Case Number: BC682996 Hearing Date: June 08, 2018 Dept: 39

Margaret Palesano v. Real Estate Law Center, PC, et al., BC682996

Demurrer and Motion to Strike Second Amended Complaint by Defendants Rallo Law Firm, P.C.; Thomas C. Rallo; Arthur J. Travieso; Tin K. Westen; and Lacey London:

The court SUSTAINS the special demurrer as to Defendants Westen and London, and SUSTAINS the general demurrer as to the third, fourth, fifth, sixth, and eighth causes of action. As this is the first time the court has reviewed Plaintiff’s claims, the court grants Plaintiff 20 days leave to amend, to allow her the opportunity to plead sufficient facts to state these causes of action. The court OVERRULES the general demurrer as to the seventh cause of action. The motion to strike is MOOT as to the identified paragraphs and prayers for damages related to the third, fourth, fifth, sixth, and eighth causes of action. The motion is otherwise GRANTED with 20 days leave to amend. Counsel for Defendant to give notice.
Background

This legal malpractice, tort, and breach of contract case arises from Plaintiff Margaret Palesano (“Palesano”)’s alleged representation by Defendant law firms. Plaintiff specifically alleges that she retained the services of Defendants Erickson M. Davis (“Davis”) and Amy L. Bingham (“Bingham”) who were attorneys with Defendant Real Estate Law Center, PC (“RELC”) (collectively the “RELC Defendants”). Plaintiff alleges that she sought the services of these Defendants to work out a loan modification to prevent foreclosure on her home, and that these Defendants guaranteed her that she would never lose her home in foreclosure. According to Plaintiff, these Defendants persuaded her to pay for legal services that could not realize the goals she wanted to achieve. The SAC states that Plaintiff signed a retainer agreement with RELC, Davis, and Bingham on August 14, 2014, and filed a complaint in the limited jurisdiction court of the Los Angeles County Superior Court, in case number 15K02916.

On October 16, 2015, Defendant Bingham allegedly encouraged Plaintiff to leave RELC and to follow her to her new employer, Defendant RLF Law Firm (“RLF”). Plaintiff allegedly signed a retainer agreement with RLF and Defendants Bingham and Defendants Thomas C. Rallo (“Rallo”), Arthur Travieso (“Travieso”), Tin Westen (“Westen”), and Lacey London (“London”) [due to the number, these parties will be collectively referred to as the “Rallo Defendants”] on October 21, 2015. Rallo allegedly promised Plaintiff that she would not lose her home and would recover damages far greater than $25,000 and “guaranteed that Plaintiff would not lose her home in foreclosure.” (SAC ¶ 22.) According to Plaintiff, the Rallo Defendants never provided disclosure documents to her or obtained a substitution of attorney form signed by Plaintiff, and she continued to be charged by RELC during the time she was paying the Rallo Defendants for their services. Plaintiff further alleges that the Rallo Defendants committed legal malpractice in representing her in connection with bankruptcy matters, leading to the dismissal of her Chapter 13 Bankruptcy cases and her legal action before the Los Angeles Superior Court.

In the Second Amended Complaint (“SAC”), Plaintiff alleges 9 causes of action against the RELC Defendants including: (1) the first cause of action for legal malpractice; (2) the second cause of action for breach of fiduciary duty; (3) the third cause of action for conspiracy; (4) the fourth cause of action for fraud; (5) the fifth cause of action for intentional infliction of emotional distress (“IIED”); (6) the sixth cause of action for negligent infliction of emotional distress (“NIED”); the seventh cause of action for unfair business practices in violation of Business and Professions Code, sections 17200, 17203, and 17500 (the Unfair Competition Law, “UCL”); (8) the eighth cause of action for deceit; and (9) breach of contract. (SAC ¶¶ 40-115.) Plaintiff subsequently alleges an additional 9 causes of action against the Rallo Defendants that are listed as: (1) the first cause of action for legal malpractice; (2) the second cause of action for breach of fiduciary duty; (3) the third cause of action for conspiracy; (4) the fourth cause of action for fraud; (5) the fifth cause of action for intentional infliction of emotional distress (“IIED”); (6) the sixth cause of action for negligent infliction of emotional distress (“NIED”); the seventh cause of action for unfair business practices in violation of Business and Professions Code, sections 17200, 17203, and 17500 (the Unfair Competition Law, “UCL”); (8) the eighth cause of action for deceit; and (9) breach of contract.

