Martha E Hilliard vs. Micheal E. Mccormack

Motion to Strike

Cal. Super. - 4th Dist.September 15, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DARRYL C. SHEETZ (SBN 098604) LAW OFFICES OF DARRYL C. SHEETZ 335 Centennial Way, Suite 100 Tustin, California 92780 Telephone (949) 553-0300 Facsimile (949) 553-0390 Email: dcsheetz@aol.com Attorney for Defendants JACK MCCORMACK MCCORMACK RACING, LLC ELECTRONICALLY FILED Superior Court of California, County of Orange 04/20/2018 at 12:18:00 Pi Clerk of the Superior Court By harene Orellana, Deputy Clerk SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER MARTHA E. HILLIARD, an individual and MGMR, LLC, a limited liability company, Plaintiffs, VS. MICHEAL E. MCCORMACK aka MICHAEL E. MCCORMACK, an individual, MCCORMACK RACING LLC, a limited liability company, JACK MCCORMACK an individual, BARBARA MCCORMACK, an individual and DOES 1 through 50, inclusive, Defendants. CASE NO. 30-2017-00944017-CU-CL-CJC Assigned for all purposes: Judge Gregory H. Lewis, Dept. C-26 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT RESERVATION NO. 72796218 DATE: July 16, 2018 TIME: 10:30 a.m. DEPT: C-26 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 16, 2018, at 10:30 a.m. in Department C-26 of the above-entitled court located at 700 Civic Center Drive West, Santa Ana, California, Defendants JACK MCCORMACK (hereinafter “JACK”) and MCCORMACK RACING, 1 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LLC, a California limited liability company (hereinafter “MRL-CA”), will move, pursuant to Code of Civil Procedure sections 435 and 436, to strike the following portions of Plaintiffs MARTHA E. HILLIARD and MGMR, LLC, (hereinafter collectively, “Plaintiffs”) First Amended Complaint: (1) Paragraph 23 in its entirety of the Fourth Cause of Action in the First Amended Complaint. 2) The words “attorney fees” on Pages 7-8 of the Prayer on the Fourth, Fifth, Sixth, and Seventh Causes of Action in the First Amended Complaint. 3) The words “for exemplary and punitive damages” on Page 7 of the Prayer on the Fourth Cause of Action in the First Amended Complaint. This motion is made on the grounds that the First Amended Complaint contains irrelevant, improper matter in the request for punitive and exemplary damages. Additionally, the First Amended Complaint contains improper matter as the prayer for attorney fees has no basis in law or in the First Amended Complaint. (CCP § 436) This motion is based on this notice, the memorandum of points and authorities presented herewith, the arguments of counsel and the records and files in this action. LAW OFFICES OF DARRYL C. SHEETZ DATE: April 20, 2018 /s/Darryl C. Sheetz DARRYL C. SHEETZ Attorney for Defendants JACK MCCORMACK and MCCORMACK RACING, LLC, a California limited liability company 2 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. STATEMENT OF FACTS Plaintiffs’ First Amended Complaint (“FAC”) brings causes of actions against Defendant Michael E. McCormack for (1) Breach of Contract, (2) Account Stated, (3) Open Book Account. Plaintiffs’ FAC also brings causes of action against Defendants Jack McCormack and McCormack Racing, LLC for (4) Intentional Interference with Contractual Relationship, and (5) Implied in Fact Contract. Plaintiffs’ bring their remaining causes of action against all Defendants for (6) Breach of the Duty of Good Faith and Fair Dealing, and (7) Declaratory Relief. On or about January 4, 2018, Plaintiffs took the defaults of Defendant Jack McCormack (hereinafter “JACK”) and McCormack Racing, LLC, a California limited liability company (hereinafter “MRL-CA”) and Defendant Michael E. McCormack (hereinafter “MICHAEL”). On January 30, 2018, Plaintiffs and Defendants JACK and MRL-CA stipulated to set aside the defaults of these Defendants. On or about March 16, 2018, Plaintiffs dismissed defendant Barbara McCormack. On or about March 16, 2018, Plaintiffs filed the FAC. 2. LEGAL AUTHORITY This Motion to Strike is based on the following: California Code of Civil Procedure, Section 435(b)(1), which provides in pertinent part: “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.” 3 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Code of Civil Procedure, Section 436, states: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out 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.” 