Judge: Armen Tamzarian, Case: 21STCV32347, Date: 2023-03-10 Tentative Ruling

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Case Number: 21STCV32347    Hearing Date: March 10, 2023    Dept: 52

Defendants Steven C. Huskey and Epport Richman & Robbins LLP’s Motion to Strike Portions of First Amended Complaint

Defendants Steven C. Huskey and Epport Richman & Robbins LLP move to strike three portions of plaintiff Kamran Broukhim’s first amended complaint.

A plaintiff may only recover punitive damages when the defendant is “guilty of oppression, fraud, or malice.”  (Civ. Code, § 3294(a).)  Courts may strike allegations related to punitive damages where the facts alleged cannot support recovery of punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)  Conclusory allegations are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)    

Plaintiff does not allege sufficient facts to constitute oppression, fraud, or malice.  Plaintiff contends the first amended complaint meets the standard for malice.  “ ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294(c)(1).) 

The first amended complaint makes only conclusory allegations that defendants intended to injure plaintiff.  Its only allegations of intent are included in the form PLD-PI-001(3): The heading “intentional tort” and the statement, “By the following acts or omissions to act, defendant intentionally caused the damage to plaintiff.”  (FAC, pp. 5-6.)  Plaintiff does not allege factual allegations that defendants intended to harm him.

Plaintiff argues the first amended complaint alleges sufficient facts for malice via nonintentional despicable conduct.  “[A] conscious disregard of the safety of others may constitute malice …  .  [T]he plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896 (Taylor).)

Plaintiff’s reliance on Taylor is misplaced for two reasons.  First, that case concerned especially egregious and dangerous conduct: drunk driving.  “[O]ne who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’ ”  (Taylor, supra, 24 Cal.3d at p. 899.)

Second, Taylor preceded the amendment to the standard of malice requiring that nonintentional conduct must be “despicable.”  In Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 330, the court recognized “the increased statutory burden imposed by the 1987 amendment.  By that statutory change, plaintiffs were also required to prove, by clear and convincing evidence, that [defendants] had engaged in despicable conduct which was carried on in wilful and conscious disregard of their rights.”  The trial court erroneously instructed the jury on malice by omitting including the requirement of “despicable conduct.”  (Id. at pp. 330-331.)  The Court of Appeal noted, “[W]e can not assume that the Legislature did not intend to make an important change by its addition of the requirement of ‘despicable conduct’ as an alternative, in the proof of malice, to conduct which is intended to cause injury.”  (Id. at p. 331.)

Plaintiff’s factual allegations do not rise to the level of despicable conduct.  Plaintiff seeks damages from his former attorneys who represented him in a transaction to sell his medical practice.  Plaintiff alleges defendants concealed various facts regarding their legal representation: (1) the handling attorney’s lack of experience, (2) defendants’ attorney/client relationship with the broker in the transaction, (3) they did not investigate the buyer, (4) the medical license contract was illegal, and (5) they could have drafted the sales contract to “provide Plaintiff with a method for immediate relief.”  (FAC, pp. 5-8.)  In substance, plaintiff alleges defendants concealed facts that demonstrate their negligent legal representation.  That does not amount to despicable conduct carried on with a willful and conscious disregard of plaintiff’s rights or safety.    

 Plaintiff relies on cases with egregious conduct the defendant knew could lead to serious physical injuries. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1300-1301 [failure to warn of known dangers of asbestos]; Taylor, supra, 24 Cal.3d at pp. 899-900 [drunk driving].)  The first amended complaint makes no such allegations.

Disposition

            Defendants Steven C. Huskey and Epport Richman & Robbins LLP’s motion to strike portions of plaintiff’s first amended complaint is granted with 20 days’ leave to amend.

The court hereby strikes the following portions of the first amended complaint: (1) the prayer for “punitive damages” (p. 3, ¶ 14(a)(2)); (2) “By the following acts or omissions, defendant intentionally caused the damage to plaintiff on (date): On or about 2018 to 2020 at (place): LOS ANGELES COUNTY California” (p. 5, ¶ IT-1); and (3) “Plaintiff alleges defendant was guilty of malice[,] fraud[,] [and] oppression as defined in Civil Code section 3294, and plaintiff should recover, in addition to actual damages, damages to make an example of and to punish defendant” (p. 7, ¶ EX-1).