The Rallo Defendants now specially demur to all causes of action of the SAC as to Defendants Westen and London for uncertainty and generally demur to the third, fourth, fifth, sixth, seventh, and eighth causes of action as to the Rallo Defendants for failure to state facts sufficient to constitute causes of action. The Rallo Defendants further move to strike certain paragraphs and requests for damages from the SAC.

Meet and Confer

Effective January 1, 2016, a party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41, subd. (a)(2).) Similarly, as of January 1, 2018, a party filing a motion to strike must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion and identify all of the specific allegations that it believes are subject to be stricken and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 435.5, subd. (a).)

The Rallo Defendants submit the Declarations of Jeremy R. Cronin (“Cronin Declaration”) in support of the subject demurrer and motion to strike. Cronin attests that he sent a letter to Plaintiff’s counsel, Jance Weberman on April 6, 2018, outlining the arguments to be raised in the Rallo Defendants’ anticipated demurrer to and motion to strike the SAC. (Cronin Decls. ¶¶ 5.) Cronin states that he did not receive a response, but that given the parties’ prior discussions with respect to the Complaint, he decided that an agreement regarding these issues was unlikely to be reached and filed the subject demurrer and motion. (Id. at ¶¶ 6-7.) A meet and confer must be in person or by telephone to meet the statutory requirements, and the court finds that Cronin’s single letter was insufficient. (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).) Nevertheless, as a determination that the meet and confer process was insufficient is not grounds to overrule or sustain a demurrer or to grant or deny a motion to strike, the court will therefore address the demurrer and motion on its merits. (See Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5, subd. (a)(4).) The court reiterates, however, that it expects the parties to fully comply with all statutory requirements and court rules.

Demurrer

I. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747 (Hahn).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

“All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157 (Rannard).) “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Ibid, citing Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (Goodman).)

II. Analysis

A. Special Demurrer for Uncertainty as to Defendants Westen and London

The Rallo Defendants specially demur to the SAC as to Defendants Westen and London for uncertainty. Defendants contend that the SAC does not set forth any allegations of wrongful conduct on the part of Westen or London and only asserts general allegations against these two Defendants along with the allegations against the other Defendants. (Dem. 4.) Plaintiff did not file an opposition and does not respond to this argument.

The court has reviewed the allegations of the SAC and recognizes that Plaintiff has not pled any factual allegations regarding Westen and London other than that she retained these two Defendants, along with the other Rallo Defendants and Bingham. (See SAC ¶ 22.) As such, the court finds that the SAC is uncertain as to these Defendants.

The court therefore SUSTAINS the demurrer to Defendants Westen and London with 20 days leave to amend.

B. Third Cause of Action for Conspiracy to Commit Fraud; Fourth Cause of Action for Fraud; and Eighth Cause of Action for Deceit

The elements of fraud are (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud—i.e., induce reliance; (4) justifiable reliance; and (5) resulting damage. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.) The policy of liberal construction of the pleadings ordinarily does not apply to causes of action for fraud, and fraud must be pled with particularity. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (Stansfield).) “The particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” (Ibid., emphasis in original.) In an action against a corporation, the burden is higher, requiring allegations of the names of the persons making the fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Ibid.)

The Rallo Defendants demur to the third, fourth, and eighth causes of action on the grounds that these claims are not pled with particularity and do not meet the heightened pleading standards required. (Dem. 6.) Plaintiff did not file an opposition and does not respond to this argument. The court has reviewed the allegations of the SAC and notes that Plaintiff’s third, fourth, and eighth causes of action appear to be based on the factual allegation that Defendants made misrepresentations to her by falsely promising that they could obtain results in litigation which they could not achieve. (See SAC ¶¶ 137, 140-143, 149, 152, 171-172.)

