2012-00126187-CU-BC

Karen Goodman vs. Dean Stevenson

Nature of Proceeding: Motion to Strike

Filed By: Kuo, Allen

Plaintiff/Cross-Defendant Defendant Karen Goodman, dba Goodman & Associates’
Motion to Strike Portions of Dean Stevenson’s and Nicholas Stevenson’s First
Amended Cross-Complaint is ruled upon as follows.

In this action, Plaintiff and Cross-Defendant Karen Goodman filed a complaint for breach of contract and common counts in an attempt to collect allegedly unpaid fees
owed as a result of Goodman’s representation of Cross-complainants in an underlying
lawsuit in Placer County in which Cross-complainants sued their real estate partners
regarding a piece of property purchased for development. In response, Cross-
complainants filed a cross-complaint for legal malpractice alleging Goodman fell below
the standard of care in a number of instances in the lawsuit.

Goodman first moves to strike the prayer for punitive damages. In order to state claim
for punitive damages, a plaintiff must allege that the defendant is guilty of “oppression,
fraud, or malice.” (Civil Code §3294(a).) “Malice” under Civil Code §3294(c)(1) means
conduct intended to injure the plaintiff or despicable conduct by the defendant with a
willful and conscious disregard of others. “’Fraud’ means an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant
with the intention on the part of the defendant of thereby depriving a person of property
or legal rights or otherwise causing injury.” (Civil Code §3294(c)(3).)

Cross-Complainants claim that punitive damages are warranted in connection with
their cause of action for breach of fiduciary duty. Cross-Complainants allege: “The acts
and omissions constituting breach of Karen Goodman’s fiduciary duties were
committed with oppression, fraud, and/or malice within the meaning of Civil Code
Section 3294.” As Goodman argues, without more, this allegation is conclusory and
insufficient to support a claim for punitive damages. The motion to strike the punitive
damage claim is GRANTED, with leave to amend.

Goodman also moves to strike the prayer for attorney’s fees. Goodman contends that
because Cross-complainants are self-represented, they are not entitled to recover
attorney’s fees. Pro per plaintiffs are not entitled to recover attorney’s fees. ( Trope v.
Katz (1995) 11 Cal.4th 274, 280-281.) To the extent Cross-Complainants argue that
they intend to hire counsel in the future, they may seek leave to amend to claim
attorney’s fees in that event. The motion to strike the prayer for attorney’s fees is
GRANTED, without leave to amend.

Finally, Goodman moves to strike portions of the Cross-Complaint that she contends
improperly seek to argue the merits of the claims. Goodman claims that the citations to
cases and statutes are irrelevant to the allegations of the complaint. However, the fact
that the FAC contains legal citations and discussion that Goodman finds distracting or
repetitive does not render these portions of the pleading “improper” for purposes of a
motion to strike: “We emphasize that such use of the motion to strike should be
cautious and sparing. We have no intention of creating a procedural ‘line item veto’ for
the civil defendant.” (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)
The remainder of the motion to strike is DENIED.

Where leave was given, Cross-Complainants may file an amended cross-complaint no
later than October 15, 2013.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.