Judge: Peter A. Hernandez, Case: 24STCV19199, Date: 2025-01-13 Tentative Ruling
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Case Number: 24STCV19199 Hearing Date: January 13, 2025 Dept: 34
Defendants Gary A. Dordick Esq., Dordick Law
Corporation, Terry J. Cole Esq, and Douglas D. Shaffer Esq.’s Motion to Strike
portions of Plaintiff’s complaint is GRANTED.
The court will inquire at the
hearing whether leave to amend should be granted.
Background
On August 1, 2024, Plaintiff Derrick Anderson
(“Plaintiff”) filed a complaint against Defendants Gary A. Dordick, Esq., Dordick Law
Corporation, Terry J. Cole, Esq, and Douglas D. Shaffer, Esq. (“Defendants”)
arising from Defendants representation of Plaintiff alleging causes of action
for:
1.
Negligence;
2.
Breach of Fiduciary Duty; and
3.
Breach of Contract.
On November
6, 2024, Defendants filed this Motion to Strike. No opposition or other
responsive pleading has been filed.
Legal Standard
The
court may, upon a motion, or at any time in its discretion, and upon terms it
deems proper, strike any irrelevant, false, or improper matter inserted in any
pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any
part of any pleading not drawn or filed in conformity with the laws of this
state, a court rule, or an order of the court. (Id., § 436(b).) The
grounds for a motion to strike are that the pleading has irrelevant, false or
improper matter, or has not been drawn or filed in conformity with laws. (Id.,
§ 436.) The grounds for moving to strike must appear on the face of the
pleading or by way of judicial notice. (Id., § 437.) “When the defect
which justifies striking a complaint is capable of cure, the court should allow
leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761,
768.)
Discussion
Defendants
move to strike the following portions of Plaintiff’s complaint:
1.
Paragraph
78, line 27: “Defendant and” and “intentionally and/or willfully”;
2.
Paragraph
79, line 1: “gross negligence, and willful misconduct, and each of them”;
3.
Paragraph
79, line 3: “pain and suffering, and emotional distress according to proof”;
4.
Paragraph
86, lines 21-22: “pain and suffering, and emotional distress according to
proof”;
5.
Paragraph
91, lines 17-18: “pain and suffering, and emotional distress according to
proof”;
6.
Page
26, line 23: Prayer: “For general non-economic damages according to proof at
trial”
7.
Page
26, lines 24-25: Prayer: “and non-economic” and “according to proof”;
8.
Page
27, line 3: Prayer: “For general non-economic damages according to proof at
trial”;
9.
Page
27, lines 4-5: Prayer: “other”, “and non-economic” and “according to proof”;
10.
Page
27, line 11: Prayer: “For general non-economic damages according to proof at
trial”;
11.
Page
27, lines 12-13: Prayer: “other”, “and non-economic” and “according to proof.”
(Motion, at p. 2.)
“Pain and Suffering” and Emotional
Distress Damages
Defendants
move to strike portions of Plaintiff’s complaint on the basis that Plaintiff
did plead sufficient facts to support a claim for “pain and suffering” and
“emotional distress” damages as the Plaintiff’s alleged injuries only involve
economic loss. (Id., at pp. 5-7.)
Plaintiff
does not oppose Defendants’ motion.
General damages are damages that necessarily
result from the act complained of. (Licudine v. Cedars-Sinai Medical Center¿(2016)
3 Cal.App.5th 881, 891.) General damages include damages for pain and
suffering, emotional distress and other forms of detriment that are sometimes
characterized as subjective or not directly quantifiable. (Id.,¿at
892.) General damages are generally not recoverable in legal malpractice
cases where the interest of the client is economic. (See Camenisch v.
Superior Court (1996) 44 Cal.Appp.4th 1689, 1695.) "Where the
interest of the client is economic, serious emotional distress is not an
inevitable consequence of the loss of money and, as noted, the precedents run
strongly against recovery." (Merenda v. Superior Court (1992) 3
Cal.App.4th 1, 10, disapproved on other grounds in Ferguson v. Leiff,
Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1044-45.)
The court finds that Plaintiff’s complaint does not adequately allege a
basis for an award of general damages because the injuries alleged are all
economic in nature and lack sufficient allegations of accompanying emotional
distress or other non-economic losses, such as pain and suffering. As such, the
court grants Defendants’ motion to strike Plaintiff’s request for “pain
and suffering” and “emotional distress” damages.
“According to
proof”
Defendants argue that Plaintiff is not able to allege
damages solely “according to proof” without stating an amount requested as
Plaintiff’s claim is purely for economic losses under California Code of Civil
Procedure section 425.10(a)(2). (Motion, at p. 8.)
Plaintiff
does not oppose Defendants’ motion.
“If the recovery of money or damages is demanded, the
amount demanded shall be stated.” (Code Civ. Proc., § 425.10(a)(2).) “Section 425.10 requires all complaints to
state the amount of damages sought, except in personal injury or wrongful death
cases.” (Electronic Funds Solutions v. Murphy (2005) 134 Cal.App.4th
1161, 1176.)
The court finds that Plaintiff’s complaint does not adequately state the
amount of damages sought. It is clear that Plaintiff seeks a monetary recovery
which is to be stated somewhere in the complaint to comply with CCP section
425.10(a)(2). As such, the court grants Defendants’ motion to strike
Plaintiff’s request for damages “according to proof”.
Gross Negligence
Defendants move
to strike Plaintiff’s allegation of “gross negligence” in paragraph 79 of the
complaint arguing that no specific facts are set forth in support of the
allegation. (Motion, at p. 8.)
Plaintiff does not oppose Defendants’
motion.
California does not recognize a distinct
common law cause of action for gross negligence apart from negligence. (Jimenez
v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3; Chavez
v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640; Eriksson
v. Nunnink (2011) 191 Cal.App.4th 826, 856, fn. 18 [“[i]n reality,
California does not recognize a distinct cause of action for ‘gross negligence’
independent of a statutory basis”].) Numerous cases discuss the doctrine
of gross negligence; however, these cases have invariably involved a statute
containing the words “gross negligence” in the text. (Cont'l Ins. Co.
v. Am. Prot. Indus. (1987) 197 Cal.App.3d 322, 329.) Rather, as a
degree of negligence, “[g]ross negligence is pleaded by alleging the
traditional elements of negligence: duty, breach, causation, and
damages.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th
1072, 1082.) To set forth, “gross negligence” the plaintiff must also
allege conduct by the defendant involving either “want of even scant care” or
“an extreme departure from the ordinary standard of conduct.” (Jimenez,
supra, 237 Cal.App.4th at 555.) Gross negligence connotes such a lack
of care as may be presumed to indicate a passive and indifferent attitude
toward results. (Chavez, supra, 238 Cal.App.4th at 640.)
Although gross negligence allegations may
be appropriate within a cause of action for negligence, Plaintiff fails to make
sufficient allegations that Defendants’ negligent conduct amount to the degree
of gross negligence. (See Jimenez, supra, 237 Cal.App.4th at 552 fn. 3
[referring to gross negligence as a “degree of negligence”].) As such, the court grants Defendants’
motion to strike Plaintiff’s allegation of “gross negligence” in paragraph 79.
Conclusion
Defendants Gary A. Dordick Esq., Dordick Law Corporation, Terry J. Cole
Esq, and Douglas D. Shaffer Esq.’s Motion to Strike portions of Plaintiff’s
complaint is GRANTED.
The court
will inquire at the hearing whether leave to amend should be granted.