“Generally, actionable misrepresentation must be one of existing fact; ‘predictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud….’ ” (Cohen v. S & S Construction Co. (1983) 151 Cal.App.3d 941, 946.) Nevertheless, Courts have recognized that a promise made without an intent to perform can constitute the basis for a fraud claim based on promissory fraud. (Engalla, supra, 15 Cal.4th at pp. 973-974.)

In the case at hand, the SAC pleads that the Rallo Defendants made filings and performed legal work on Plaintiff’s behalf during the course of their representation. (SAC ¶¶ 27-31.) Viewing the allegations of the pleading in context, the facts stated would appear to indicate that Defendants did not make promises that they did not intend to perform at the time the alleged promises were made. (SAC ¶¶ 27-31.) Thus, these allegations do not appear sufficient to support causes of action for fraud. The SAC does not otherwise plead any specific acts of fraud on the part of the Rallo Defendants. As such, the court SUSTAINS the demurrer to the third, fourth, and eighth causes of action with 20 days leave to amend.

C. Fifth Cause of Action for Intentional Infliction of Emotional Distress

“The elements of the tort of intentional infliction of emotional distress are: (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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) “Generally, conduct will be found to be actionable where the ‘recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran).) “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.” (Berkley, supra, 152 Cal.App.4th at p. 534.)

The Rallo Defendants demur to the fifth cause of action for failure to specifically allege outrageous conduct or to plead facts of severe or extreme emotional distress. (Dem. 7-8.)

First, these Defendants cite Girard v. Ball (1981) 125 Cal.App.3d 772, 788 (Gallo) to argue that “[a]llegations that a plaintiff lost sleep, had symptoms of anxiety, and suffered from nervousness, but sought no medical treatment, are not adequate to state a claim for intentional infliction of emotional distress.” (Dem. 7.) Gallo arose on a motion for summary judgment and not on demurrer, and it is inapposite to the pleading standards required to state a cause of action for IIED at this stage of the proceedings. (See Gallo, 125 Cal.App.3d at p.788.)

As for the Rallo Defendants’ arguments concerning “outrageous” conduct, the court has reviewed the SAC and finds that the fifth cause of action does not plead facts regarding sufficiently “outrageous” conduct on the part of the Rallo Defendants as would support an IIED claim. (See SAC ¶¶ 160-161.) The fifth cause of action is premised on the Rallo Defendants’ “negligent and careless” conduct including their alleged collection of fees for a loan modification that had not been reviewed by the lender, failure to obtain the results promised, and alleged breaches of duties. (SAC ¶ 160.) Even viewed liberally and in context, these allegations fail to plead ultimate facts regarding intentional, “outrageous” conduct by the Rallo Defendants against Plaintiff. Plaintiff did not file an opposition to the demurrer and therefore does not respond to Defendants’ arguments or otherwise identify portions of the SAC in support of her claim.

The court therefore SUSTAINS the demurrer to the fifth cause of action with 20 days leave to amend.

D. Sixth Cause of Action for Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress is not an independent tort; it is merely convenient terminology descriptive of the context in which the negligence occurred. (Long v. PKS, Inc. (1993) 12 Cal.App.4th 1293, 1297.) Damages for severe emotional distress are recoverable in a negligence action when they result from the breach of a duty owed to the plaintiff that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two. (Ibid.) The standard required for outrageous conduct under NIED is the same as for IIED. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.)

The Rallo Defendants contend that damages for emotional distress are not recoverable in actions premised on legal malpractice except in select circumstances that are not at issue in the present matter. (Dem. 9, citing, e.g., Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1039-1040.) The cited cases support the Rallo Defendants’ argument. Plaintiff did not file an opposition and does not address this legal authority; thus, the sixth cause of action fails.

For these reasons, the court SUSTAINS the demurrer to the sixth cause of action with 20 days leave to amend.

