Judge: Mark A. Young, Case: 23SMCV01657, Date: 2023-10-04 Tentative Ruling
Case Number: 23SMCV01657 Hearing Date: November 15, 2023 Dept: M
CASE NO.: 23SMCV01657
MOTION: Demurrer
to the First Amended Complaint
HEARING DATE: 11/15/2023
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
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.)
Analysis
Defendant Robert Colman demurs to the
third, fourth, sixth and seventh causes of action of Plaintiff Jane Doe’s First
Amended Complaint (FAC).
Statute of Limitations for Negligence
and Fraud
Defendant
demurs to the third and fourth causes of action on statute of limitations
grounds. A claim for negligence
carries a statute of limitations period for two years from the date of injury.
(Code Civ. Proc. § 335.1.) The statute of limitations for fraud is three years.
(Code Civ. Proc., § 338(d).)
“Generally,
a cause of action accrues and the statute of limitation begins to run when a
suit may be maintained. Ordinarily this is when the wrongful act is done and
the obligation or the liability arises . . . . In other words, a cause of
action accrues upon the occurrence of the last element essential to the cause
of action. [Citation.]” (Cobb v. City of Stockton (2011) 192 Cal.App.4th
65, 72-73, alterations and internal quotation marks omitted.) Under the
so-called ‘discovery rule,’ the accrual of the statute is tolled until a
plaintiff discovers, or has reason to discover, the cause of action. (Id.)
The discovery rule protects those who are ignorant of their cause of action
through no fault of their own. (April Enterprises, Inc. v. KTTV (1983)
147 Cal.App.3d 805, 832.) Unless a
complaint affirmatively discloses on its face that the statute of limitations
has run, demurrer must be overruled. (Lockley v. Law Office of Cantrell,
Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881 [“It must
appear clearly and affirmatively that, upon the face of the complaint, the
right of action is necessarily barred”].)
Defendant
asserts that the cause of action for negligence and fraud accrued in 2019.
Plaintiff met Defendant in March 2019, onboard a flight from Los Angeles to
Phoenix, Arizona. (FAC ¶ 6.) The pair engaged in sexual intercourse on or about
April 17, 2019, at Mr. Colman’s home in Brentwood, California. (FAC ¶ 7.) They
had unprotected sexual intercourse several times over the next few months. (FAC
¶ 8.) In September 2019, Mr. Colman allegedly informed Plaintiff that he had
been diagnosed with HSV-2 genital herpes roughly 40 years prior. (FAC ¶ 9.)
After this disclosure, Plaintiff claims she never had sexual intercourse with
him again, but believes she experienced an outbreak of HSV-2 genital herpes for
the first time in November 2021. (FAC ¶¶ 10, 13.) Plaintiff chose to continue
her relationship with Defendant until separating in July 2022. (FAC ¶ 8.)
Plaintiff first tested positive for HSV-2 genital herpes on September 9, 2022.
(FAC ¶ 14.)
The FAC further alleges that Defendant
knew that he was infected with HSV-2 prior to starting a sexual relationship
with Plaintiff. (FAC ¶ 47.) Defendant therefore had a duty to disclose this
material fact to her before engaging in sexual relations. (Id.) Defendant
intended to mislead Plaintiff by concealing his known HSV-2 status from her in
order to induce her to have sexual relations with him. (FAC ¶ 49.) Plaintiff
relied on this omission and unwittingly engaged in unprotected sexual
intercourse with Defendant to her detriment, having no knowledge of his HSV-2
infection. (FAC ¶ 50.) Plaintiff would not have engaged in unprotected sexual
intercourse with Defendant had she known he had HSV-2. (Id.) As a direct and
proximate result of Defendant’s intentional concealment, Plaintiff contracted
HSV-2 and has suffered injury, damage, loss, and harm to her body and mind
therefrom. (FAC ¶51.)
As set forth in the FAC, Plaintiff
alleges that she did not have reason to suspect that she was infected with
HSV-2 genital herpes until November 2021, when she first developed symptoms
associated with HSV-2. The FAC asserts that Plaintiff did not have reason to
believe she was infected because she reasonably relied on Defendant’s explicit representations
that “his HSV-2 infection had long been inactive and that it was therefore safe
to have sexual intercourse with him.” (FAC ¶ 18.) Plaintiff therefore did not
suffer cognizable damages from Defendant’s negligence or fraud until November
2021. Considering Plaintiff’s pled discovery of her damages, Plaintiff’s claim
would be timely under either the two or three-year statutes.
