Judge: Malcolm Mackey, Case: 22STCV32211, Date: 2023-03-23 Tentative Ruling

Case Number: 22STCV32211    Hearing Date: March 23, 2023    Dept: 55

HWY LOGISTICS, INC. v. SAMUEL CHIH,                                           22STCV32211

Hearing Date:  3/23/23,  Dept. 55.

#8:   

DEMURRER TO COMPLAINT.

MOTION TO STRIKE PLAINTIFFS COMPLAINT.

 

Notice:  Okay

Opposition

 

MP:  Defendants

RP:  Plaintiffs

 

 

Summary

 

On 10/3/22, plaintiffs filed a Complaint alleging that Defendant SAMUEL CHIH, hired by Defendant HWY LOGISTICS, INC., as a dispatcher, and later appointed CEO, stole both plaintiffs' corporate assets and embezzled funds, for personal use, and was fired on 9/13/22 upon discovery.

The causes of action are:

1. BREACH OF CONTRACT

2. FRAUD COUNT ONE

3. VIOLATION OF CALIFORNIA PENAL CODE § 484

4. CONVERSION-COUNT ONE

5. BREACH OF FIDUCIARY DUTY

6. CONSTRUCTIVE FRAUD

7. EMBEZZLEMENT

8. FRAUD-COUNT TWO

9. CONVERSION-COUNT TWO

10. FRAUD-COUNT THREE

11. CONVERSION-COUNT THREE

12. FRAUD-COUNT FOUR

13. FRAUD-COUNT FIVE

14. NEGLIGENCE PER SE

15. CIVIL CONSPIRACY

16. TRESPASS TO CHATTELS

17. INJUNCTIVE RELIEF

18. DECLARATORY RELIEF

19. ACCOUNTING

20. UNJUST ENRICHMENT.

 

 

MP Positions

 

Moving party requests an order sustaining the demurrer to the Complaint, and granting the motion to strike alleged remedies, on grounds including the following:

 

·         Causes of Action Nos. 2, 6, 8, 10, 12 and 13 are five separate causes of action for fraud and one for constructive fraud. As all six of these causes of action sound in fraud, they must be pled with specificity.  Plaintiffs have failed to allege the “how, when, where, to whom, and by what means” necessary to support a claim for fraud. Instead, Plaintiffs rely entirely on generalized conclusory allegations

·         Plaintiffs’ Cause of Action 3 (Violation of Penal Code § 484 – Theft by Trick) and Cause of Action 7 (Violation of Penal Code § 503 – Embezzlement) are criminal charges, not civil claims.

·         As to plaintiffs’ Cause of Action No. 14 for negligence, negligence per se is not a cause of action. McKenna v. Bessley (2021) 67 Cal.App.5th 552, 574.  Plaintiffs have not alleged negligence but intentional misconduct.

·         “[C]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its preparation.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.  Facts are not alleged, and duty is not alleged as to the spouse.

·         Plaintiffs have failed to allege a claim for trespass for chattels. Plaintiffs have alleged the conversion of funds, not a minor interference with some physical object. “

·         Plaintiffs’ Cause of Action No. 17 for injunctive relief is not a legally recognized cause of action. “Injunctive relief is a remedy, not a cause of action.” Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187.  There is nothing to enjoin after employer terminated.

·         “[I]njunctive and declaratory relief are equitable remedies, not causes of action.” Faunce v. Cate (2013) 222 Cal.App.4th 166, 173.  There is nothing to declare beyond damages.

·         Plaintiffs’ Cause of Action No. 19 for accounting should be dismissed as Plaintiffs have alleged they know the amount that was allegedly converted. (Complaint, ¶¶ 22, 42.).

·         The fact that Defendants Chih and Li are married is no legal basis for suing her.  Marriage does not constitute a factual or legal basis for suing someone. “[H]ere both spouses are named in litigation, and where one spouse is included solely in the capacity as a community representative, that spouse has no personal liability, that spouse's separate property cannot be reached for the type of debt alleged, and such spouse does not desire to participate in the litigation, there appears to be no legitimate advantage to plaintiff in forcing the unwilling spouse to participate in the litigation.” 11601 Wilshire Assocs. v. Grebow (1998) 64 Cal.App.4th 453, 457.

·         “Funds may be recovered under a constructive trust theory where the plaintiff can trace the fund to monies in the defendant’s possession.” Optional Cap, Inc. v. DAS Corp. (2014) 222 Cal.App.4th 1388, 1402; citing Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 135. Plaintiffs in this case are seeking the recovery of fungible money, not traceable funds.

