Memorandum_of_points_and_authorities

Opposition

Cal. Super. - 4th Dist.April 23, 2019

O e 3 O Y nL bs W N = N O N R N R N N R N e em m s e m e d e d ee d e m e d e m Ww « 1 N n R W N = O O R O N R W N = O STEVEN M. GREEN, SBN 085976 The Law Firm of Steven M. Green 3605 First Avenue, #101 San Diego, CA 92103 Telephone (619) 294-8571 Facsimile (619) 294-3362 Attorney for Plaintiff Carol Ann Howard SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO CAROL ANN HOWARD, Plaintiff, v. ALBENCE & ASSOCIATES, APC, a California professional corporations, CHRISTOPHER J. ALBENCE, an individual, KEELEY C. LUHNOW, an individual, JACK L. OATMAN, JR., an individual, and DOES 1 through 10, inclusive, Defendants N a s ’ N e t as t” sa s c n t l a w ” “s ss tr t’ “ ar t” “s ss “s ss a t t “ s i t as s’ “ sm al st “ s t “a na t Case No.: 37-2019-00021040-CU-PN-CTL MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE ALBENCE DEFENDANTS MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT Date: January 10, 2019 Time: 8:30 a.m. Dept: 65 Judge: Hon. Ronald F. Frazier Plaintiff Carol Ann Howard submits the following Memorandum of Points and Authorities in Opposition to the Motion to Strike Portions of the Second Amended Complaint filed by Defendants Albence & Associates, APC, Christopher J. Albence, and Keeley C. Luhnow MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT - 1 O O N N i Bs W N ee N O N N N N O N O N BN m e e m e m e e e e e d e e ee d e d e d WW N N Lh hs W O R N = O Y N N N R W N = oO LEGAL ARGUMENT A. The Court May Strike From Any Pleading Any Irrelevant, False, Or Improper Matter In The Pleading, As Well As Any Matter Not Drawn In Conformity With The Law. Code of Civil Procedure §435 allows a party to bring a Motion to Strike portions of a Complaint. Code of Civil Procedure §436 states that "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 from any pleading any irrelevant, false or improper matter inserted therein." (b) strike out any part of any pleading not drawn or filed in conformity with the laws of the State. B. The Second Amended Complaint Contains Facts Supporting the Imposition of Punitive Damages Against the Moving Defendants. In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pleaded by a plaintiff. Grieves v. Superior Court, 157 Cal.App.3d 159, 166 (1984). 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. Courtesy Ambulance Service v. Superior Court, 8 Cal. App.4" 1504, 1519 (1992). In ruling on a motion to strike, courts do not read allegations in isolation. Perkins v. Superior Court, 117 Cal. App.3d 1, 6 (1981). In the instant matter, reading all the allegations in the Second Amended Complaint together points directly to liability for punitive damages. See 417, 28, 30, 31, 32, 33, 36, 39, all of which have been incorporated by reference in all causes of action. The motion to strike punitive damages should be overruled. C. Punitive Damages Were Properly Pleaded. The award of punitive damages in California is governed by Civil Code §3294. Plaintiff must prove by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Civil Code §3294(a). "Oppression" is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. Civil Code §3294(c)(2). "Malice" is defined as conduct "intended by the defendant to cause injury to the MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT - 2 NO 0 N O N Re W N B R O N N O N N N RN DN rm e m ee p m p e d e d p d fe es pe d pe E B E R I E T E E Z IJ a a d 52 5 0 = plaintiff" or "despicable conduct ... carried on by the defendant with a willful and conscious disregard of the rights and safety of others. Civil Code §3294(c)(1). The general view is that the plaintiff must establish that the defendant was aware of the probable consequence of its conduct, and willfully and deliberately failed to avoid these consequences. Mock v. Michigan Millers Mutual Ins. Co., 4 Cal. App.4th 306, 329 (1992). Plaintiffs submit that the First Amended Complaint have allegations of Moving Defendants’ egregious breach of fiduciary duty, and their statutory duties under Civil Code §2079, the level of fraud, oppression, or