Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01115, Date: 2023-09-29 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01115, Date: 2023-09-29 Tentative Ruling

Case Number: 23GDCV01115 Hearing Date: November 9, 2023 Dept: E

Case Name: KEVORK PANJARJIAN; SALBI PANJARJIAN; RUBY PANJARJIAN v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB; and DOES 1-100, inclusive

Case No: 23GDCV01115
Continued Hearing Date: 11/9/2023 – 11:00am

Trial Date: UNSET

[TENTATIVE RULING ON DEMURRER]

RELIEF REQUESTED
Defendant, Interinsurance Exchange of the Automobile Club (“the Exchange”) will and hereby generally and specially demur to plaintiffs Kevork Panjarjian, Salbi Panjarjian, and Ruby Panjarjian’s Complaint, pursuant to CCP §430.10 on the grounds that the Third and Fourth Causes of Action fail to state a claim against the Exchange.

For the reasons set out below, the demurrer is OVERRULED IN PART, and GRANTED IN PART.

PROCEDURAL

Moving Party: Defendant, Interinsurance Exchange of the Automobile Club (Defendant or the Exchange)

Responding Party: Plaintiffs, Kevork Panjarjian, Salbi Panjarjian, and Ruby Panjarjian

BACKGROUND
Plaintiffs, Kevork Panjarjian, Salbi Panjarjian, and Ruby Panjarjian, filed a Complaint on 06/01/2023 against Defendant, Interinsurance Exchange of the Automobile Club, alleging four causes of action: (1) Breach of Contract, (2) Tortious Breach of Insurance Contract, (3) Breach of the Implied Covenant of Good Faith and Fair Dealing, and (4) Intentional Infliction of Emotional Distress.

In summary, Plaintiffs’ Complaint alleges the following: (1) Plaintiffs and Defendant had a written insurance agreement where Defendant was to insure the subject 2017 Toyota Camry for property damage, uninsured motorist coverage, and general liability (Compl ¶29.); (2) The Policy provided coverage for collision damage along with uninsured motorist coverage to indemnify Plaintiffs against bodily injuries resulting from an automobile accident arising from the negligence of an uninsured hit and run driver (Compl. ¶¶30-31.); (3) On or about April 11, 2021, while the Policy was in effect, Plaintiffs’ vehicle was in an automobile accident (Compl. ¶33.); (4) Plaintiff requested Defendant perform its obligations under the policy and pay out on Plaintiffs’ uninsured motorist claim related to their bodily injuries (Compl. ¶35.); and (5) Defendant has refused and continues to refuse to pay Plaintiffs for their bodily injuries pursuant to the terms of the policy (Compl. ¶37.).

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
Third Cause of Action – Breach of the Implied Covenant of Good Faith and Fair Dealing
Defendant demurs to the third cause of action for failure to state facts sufficient to constitute a cause of action and because it is duplicative of the second cause of action. Defendant’s Notice on page 3 is confusing. Defendant states it is demurring to the third cause of action for “Tortious Breach of Insurance Contract.”

However, the third cause of action in the Complaint is Breach of Implied Covenant of Good Faith and Fair Dealing, and the second cause of action is Tortious Breach of Insurance Contract. Since the Notice on page 1 mentions the demurrer pertains to the third and fourth causes of action, the Court will assume that Defendant intended to refer to the third cause of action as Breach of Implied Covenant of Good Faith and Fair Dealing.

In Opposition, Plaintiffs concede that their second cause of action for Tortious Breach of Insurance Contract is duplicative of their third cause of action for Breach of Implied Covenant of Good Faith and Fair Dealing. Further in Opposition, Plaintiffs state they agree to amend their Complaint to withdraw their second cause of action for Tortious Breach of Insurance Contract. (Oppo. p.5.) Defendant provided no argument as to the third cause of action failing to state sufficient facts. The only argument asserted by Defendant in moving papers was that the third cause of action was duplicative of the second cause of action.

TENTATIVE RULING – THIRD CAUSE OF ACTION – BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
Defendant’s demurrer to the third cause of action for breach of implied covenant of good faith and fair dealing is OVERRULED. The issue brought up by Defendant – that the third cause of action is duplicative of the second cause of action – appears to be moot as Plaintiffs agreed to withdraw their second cause of action. Therefore, Defendant’s argument that the third cause of action is duplicative of the second is no longer at issue.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike 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. (Code Civ. Proc. § 436(b).)

