Case Name: Anthony Peter Tran v. Matthew Reid Leal dba Leal Law Firm

Case No.: 19CV343773

(1) Defendant’s Demurrer
(2)
(3) Defendant’s Motion to Strike
(4)

Factual and Procedural Background

In or about August 2012, plaintiff Anthony Peter Tran (“Tran”) retained defendant Matthew Reid Leal dba Leal Law Firm (“Leal”) to represent him against plaintiff Tran’s former partner, Andrew LaForge (“LaForge”), over a partnership dispute. (First Amended Complaint (“FAC”), ¶3.)

On or about November 15, 2012, defendant Leal filed a complaint on behalf of plaintiff Tran against LaForge (“2012 Action”). (FAC, ¶4.)

In or about December 2012, plaintiff Tran and defendant Leal entered into a hybrid hourly/contingency fee agreement which was subsequently modified in or about October 2013 to increase the percentage of recovery if a settlement was reached pre-trial and to increase the deposit, among other things. (FAC, ¶5.)

Defendant Leal subsequently believed that recovery would be in the millions of dollars and, on September 4, 2016, modified the fee agreement further with a handwritten note stating plaintiff Tran did not have to pay for hourly fees or costs as part of the 2012 Action. (FAC, ¶6.)

On or about September 3, 2016, defendant Leal wrote a check to plaintiff Tran in the amount of $7,000 for reimbursement of costs which plaintiff Tran had paid for consistent with defendant Leal’s intent to recover payment for his services and reimbursement for any costs advanced through the anticipated recovery for the 2012 Action. (FAC, ¶7.)

On November 22, 2016, defendant Leal wired $100,000 to plaintiff Tran and indicated it was a gift because he believed in plaintiff Tran’s product but later demanded repayment re-characterizing the amount as a loan. (FAC, ¶8.)

On March 7, 2017, the court entered a judgment in the 2012 Action which indicated that neither party owes the other party any compensation for any claims and ordered dissolution of the business. (FAC, ¶9.)

Since the 2012 Action ended with no recovery, plaintiff Tran did not owe defendant Leal any fees and/or costs under the September 4, 2016 modified agreement. (FAC, ¶10.)

After failing to procure a favorable judgment for the 2012 Action, defendant Leal filed an appeal on May 4, 2017 without consulting plaintiff Tran. (FAC, ¶11.)

While the 2012 Action was still ongoing, on March 9, 2016, defendant Leal filed another complaint relating to the same issues against the same defendants over the same or similar set of facts (“2016 Action”). (FAC, ¶12.)

Initially, no fee agreement existed for the 2016 Action, but on September 1, 2017, plaintiff Tran and defendant Leal executed a contingency fee agreement for the 2016 Action which clearly indicates defendant Leal will advance all costs and defendant Leal will bear the loss if there is no recovery or recovery is insufficient. (FAC, ¶¶13 – 14.)

Despite being aware that his services were performed on a contingency basis, defendant Leal misled plaintiff Tran into believing he was liable for attorney’s fees and costs. (FAC, ¶16.) Plaintiff Tran made approximately $75,123 in payments to defendant Leal for attorney’s fees and costs. (Id.)

On or about July 13, 2018, defendant Leal, having full knowledge that his work was performed on a contingency basis, demanded plaintiff Tran pay him $100,000 by the end of 2018 and another $100,000 in 2019 for his legal services. (FAC, ¶17.)

On or about September 5, 2018, defendant Leal demanded plaintiff Tran sign over half of his business, Grow Warrior LED, Inc., to compensate defendant Leal for the alleged attorney’s fees he claims plaintiff Tran owes him. (FAC, ¶18.)

On or about September 14, 2018, when plaintiff Tran neither tendered any payment nor signed over half of his business, defendant Leal sent plaintiff Tran an email demanding that plaintiff Tran sign a substitution of attorney form and represent himself and suggested plaintiff Tran may lose his house. (FAC, ¶19.)

In the latter half of September 2018, plaintiff retained Robert T. Tang, Esq. (“Tang”) to represent him in the instant action and the 2016 Action. (FAC, ¶20.) Prior to Tang’s representation of plaintiff Tran, Tang contacted defendant Leal to inquire about issues with defendant Leal’s representation of plaintiff Tran. (FAC, ¶21.) Defendant Leal attempted to dissuade Tang from representing plaintiff Tran by telling Tang that plaintiff Tran had not paid anything toward his attorney’s fees, but plaintiff Tran proved to Tang that he did make payments and that he had a contingency fee agreement with defendant Leal. (Id.)