malice required by Civil Code §3294. "Despicable conduct" is "conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as having the character of outrage frequently associated with a crime. The award of punitive damages requires a showing of malice in fact, or actual malice, either by direct evidence of bad motives or by evidence furnished by the nature of the acts done. Livesey v. Stock, 208 Cal. 315, 321 (1929); Davis v. Hearst, 160 Cal. 143, 162 (1911). ’ The Court in Tresemer v. Barke, 86 Cal.App.3d 656 (1978), described the willfulness and intentional nature of aggravating circumstances amounting to malice as follows: The Court in interpreting Section 3294 makes it clear that in order to warrant the allowance of punitive damages the act complained of must not only be willful in the sense of intentional, but it must also be accompanied by aggravating circumstances, amounting to malice. The malice required implies an act conceived in a spirit of mischief or with criminal indifference toward the obligations of others. [citations omitted] The only form of malice contemplated by Section 3294, which creates the right to exemplary damages, is malice in fact. Malice is denoted ill will, or desire to do harm for the mere satisfaction of doing it. [citations omitted] The central spirit of the exemplary damage statute, the demand for evil motive, is violated by an award founded upon recklessness alone. Id. at p. 668-9 Although the case of Gombos v. Ashe, 158 Cal. App.2d 517 (1958) was disapproved by the Supreme Court in Taylor v. Superior Court, 24 Cal.3d 890 (1979), it was disapproved MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT - 3 N o w O N n e A W N N O N N N N N N N m m e m em ke e d pe d pe d pe d ed ee d Bb O R SU RE BU B R E E B 2 9 8 0 E b = a only to the extent that Gombos held that recklessness due to intoxicated driving could not, by itself, justify punitive damages. In other respects, Gombos was left undisturbed. This undisturbed portion clearly enunciates the malice requirgments necessary to sustain an award of punitive damages. In order to warrant the allowance oF punitive damages, the act complained of must not only be willful, in the sense of intentional, but it must be accompanied by some aggravating circumstances amounting to malice... There must be an intent to vex, injure, or annoy. Id. at p. 526 : But, to establish malice, it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent, or even reckless. G. D. Searle & Co. v. Superior Court, 49 Cal.App.2d 22, 31-32 (1979). There must be evidence that defendant acted with knowledge of the probable consequences to Plaintiff's interests and deliberately failed to avoid these consequences. Peterson v. Superior Court, 31 Cal.3d 147, 158 (1982); Flyer's Body Shop ete. v. Ticor Title Ins. Co., 185 Cal. App.3d 1149, 1155 (1986). Plaintiff is required to allege with specificity the facts which support the punitive damages. Blegen v. Superior Court, 125 Cal. App.3d 959, 963 (1981). General conclusory characterizations of a defendant’s conduct as being intentional, willful, oppressive and/or fraudulent is insufficient to state a cause of action for punitive damages. Brosseau v. Jarrett, 73 Cal. App.3d 864, 872 (1977). D. The First Amended Complaint Contains Allegations Sufficient to Support the Award of Attorneys Fees. The Moving Defendants ask that Paragraph 3 of the prayer asking for attorneys fees be stricken. Under the Elder Abuse — Financial cause of action, Plaintiff is entitled to attorneys fees under Welfare & Institutions Code §15657.5(a). See: SAC §75.] Plaintiff is not seeking attorneys fees under any other cause of action. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT - 4 ra ck O O 1 O N hh A W N No P S N N B R Y N DN m r e m ed pe e pe d pe e ee d be ad fe ed es E R N E R E B U N R E R E E S T 3 a c " o n o 2 CONCLUSION The Motion to Strike punitive damages and attorneys fees should be overruled. Dated: Decembarzsb, 2019 Respectfully submitted, Steven M. Green Attorney for Plaintiff Carol Ann Howard MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT - 5