Judge: Elaine Lu, Case: 20STCV37152, Date: 2022-09-20 Tentative Ruling

Case Number: 20STCV37152    Hearing Date: September 20, 2022    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Procedural Background

On September 28, 2020, Plaintiff Monrell D. Murphy (“Plaintiff”) filed the instant legal malpractice action against Defendants McMurray Henriks, LLP (“Firm”) and Yana Henriks (“Henriks”) (jointly “Defendants”).  On April 26, 2021, Defendants filed a demurrer and motion to strike.  On September 15, 2021, the Court sustained the demurrer and motion to strike with leave to amend.  (Order 9/15/21.) 

On September 29, 2021, Plaintiff filed a First Amended Complaint against Defendants.  On November 2, 2021, Defendants filed a demurrer and motion to strike the First Amended Complaint.  On March 1, 2022, the Court sustained the demurrer to the First Amended Complaint and granted the motion to strike with leave to amend.  (Order 3/1/22.)

On March 18, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants.  The SAC asserts a single cause of action for legal malpractice. 

On April 15, 2022, Defendants filed the instant motion to strike portions of the SAC.  On May 3, 2022, Plaintiff filed an opposition to the motion to strike.  On September 13, 2022, Defendants filed a reply.

Allegations of the Operative Complaint

The SAC alleges as follows:

            On October 3, 2016, Plaintiff retained Defendant Firm with Defendant Henriks to represent Plaintiff for an action involving the wrongful death of his father in the Los Angeles Superior Court, case number MC026443.  (SAC ¶¶ 5-6.) 

            “On or about June 11, 2019 Defendant [Henriks] who was the attorney of records on the underlying case filed a motion to withdraw, citing a brake [sic] down in client relations with Mrs. Polee. The motion was subsequently granted and Defendant [Henriks] withdrew her and her firm's representation.”  (SAC¶ 7.)

            On July 15, 2019 Plaintiff drafted and mailed a letter to Defendants requesting the case work product as Plaintiff had been forced to proceed in pro per since the withdrawal.  (SAC ¶ 9.) Defendants did not respond.  (SAC ¶ 9.)

            “On or about August 9, 2019 the Plaintiff placed a telephone call to the Defendants office and spoke with Sara Justice, a person who identified her self as the Defendant’s paralegal, in which the Plaintiff was told that Defendant [Henriks] was unavailable. The Plaintiff left a message informing Defendants that said case had an up and coming hearing for summary judgement in which the Plaintiff would not be able to effectively defenda [sic] against without [said] litigation file. Plaintiff was insured that the message would be forwarded. The Defendants never responded.”  (SAC ¶ 10.)

            “On or about December 17, 2019 summary judgement [sic] was entered against the Plaintiff in said case as to defendants Krishana and Shankar because the Plaintiff was unable to present expert testimony in the form of affidavits, as required by law to demonstrate a genuine dispute of facts in said case.”  (SAC ¶ 11.) 

“On or about Feburary 2, 2021 [sic] after the Plaintiff made several formal complaints with the State Bar of California, the Defendant finally released said litigation file. In the litigation file the Plaintiff discovered several executed affidavits of various expert witnesses. The Plaintiff was able to use thoes [sic] affidavits to defeat the summary judgement motions of the remaining defendants in said underlying case.”  (SAC ¶ 12.)  “Had Defendants uphealed [sic] their duty to promptly release said litigation file, the Plaintiff would have not only defeated defendants Krishana and Shankar motion for summary judgement in the underlying case, but would have ultimatly [sic] prevailed at trial with a verdict against defendants Krishana and Shankar in the underlying wrongful death action.”  (SAC ¶ 13.)

“Defendant [Henriks] intentionally withheled [sic] the Plaintiff's litigation file for the purpose of causing harm, and did so in retaliation for Plaintiff's co-plaintiff on the underlying case, Candace Polee threats to sue and report the Defendant to the bar association for malpractice.”  (SAC ¶ 14.)