On October 4, 2018, Tang emailed defendant Leal demanding defendant Leal refrain from contacting plaintiff Tran, but defendant Leal ignored Tang’s demands and continued to frequently text and email plaintiff Tran. (FAC, ¶22 – 23.) In an attempt to lure plaintiff Tran back as a client, defendant Leal made disparaging remarks about Tang’s ability to handle the 2016 Action and offered to retroactively perform all of the cases on a contingency basis. (FAC, ¶24.)

Defendant Leal initiated acts on his own accord without plaintiff Tran’s consent and outside the scope of his representation which gave cause for a cross-complaint to be filed in the 2016 Action. (FAC, ¶¶26 – 27.)

On or about February 22, 2019, plaintiff Tran sent a cashier’s check in the amount of $24,877 to defendant Leal in full satisfaction of the $100,000 loan after deducting $75,123 that plaintiff Tran paid defendant Leal as attorney’s fees and costs that plaintiff Tran was not obligated to pay but deceived into paying. (FAC, ¶28.)

On February 27, 2019, plaintiff Tran instituted the present action by filing a complaint against defendant Leal asserting claims for indemnity and legal malpractice.

On April 30, 2019, defendant Leal filed a demurrer and motion to strike plaintiff Tran’s complaint.

On July 2, 2019, prior to the hearing on defendant Leal’s demurrer and motion to strike, plaintiff Tran filed the operative FAC which now asserts causes of action for:

(1) Implied Indemnity
(2)
(3) Legal Malpractice
(4)
(5) Breach of Contract
(6)
(7) Intentional Infliction of Emotional Distress
(8)

On August 5, 2019, defendant Leal filed the two motions now before the court: (1) a demurrer to plaintiff Tran’s FAC; and (2) a motion to strike portions of plaintiff Tran’s FAC.

I. Request for judicial notice.
II.

In opposition to the demurrer and motion to strike, plaintiff Tran requests judicial notice of the second amended cross-complaint filed in Santa Clara County Superior Court, case number 16CV292520, Tran v. Advanced Technologies Innovations, Inc., et al. The court does not find this court document necessary in ruling on the demurrer or motion to strike. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.) Accordingly, plaintiff Tran’s request for judicial notice is DENIED.

III. Defendant Leal’s demurrer to the first cause of action [implied indemnity] in plaintiff Tran’s FAC is OVERRULED.
IV.

“A person vicariously or secondarily liable for a tort is usually entitled to indemnity from the person primarily liable. Indemnity may rest on a contract, express or implied, on a law, or on equitable principles of shifting the burden of the liability.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §879, p. 337.)

“In general, indemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ Historically, the obligation of indemnity took three forms: (1) indemnity expressly provided for by contract (express indemnity); (2) indemnity implied from a contract not specifically mentioning indemnity (implied contractual indemnity); and (3) indemnity arising from the equities of particular circumstances (traditional equitable indemnity). [¶ ] Although the foregoing categories of indemnity were once regarded as distinct, we now recognize there are only two basic types of indemnity: express indemnity and equitable indemnity. Though not extinguished, implied contractual indemnity is now viewed simply as ‘a form of equitable indemnity.’ ” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157 [90 Cal.Rptr.3d 732, 202 P.3d 1115], internal citations omitted.)

To plead a claim for indemnity, the plaintiff “may allege (a) facts showing either a contract relation between the parties impliedly giving rise to the indemnity, a law giving rise to the indemnity, or the primary liability of the indemnitor and the secondary liability of the indemnitee; (b) loss or damage to indemnitee; (c) failure of indemnitor to pay or compensate indemnitee.” (5 Witkin, California Procedure (4th Ed. 1997) Pleading, § 879, p. 338.) In Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139 (Expressions) the court wrote, “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.”

In the first cause of action, plaintiff Tran alleges that he “is required to pay for legal representation to defend against the Cross-Complaint and may be liable for a judgment against him for damages claimed by the Cross-Complainant because Defendant failed to sue reasonable care while acting as the Plaintiff’s attorney.” (FAC, ¶30.) “If a judgment is entered in favor of the Cross-Complainant, Plaintiff will be liable for the damages claimed.” (FAC, ¶35.) “Wherefore, Plaintiff pray [sic] for judgment against Defendant in the sum to be determined based on the legal fees and costs required to represent the Plaintiff in defending against the Cross-Complaint and the monetary judgment awarded to the Cross-Complainant, if any.” (FAC, ¶36.)

