his [sic] to punitive and/or treble damages as a
21 result of said conduct as allowed by law and to be proven at trial."
22 4. Page 12, Prayer: "For general damages in an amount yet unknown, but in excess
23 of the minimum jurisdictional limit of this Court"
24 5. Page 12, Prayer: "future general and"
25 6. Page 12, Prayer: "punitive and/or exemplary damages as to the 3', 4'", and 5'"
26 causes of action"
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MOTION TO STRIKE
7. Page 12, Prayer: "for attorney's fees and costs of suit pursuant to a contract
between the parties that allows for attorneys fees and costs to the prevailing
party"
This motion is based upon this Notice of Motion, the attached Memorandum of Points
and Authorities, and the papers and records on file herein, as well as such oral and documentary
evidence as may be presented at the hearing on this motion,
8 DATED: October 26, 2020 Poliquin dk DeGrave LLP
10 BY: + P. Poli uin,
nathan A. Falcioni,
'Attorneys for Defendants,
12 Alejandro H. Herrera, Evan Hess,
and Herrera Law Partners
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MOTION TO STRIKE
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
On April 1, 2019 Plaintiff, Steven Duden, filed a Complaint in this case against three
individual defendants and three business entity defendants, alleging causes of action for
Professional Negligence, Breach of Fiduciary Duty, and Fraud-Concealment arising out of
Defendants'lleged legal representation of Plaintiff in a medical malpractice action (the
"Underlying Case" ). The primary claim in the present case appears to be that the defendants did
not resolve Plaintiff s medical malpractice case or file a lawsuit prior to the expiration of the
statute of limitations and Defendants did not timely advise Plaintiff that Lee Hess of Hess, Hess
10 4 Herrera disassociated from the firm. These moving Defendants filed a demurrer and a motion
to strike portions of the Complaint and Plaintiff thereafter filed a First Amended Complaint.
These moving Defendants bring the instant motion on the grounds that certain damages claimed
13 in the First Amended Complaint are inappropriately sought by Plaintiff.
AUTHORITY FOR MOTION TO STRIKE
16 Code of Civil Procedure section 435, subdivision (b)(1), provides, in relevant part, "Any
party, within the time allowed to respond to a pleading may serve and file a notice of motion to
18 strike the whole or any part thereof...."
19 Code of Civil Procedure section 436 states
20 "The court may, upon a motion made pursuant to Section 435, or at any
21 time in its discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any
pleading.
24 (b) Strike out all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the
court.
27 Additionally, Code of Civil Procedure section 431.10, subdivision (b), provides in
28 pertinent part:
MOTION TO STRIKE
"An immaterial allegation in a pleading is any of the following: [tt] (1) An
allegation that is not essential to the statement of a claim or defense. [tt] (2) An
allegation that is neither pertinent to nor supported by any otherwise sufficient
claim or defense. [tt] (3) A demand for judgment requesting relief not supported
by the allegations of the complaint or cross-complaint."
Moreover, "[a] motion to strike can be used to attack legal conclusions in a pleading,"
(Weil k Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (the Rutter Group 2011) p. 7(I)-68,
$ 7:179.) Also, allegations of wrongf'ul, malicious, and illegal conduct are conclusions of the
pleader and irrelevant matter subject to a motion to strike. (Ibid.) Finally, "[a] motion to strike
10 can be used to attack claims for damages that are not supported by the cause of action pleaded."
(Id. at p. 7(I)-69, $ 7:182, italics in original.)
12 Based upon the foregoing, Plaintiff's uncorroborated conclusions e.g,, that Defendant
13 acted "oppressively, maliciously, and fraudulently...," should be stricken by the court. The
14 allegations are conclusions of the pleader and do not include sufficient facts to substantiate an
15 award for exemplary damages within the meaning of Civil Code section 3294. In addition,
Plaintiff cites no authority that would allow "treble" damages as alleged in the First Amended
17 Complaint
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PLAINTIFF DID NOT PLEAD SUFFICIENT FACTS TO ENTITLE HIM TO
20 RECOVER EXEMPLARY DAMAGES
21 " '... As well stated in Flyer s Body Profit Sharing Plan Ticor
Shop v. Title Ins. Co.