3. LEGAL DISCUSSION A. PLAINTIFF’ REQUEST FOR PUNITIVE DAMAGES IN PARAGRAPH 23 OF THE FOURTH CAUSE OF ACTION AND IN PARAGRAPH 3 OF THE PRAYER UNDER “ON THE FOURTH CAUSE OF ACTION” MUST BE STRICKEN Plaintiffs’ FAC improperly seeks punitive damages in their Fourth Cause of Action for Intentional Interference with Contractual Relationship and in their Prayer. Plaintiffs’ cause of action seeks an award of punitive damages against Defendants JACK and MRL-CA. Plaintiffs, however, have failed to allege in their FAC that JACK or MRL-CA acted with malice and oppression so as to constitute an award of punitive damages. “Punitive damages are not favored in law. “Rosener v. Sears, Roebuck & Co. (1980) 110 Cal. App.3d 740, 750. In accordance with this policy, punitive damages are only recoverable based on the cause of action alleged, or in the alternative, based on specific facts plead pursuant to California Civil Code § 3294. 4 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 California Civil Code, Section 3294, may be summarized as follows: I. The standard of proof has been heightened from the customary civil standard of preponderance of the evidence to a necessity of proof by “clear and convincing evidence.” 2 “Malice” is required to be conduct which is intended to cause injury or “despicable conduct” carried on by the defendant with a “willful” and conscious disregard of the rights or safety of others. 3. “Oppression” is defined as despicable conduct that subjects” a person to cruel and unjust hardship in conscious disregard of that person’s rights. Plaintiffs have failed to set forth how Defendants JACK and MRL-CA’s actions support a claim for punitive damages. A cause of action alleging fraudulent actions and a request for recovery of punitive damages must be alleged with sufficient specificity that the defendants are adequately notified of the factual basis of the charge. (G.D. Searle & Co. vs. Sup. Ct. (1975) 49 Cal. App.3d 22) Conclusory allegations are not sufficient. Rather specific facts must be alleged to show the requisite conduct. (Cohen vs. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1.) The FAC only sets forth conclusionary allegations that that Defendants JACK and MRL-CA’s actions were “fraudulent, oppressive and malicious.” Such allegations are conclusions of the pleader and “irrelevant matter,” subject to motion to strike. 5 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For all the foregoing reason, the motion to strike exemplary and punitive damages in the Paragraph 23 of the Fourth Cause of Action and in Paragraph 3 of the Prayer under “On the Fourth Cause of Action,” should be sustained without leave to amend. B. PLAINTIFFS’ REQUEST FOR ATTORNEY FEES MUST BE STRICKEN Plaintiffs’ in their Prayer have improperly requested attorney fees under the Fourth, Fifth, Sixth and Seventh Causes of Action (FAC, Pages 7-8). These causes of action for: (1) Intentional Inference with Contractual Relationship (Fourth Cause of Action), (2) Implied in Fact Contract (Fifth Cause of Action, (3) Breach of Duty of Good Faith and Fair Dealing (Sixth Cause of Action, and (4) Declaratory Relief (Seventh Cause of Action), do not support an award of attorney fees, and attorney fees are not otherwise authorized by statute. For the foregoing reason, the motion to strike the requests for attorney fees from the Prayer as to the Fourth, Fifth, Sixth and Seventh Causes of Action, should be sustained without leave to amend. 4. CONCLUSION For the all the foregoing reasons, Defendants JACK and MRL-CA respectfully request that the Court sustain this Motion to Strike Portions of the First Amended Complaint without leave to amend. Respectfully submitted, LAW OFFICES OF DARRYL C. SHEETZ DATE: April 20, 2018 /s/Darryl C. Sheetz DARRYL C. SHEETZ Attorney for Defendants JACK MCCORMACK and MCCORMACK RACING, LLC 6 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: 335 Centennial Way, Suite 100, Tustin, CA 92780. Iserved the foregoing document described as: DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT on all interested parties in this action as follows: Attorney for Plaintiffs Duff S. McEvers, Esq. Law Offices of Duff S. McEvers 28202 Cabot Road, Suite 300 Laguna Niguel, CA 92677 Email: dmcevers @ cox.net [X] VIA ELECTRONIC SERVICE. Based on a court order or an agreement of the parties to accept service by electronic transmission, I caused the documents to be sent to the person(s) at the electronic notification address(es) listed above. The electronic notification address from which I served the documents is dcsheetz@aol.com (via OneLegal.com). (XX) STATE. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on April 20, 2018, at Tustin, California. /s/Sherry M. Thomas Sherry M. Thomas 7 DEFENDANTS JACK MCCORMACK AND MCCORMACK RACING, LLC’S NOTICE OF HEARING ON MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT