Judge: Curtis A. Kin, Case: 21STCV44342, Date: 2022-09-22 Tentative Ruling

Case Number: 21STCV44342    Hearing Date: September 22, 2022    Dept: 72

MOTION TO STRIKE PORTIONS OF

FIRST AMENDED COMPLAINT

Date:                 9/22/22 (8:30 AM)                 

Case:               Oleg Volkov v. John Lynn et al. (21STCV44342)

TENTATIVE RULING:

Defendant Wallin & Klarich, John Lynn, Paul Wallin, and Richard Iriarte’s Motion to Strike Portions of First Amended Complaint is DENIED.

Defendant moves to strike allegations regarding emotional distress damages contained in paragraphs 161 and 176 of the First Amended Complaint (“FAC”).

Generally, “[E]motional distress damages are not recoverable when attorney malpractice leads only to economic loss.” (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1691.) A plaintiff may not recover damages for emotional distress arising from a legal malpractice action as “the foreseeability of serious emotional harm to the client and the degree of certainty that the client suffered such injury by loss of an economic claim are tenuous” and emotional distress is only recoverable “if the claimed emotional distress naturally ensues from the acts complained of . . . .” (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 6, 10-11; see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1038-39 [discussing Merenda].) 

California courts, however, have drawn a distinction between claims regarding negligence by an attorney and intentional misconduct and held that claims of fraud or intentional breaches of fiduciary duty can support emotional distress damages. (See Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1078-79, 1096 [recognizing that emotional distress damages are recoverable against a plaintiff’s former attorney for claims of fraud and intentional breach of fiduciary duty]; see also Smith, 10 Cal.App.4th at 1040 [recognizing that emotional distress damages have been allowed in cases involving elements of bad faith or intentional misconduct].)   

Plaintiff alleges an intentional breach of fiduciary duty specifically as to defendant John Lynn. Plaintiff alleges that, before the trial in the civil harassment restraining order proceeding, Lynn “made certain arrangements to get employed by” opposing counsel, which was evidenced by handing over a business card to opposing counsel and which demonstrated a conflict of interest. (FAC ¶¶ 93, 154, 196.) To please a potential employer, Lynn allegedly sabotaged plaintiff’s defense, including by excluding relevant evidence from exhibits, failing to subpoena witnesses, failing to familiarize himself with law concerning civil harassment restraining order proceedings, and withholding trial exhibits that plaintiff needed to file a motion for new trial. (FAC ¶ 144, 145, 156-159, 195.) Plaintiff alleges that this conduct was intentional. (FAC ¶¶ 194, 201.)

Emotional distress “damages are recoverable if directly caused by the attorney’s conduct in breach of her fiduciary duties.” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1097, citing Branch v. Homefed Bank (1992) 6 Cal.App.4th 793, 800.) Feelings of anxiety, abandonment, and betrayal “may well be sufficient to support an award of damages for emotional distress from the alleged breaches of fiduciary duty.” (Stanley, 35 Cal.App.4th at 1097.) Here, plaintiff alleges that, upon hearing Lynn discuss his work experience in federal criminal matters with opposing counsel to obtain employment and expressing that “he did not get involved” with civil harassment restraining order proceedings, he “felt betrayed and got even more anxious and upset.” (FAC ¶ 95.) Plaintiff alleges that he “could not stop thinking about” Lynn’s conflict of interest,” which was detrimental to his ability to focus and remain calm during Trial.” (FAC ¶ 95.)

Even though plaintiff alleges that Lynn’s conduct may have been negligent (FAC ¶¶ 153, 194, 200), “[w]hen a pleader is in doubt about what actually occurred or what can be established by the evidence, the modern practice allows that party to plead in the alternative and make inconsistent allegations.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.)

Based on the foregoing allegations cited, plaintiff may proceed with his claim for emotional distress damages. The motion as to paragraphs 161 and 176 of the FAC is DENIED.

Defendants also move to strike allegations regarding punitive damages contained in paragraph 200 of the FAC and the prayer for punitive damages contained in paragraph 2 of the prayer for relief.

Based on the allegations discussed above with respect to the breach of fiduciary duty cause of action, plaintiff may proceed with his claim for punitive damages. Plaintiff’s allegations rise to the level of “malice.”  (Civ. Code §3294(c)(1) [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”].) As stated above, plaintiff is entitled to plead in the alternative that defendant Lynn’s breaches of fiduciary duty were intentional. (Mendoza, 140 Cal.App.4th at 1402.)

Defendants’ citation to American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017 (“Sheppard Mullin”) is unavailing. While the attorney in Sheppard Mullin worked to prevent any disclosure of the client’s confidential information and protect the interests of the client (id. at 1051), defendant Lynn in this case allegedly actively and intentionally acted against plaintiff’s interest, thereby causing emotional distress, as well as the issuance of a restraining order against plaintiff.

The motion as to paragraph 200 of the FAC and the prayer for punitive damages contained in paragraph 2 of the prayer for relief is DENIED.

Defendants also move to strike the prayer for indemnification of fees and costs to be paid to third parties contained in paragraph 3 of the Prayer for Relief. Defendants contend that the prayer is either duplicative of compensatory damages or not supported by allegations in the FAC. With respect to the first ground, any concerns of double recovery are appropriately addressed with jury instructions or post-trial motion practice. With respect to the second ground, plaintiff bases the prayer for indemnification on the attorney fees that may be imposed against him in the civil harassment restraining order proceeding due to defendants’ conduct. (FAC ¶ 175.)

Because defendants do not state a basis upon which to strike plaintiff’s prayer for indemnification, the motion as to paragraph 3 in the Prayer for Relief is DENIED.

The motion is DENIED in its entirety.

Ten (10) days to answer.