Defendant disputes that this discovery
was reasonable. Defendant reasons that Plaintiff would not have stopped having
sex with him after he made his disclosure in 2019 if she truly relied on his
representations. (FAC ¶ 10.) However, this does not conclusively show that she
discovered or should have discovered her injury in 2019. As alleged in the FAC, Plaintiff did not reasonably
discover this cause of action until November 2021 at the earliest, when she
began suffering from symptoms of genital herpes for the first time. Whether
this delay was reasonable is a question of fact which cannot be resolved at the
demurrer stage. Thus, under the pled facts, Plaintiff timely filed this action
within two years of her discovery of her injuries.
Accordingly,
the demurrer is OVERRULED as to the third and fourth causes of action.
Statute of Frauds and Consideration
Defendant
demurs to the sixth cause of action for breach of contract on the grounds that it
is barred by the statute of frauds. The statute of frauds bars enforcement of
agreements that by its terms is not be performed within a year from its making,
unless confirmed in some form of writing and subscribed by the party to be
charged. (Civ. Code, § 1624(a)(1).) An agreement “for the sale of property, or
of an interest therein” is also subject to the Statute of Frauds. (Civ. Code, §
1624(a)(3).)
The
contract at issue does not violate the statute of frauds, as it may be
performed within one year and does not confer an interest in real property. The
contract at issue pertains to a an oral/implied contract where
“Plaintiff sold her apartment building in Phoenix in exchange for Defendant’s
promise to support her financially for the rest of her life.” (FAC ¶ 65.) Specifically, the parties:
mutually
understood and agreed at the time, as shown through the Parties’ words,
actions, and prior course of dealing, that Defendant would continue making
monthly support payments to Plaintiff of at least $15,000 per month for the
rest of her life if she agreed to sell her apartment building: Defendant
assured Plaintiff that he would support her financially, and he was in fact
already making such support payments, which were comparable to the monthly
income she would be giving up by selling her property; Defendant was the party
strongly pushing for Plaintiff to sell her property despite knowing that in
return she expected him to provide her with ongoing financial security and
stability to account for the loss in regular monthly rental income; Defendant
told Plaintiff that he wanted to spend the rest of his life with her; and
Defendant was already treating Plaintiff as his lifelong partner, including by
asking her to move in with him.
(FAC ¶66.) Essentially, Plaintiff makes a Marvin
claim. (See Marvin v. Marvin (1976) 18 Cal.3d 660, 678 [express or
implied contracts between unmarried cohabitants to share in property
accumulations during the relationship enforceable under general principles of
contract law].)
As to the one-year rule, the terms
of the contract itself must reveal that it cannot be carried out within one
year. (White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 343, fn. 2.)
The instant contract may have been completed within one year, since the “rest
of” Plaintiff’s life was uncertain and could have ended within a year.
As to the real estate rule, simply
put, the terms of the contract did not provide “for the
sale of property, or of an interest therein” and thus would not violate the
statute of frauds. Even if the real estate statute of frauds would apply,
Plaintiff alleges an exception to the statute of frauds via part performance. “The
doctrine of part performance… is a well-recognized exception to the statute of
frauds as applied to contracts for the sale or lease of real property.” (Sutton
v. Warner (1993) 12 Cal.App.4th 415, 422 [oral agreement for the transfer
of an interest in real property is enforceable when the buyer has taken
possession of the property and either makes a full or partial payment of the
purchase price, or makes valuable and substantial improvements on the property
in reliance on the oral agreement].) Plaintiff alleges that she fully performed
her part of the agreement by selling her apartment building and cohabitating
with Defendant. (FAC ¶¶ 11, 68.)
Defendant
also argues that the contract fails for lack of consideration. The FAC
adequately alleges consideration as follows:
Although
Defendant was already making support payments to Plaintiff prior to the
contract’s formation, he was under no legal obligation to continue doing so in
the future, so his promise to continue making support payments for the rest of
Plaintiff’s life was a legal detriment to him and a bargained-for benefit to
Plaintiff. Likewise, prior to the contract’s formation, Plaintiff had no legal
obligation to sell her Phoenix property, so her promise to do so was a legal
detriment to her and the increased attention, availability, and companionship
Defendant wanted and received as a result of the sale was a bargained-for
benefit to him.
(FAC ¶ 67.) This alleges a legal detriment to both parties.
