holtzman v. cirgadyne – notice of motion and motion to strike portions of complaint

8/9/2019 Holtzman v. Cirgadyne Notice of Motion and Motion to Strike Portions of Complaint

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Page INOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT

) CASE NO.: BC254506)) NOTICE OF MOTION AND MOTION TO) STRIKE PORTIONS OF COMPLAINT;) MEMORANDUM OF POINTS AND) AUTHORITIES)) Date: September 20,2001) Time: 8:30 AM) Dept.: 32

Hon. William Highberger

Complaint Filed: July 20, 2001

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Defendants

Plaintiff,

vs.

Complaint contains no factual allegations supporting such claims.

YOU ARE HEREBY NOTIFIED that on September 20, 2001, at 8:30 AM, in

Department 32 of this Court, located at I I I N. Hill Street, Los Angeles, CA, Defendants

Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy Block will, and hereby do move the

Court to strike portions of the Complaint filed in this action. Specifically, these Defendants will

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

CIRGADYNE, INC., et al.

MARCIA J. HOLTZMAN, an individual

LA W OFFICES OF RONALD JASON PALMIERIRonald Jason Palmieri, State Bar #96953Robert P. Wargo, State Bar #175177911 Linda Flora DriveLos Angeles, caliform.'a 90049 . / 'Tel: (310) 471-1881Fax: (310) 471-3511

Attorneys for D ~ ~ a n t sCirgadyne, ~ ;ABC Escrow;Craig A. Block and Cindy Block 7 H ~ '

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23move the Court to strike the claims throughout the Complaint for punitive damages, as the [!l~ ~ [!l9

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The Motion will be based on the instant Notice of Hearing, and M e m o r a n d U n f . b f ~ ia; '" Q25 ....... n J:::.r o o =

dmd Authorities, and such other and further evidence as the Court may deem appropriate at.j:he 0 ~ [;;, ~26 ~ : f ~ ~ t1 ~

~ : j 0-- :J>t;bearing. 2: 8 f3 ~": u - . o m27.. ' J ~ ~

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OR\G\NAL


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Dated: A U g U S t ~ 2 0 0 1

By : ' - - - 4 . . " " . - ~ * " " " ' ; i l . . - - - - " ; ; ' ; : " ' l . L . : l o . L . . Robert P. WargoAttorneys for Defendants Cirga n , Inc.; ABCEscrow; Craig A. Block and Cin y lock

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NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT


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allowed to respond to the pleading, may serve and file a notice of motion to str ike the whole or

any part thereof." Code of Civil Procedure 436 states:

On or about July 20, 2001, PlaintiffMarcia 1. Holtzman filed a two-count complaint for:

(1) Invasion of Privacy under Common Law, and (2) Invasion of Privacy under Civil Code 3344

against seven defendants, including moving parties Cirgadyne, Inc.; ABC Escrow; Craig A.

Block and Cindy Block. Moving parties request that the Court str ike certain portions of the

complaint which are "not drawn or f iled in conformity with the laws of this state, a court rule, or

an order of the court ," as permitted by CCP 436. Specifically, these Defendants request that the

Court strike the claims throughout the Complaint for punitive damages as Plaintiffhas alleged no

facts to support such a claim.

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MEMORANDUM OF POINTS AN D AUTHORITIES

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INTRODUCTION

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T HE C OU RT MA Y STRIKE AN Y PORTION OF A PLEADING W HI CH I S N OTDRAWN OR FILED IN CONFORMITY W I TH T HE LAWS OF THIS STATE, A

COURT RULE, O R A NY ORDER OF TH E COURT

Code of Civil Procedure 435(b) provides, in pertinent part: "Any party within the time

The court may, upon a motion made pursuant to Section 435, or at any t ime in itsdiscretion, and upon terms it deems proper:(a) Strike ou t any irrelevant, false, or improper matter inserted in any pleading.(b) Strike ou t all or any part of any pleading no t drawn or filed in conformity with thelaws of this state, a court rule, or an order of the court.

As stated in CCP 431.10, "Irrelevant matters," as that term is used in 436, means:

(1) An allegation that is not essential to the statement of a cla im or defense.(2) An allegation that is neither pertinent to nor supported by an otherwise sufficientclaim or defense.(3) A demand for judgment requesting reliefnot supported by the allegations of thecomplaint or cross-complaint.

