Judge: Mark A. Young, Case: 22SMCV02196, Date: 2023-09-19 Tentative Ruling
Case Number: 22SMCV02196 Hearing Date: March 20, 2024 Dept: M
CASE NO.: 22SMCV02196
MOTION: Motion
to Strike Punitive Damages and Attorneys’ Fees
HEARING DATE: 3/20/2024
Legal
Standard
Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) 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. (CCP §§ 436(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”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.) Counsel describes a meet and confer via written
correspondence, which does not meet the requirement that the parties meet and
confer in person or by telephone. (Counts Decl. ¶¶ 2-4.) On this
occasion, the Court will proceed to address the merits of the motion despite
the insufficiency of the meet and confer. The Court cautions the parties that a
code-compliant meet and confer effort is required for each demurrer and motion
to strike on subsequent pleadings.
Analysis
Defendant DDZ moves to strike the
request for punitive damages and attorneys’ fees from Plaintiff MB’s Second
Amended Complaint (SAC).
Punitive Damages
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. (Coll. Hosp., Inc. v. Superior Court
(1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that
the defendant has been guilty of oppression, fraud or malice. (Civ. Code § 3294
(a).)
“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. [Citations.] In passing
on the correctness of a ruling on a motion to strike, judges read allegations
of a pleading subject to a motion to strike as a whole, all parts in their
context, and assume their truth. [Citations.] In ruling on a motion to strike,
courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The
mere allegation an intentional tort was committed is not sufficient to warrant
an award of punitive damages. [Citation.] Not only must there be circumstances
of oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim. [Citation.]” (Grieves
v. Superior Ct. (1984) 157
Cal.App.3d 159, 166, fn. omitted.)
Section 3294 defines malice as conduct “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.” Despicable is a powerful term used to describe circumstances that are
“base,” “vile,” or “contemptible.” (Coll.
Hosp. v. Superior Ct. (1994) 8 Cal.4th 704, 726.) The statute
“plainly indicates that absent an intent to injure the plaintiff, “malice”
requires more than a “willful and conscious” disregard of the plaintiffs'
interests. The additional component of “despicable conduct” must be found.” (Id.; see,
e.g., Angie M. v. Superior Court (1995) 37 Cal.App.4th at 1221—1222
[finding vile, base, or contemptible conduct in unlawful seduction and sexual
abuse when a 48-year-old doctor engaged in sexual intercourse with a minor,
plying the minor with drugs and alcohol, and paying the minor to procure illegal
substances for him]; Pfeifer v.
John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1280 [finding
despicable conduct when a manufacturer “fully understood that asbestos dust
endangered workers, but did not issue warnings to customers” until much later
and using the products in ways that generated considerable asbestos dust].)
Plaintiff alleges, as a matter of ultimate fact, that Defendant DDZ was
motivated and intended to harm Plaintiff by disclosing allegedly private facts.
(SAC ¶¶ 1, 62-65.) Plaintiff alleges that after DDZ and BDZ had marital
difficulties, out of spite and a desire to hurt both his wife and the
Plaintiff, DDZ told numerous people in their small town that his wife had
carried and given birth to MB’s babies. (SAC ¶1.) Defendant made his statements
because he believed that Plaintiff had something to do with his wife’s decision
to divorce him, and so he wanted to punish Plaintiff. (SAC ¶ 62.)
More specifically, following the move to Illinois, BDZ and DDZ experienced
marital problems. (SAC ¶21.) Defendant DDZ was extremely upset with BDZ and
accused her of having an affair. (¶¶ 21, 28.) On August 22, 2022, Defendant
flew from California to Illinois and tried to see his wife and children, who
were staying with Plaintiff and her family at that time. (¶ 22.) However, BDZ did
not want to see him. (¶ 22.) DDZ stayed in Illinois until August 25, 2022,l during
which he told multiple parties that his wife BDZ was a surrogate for Plaintiff’s
twins. (¶ 24.)