·         Punitive damages fail to be based upon specifically pled fraud.

·         Plaintiffs failed to allege a statutory or contractual basis for the recovery of attorney fees.

 

 

 

RP Positions

 

Opposing party advocates overruling and denying, or leave to amend, for reasons including the following:

 

·         Violation of a criminal statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the criminal statute. (Michael R. v. Jeffrey B. (1984) 158 Cal.App.3d 1059, 1067).

·         Negligence per se is a legal doctrine that states that when a person violates a particular provision of a statute, that action is presumed to be negligent.

·         Plaintiffs’ claim for punitive damages are based upon Defendants’ despicable conduct carried with a willful and conscious disregard Plaintiff rights to their corporate properties.

 

 

Tentative Ruling

 

The demurrer is sustained.

The motion to strike is granted.

Twenty days’ leave to amend.

The opposition offers several amendments, at pages 12 through 14 of the opposition to the demurrer.

Courts generally allow at least one time to amend a complaint, after sustaining a demurrer.  McDonald v. Sup. Ct. (1986) 180 Cal. App. 3d 297, 303;  City of Stockton v. Sup.Ct. (2007) 42 Cal.4th 730, 747;  Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2022) ¶7:129.  In order to obtain leave to amend, complainants must state how the allegations would be amended in order to state a cause of action.  Drum v. San Fernando Valley Bar Ass'n  (2010) 182 Cal.App.4th 247, 253. 

Additionally, the oppositions failed to address most points of law raised by the moving parties.

A judge in a civil case is not "'obligated to seek out theories [a party] might have advanced, or to articulate … that which … [a party] has left unspoken.'"  Mesecher v. County of San Diego (1992) 9 Cal. App. 4th 1677, 1686.

Further, to guide the parties, the Court sets forth claim elements addressed in the moving documents:

 

Fraud

                        Acts    

1. Any act or artifice by defendant;

2. with regard to a contract;  and

3. fitted to deceive.

 

CC §1572(5); Vogelsang v. Wolpert (1964) 227 Cal. App. 2d 102, 109;  Masters v. San Bernardino County Employees Retirement Assn. (1995)32 Cal.App.4th 30, 41 (“Civil Code section 1572 is limited to acts committed by one party to a contract with intent to deceive another party to the contract or to induce someone to enter into a contract.”); Brady v. Carman (1960) 179 Cal.App.2d 63, 67  (“Fraud is any act fitted to deceive.”).

 

                        Deceit

  1. misrepresentation;
  2. knowledge of falsity (or "scienter");
  3. intent to defraud (induce reliance);
  4. justifiable reliance; and,
  5. resulting damage.

 

Conroy v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255  (“The elements of fraud, which give rise to the tort action for deceit, are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.”);  Charnay v. Cobert  (2006) 145 Cal.App.4th 170, 184;   Small v. Fritz Companies, Inc. (2003) 30 Cal. 4th 167, 173. 

 

                        Concealment

 

  1. Defendant concealed or suppressed a material fact;
  2. defendant was under a duty to disclose the fact to the plaintiff;
  3. defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff;
  4. plaintiff was unaware of the fact and would not have acted in the same way knowing of the concealed or suppressed fact;
  5. causation;  and
  6. the plaintiff sustained damage.

 

Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868;  Lovejoy v. AT&T Corp. (2001) 92 Cal. App. 4th 85, 96;  Hahn v. Mirda  (2007) 147 Cal.App.4th 740, 748.  See also  Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal. App. 4th 1356, 1384  (rule of specifically pleading how, when, where, to whom, and by what means, misrepresentations were communicated, is intended to apply to affirmative misrepresentations, and not to concealment);  Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1200  (concealment is sufficiently pled when the complaint as a whole provides sufficient notice of the particular claims against defendants.);  Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal. App. 4th 1235, 1262 (“If a fraud claim is based upon failure to disclose, and ‘the duty to disclose arises from the making of representations that were misleading or false, then those allegations should be described.’” );  Linear Technology Corp. v. Applied Materials, Inc.  (2007) 152 Cal.App.4th 115, 132  (“‘[M]ere conclusionary allegations that the omissions were intentional and for the purpose of defrauding and deceiving plaintiffs and bringing about the purchase ... and that plaintiffs relied on the omissions in making such purchase are insufficient [to show fraud by concealment].’”);  ibid.  (“‘In transactions which do not involve fiduciary or confidential relations, a duty supporting a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.’”).

