Judge: Theresa M. Traber, Case: 22STCP03518, Date: 2023-03-07 Tentative Ruling

Case Number: 22STCP03518    Hearing Date: March 7, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 7, 2023                        TRIAL DATE: NOT SET

CASE:                         Myung Hye Kim v. David Okju An et al.

CASE NO.:                 22STCP03518           

MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT

MOVING PARTY:               Defendant David Okju An

RESPONDING PARTY(S): Plaintiff Myung Hye Kim

CASE HISTORY:

·         09/28/22: Complaint filed.

·         12/22/22: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for fraud, breach of fiduciary duty, and elder abuse arising from a series of agreements with Defendants to perform construction work for Plaintiff.

Defendant An moves to strike portions of the Complaint pertaining to punitive damages and to a request for attorney’s fees.

TENTATIVE RULING:

Defendant’s Motion to Strike is DENIED.

DISCUSSION:

Defendant An moves to strike portions of the Complaint pertaining to punitive damages and to a request for attorney’s fees.

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.) A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders.  (Code Civ. Proc., § 436(b).) This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed."  (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original).)

Meet and Confer

 Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 435.5(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  (Code Civ. Proc., § 435.5(a)(4).)

The Declaration of Dale J. Park filed in support of the motion states only that the parties’ counsel met and conferred on January 13, 2023 and could not resolve the issues raised in this motion. (Declaration of Dale J. Park ISO Mot. ¶ 3.) The declaration does not describe the form of the discussion or its length, nor does it provide any additional details regarding Defendant’s meet and confer efforts whatsoever. A single sentence in a declaration is wholly insufficient to establish that Defendant engaged in a good faith effort to informally resolve this dispute, as required by the Code of Civil Procedure. Defendant has not satisfied the statutory meet and confer requirements. Nevertheless, the Court will address the motion to strike on its merits.

Analysis

Defendant An moves to strike portions of the Complaint pertaining to punitive damages and to a request for attorney’s fees.

            Defendant moves to strike several of Plaintiff’s allegations relating to punitive damages and the accompanying prayers for relief on the basis that Plaintiff has failed to adequately allege a right to punitive damages. Defendant offers no basis for this contention other than a conclusory assertion that the First Amended Complaint does not plead facts supporting any basis for punitive damages under Civil Code section 3294. Civil Code section 3294 authorizes punitive damages when a plaintiff has shown, by clear and convincing evidence, that the defendant’s conduct constituted malice, oppression, or fraud. (Civ. Code § 3294(a).) Defendant’s conclusory assertions are not sufficient to demonstrate that any portion of the First Amended Complaint should be stricken. Further, Defendant’s equally conclusory statement that “the nucleus of this action arises from the partnership agreement” is not sufficient to establish that punitive damages are not available for the second cause of action for breach of fiduciary duty, sixth cause of action for elder abuse, or, most transparently, the fifth cause of action for fraud.

            Defendant also moves to strike the prayer for attorney’s fees on the basis that Plaintiff pleads no statutory basis for recovery of attorney’s fees. Under Code of Civil Procedure section 1021, each party bears its own fees and costs except where otherwise specifically provided for by statute. (Code Civ. Proc. § 1021.) Attorney’s fees and costs may also be authorized by contract. (Code Civ. Proc. § 1033.5.) Plaintiff’s prayer for relief seeks attorney’s fees “incurred herein to the extent allowed by law.” (FAC p. 24:8.) On the face of the pleading, the Court does not find that this request is improper. If, as Defendant contends, Plaintiff is not entitled to attorney’s fees, then no attorney’s fees will be awarded. Further, as Plaintiff correctly states in opposition, Welfare and Institutions Code section 15657.5 expressly authorizes the recovery of attorney’s fees for the prevailing party in an action under section 15610.3, as in Plaintiff’s cause of action for financial elder abuse. (Welf. & Inst. Code § 15657.5(a).)

            Defendant has not demonstrated that any of the allegations or prayers for relief identified in this motion should be stricken.

CONCLUSION:

            Accordingly, Defendant’s Motion to Strike is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: March 7, 2023                         ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.