On the Court’s own motion, since Plaintiffs conceded that the second and third causes of action were duplicative, and since Plaintiffs agreed to withdraw the second cause of action, the Court orders the second cause of action for tortious breach of insurance contract to be stricken.

Fourth Cause of Action – Intentional Infliction of Emotional Distress

As stated in Christensen v. Superior Court:

The elements of the tort of intentional infliction of emotional distress are: “ ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....’ Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, 185 Cal.Rptr. 252, 649 P.2d 894.) The defendant must have engaged in “conduct intended to inflict injury or engaged in with the realization that injury will result.” (Id. at p. 210, 185 Cal.Rptr. 252, 649 P.2d 894.)

(Christensen v. Superior Court 54 Cal.3d 868, 903.)

Element 1
As stated above from Christensen, element one for intentional infliction of emotional distress requires the allegation of “‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress.” Further, as stated in Christensen, the defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.

Defendant argues that whether or not conduct is “outrageous” can best be determined by considering holdings in earlier cases dealing with particular types of conduct. Defendant cites to Soto v. Royal Globe Ins. Co. (1986) 184 Cal.App.3d 420, 430 which states, “Turning next to the alleged intentional infliction of emotional distress on plaintiff family members, such a cause of action can be maintained only when the conduct of defendant has been so outrageous that no person in a civilized society should be required to bear it. Such a rule is of course easy to state but only can be applied with certainty in light of the holdings in decided cases which have determined that the questioned conduct before them was or was not outrageous.”

Defendant also argues that delay and denial of insurance claims is not sufficiently outrageous to state a cause of action for IIED. Defendant cites to Coleman v. Republic Indem. Ins. Co. of Calif. (2005) 132 Cal.App.4th 403, 417.

The Court finds Defendant’s arguments persuasive. As the Reply notes, Coleman stated “California courts have held that delay or denial of insurance claims is not sufficiently outrageous to state a cause of action for intentional infliction of emotional distress.”

The Court need not address the other two elements because it finds Defendant’s argument persuasive as to the first element.

TENTATIVE RULING – FOURTH CAUSE OF ACTION – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Defendant’s demurrer to the fourth cause of action for intentional infliction of emotional distress is GRANTED.

TENTATIVE RULING ON MOTION TO STRIKE

RELIEF REQUESTED
Defendant, Interinsurance Exchange of the Automobile Club will and hereby does move to strike the following allegations of punitive damages in the second, third, and fourth causes of action against the Exchange from plaintiffs Kevork Panjarjian, Salbi Panjarjian, and Ruby Panjarjian’s complaint on the grounds that the pleading fails to state facts sufficient to support an award of such damages (See Code of Civil Procedure (“CCP”) sections 435, 436):

1. Page 9:11-15: “52. In committing the acts described in this complaint, Defendant AAA and DOES 1-100 acted in conscious disregard of the rights of Plaintiffs, and it is guilty of malice, oppression, and fraud. Defendant AAA’s and DOES 1-100’s conduct warrants an assessment of punitive damages in an amount appropriate to punish AAA and DOES 1-100 and deter others from engaging in similar wrongful conduct.”

2. Page 11:22-24” “65. Defendant AAA’s and DOES 1-100’s conduct warrants an assessment of punitive damages in an amount appropriate to punish Defendant AAA and deter others from engaging in similar wrongful conduct.”

3. Page 12:25-28” “72. The conduct of Defendant AAA and Does 1-100, and each of them, as alleged above was intentional, reckless, wanton, oppressive, and malicious and done for the purpose of causing Plaintiffs to suffer humiliation, mental anguish, and emotional and physical distress, thus justifying the awarding of exemplary and punitive damages against this Defendant.”

4. Page 13: “6. For exemplary and punitive damages on the Second, Third, and Fourth Causes of action in an amount according to proof at trial.”

The Exchange will and hereby does also move to strike the following allegations of emotional distress damages and attorney’s fees in the first cause of action against the Exchange from plaintiffs Kevork Panjarjian, Salbi Panjarjian, and Ruby Panjarjian’s complaint on the grounds that the pleading fails to state facts sufficient to support an award of such damages (See Code of Civil Procedure (“CCP”) sections 435, 436):

5. Page 6:22-24: “38 … mental turmoil, financial distress, anxiety, emotional suffering, and mental anguish ….”

6. Page 13: “3. For reasonable attorney’s fees according to proof.”

7. Page 13: “5. For general damages for mental suffering and emotional distress.”

For the reasons set out below, the motion to strike will be GRANTED IN PART and DENIED IN PART.