In essence, plaintiff Tran has alleged that due to defendant Leal’s failure to use reasonable care in providing legal services, plaintiff Tran was subjected to a cross-complaint in the 2016 Action. In the first cause of action, plaintiff Tran contends defendant Leal should indemnify plaintiff Tran for any judgment obtained by the cross-complainant in the 2016 Action.

The court reviewed defendant Leal’s demurrer, but it is not entirely clear to the court what argument defendant Leal makes in demurring to the first cause of action. The court understands defendant Leal to argue plaintiff Tran “must plead some other conduct which was the substantial factor in causing harm.” In reviewing the FAC, the court finds such “other conduct” has been alleged at paragraph 26 – 27 and 32 – 33. Defendant Leal then asserts his belief that this alleged conduct refers to specific acts by defendant Leal which he contends are proper. However, in considering a demurrer, the court does not look to defendant’s beliefs, but instead looks to the four corners of the pleading at issue.

Defendant Leal cites to ITT Small Business Finance Corp. v. Niles (1994) 9 Cal.4th 245 (Niles) but the court does not find Niles relevant to the issue of whether plaintiff Tran has adequately pleaded a claim for implied indemnity. Defendant Leal apparently cites Niles for the proposition that plaintiff Tran has not alleged an actual injury based on the allegation that he “is required to pay for legal representation to defend against the Cross-Complaint.” Without deciding whether defendant Leal is correct on this point, plaintiff Tran’s alleged injury is greater than just the cost of legal representation to defend against the cross-complaint. Plaintiff Tran’s alleged injury includes liability on the cross-complaint. Such an allegation overcomes defendant Leal’s argument and reliance on Niles.

Defendant Leal demurs additionally to the first cause of action for implied indemnity on the ground that the pleading is uncertain. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616 (Khoury).) A “demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:85, pp. 7(I)-41 to 7(I)-42 citing Khoury, supra, 14 Cal.App.4th at p. 616.) Here, the FAC is not so uncertain that defendant Leal cannot determine what allegations must be admitted or denied or what claims are directed against him. The factual detail that defendant Leal seeks should be pursued in the discovery process.

As a third basis for demurrer, defendant Leal demurs to the first cause of action for implied indemnity on the ground that, “In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., §430.10, subd. (g).)

“The right to implied contractual indemnity is predicated upon the indemnitor’s breach of contract, ‘the rationale … being that a contract under which the indemnitor undertook to do work or perform services necessarily implied an obligation to do the work involved in a proper manner and to discharge foreseeable damages resulting from improper performance absent any participation by the indemnitee in the wrongful act precluding recovery.’ … ‘An action for implied contractual indemnity is not a claim for contribution from a joint tortfeasor; it is not founded upon a tort or upon any duty which the indemnitor owes to the injured third party. It is grounded upon the indemnitor’s breach of duty owing to the indemnitee to properly perform its contractual duties.’ ” (West v. Superior Court (1994) 27 Cal.App.4th 1625, 1633 [34 Cal.Rptr.2d 409], internal citations omitted, original italics.)

Defendant Leal acknowledges the FAC alleges, at paragraph 15, “written modifications to the hybrid fee agreement dated September 4, 2016 for the 2012 [Action] and the contingency fee agreement for the 2016 [Action].” (See also FAC, ¶17—“Plaintiff believes that Defendant having full knowledge that his work was performed on a contingency basis per the written agreements and modification….” See also FAC, ¶45—“It was not until on or about December 2012 that Plaintiff and Defendant memorialized their attorney-client relationship with a written hybrid/contingency fee agreement.”) Despite these allegations, defendant Leal contends it is unclear whether the original agreements are written or oral as none of the agreements are attached to the FAC. The court views defendant Leal’s argument as repetitive of his earlier argument that the pleading is uncertain. Again, the court finds any uncertainty insufficient to sustain a demurrer. Defendant Leal can clarify any uncertainty during the discovery process.

Finally, defendant Leal demurs to the first cause of action for implied indemnity on the ground that, “There is a defect or misjoinder of parties.” (Code Civ. Proc., §430.10, subd. (d).) A demurrer for this ground lies when “some third person is a ‘necessary’ or ‘indispensable’ party to the action; and hence must be joined before the action may proceed.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2019) ¶7:80, p. 7(I)-40.) A “[p]laintiff must join as parties to the action all persons whose interests are so directly involved that the court cannot render a fair adjudication in their absence.” (Id. at ¶2:151, p. 2-44.)