Th e Court Should Strike Th e Requests for Punitive Damages Throughout theComplaint Because Plaintiff Has Plead No Facts Showing An Entitlement To SuchRelief

In paragraph 21 (located within the first cause of action for Invasion of Privacy under

Page 3NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT


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I Common Law)and paragraph 24 (located within the second cause of action for Invasion of

2 Privacy under Civil Code 3344), Plaintiff seeks punitive damages against all Defendants based

3 on the allegations of her Complaint (all of which are alleged on information and belief) that

4 Defendants acted "were guilty of oppression, fraud, or malice, in that said defendants engaged in

5 the above-specified conduct and transactions with the intent to vex, injure or annoy Plaintiff,

6 and/or wi th a willful and conscious disregard of Plaintiffs rights." Since these allegations are

7 wholly devoid of factual support, the Court must strike paragraphs 21 and 24, as well as

8 paragraphs A.2 and 8. 2 of the prayer for relief(requesting punitive damages), from the

9 Complaint.

l O I n order to survive a motion to strike an allegation of punitive damages, the ultimate facts

II showing an entitlement to such relief must be pled by a plaintiff. Clauson v. Superior Court

12 (1998) 67 Cal.App.4th 1253, 1255, citing Grieves v. Superior Court (1984) 157 Ca1.App.3d 159,

13 166; Blegen v. Superior Court (1981) 125 Cal.AppJd 959, 962-963. Indeed, the mere allegation

14 an intentional tort was committed is not sufficient to warrant an award of punitive damages. No t

15 only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the

16 pleading to support such a claim. Grieves v. Superior Court (1984) 157 Ca1.AppJd 159, 166.

17 Civil Code 3294(c) defines malice, oppression and fraud as follows:

Page 4NOTICE OF MOTION A ND M OT IO N TOSTRIKE PORTIONSOF COMPLAINT

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(I ) "Malice" means conduct which is intended by the defendant to cause injury to theplaintiffor despicable conduct which is carried o n by the defendant with a willful andconscious disregard of the rights or safety of others.(2) "Oppression" means despicable conduct that subjects a person to cruel and unjusthardship in conscious disregard of that person's rights.(3) "Fraud" means an intentional misrepresentation, deceit, or concealment of a materialfact known to the defendant with the intention on the part of the defendant of therebydepriving a person of property or legal rights or otherwise causing injury.

Plaintiffs allegations that Defendants' conduct was malicious, fraudulent or oppressive

are conclusory and not supported by any facts whatsoever. Rather, allegations of "ultimate facts"I IK ~ h o w i n gan entitlement to punitive damages are wholly absent from the complaint. Accordingly,H' ~ f h eCourt must strike paragraphs 21 and 24, and the prayers for relieffor punitive damages from( l

!the Complaint.1;1

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3 For all the reasons set forth above, the Court should strike paragraphs 21 and 24, and the

4 prayers for relieffor punitive damages, from the Complaint.

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Dated: AUgUstC[: 2001

III.

CONCLUSION

MIERI

By:.. . . . . . l . " ' T > ' : " i ~ - n - - ; ~ ~ _ . . . . . : . . ~ ' 4 - Robert P. WargoAttorneys for Defendants dyne, Inc.; ABCEscrow; Craig A. Block and Cindy Block

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NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT


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l BYMAILl As follows: "I am readily familiar" with the firm's practice of collection and processing

correspondence for mailing. Under that practice, it would be deposited with the U.S.Postal Service on that same day with postage thereon fully prepaid at Los Angeles,California, in the ordinary course of business. I am aware that on motion of the partyserved, service is presumed invalid i f the postal cancellation date or postage meter date ismore than one day after date of deposit for mailing in affidavit.

NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINTPage 6

(FEDERAL) I declare under penalty of perjury under the laws of the United States ofAmerica that the foregoing is true and correct.

l (STATE) I declare under penalty of perjury under the laws of the State o f California thatthe foregoing is true and correct.

BY FACSIMILEI faxed copies of such document listed above to the persons whose name, address andfacsimile number appears above.

Lawrence M. Adelman, Esq.Law Offices of Lawrence M. Adelman5850 Canoga Avenue #400Woodland Hills, CA 91367-6554FAX: 8181710-3844

BY PERSONAL SERVICEI caused such envelope to be delivered by hand to the individual(s) whose name(s)appear(s) above.

Executed on August 8, 2001, at Los Angeles, California.

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,I am employed in the County of Los Angeles, State of California. I am over the age of 18

and not a party to the within action; my business address is 9 I 1 Linda Flora Drive, Los Angeles,CA 90049.

On August ii , 2001, I served the following documents described as NOTICE OFMOTION AND MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT;MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action byas follows:

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holtzman v. cirgadyne – notice of motion and motion to strike portions of complaint

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