Judge Holly J. Fujie, Case Number: 24STCV27446, Date: 2025-01-28 Tentative Ruling

MOVING PARTY: Defendants Matthew A. Breddan and The Reape-Pickett Law Firm (“Defendants”)

This is a legal malpractice action. On October 16, 2023, Plaintiff filed the operative complaint (the “Complaint’) alleging causes of action for: (1) professional negligence (legal malpractice); (2) breach of contract; and (3) breach of fiduciary duty.

On January 10, 2024, Defendants filed the instant motion to strike (the “Motion”). On January 19, 2024, Plaintiff filed an opposition (the “Opposition”) and on April 5, 2024, Defendants filed a reply (the “Reply”).

Pursuant to Evidence Code section 452, subdivision (d), the Court may take judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States”.

The court, however, may not take judicial notice of the truth of the contents of the documents. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) Documents are only judicially noticeable to show their existence and what orders were made such that the truth of the facts and findings within the documents are not judicially noticeable. (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.)

Pursuant to Defendants’ request, the Court takes judicial notice of Defendants’ Notice of Withdrawal of Attorney of Record filed in the Superior Court of California, County of Ventura in the case of Richards fka Freeman v. Freeman (Case No. D374102). (Def. RJN, Ex. A.)

Plaintiff requests judicial notice of an email exchange from November 2020. (Pl. RJN, Ex. 1.) The Court declines to take judicial notice of this document as it is not a matter that is judicially noticeable under Evidence Code section 452.

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civil Procedure (“CCP”) § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to CCP sections 435 to 437, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (CCP, § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (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, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (CCP, § 431.10, subds. (b)(1)-(3), (c)).

“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 and by way of punishing the defendant.” (Civil Code, § 3294, subd. (a); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Claims for punitive damages are disfavored in California. (Las Palmas Assocs. v. Las Palmas Center Assocs. (1991) 235 Cal.App.3d 1220, 1258). A motion to strike is properly granted when a complaint fails to allege facts to state a prima facie claim for punitive damages under the standards of the statute. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Plaintiff seeks punitive damages for the first cause of action for professional negligence and the third cause of action for breach of fiduciary duty. Defendants argue that the Complaint insufficiently alleges the oppression, fraud, or malice required for punitive damages. (Mot. pp. 11:1-12:13.) In the Opposition, Plaintiff argues that Defendants intentionally did not inform the Court that Plaintiff could not afford representation, intentionally failed to file a set aside request for the sanctions order and failed to adhere to the requirements of CCP section 473 subdivision (b). (Opp. pp. 7:8-12:7.)

Upon review of the Complaint, Plaintiff’s allegations are insufficient to show “malice, oppression, or fraud” for purposes of punitive damages under Civil Code section 3294 subdivision (a). “Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. § 3294(c)(2).) “Fraud” is “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. § 3294(c)(3).)

Plaintiff’s allegations that Defendants “misrepresented and fraudulently concealed the true nature of the representation” by failing to file a set aside request and that not filing the request was “malicious and extremely reckless” are merely conclusory. (Compl., ¶¶ 9-10.) There are no specific allegations of conduct that rise to the level of oppression, fraud or malice.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court