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

(Code Civ. Proc. §389, subd. (a).)

In asserting misjoinder, defendant Leal asserts his belief that the “letters” referred to in paragraph 33 of the FAC concern a revivor of Apache Technology LLC and a letter that defendant Leal wrote to an entity named “Vander-bend Mfc LLC.” Initially, defendant Leal’s argument relies on extrinsic evidence which is improper on a demurrer. Furthermore, defendant Leal’s argument is incomplete as there is no explanation as to who defendant Leal contends is an indispensable party nor is there any explanation as to why such a person/entity would be indispensable.

Accordingly, defendant Leal’s demurrer to the first cause of action in plaintiff Tran’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for implied indemnity; on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)]; on the ground that in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct [Code Civ. Proc., §430.10, subd. (g)]; and on the ground that there is a defect or misjoinder of parties [Code Civ. Proc., §430.10, subd. (d)] is OVERRULED.

V. Defendant Leal’s demurrer to the second cause of action [legal malpractice] in plaintiff Tran’s FAC is OVERRULED.
VI.

“In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney’s duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 699; see also CACI No. 600.)

Defendant Leal contends plaintiff Tran’s second cause of action for legal malpractice fails because plaintiff Tran has not adequately alleged causation. At paragraph 38, plaintiff Tran alleges, “Cross-Complainant would not have a basis for the causes of action raised in their Second Amended Cross-Complaint had it not been for the acts of the Defendant which were carried out without the consent of the Plaintiff and not associated with the matter for which Defendant was hired.” “Plaintiff has been forced to pay for legal representation to defend against the Cross-Complaint and would not need to had Defendant represented Plaintiff on the legal matter for which he was hired rather than attempt to concurrently enter into business relationships with individuals or entities which Cross-Complaint may currently have but known to have had a business relationship with.”

“Causation requires proof that the defendant’s conduct was a ‘substantial factor’ in bringing about the harm to the plaintiff.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132.) Defendant Leal contends the allegations of causation by plaintiff Tran are too conclusory. The court disagrees. On demurrer, the court must accept the plaintiff’s allegations as true. “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.) In essence, plaintiff Tran alleges he would not have incurred costs to defend against the cross-complaint but for defendant Leal’s negligence. This is a sufficient allegation of causation.

As he did with the first cause of action, defendant Leal demurs additionally to the second cause of action for legal malpractice on the grounds that the pleading is uncertain and that, in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

For the same reasons discussed above, defendant Leal’s demurrer to the second cause of action in plaintiff Tran’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for legal malpractice; on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)]; and on the ground that in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct [Code Civ. Proc., §430.10, subd. (g)] is OVERRULED.

VII. Defendant Leal’s demurrer to the third cause of action [breach of contract] in plaintiff Tran’s FAC is SUSTAINED.
VIII.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI, No. 303.)

Defendant Leal raises several arguments but the one the court finds persuasive is defendant Leal’s contention that plaintiff Tran has not alleged his performance. Plaintiff’s performance is indeed an element of a breach of contract claim. (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.) “The plaintiff cannot enforce the defendant’s obligation unless the plaintiff has performed the conditions precedent imposed on him. [Citation.] Accordingly, the allegation of performance is an essential part of his cause of action. [Citation.]” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §491, pp. 581 – 582.) “But the foregoing requirement is reduced to a mere formality by [Code Civ. Proc., §457 ] which makes it unnecessary to set forth the facts of such performance: The plaintiff may allege, in general terms, that he has ‘duly performed all the conditions on his part.’” (Id. at p. 582.) Here, however, plaintiff Tran does not even include this generic allegation.

Accordingly, defendant Leal’s demurrer to the third cause of action in plaintiff Tran’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of contract is SUSTAINED with 10 days’ leave to amend. Defendant Leal’s demurrer to the third cause of action in plaintiff Tran’s FAC on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] and on the ground that in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct [Code Civ. Proc., §430.10, subd. (g)] is OVERRULED.

IX. Defendant Leal’s demurrer to the fourth cause of action [intentional infliction of emotional distress] in plaintiff Tran’s FAC is OVERRULED.
X.

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; see also Ross v. Creel Printing & Publishing Co., Inc. (2002) 100 Cal.App.4th 736, 744 – 745; see also CACI, Nos. 1600 and 1602.)