Accordingly, the demurrer is
OVERRULED as to the breach of contract claim.
Promissory Estoppel
Defendant argues that the seventh
cause of action for promissory estoppel fails because the FAC does not allege a
“clear and unambiguous” promise. “The elements of
promissory estoppel are (1) a promise, (2) the promisor should reasonably
expect the promise to induce action or forbearance on the part of the promisee or a third
person, (3) the promise induces action or forbearance by the promisee or a third
person (which we refer to as detrimental reliance), and (4) injustice can be
avoided only by enforcement of the promise.” (West v. JPMorgan Chase
Bank, N.A. (2013) 214 Cal.App.4th 780, 803.) “The party claiming estoppel
must specifically plead all facts relied on to establish its elements.” (Smith
v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48.) “Although a
cause of action for promissory estoppel is inconsistent with a cause of action
for breach of contract based on the same facts [citation], ‘[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.’” (Fleet v. Bank of America N.A.,
(2014) 229 Cal.App.4th 1403, 1413.)
Here, Plaintiff pleads that, in the
alternative, if Plaintiff and Defendant did not enter into a binding contract,
Plaintiff may recover on a claim for promissory estoppel. Defendant made a
clear and unambiguous promise to support Plaintiff financially for the rest of
her life. (FAC ¶ 73.) “The scope of Defendant’s promised financial support was
mutually understood and agreed upon at the time in light of the Parties’
previous course of dealing: Defendant would pay Plaintiff monthly support
payments totaling at least $15,000 to cover her living expenses and an
additional spending stipend, just as he had been doing.” (Id.) In reliance on
this representation, Plaintiff sold her Phoenix apartment building and gave up
$18,000 in monthly rental income. (FAC ¶ 74.) The FAC alleges that Plaintiff’s reliance
was reasonable as a matter of fact, because:
Plaintiff did
not want to sell her Phoenix property at the time and give up her steady rental
income. She made clear to Defendant that, if she sold her property, she
expected him to help offset the loss in stable income by continuing to make the
monthly support payments he was already providing. With knowledge of such
expectations, Defendant still strongly pushed and ultimately convinced
Plaintiff to sell the property. Further, at the time the promise was made, the
Parties were in a serious, committed relationship and were living together and
treating one another as lifelong partners. Given that the Parties planned to
“be together forever,” as they discussed at the time, it was understood that
Defendant, who was exceptionally wealthy, would help support Plaintiff
financially so that she too could maintain a certain standard of living and the
sumptuous lifestyle Defendant was accustomed to.
(FAC ¶ 75.) Defendant broke his promise when he stopped
making support payments to Plaintiff in January 2023. (FAC ¶ 76.) As such, “injustice
can only be avoided by enforcing Defendant’s promise.” (FAC ¶77.)
The above facts establish all the
elements of promissory estoppel. Defendant made a specific and unambiguous
promise to financially support Plaintiff. In detrimental reliance on this
promise, Plaintiff sold her apartment building and cohabitated with Defendant. As
a matter of equity and fact, injustice can only be avoided by enforcing
Defendant’s promise. Therefore, the alternative claim is well-pled.
Accordingly, the demurrer is
OVERRULED.
Motion to Strike – Code of Civil Procedure § 351
Defendant moves to strike the
specific allegations referring to section 351 tolling because the supporting facts
are unspecific and the application of the statute would be unconstitutional.
This section provides that “[i]f,
when the cause of action accrues against a person, he is out of the State, the
action may be commenced within the term herein limited, after his return to the
State, and if, after the cause of action accrues, he departs from the State,
the time of his absence is not part of the time limited for the commencement of
the action.” (CCP § 351.) The FAC states facts that Defendant was out of state
“on vacations or for other personal matters for more than 35 days” from October
1, 2019, to April 6, 2020 and October 1, 2020 to April 18, 2023. (FAC, ¶ 21.)
Defendant argues that the allegations
may be stricken because it is “not discernible” how many days Plaintiff claims
that the statute of limitations would be tolled. However, Defendant does not
provide any authority suggesting that this needs to be pled. In any event, the
amount of tolling may be freely calculated by these facts. Thus, the Court
would not strike these factual allegations for the presented reason.