 

Constructive Trust

  1. Wrongful act (underlying claim incorporated into the cause of action);
  2. specific, identifiable property or property interest, or excuse for inability to describe it;
  3. plaintiff’s right to the property;  and
  4. defendant has title thereto.

 

Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76;  Dabney v. Philleo (1951) 38 Cal.2d 60, 68;  Michaelian v. State Comp. Ins. Fund (1996) 50 Cal. App. 4th 1093, 1114;  Douglas v. Sup. Ct. (1989) 215 Cal.App.3d 155, 160;  Signal Hill Aviation Co. v. Stroppe (1979) 96 Cal.App.3d 627, 638-39;  Weiss v. Marcus (1975) 51 Cal.App.3d 590, 600;  Civil Code § 2224.  But see  Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332 (“constructive trust is an equitable remedy….”);  PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 398 (constructive trust is a remedy);  Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal. App. 4th 1018, 1023 (constructive trust is a remedy);  Embarcadero Mun. Improvement Dist. v. County of Santa Barbara (2001) 88 Cal.App.4th 781, 793;  Olson v. Toy (1996) 46 Cal.App.4th 818, 823 (constructive trust is an equitable remedy). 

 

 

Penal Code Sections 484 and 503

“Penal Code section 484, subdivision (a) describes the acts constituting theft to include theft by false pretense, which is the consensual but fraudulent acquisition of property from its owner.”   Bell v. Feibush (2013) 212 Cal.App.4th 1041, 1049  (also upholding civil liability under Penal Code Section 496).

 

Negligence Per Se

  1. Defendant violated a statute, ordinance, or regulation of a public entity;
  2. that violation caused an injury or death;
  3. death or injury resulted from occurrence which the law was designed to prevent;  and
  4. person suffering the injury or death was one of the class of persons for whose protection the law was adopted.

 

Urhausen v. Longs Drug Stores Cal., Inc.  (2007) 155 Cal.App.4th 254, 267 (quoting Ev. C. §669); Gilmer v. Ellington  (2008) 159 Cal.App.4th 190, 202-03;  Capolungo v. Bondi  (1986) 179 Cal.App.3d 346, 349 (“In order for a claim of negligence per se to succeed, all four elements must be met.”).  See also  Michael R. v. Jeffrey B. (1984) 158 Cal. App. 3d 1059, 1066-67 (“it is not necessary to plead the statute where the alleged cause of action is not a violation of the statute, but rather negligence of the defendant, and the ordinance is merely evidence offered to show such negligence….  Additionally, the statute need not provide specifically for civil damages or liability. Violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself.”);  Williams v. Southern Pacific Co. (1916) 173 Cal. 525, 540 (Cal. 1916) (“ violation of these penal statutes constitutes negligence per se....”);  White v. Cox Bros. Constr. Co. (1958) 162 Cal. App. 2d 491, 499 (based on criminal statute);  Michael v. Key System Transit Co. (1929) 98 Cal. App. 189, 194 (“the violation of a penal statute constitutes negligence per se....”);  Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466  (triable dispute existed whether noncompliance with statutory and related regulatory provisions was a substantial factor re causation of plaintiffs' injuries).  Cf.,  Wawanesa Mutual Ins. Co. v. Matlock (1997) 60 Cal. App. 4th 583, 587 (disallowing application of Penal Code section only because it was not designed to protect against the type of harm which occurred);  Bradshaw v. City of Los Angeles (1990) 221 Cal. App. 3d 908, 918 (disallowing application of Penal Code section because Legislature did not intend for the particular provisions to be the basis of a claim of negligence per se), disapproved on other grounds by  Copley Press, Inc. v. Sup. Ct.  (2006) 39 Cal.4th 1272, 1284.  But see  Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555 (“‘negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’”);  Peart v. Ferro (2004) 119 Cal.App.4th 60, 80 (“This statute … does not establish tort liability. Rather, it merely ‘codifie[s]’ the rule that ‘a presumption of negligence arises from the violation of a statute….’”);  Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1285 (“negligence per se is not to state an independent cause of action….”);  California Service Station and Auto. Repair Ass'n v. Amer. Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1180 (“the Evidence Code section 669 presumption of negligence applies only after determining that the defendant owes the plaintiff an independent duty of care.”). 

 

Conspiracy

  1. Defendants’ agreement to the objective and course of action to injure;
  2. wrongful act pursuant to such agreement;  and
  3. resulting damage.