PROCEDURAL

Moving Party: Defendant, Interinsurance Exchange of the Automobile Club (Defendant or the Exchange)

Responding Party: Opposition filed.

Legal Standard Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike 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. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

Further, CCP §431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(CCP §431.10(a)-(c).)

ANALYSIS

Portions 5, 6, and 7
Defendant moves to strike the following Portions of Plaintiffs’ Complaint:

Portion 5 - Page 6:22-24: “38 … mental turmoil, financial distress, anxiety, emotional suffering, and mental anguish ….”

Portion 6 - Page 13: “3. For reasonable attorney’s fees according to proof.”

Portion 7 - Page 13: “5. For general damages for mental suffering and emotional distress.”

Defendant states that these portions all apply to the first cause of action for breach of contract.

As a preliminary matter, Portion 6 and Portion 7 are in the Prayer for Relief of the Complaint, and the Court notes that Portions 6 and 7 of the Complaint do not indicate that they apply only to the first cause of action. Portions 6 and 7 are in the Prayer for Relief, and as written in the Complaint, they could potentially apply to any cause of action.

As to striking Portion 5, Defendant does not provide an argument as to why Portion 5 should be stricken. It appears as if Defendant may be arguing that emotional distress is not recoverable for a breach of contract cause of action. However, Portion 5 does not state it is seeking damages for emotional distress. Portion 5 (¶38 of the Complaint) has simply alleged the damages that the breach of contract caused Plaintiffs. Nothing in Portion 5 states what Plaintiffs are trying to recover. Portion 5 simply alleges the damages Plaintiffs suffered.

Motion to strike Portion 5 is DENIED.

As to Portion 6 – which is Prayer for Relief 3, “For reasonable attorney’s fees according to proof,” Defendant’s argument is confusing.

Defendant first cites CCP §1021 which states, “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Ibid.)

If Defendant is arguing that Plaintiffs cannot recover for attorney’s fees for their breach of contract cause of action, Defendant would appear to be correct. However, the breach of contract cause of action in ¶¶28-38 does not state that attorney’s fees are being sought in connection to the breach of contract cause of action.

While it does appear that Defendant is correct that Plaintiffs allege no statutory basis to recover attorney’s fees, Defendant then seems to undercut its argument that Portion 6 should be stricken by citing to Brandt v. Superior Court (1985) 37 Cal.3d 813, 817. Defendant even states that under Brandt some attorney fees may be recoverable as an item of damage on a bad faith cause of action, only to the extent those fees were incurred to obtain the benefits under the policy.

Therefore, Defendant’s own argument supports not striking Portion 6 at ¶3 in the Prayer for Relief of “For Reasonable attorney’s fees according to proof,” because the third cause of action for breach of implied covenant of good faith and fair dealing is still operative in the pleading.

“When an insurer tortiously withholds benefits, are attorney's fees, reasonably incurred to compel payment of the policy benefits, recoverable as an element of the damages resulting from such tortious conduct? We hold that they are and accordingly issue a writ of mandate directing the trial court to reinstate the portion of the complaint seeking attorney's fees as damages.” (Brandt v. Superior Court (1985) 37 Cal.3d 813, 815.) “Since the attorney's fees are recoverable as damages, the determination of the recoverable fees must be made by the trier of fact unless the parties stipulate otherwise.” (Id. at 819.)

Thus, even though Defendant’s argument appears availing that there is no ability to recover attorney’s fees under CCP §1021 under the breach of contract cause of action, it appears as if it would be improper to strike the request for attorney’s fees in the Prayer for Relief at ¶3 since the prayer doesn’t indicate which cause of action it bases its request off of. Or to phrase it differently, ¶3 the Prayer doesn’t state it applies only to a single cause of action. Thus, it appears as if ¶3 in the Prayer for Relief should not be stricken since it appears as if Plaintiffs can at least recover attorney’s fees as an element of damages from their third cause of action.

Motion to strike Portion 6 is DENIED.

As to striking Portion 7 - Page 13: “5. For general damages for mental suffering and emotional distress,” it is difficult to discern what Defendant’s argument is as the basis to strike Portion 7.

As a preliminary matter, Defendant frames the motion to strike as if Portion 7 is directed only at the first cause of action. However, this is incorrect: Portion 7 is located at ¶5 of the Prayer and it does not state it pertains only to the breach of contact cause of action.