22 (1986) 185 Cal.App.3d 1149, 1154, [ ] ...:"[A] breach of a fiduciary duty alone without malice,
23 fraud or oppression does not permit an award of punitive damages. [Citation.] ...Punitive
24 damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant
25 violation of law or policy. The mere carelessness or ignorance of the defendant does not justify
the imposition of punitive damages.... Punitive damages are proper only when the tortious
27 conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent
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MOTION TO STRIKE
citizens should not have to tolerate."'Citation.]" (American Ai~lines, Inc. v. Sheppard, Mullin,
Richter d'cHampton (2002) 96 Cal.App.4th 1017, 1051,)
Thus, in order to recover exemplary damages, Plaintiff must establish he is entitled to
exemplary damages pursuant to Civil Code section 3294.
"In order to state a prima facie claim for punitive damages, a complaint must set forth
the elements as stated in the general punitive damage statute, Civil Code section 3294.
[Citation.] These statutory elements include allegations that the defendant has been guilty of
oppression, fraud or malice. [Citation.] Malice is defined in the statute as conduct intended by
the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the
10 defendant with a willful and conscious disregard for the rights or safety of others. [Citations.]
Oppression means despicable conduct that subjects a person to cruel and unjust hardship in
12 conscious disregard of that person's rights. [Citation.] Fraud is an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant with the
14 intention on the part of the defendant of thereby depriving a person of property or legal rights or
15 otherwise causing injury. [Citation.]" (Turman v. Turning Point of Cent. California, Inc. (2010)
16 191 Cal.App.4th 53, 63.)
While the Complaint claims that Defendants acted with malice, oppression, and fraud,
18 these are merely conclusions without a factual basis. A fair reading of the factual allegations in
the Complaint do not support the conclusions reached by Plaintiff. At most, the allegations
20 sound in simple negligence. The substantive complaints, again, are that Defendants missed a
21 statute of limitations and failed to timely disclose that Lee Hess of Hess, Hess 4 Herrera
disassociated from the firm.
23 Mere negligence, "even gross negligence is not sufficient to justify an award of punitive
24 damages. [Citations.]" (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) There are
insufficient factual allegations to substantiate Plaintiff's contention that Defendants acted with
26 oppression, fraud and/or malice with the intent to cause Plaintiff harm. This is true for all four
causes of action in the First Amended Complaint.
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MOTION I'0 STRIKE
Absent any facts to support Plaintiff s allegations, the claim for exemplary damages and
the language supporting those claims should be stricken.
Plaintiff's Constructive Fraud cause of action cannot support a claim for punitive
damages. Civil Code $ 1573 states: Constructive fraud consists: {1) In any breach of duty which,
without and actually fraudulent intent, gains an advantage to the person in fault, or any one
claiming under him, by misleading another to his prejudice, or to the prejudice of any one
claiming under him; or, (2) In any such act or omission as the law specially declares to be
fraudulent, without respect to actual fraud." (emphasis added). By definition, Constructive
Fraud cannot support a claim for punitive damages as it isa tort arising out of a breach of duty
without fraudulent intent and therefore cannot satisfy the higher culpability requirements
outlined Civil Code )3294.
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13 THE PRAYER FOR ATTORNEY'S FEES AND GENERAL DAMAGES ARE
14 IMPROPER
15 Emotional distress damages are not generally recoverable in legal malpractice cases
16 where the misconduct only causes the client economic injury. See e.g., Merenda v. Superior
17 Court, (1992) 3 Cal.App.4'; Smith v. Superior Court, {1992) 10 Cal.App. 4'" 1033. In
1S addition, plaintiff cannot recover attorney's fees incurred in prosecuting a legal malpractice
claim. This is so even if there is a prevailing party attorney's fees provision in the fee agreement
20 between plaintiff and the negligent attorney. (Santisas v. Goodin (1998) 17 Cal.4th 599, 615.)
21 Here, the general prayer for relief improperly includes claims for general damages and
22 attorney's fees without indicating what cause(s) of action Plaintiff is seeking such relief. These
23 moving Defendants contend that Plaintiff is not entitled to general damages or attorney's fees
under the law and such claims should be stricken from the Complaint. Further, these Moving
Defendants are unaware of any contract between Plaintiff and any Defendant that allows the
26 prevailing party to recover attorney's fees and costs.