The SAC alleges some specific examples of DDZ exposing plaintiff’s
private facts, which gives rise to an inference of an intent to harm Plaintiff.
In September 2022, DDZ was on a phone call with his wife on speakerphone, while
she was in the car with both Plaintiff’s sister and son. (SAC ¶¶ 34-38.) During
this call, Defendant discussed the fact that he had told people about the
surrogacy. (¶ 35.) Defendant admitted to his wife: “I already told the cops and
all our friends at home. What are you gonna do about it?” He also said, “I’ll
tell whoever I [expletive] want!” (¶ 36.)
In another incident in July 2022, Defendant revealed the same information
to another woman at a bar in Palm Springs with her husband. (Id., ¶ 38.) This
woman was also a surrogate with Plaintiff’s company and knew both Plaintiff and
Defendant’s wife. (Id., ¶ 41.) Defendant told this woman he had been looking
for her because he wanted to talk to her about his marital problems. (¶ 40.)
During the conversation, Defendant revealed to her that his wife had been the
surrogate for Plaintiff’s twins, and repeated his accusations that his wife was
having an affair with Plaintiff and her husband. (¶¶ 41-42.)
Defendant made public non-privileged disclosures to various people,
including the specific persons above and unspecified statements to townsfolk in
rural Illinois. (¶¶ 56-57.) These disclosures included allegedly private facts
about Plaintiff’s surrogacy, which were intended to be kept private. (¶58.) In
the context of Defendant’s divorce, and Defendant’s alleged beliefs about
Plaintiff’s role in Defendant’s divorce, a fact finder could conclude that
Defendant intended to harm Plaintiff by exposing the alleged private facts of
Plaintiff’s surrogacy with BDZ. (¶¶62-64.) As such, whether DDZ’s actions were
intended to harm Plaintiff is a question of fact beyond the pleading stage.
Accordingly, the motion is DENIED as to the request for punitive damages.
Attorneys’ Fees
Code of Civil Procedure section 1021
states that “[e]xcept 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.” In the case
of a contractual attorney fees provision, any inquiry begins with the language
of the subject attorney fees provision, and thus, for attorney fees to be
recovered, the claim on which the fees are incurred must fall within the scope
of the attorney fee provision. (Exxess Electronixx v. Heger Realty Corp.
(1998) 64 Cal.App.4th 698, 708.)
The SAC attempts to support the
claim of attorney’ fees by citing certain portions of the surrogacy agreement.
The SAC alleges that pursuant to Paragraph 28.a. of the Surrogacy Agreement,
the parties agreed “to mediate any dispute or claim arising between them out of
this Agreement or any resulting transaction before resorting to arbitration or
court action.” (SAC ¶16.) Further, paragraph 28.b. provides that if either
party “commences an arbitration or court action . . . without first attempting
to resolve the matter through mediation,” it would be a matter for “the
discretion of the arbitrators or judge” to determine whether the party would
“be entitled to recover attorneys’ fees.” (SAC ¶17.)
The Court first observes that
Plaintiff has still not attached the entirety of the Surrogacy Agreement, or
the entirety of the purported attorneys’ fees clause. Generally, to support a
contract-based claim, a plaintiff must attach the contract at issue to the complaint,
plead the legal effect of the material terms of the contract, or set out
verbatim terms in the body of the complaint. (McKell v.
Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) In order to plead a contract by its legal effect, plaintiff
must ‘allege the substance of its relevant terms. This is more difficult, for
it requires a careful analysis of the instrument, comprehensiveness in statement,
and avoidance of legal conclusions.’ [Citation.]” (Id.) Plaintiff only cites certain portions of the purported
attorneys’ fees clause, and without attaching the contract or clause itself. Further,
these quotations do not provide a “comprehensive” and “careful” analysis of the
instrument without avoiding legal conclusions. (Id.) On this basis, the
motion to strike would be granted. The Court must now determine whether leave
should be granted for Plaintiff attach the contract or allege the substance of all
the relevant terms.