On June 2, 2022, the court in the underlying case “issued an Order dismissing Plaintiff's wrongful death cause of action for lack of jurisdiction due to Defendants failure to meet the statue [sic] of limitation.”  (SAC ¶ 15.)  “The wrongful death of the Plaintiff's father occured [sic] on April 20, 2015. The Defendants agreed to represent the Plaintiff in the underlying case on or about October 3, 2016. However, the Defendants did not file the Fourth Amended Complaint in the underlying action, which joined the Plaintiff to said action, untill [sic] October 2, 2018, which was untimely pursuant to Code 6f Civil Procedure Sections 349.5, 364, and 335.1.”  (SAC ¶ 16, Exh. A.)  “Had the Defendants timely filed Plaintiff's claim for wrongful death in the underlying case, Plaintiff would have ultimately prevailed at trial with a favorable verdict in the underlying case.”  (SAC ¶ 17.)

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.).  (See CCP §§ 435-437.)  A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended.  (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (CCP § 436.)  The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice.  (CCP § 437.)

Meet and Confer Requirement

Code of Civil Procedure section 435.5, subdivision (a) requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” The parties are to meet and confer at least five days before the date the responsive pleading is due and if they are unable to meet the demurring party shall be granted an automatic 30-day extension.  (Code Civ. Proc., § 435.5(a)(2).)  The moving party must also file and serve a declaration detailing the meet and confer efforts.  (Id.¿at (a)(3).)¿ If an amended pleading is filed, the parties must meet and confer again before a motion to strike may be filed to the amended pleading.  (Id.¿at (a).) 

Here, the meet and confer requirement is inapplicable, as Plaintiff is proceeding pro per and is incarcerated.  (CCP § 435.5(d)(1).)

Discussion

Defendants move to strike punitive damages on the grounds that Plaintiff has pled insufficient facts to support such recovery.

Punitive Damages

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (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.” (Id. at (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. at (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.” (Id. at (c)(3).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

Here, the SAC asserts a single cause of action for legal malpractice.  As the Supreme Court has noted, “plaintiffs may recover punitive damages in a legal malpractice action if the attorneys, themselves, are guilty of ‘oppression, fraud, or malice’[.]”  (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1053.)  Accordingly, punitive damages are not per se unrecoverable in the instant action. 

However, the SAC does sufficiently allege malice.  The SAC alleges in relevant part that “Defendant [Henriks] intentionally withheled [sic] the Plaintiff's litigation file for the purpose of causing harm, and did so in retaliation for Plaintiff's co-plaintiff on the underlying case, Candace Polee threats to sue and report the Defendant to the bar association for malpractice.”  (SAC ¶ 14, [italics added].)  Thus, the SAC alleges that Defendant Henriks intentionally caused injury to Plaintiff by refusing to timely provide the litigation file as retaliation for threatening to report the Defendants for malpractice.  The SAC alleges more than mere negligence but rather intentional wrongful conduct. 

As noted above, a demand for punitive damages for the commission of any tort requires more than the mere conclusory allegations of “oppression, fraud, and malice.”  (Civ. Code § 3294; see Perkins v. Superior Court (1981) 117 Cal. App.3d 1, 6-7.)  Here, the claim that Defendant Henriks intentionally withheld the litigation file to harm Plaintiff in retaliation for threatening to report Defendants for malpractice is more than a mere conclusory allegation of malice.  If true, this allegation would clearly show malice sufficient for punitive damages.  Moreover, this is more than a conclusory claim that the alleged conduct was done with malice, is oppressive and constituted fraud. 

Accordingly, Defendants’ motion to strike the prayer for punitive damages is DENIED.

CONCLUSION AND ORDER

Based on the foregoing, Defendants McMurray Henriks, LLP, and Yana G. Henrik’s motion to strike the prayer for punitive damages in the Second Amended Complaint is DENIED.

On June 29, 2022, Defendant filed a motion to compel Plaintiff’s deposition.  On August 3, 2022, Plaintiff filed a motion for leave to file a Third Amended Complaint.  The parties are ordered to meet and confer regarding both motions and to file a joint status report advising whether they are able to reach any stipulations with regard to both pending motions.  If not, the Court may be inclined to advance both motions.  The case management conference is continued to November 4, 2022 at 8:30 am.

Moving Parties are to give notice and file proof of service of such.

DATED: September 20, 2022                                                ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court