 

Berg & Berg Ent., LLC v. Sherwood Partners, Inc. (2005) 131 Cal. App. 4th 802, 823 (noting the elements, and contrasting with aiding and abetting);  State of Cal. ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4th 402, 419.  See also  Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 47 (general allegations are permitted as to the pleading of conspiracy);  State of Cal. ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal. App. 4th 402, 419 (conclusory allegations are insufficient to allege the elements of conspiracy);  Douglas v. Sup. Ct. (1989) 215 Cal. App. 3d 155,159 ("second cause of action for conspiracy to defraud incorporates the allegations of the first cause of action, the demurrer to that cause of action should also have been overruled.");  Klistoff v. Sup. Ct. (2007) 157 Cal.App.4th 469, 479 (“The existence of a civil conspiracy makes each participant in the wrongful act responsible as a joint tortfeasor for all damages resulting from the wrong, whether or not a participant was a direct actor and regardless of the degree of his activity” and a coconspirator cannot be liable unless he or she owes a duty to the plaintiff as recognized by law).

 

Aiding and Abetting

  1. Person aids and abets commission of intentional tort;  and
  2. knowing the other's conduct constitutes breach of duty;  or
  3. giving substantial assistance or encouragement to the other
    1. to so act;  or
    2. in accomplishing a tortious result;  and
  4. the person's own conduct, separately considered, constitutes breach of duty to the third person.

 

Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 744;  Schulz v. Neovi Data Corp. (2007)152 Cal. App. 4th 86, 95 (to plead aiding and abetting, ultimate facts are required, not detailed facts);  Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879;  Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal. App. 4th 1138, 1144, 1149;  Saunders v. Sup. Ct. (1994) 27 Cal. App. 4th 832, 845.  See also  Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 127 (one aiding and abetting is jointly liable even without participating in the wrongs);  Smith v. Blodget (1921) 187 Cal. 235, 244 (aiding and abetting may be actionable even where one was not a party to a scheme from its inception.);  Am. Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal. App. 4th 1451, 1477 (aider and abettor may either (1) owe a fiduciary duty to the victim and be liable for providing substantial assistance,  or (2) commit an independent tort by making a conscious decision to assist another in performing wrongful acts.).

 

Trespass to Chattel

  1. Intentional interference;
  2. with the possession of personal property;  and
  3. caused injury.

 

Jamgotchian v. Slender (2009) 170 Cal. App. 4th 1384, 1400-01;  Intel Corp. v. Hamidi (2003) 30 Cal. 4th 1342, 1350-51.

 

Injunction

  1. Wrongful act stating a cause of action;  and
  2. basis for equitable relief (e.g., ordinarily irreparable harm must be threatened, or a remedy at law is inadequate).

 

Brownfield v. Daniel Freeman Marina Hosp. (2d Dist. 1989) 208 Cal. App. 3d 405, 410; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.   See also  San Diego Unif. Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501, 503 (“To qualify for a permanent injunction, the plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be enjoined…; and (2) the grounds for equitable relief.”);  E.H. Renzel Co. v. Warehousemen's Union I.L.A. 38-44  (1940) 16 Cal.2d 369, 373 (“A complaint for an injunction which alleges only general conclusions, not warranted by any pleading of facts, does not state a cause of action to enjoin the acts complained of.”);  Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 702 (“Competition Law imposes liability for past acts, in order to grant injunctive relief under section 17204 or section 17535, there must be a threat that the wrongful conduct will continue.”);  Madrid v. Perot Systems Corp. (2005) 130 Cal. App. 4th 440, 465 (“UCL has not altered … injunctive relief, which requires a threat that the misconduct to be enjoined is likely to be repeated….”).  But see  Marlin v. Aimco Venezia, LLC (2d Dist. 2007) 154 Cal.App.4th 154, 162  ("An injunction is a remedy, not a cause of action.”);  Shamsian v. Atlantic Richfield Co. (2d Dist. 2003) 107 Cal. App. 4th 967, 984-85 (“Correctly, the respondents state that a request for injunctive relief is not a cause of action…. Therefore, we cannot let this ‘cause of action’ stand. However, … on remand the trial court shall permit the appellants to amend their … cause of action to include their request for injunctive relief.”);  City of S. Pasadena v. Department of Transp. (1994) 29 Cal. App. 4th 1280, 1293 (“Injunctive relief is a remedy, not a cause of action.”);  Shell Oil Co. v. Richter (1942) 52 Cal. App. 2d 164, 168 (“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.”).

 

Declaratory Relief

  1. Person interested under a written instrument or a contract; or
  2. a declaration of his or her rights or duties;
    1. with respect to another; or
    2. in respect to, in, over or upon property;  and,
  3. an actual controversy.