Defendant contends that the
quotations are taken out of context and that the clause supports denial of attorneys’
fees. Generally, the Court would consider this to be an improper argument on a
motion to strike, as it relies entirely on extrinsic evidence. The Court will
therefore not consider the above language on the merits of the motion to strike,
but only as to whether leave to amend should be granted.
In opposition, Plaintiff admits
that the cited language represents that attorneys’ fees provision in the Surrogacy
Agreement. As such, the Court will consider the clauses for leave to amend
purposes. Defendant provides that the
cited paragraph actually states:
a. The Parties agree to mediate any
dispute or claim arising between them out of this Agreement or any resulting
transaction before resorting to arbitration or court action. Mediation is a
process by which parties attempt to resolve a dispute or claim by meeting with
an impartial, neutral mediator, who is authorized to facilitate the resolution
of the dispute, but who is not empowered to impose a settlement on the Parties.
Any said mediation shall be of reasonable length and the fees shall be divided
equally among the Parties involved.
b. If any Party commences an
arbitration or court action (including a small claims court action) which is
based on a dispute or claim arising or related to this Agreement without first
attempting to resolve the matter through mediation, then in addition to any
other remedies and damages available at law or at equity, in the discretion of
the arbitrators or judge, that Party shall not be entitled to recover
attorneys’ fees, even if they would otherwise be available to that Party in any
such arbitration or court action.
c. In the event mediation does not
resolve the dispute between the Parties, the Parties agree that all claims,
disputes, or controversies arising out of or in relation to the performance,
interpretation, application or enforcement of this Agreement, EXCEPT ISSUES
PERTAINING TO LEGAL CUSTODY OF THE CHILD, PARENTAL RIGHTS AND/OR PARENTAGE,
shall be settled in binding arbitration in Los Angeles County or Orange County,
California, or as otherwise appropriate as determined by the attorneys for the
Intended Parent, with California substantive law and the California Arbitration
Act applied, and in accordance with the then-current rules of the American
Arbitration Association, and judgment upon the award entered by the
arbitrator(s) may be entered in any Court having jurisdiction thereto. Costs of
arbitration, including reasonable attorneys' fees incurred by the prevailing
Party in Court enforcement of the arbitration award after it is rendered by the
arbitrator(s), must be paid to the prevailing Party by the Party designated by
the Arbitrator(s) or Court. Said arbitration shall be conducted in the English
language and the award rendered in United States dollars.
(Counts Decl., Ex. A.) Defendant
reads this clause as disallowing attorneys’ fees if the party files a court
action without first requesting mediation. Defendant observes that the SAC
alleges no mediation occurred. (SAC ¶ 47.) Defendant thus reasons that any
claim for attorneys’ fees should be barred. On the other hand, Plaintiff argues
that the provision explicitly permits fees to the prevailing party even where
mediation is not first sought, “in the discretion of the arbitrator or judge.”
Read in context, paragraph 28(b) does
not permit recovery of attorneys’ fees at all. Instead, the clause gives the
court “discretion” to deny attorneys’ fees that “would otherwise be
available to that Party in any such arbitration or court action” “when a party
fails to first attempt to mediate the dispute.” Paragraph 28(b) only takes
away attorneys’ fees that would otherwise be available. Thus,
Paragraph 28(b) cannot independently provide for any attorneys’ fees here. The
Court further observes that Paragraph 28(c) permits recovery of the “costs of
arbitration” which includes “attorneys’ fees incurred by the prevailing Party
in Court enforcement of the arbitration award after it is rendered by the
arbitrator(s)[.]” However, this is not an arbitration, and no arbitration was
alleged. Thus, paragraph 28 does not provide for any attorneys’ fees in this
action. Therefore, Plaintiff fails to demonstrate a reasonable probability of
successful amendment for the claim of attorneys’ fees.
Accordingly, the motion is GRANTED
as to attorney’s fees without leave to amend.