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2S
MOTION TO STRIKE
CONCLUSION
Based on the foregoing, it is respectfully requested that the Court grant the Motion to
Strike in itsentirety, striking all language related to punitive damages, general damages, and
attorney's fees from the First Amended Complaint, as specifically set forth in the Notice
above.
DATED: October 26, 2020 Poliquin dt DeGrave LLP
ark P. iquin
10 ~ onathan A. Falcioni,
Attorneys for Defendants,
Alejandro H. Herrera, Evan Hess,
and Herrera Lavv Partners
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MOTION TO STRIKE
DECLARATION OF JONATHAN A. FALCIONI
I, Jonathan A. Falcioni, declare and state as follows:
1. I am an attorney at law duly licensed to practice before all of the courts of the
State of California and am a member of the law firm of Poliquin & De Grave LLP, attorneys of
record for defendants Alejandro H. Herrera, Evan Hess and Herrera Law Partners.
2. I am thoroughly familiar with the content of this Declaration. The contents of
this Declaration are based upon my personal knowledge and work conducted on this matter
since the matter was assigned to our firm for handling.
3. If called upon as a witness, I would and could competently testify to the matter
stated in this Declaration.
4. This Declaration is in support of the Motion to Strike portions of the First
Amended Complaint and is made to establish compliance with Code of Civil Procedure section
13 435.5.
5. On or about October 21, 2020 I called Plaintiff's counsel's office to attempt to
15 meet and confer with Plaintiff's counsel prior to filing the instant motion. I was advised that
16 Plaintiff s counsel was engaged in trial at the time. Accordingly, I sent a meet and confer email
17 outlining the general substance and grounds of the Motion to Strike. As of the time of filing this
18 Motion, I have not heard back from Plaintiff's counsel. Accordingly, I am filing the instant
19 Motion.
20 Ideclare, under penalty of perjury, that the foregoing is true and correct.
21 Executed this 26'" day of October, 2020 at Laguna Hills, California
23 Jona n A. alcioni
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MOTION TO STRIKE
PROOF OF SERVICE
I am employed in the County of Orange, State of California. I am over the age of 18 and
not a party to the within action; my business address is 22972 Mill Creek Drive, Laguna Hills,
California 92653.
On October 26, 2020, I served the foregoing document(s) described as:
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S
FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF JONATHAN A. FALCIONI
on the interested parties in this action by placing the originals X true copies thereof
enclosed in sealed envelopes addressed as follows: (see attached listing)
BY MAIL As follows: I am "readily familiar" with the firm's practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with the U.S.
Postal Service on that same day with postage thereon fully prepaid at Laguna Hills, California
in the ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one day after
date of deposit for mailing in affidavit.
BY FAX I transmitted from a facsimile transmission machine whose telephone number
is 949/716-4750 the following documents described above to: whose facsimile transmission
machine telephone number is . The above-described transmission was reported as
complete without error by a transmission report issued by the facsimile transmission machine
upon which the said transmission was made immediately following the transmission. A true
and correct copy of the said transmission report is attached hereto and incorporated herein by
this reference.
BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices
ofthe addressee.
BY OVERNIGHT MAIL deposited in a box or other facility regularly maintained by
FEDERAL EXPRESS, or delivered to an authorized courier or driver authorized by FEDERAL
EXPRESS to receive documents, in an envelope or package designated by FEDERAL
EXPRESS.
X BY ELECTRONIC MAIL:Based on a court order or an agreement of the parties to
accept service by electronic transmission, Icaused the documents to be sent to the persons atthe
electronic notification listed herein on this date. I did not receive within a reasonable time after
the transmission, any electronic message or other indication that the transmission was
unsuccessful.
Executed on October 26, 2020, at Laguna Hills, California.
X (State) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Kelly Russell
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MOTION TO STRIKE
SERVICE LIST
Jakrun S. Sodhi, Esq.
Ameet S. Birring, Esq.
Sodhi Law Group
1301 K Street, Suite F
Modesto, CA 95354
Tel: 209/900-8200
Fax: 209/900-8205
Ameet sodhilaw rou .com
Jak sodhilaw rou .com
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MOTION TO STRIKE