 

CCP §1060;  Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal. App. 4th 592, 605-06;  Bennett v. Hibernia Bank (1956) 47 Cal. 2d 540, 549.  See also  City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 80  (“ ‘an actual, present controversy must be pleaded specifically" and "the facts of the respective claims concerning the [underlying] subject must be given.’ ");  Osseous Technologies of Amer., Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 364 ("'The mere circumstance that another remedy is available is an insufficient ground for refusing declaratory relief, and doubts regarding the propriety of an action for declaratory relief ... generally are resolved in favor of granting relief.'” ); Cal. Ins. Guar. Ass'n v. Sup. Ct. (1991) 231 Cal. App. 3d 1617, 1624 (“availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief” but “[t]he refusal to exercise the power is within the court's legal discretion….”); Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 529 (“The question whether declaratory relief is appropriate in a given case is addressed to the trial court’s discretion.”);  Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 542 (“For declaratory relief, the party must show it has either suffered or is about to suffer an injury of ‘sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.’”); Hood v. Sup. Ct. (1995) 33 Cal. App. 4th 319, 324 (declaratory relief unavailable where duplicates other cause of action);  C.J.L. Constr. v. Universal Plumbing (1993) 18 Cal. App. 4th 376, 390 (declaratory relief may be improper where main action would be substantially same as  cross-complaint, or claim already accrued and the only question for determination is liability for damages);  Gafcon, Inc. v. Ponsor & Assocs. (2002) 98 Cal. App. 4th 1388, 1404 (“declaratory relief operates prospectively only, rather than to redress past wrongs….”).  But see  Batt v. City and County of San Francisco (2007) 155 Cal. App. 4th 65, 82 (declaratory relief is an equitable remedy, not an independent cause of action), disapproved on other grounds by  McWilliams v. City Of Long Beach (2013) 56 Cal.4th 613, 626.

 

Accounting

  1. Existence of a relationship requiring accounting, such as fiduciary;
  2. some unliquidated and unascertained balance is owed.

 

St. James Church of Christ Holiness v. Superior Court (1955) 135 Cal.App.2d 352,

359;  Raymond v. Independent Growers, Inc. (1955) 133 Cal.App.2d 154, 160;  Kritzer v. Lancaster (1950) 96 Cal. App. 2d 1, 7 (“a cause of action for accounting need only state facts showing the existence of the relationship which requires an accounting and the statement that some balance is due the plaintiff.”).  See also  Teselle v. McLoughlin  (2009) 173 Cal.App.4th 156, 179 (“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting…. An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.”).

 

Community Property

The procedure to enforce a judgment against the spouse not possibly liable under any cause of action, is post-judgment recovery of the debt, based upon community property law, and not a lawsuit naming both spouses purely on a community-property theory.  See, e.g., 4 Cal. Real Est. § 11:62 (4th ed.)  (citing 11601 Wilshire Assocs. v. Grebow (1998) 64 Cal.App.4th 453, 457).

 

Punitive Damages

“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. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255.  Accord Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal. App. 4th 1004, 1055;  Blegen v. Sup. Ct.  (1981) 125 Cal.App.3d 959, 962.  “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294…..  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice.”   Turman v. Turning Point Of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.

 

Attorneys Fees

Unsupported attorneys’ fees allegations need not be stricken pursuant to a motion to strike, since later discovery may reveal a basis for their recovery.  Camenisch v.  Sup.  Ct.  (1996) 44 Cal.App.4th 1689, 1699.  “There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings.”  Yassin v. Solis  (2010) 184 Cal.App.4th 524, 533.  Accord   Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 497 (error to strike attorney fees sought under Code of Civil Procedure Section 1021.5, because there is no pleading requirement involved.);  Chinn v. KMR Property Management  (2008) 166 Cal.App.4th 175, 194 ("We agree that the complaint need not include a prayer for attorney fees, and that due process is satisfied by notice to the opposing party of the motion for attorney fees."),  disapproved on other grounds by  DeSaulles v. Cmty. Hosp. of Monterey Peninsula (2016) 62 Cal. 4th 1140, 1144.  Courts may strike prayers for attorney fees if a party revealed no potential basis for their recovery.  Agricultural Ins. Co. v. Sup. Ct. (1999) 70 Cal.App.4th 385, 404.

 

*IF BOTH PARTIES WOULD LIKE TO SUBMIT ON THE COURT’S TENTATIVE RULING, PLEASE CALL THE COURTROOM 213-633-0655*