18-CIV-02444 JOANN EREMEYEFF, ET AL. VS. BENEVOLENT AND PROTECTIVE ORDER OF THE ELKS OF THE UNITED STATES OF AMERICA, ET AL.

JOANN EREMEYEFF BENEVOLENT AND PROTECTIVE ORDER OF THE ELKS OF THE UNITED STATES OF AMERICA
WILLIAM L. SCHMIDT

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT TENTATIVE RULING:

Defendants’ Motion to Strike Portions of Plaintiffs’ First Amended Complaint (FAC), filed 8-2818, is GRANTED, with leave to amend. Code Civ. Proc. § 436.

Procedurally, Code Civ. Proc. § 472(a) permits a Plaintiff to amend a complaint once without leave of court. Here, Plaintiffs had already filed a FAC when they attempted to file their proposed Second Amended Complaint, which explains the clerk’s office’s request for an Order authorizing the filing of a Second Amended Complaint.

The FAC does not allege facts sufficient to support the Prayer’s request for punitive damages. Civ. Code § 3294 requires factual allegations sufficient to support a finding of malice, fraud, or oppression, which must be proven at trial by clear and convincing evidence. Here, the FAC does not allege fraud. “Malice” and “oppression” both require facts demonstrating “despicable” conduct. The FAC’s factual allegations are not sufficient to support a finding of despicable conduct. Further, because Defendant is a corporation, the FAC fails to include the required factual allegations required by Civ. Code § 3294(b).

Plaintiffs are granted leave to file their proposed Second Amended Complaint, which shall be filed within 10 days of this Order. The proposed SAC must be filed separately; it is not deemed filed by virtue of this Order.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.