Defendant argues that applying section
351 in this case is unconstitutional because it would violate the commerce
clause by impermissibly burdening interstate commerce with respect to residents
who travel for the facilitation of interstate commerce. (See Filet Menu
Inc., v. Cheng (1999) 71 Cal.App.4th 1276, 1283.) However, Defendant relies
on the unalleged assumption that he was traveling for commerce purposes. In Cheng,
the court held that the statutory tolling of section 351 does not
violate Commerce Clause when travel is unrelated to interstate commerce. (Id.
at 1284.) The court elaborated that “the complaint alleges that Cheng was
absent from California for periods sufficient to toll the running of the
applicable statutory period, but does not allege the specific reasons for
Cheng's out-of-state travel. Because the allegations do not describe the extent
to which Cheng's absences from the state were in the course of interstate
commerce, they do not establish that applying section 351 in the circumstances
of this case violates the commerce clause. In sum, the demurrer was improperly
sustained.” (Id.) Like in Defendant’s cited case of Cheng, the
FAC does not allege why Defendant was out of state during those periods. Thus,
Defendant’s argument is unsupported.
Motion to Strike – Punitive Damages
Defendant argues that his conduct
is not subject to punitive damages because he did not engage in fraudulent
conduct. 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.)
Defendant reasons that because he
did not intentionally misrepresent the idea that he was disease-free, he did
not commit fraudulent or despicable conduct. Defendant provides no authority
which would suggest that his lack of affirmative misrepresentations could not
be considered “fraudulent” under section 3294. However, fraud means any “intentional
misrepresentation, deceit, or concealment of a material fact known to
the defendant with the intention on the part of the defendant of… otherwise
causing injury.” (Civ. Code § 3294(c)(3), emphasis added.) As discussed above,
Plaintiff pleads facts showing Defendant’s knowing and intentional concealment
of the material fact of his herpes positive status. Defendant knowingly and
intentionally engaged in unprotected sexual intercourse with Plaintiff without
first disclosing his HSV-2 diagnosis to her. (FAC ¶¶ 24, 26, 33, 36, 48, 51,
56.) This is sufficient for pleading purposes.
Motion to Strike - Prejudgment Interest
An award of prejudgment interest
may be available by statute or by contract and requires damages that are
“certain” or “capable of being made certain by calculation.” (Civil Code §
3287(a).) The purpose of award of prejudgment interest is to provide
compensation to the injured party for loss of use of the award during the
prejudgment period. (Howard v. American National Fire Ins. Co. (2010)
187 Cal. App. 4th 498, 535-536.) The Court must award prejudgment interest upon
request, from the first day there exists both a breach and a liquidated claim.
(Id.)
Whether a defendant is liable for
prejudgment interest depends on whether defendant¿“actually know[s] the amount
owed or from reasonably available information could the defendant have computed
that amount.” (Duale v. Mercedes-Benz USA, LLC¿(2007) 148
Cal.App.4th 718, 729.) “The statute . . . does not authorize prejudgment
interest where the amount of damage, as opposed to the determination of
liability, depends upon a judicial determination based upon conflicting
evidence and¿it is not ascertainable from truthful data supplied by the
claimant to his debtor. Thus,¿where the amount of damages cannot be resolved
except by verdict or judgment, prejudgment interest is not appropriate.” (Id.
citations, quotations, and emphasis omitted.) Damages will be
deemed "capable of being made certain by calculation" if the amount
due can be determined by reference to a fixed standard, e.g., a payment
schedule, a readily ascertainable market value, or data supplied by plaintiff
to defendant. (Marine Terminals Corp. v. Paceco (1983) 145 Cal.App.3d
991, 996.) For example, in Paceco, when
the plaintiff submitted invoices to the defendant, the plaintiff made its
damages known to defendant and rendered them “certain”. (Id.)
The FAC only alleges that Plaintiff
is entitled to monthly support payments of “at least” or “more than” certain
amounts (e.g., $15,000 per month for the rest of her life). (FAC ¶ 66.)
Defendant was obligated to “support her financially.” (Id.) However, “at least”
or “more than” an amount is not certain or capable of being made certain under
the pled facts. The terms for “supporting her financially” also does not
provide a certain sum. Plaintiff argues that there was an agreed-upon method
for calculating the support payments each month: Defendant would pay all of
Plaintiff’s living expenses and give her a monthly spending stipend, which at
first was $6,000 and then was increased to $7,500. (FAC ¶¶ 11, 73.) Of course,
these figures are also not certain. The FAC alleges that Defendant would pay
Plaintiff’s living expenses of “approximately” $9,000.00 per month and an
additional monthly stipend ranging from $6,000.00 to $7,500.00. This
calculus shows that Defendant would pay “at least” $15,000.00 a month. These
approximations and ranges do not show that the damages are “certain” or
“capable of being made certain by calculation.” Plaintiff also argues that she
submitted her living expenses to Defendant for reimbursement each month.