Defendant argues, “Emotional distress is generally not recoverable for non-tortious breach of an insurance contract. While there are exceptions, none apply here. The prayer for emotional distress damages in the first cause of action should be removed from the complaint.” (Mot. p.6.)

Defendant’s argument ignores that there is another operative cause of action for breach of duty of good faith and fair dealing. Further, Defendant provides no argument as to why “general damages” should be stricken.

Motion to strike Portion 7 is DENIED.

Portions 1,2, 3, 4
As to Portion 1, Defendant’s motion to strike is GRANTED. Portion 1 pertains to ¶52, and ¶52 is located in the second cause of action, and in Plaintiffs’ Opposition to the demurrer, Plaintiffs agreed to strike the second cause of action.

Punitive Damages
In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example by way of punishing the defendant. (Cal. Civ. Code §3294(a).) “‘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.” (CCP §3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (CCP §3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (CCP §3294(c)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th 1033, 1042.)

Further as stated in Monge v. Superior Court, which helps explain the case law behind alleging punitive damages:

In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recovery of punitive damages. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6–7, 172 Cal.Rptr. 427.)

Perkins provides the highly pertinent example of this standard in the context of a motion to strike punitive damage allegations. There the complaint alleged that defendants “wrongfully and intentionally” invaded plaintiff's privacy and terminated his telephone service “in retaliation” for prior complaints lodged by plaintiff. The complaint also generally alleged that defendants were guilty of “oppression, fraud and malice.” Perkins read the complaint as a whole and held that the alleged conclusions of fact or law considered in the context of alleged wrongful conduct “in retaliation” pleaded an evil injurious motive sufficient **68 to establish malice and sustain a plea for punitive damages.

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 27–32, 122 Cal.Rptr. 218, it was pointed out that there exists an uncertainty in the case law as to just what terms adequately describe the necessary elements of “oppression, fraud or malice” under Civil Code section 3294. Searle suggests that different types of injurious conduct allow different formulations in pleading oppression or malice, but that the critical element is an “evil motive” of the defendant. (Id., at pp. 29–31, 122 Cal.Rptr. 218.)

*511 The meanings of “oppression” and “malice” with regard to Civil Code section 3294 are explained in Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal.App.3d 232, 245–246, 102 Cal.Rptr. 547. “Malice” means a wrongful intent to vex or annoy. “Oppression” means “subjecting a person to cruel and unjust hardship in conscious disregard of his rights.” Malice and oppression may be inferred from the circumstances of a defendant's conduct.

(Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510-11.)

As to striking Portions 2 and 3, the crux of Defendant’s argument is that Plaintiffs have not alleged any factual behavior to rise to the level of oppression, fraud, and malice.

As to Portions 2 and 3, Defendant argues as follows:

Finally, an employer shall not be liable for punitive damages, “based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.”16 Consequently, Plaintiffs are required to plead facts to establish knowledge of the employee’s unfitness or ratification of the employee’s conduct. Plaintiffs’ Complaint made no such allegations.

(Mot. p. 9.)

Defendant’s footnote 16 cites to Civil Code 3294(c).

In Opposition, Plaintiff cites Major v. Western Home Ins. Co., 169 Cal.App.4th 1197, 1198, among other authorities, which support the proposition that an insurance company can be liable for the tortious conducts of its employees. (See Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 822.)

The Court must look at the Complaint as a whole. Taken as a whole, this is a Complaint alleging that the Defendant took too long in deciding to deny insurance coverage. Despite the concerns the Court has with seeing precisely how Plaintiff will establish it is entitled to punitive damages in this situation, it does appear that bad-faith or tortious conduct by insurers in handling claims by insureds can serve as the basis for punitive damages.

Accordingly, Defendant’s motion to strike Portions 2 and 3 is DENIED.

As to Portion 4, Portion 4 is Page 13: “6. For exemplary and punitive damages on the Second, Third, and Fourth Causes of action in an amount according to proof at trial.”

For the reasons set out above, the motion to strike as to Portion 4 is DENIED.

TENTATIVE RULING

At the hearing, Defendant is to demonstrate proof of service of the motion.

Motion to strike portions 5, 6, and 7 is DENIED.

Motion to strike Portion 1 is GRANTED.

Motion to strike Portions 2 and 3 is GRANTED.

Portion 4 is Page 13: “6. For exemplary and punitive damages on the Second, Third, and Fourth Causes of action in an amount according to proof at trial.” Defendant’s motion to strike Portion 4 is GRANTED.