Defendant Leal apparently demurs on the ground that plaintiff Tran has not adequately alleged that he suffered severe or extreme emotional distress. In the FAC, plaintiff Tran alleges he “suffered from severe emotional distress because when he presented himself at the office of his new counsel, he was visibly shaken and repeatedly expressed his concerns over the possibility of losing his home. Plaintiff also cried at one point.” (FAC, ¶57.) “In addition, Plaintiff expressed to his new counsel that he was afraid of the Defendant….” (FAC, ¶58.)

“With respect to the requirement that the plaintiff show severe emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 (Hughes); punctuation and citation omitted.) “[P]laintiff’s assertions that she has suffered discomfort, worry, anxiety, upset stomach, concern, and agitation as the result of defendant’s comments to her on the telephone and at the museum on June 27, 2005, do not comprise ‘ “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’ ” ’ [Citation.]” (Ibid.)

Whether the defendant suffered severe emotional distress is a question of fact that will be upheld if supported by substantial evidence. (See Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397.) At the pleading stage, the court cannot make such a factual determination.

Alternatively, defendant Leal contends the fourth cause of action is deficient because plaintiff Tran has not alleged defendant Leal acted “with the intention of causing, or reckless disregard of the probability of causing, emotional distress.” The emotional distress plaintiff Tran suffered arises from defendant Leal’s email demanding plaintiff sign a substitution of attorney form and “suggest[ion] to the Plaintiff that he may lose his house.” (FAC, ¶52.) “…to make his statement that Plaintiff could lose his home more believable, Defendant had also informed [plaintiff Tran] that he was required to disclose all of his assets to opposing counsel without clearly explaining … that this request [for disclosure of plaintiff Tran’s assets] was due to sanctions that incurred as a result of Defendant’s misconduct.” (FAC, ¶55.)

“[T]he element of intent in wilful misconduct cases is usually inferred from objective or external circumstantial evidence.” (Chappell v. Palmer (1965) 236 Cal.App.2d 34, 36; cf. Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038—proof of discriminatory intent can be based on circumstantial evidence/ inferences.) Plaintiff Tran here has essentially alleged defendant Leal had an intent to cause emotional distress and that defendant Leal’s intent is supported by circumstantial evidence/ inferences to be drawn from other actions.

For the same reasons discussed above, the court rejects defendant Leal’s arguments that the fourth cause of action is uncertain.

Accordingly, defendant Leal’s demurrer to the fourth cause of action in plaintiff Tran’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional infliction of emotional distress; and on the ground that the pleading is uncertain [Code Civ. Proc., §430.10, subd. (f)] is OVERRULED.

XI. Defendant Leal’s motion to strike is GRANTED, in part, and DENIED, in part.
XII.

A. Punitive damages.
B.

Defendant Leal first moves to strike allegations in the FAC (specifically, paragraph s 43 and 60) seeking punitive damages. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 (Searle), the court wrote, “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’” “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at p. 29; internal citations omitted.)

As explained above, the court finds plaintiff Tran has alleged an intent to cause emotional distress and, thus, paragraph 60 is not subject to defendant Leal’s motion to strike.

However, with regard to paragraph 43, plaintiff Tran seeks punitive damages in connection with his cause of action for legal malpractice (or professional negligence). There is no allegation of deliberate injury made in connection with this second cause of action. In opposition, plaintiff Tran contends he has alleged such an intent and points to his allegation that defendant Leal, having full knowledge that he was working on a contingency fee basis, demanded plaintiff pay for his legal services or sign over half of his business. (See FAC, ¶¶17 – 19 and 23 – 24.) The court does not find these allegations to be sufficient to charge malice. “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code §3294, subd. (c)(1).)

Accordingly, defendant Leal’s motion to strike paragraph 43 of the FAC is GRANTED. Defendant Leal’s motion to strike paragraph 60 of the FAC is DENIED.

C. Irrelevant/ false material.
D.

Defendant Leal also moves to strike various portions of the FAC on the ground that those allegations are false and/or irrelevant. However, defendant Leal failed to comply with California Rules of Court, rule 3.1322, subdivision (a) which states, in relevant part, “A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense.” Here, although defendant Leal clearly identifies some portions of the FAC which he seeks to strike, other portions sought to be stricken are not clearly identified.

Both plaintiff and the court are required to surmise what specific portions of the FAC to strike. For this reason, defendant Leal’s motion to strike various portions of the FAC is DENIED without prejudice.