However, Plaintiff does not allege this in the FAC. Thus, the current facts do
not support a claim for prejudgment interest.
Accordingly, the motion to strike
is GRANTED with leave to amend as to the pre-judgment interest request.
Motion to Strike - Attorneys’ Fees
Defendant argues that the request
for attorneys’ fees should be stricken because there is no contract or statute
providing for fees. Plaintiff argues that if she is successful on either her
negligence or fraudulent concealment claim, she may be able to recover her
attorney’s fees under Civil Code section 1021.5. The section codifies the
“private attorney general” exception to the general rule that each side bears
its own fees unless the parties contracted otherwise. (CCP § 1021.5.) Section
1021.5 permits a trial court to award fees to a successful party in any action
that: “has resulted in the enforcement of an important right affecting the
public interest if: (a) a significant benefit has been conferred on the general
public or a large class of persons, (b) the necessity and financial burden of
private enforcement are such as to make the award appropriate, and (c) such
fees should not in the interest of justice be paid out of the recovery. (Flannery
v. California Highway Patrol, (1998) 61 Cal.App.4th 629, 634.) The issue is
committed to the trial court’s discretion. (Id.)
“The trial court determines the
significance of the benefit, and the group receiving it, ‘from a realistic
assessment, in light of all the pertinent circumstances, of the gains which
have resulted in a particular case. ‘The
‘extent of the public benefit need not be great to justify an attorney fee[s]
award.’ And fees may not be denied merely because the primary effect of the
litigation was to benefit the individual rather than the public.” (Indio Police Command Unit Association v.
City of Indio (2014) 230 Cal.App.4th 521, 543.) In determining whether a
public benefit was conferred, the “courts check to see whether the lawsuit
initiated by the plaintiff was ‘demonstrably influential’ in overturning,
remedying, or prompting a change in the state of affairs challenged by the
lawsuit.” (Karuk Tribe of Northern California v. California Regional Water
Quality Control Board (2010) 183 Cal.App.4th 350, 363.
“An award on the ‘private attorney
general’ theory is appropriate when the cost of the claimant’s legal victory transcends
his personal interest, that is, when the necessity for pursuing the lawsuit
placed a burden on the plaintiff ‘out of proportion to his individual stake in
the matter.’” (Woodland Hills Residents’ Ass’n, Inc. (1979) 23 Cal.3d
917, 941.) “An attorney fee award under¿section 1021.5¿is proper unless the
[successful litigant’s] reasonably expected financial benefits exceed by a
substantial margin the [litigant’s] actual litigation costs.” (Collins v.
City of Los Angeles (2012) 205 Cal.App.4th 140, 154.) “The successful
litigant's reasonably expected financial benefits are determined by discounting
the monetary value of the benefits that the successful litigant reasonably
expected at the time the vital litigation decisions were made by the
probability of success at that time.” (Id. at 155.)
Even if viewed in the light most
favorable to Plaintiff, the current record does not suggest that a significant benefit
would be conferred to a certain group or the general public. If successfully
prosecuted, there is no indication that this action would overturn, remedy, or
prompt a change in any significant state of affairs in the general public. Plaintiff
argues that this action would help enforce the state’s strong public policy of
preventing the spread of venereal diseases. (Behr v. Redmond (2011) 193 Cal.App.4th
517, 525.)
Plaintiff’s proffered benefit is vague and unspecific. Even though the state
has an interest in containing the spread of venereal diseases, there are no
facts present on this record which show that successful
prosecution of this action would confer a significant benefit on the public or any
other group. This is largely a private dispute between private individuals
which involves venereal diseases. However, favorable resolution of this
action would not likely have any impact on the spread of venereal diseases. There
are also no facts showing that Plaintiff bears such a financial burden of
private enforcement are such as to make the award appropriate. Presumably, the
financial benefits expected here would not be outweighed by actual litigation
costs. As such, the Court does not find that the first two elements are met for
an award of attorneys’ fees.
Accordingly, the motion to strike is GRANTED
with leave to amend as to attorneys’ fees.
Plaintiff has 10 days to file an amended
complaint.