E. Seventh Cause of Action for Violation of the UCL

The Unfair Competition Law (“UCL”), Business and Professions Code sections 17200, et seq. prohibits unfair competition, including unlawful, unfair, and fraudulent business acts. (Feitelberg v. Credit Suisse First Boston, LLC. (2005) 134 Cal.App.4th 997, 1008-09.) The UCL covers a wide range of conduct and borrows violations from other laws by making them independently actionable as unfair competitive practices, and a practice may be deemed unfair even if not specifically proscribed by some other law. (Id. at p. 1009.)

The Rallo Defendants demur to the seventh cause of action on the grounds that the underlying claims are insufficiently stated. (Dem. 10.) However, the Rallo Defendants did not generally demur to the first or second causes of action or present any arguments as to why these causes of action cannot support a cause of action under the UCL. Accordingly, the Rallo Defendants do not demonstrate that this cause of action is defective on the face of the pleading and do not establish grounds for demurrer.

Thus, the court OVERRULES the general demurrer to the seventh cause of action.

III. Conclusion

In sum, the court SUSTAINS the special demurrer to the entire SAC as to Defendants Westen and London, and SUSTAINS the general demurrer as to the third, fourth, fifth, sixth, and eighth causes of action. As this is the first time the court has reviewed a demurrer to Plaintiff’s pleadings, the court grants Plaintiff 20 days leave to amend, to allow her the opportunity to plead sufficient facts to state these causes of action. The court OVERRULES the general demurrer as to the seventh cause of action.

Motion to Strike

I. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “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 out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 (Ferraro).) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

A notice of motion to strike a portion of the pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, or defense. (Cal. Rules of Court, rule 3.1322(a).)

II. Analysis

The Rallo Defendants move to strike the requests for attorney’s fees, punitive damages, general damages, certain special damages, the loss of past and future earnings, and medical and related expenses.

Having sustained the general demurrer to the third, fourth, fifth, sixth, and eighth causes of action, the motion to strike is MOOT as to paragraphs 157 and 164 of the SAC and the claims for damages in the Prayer for these causes of action.

A. Attorney’s Fees

The Rallo Defendants move to strike the request for attorney’s fees from the SAC. The SAC requests attorney’s fees with respect to the first, second, third, fourth, fifth and ninth causes of action. According to the Rallo Defendants, Plaintiff has not set forth any allegations that provide a basis for such an entitlement pursuant to contract, statute, or law. (Mot. 4.)

California follows the “American rule,” under which litigants ordinarily pay their own attorney fees. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) Thus, a request for attorney fees must be based on either a statutory or contractual provision authorizing their recovery. (See Code Civ. Proc., § 1021.)

The court has independently reviewed the allegations of the SAC and notes that the SAC does not state factual allegations that identify the basis for Plaintiff’s request for attorney’s fees. While the ninth cause of action for breach of contract is based on a contract that contains an attorney’s fees provision (the Retainer Agreement allegedly entered into by the parties and attached as Exhibit B to the SAC), this provision on its face only appears to apply to attorney’s fees incurred in arbitration between the parties. (See SAC Ex. B, at ¶ 32.) Plaintiff did not file an opposition and does not present legal authority that would allow her to seek attorney’s fees incurred in litigation through this provision. Plaintiff further did not identify any basis for her request for attorney’s fees. Thus, the Rally Defendants meet their burden to demonstrate that Plaintiff’s requests for attorney’s fees constitute improper matter, and the court GRANTS the motion in-part as to these items of the Prayer, with 20 days leave to amend.

B. Punitive Damages

“To support punitive damages, the complaint … must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.) “ ‘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.” (Civ. Code, § 3294 subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294 subd. (c)(2).) “ ‘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.” (Civ. Code, § 3294, subd. (c)(3).) A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Plaintiff requests punitive damages in connection with each cause of action. The Rallo Defendants point out that Plaintiff only alleges that they engaged in conduct with “oppression, fraud or malice” in connection with the fourth cause of action. (SAC ¶ 157.) Having sustained demurrer to the fourth cause of action, the court need not decide whether these allegations suffice to support Plaintiff’s punitive damages claims. The Rallo Defendants further argue that punitive damages are improper on Plaintiff’s breach of contract claims and that the remaining allegations, at best, support a finding of negligence and not intentional conduct, which is not sufficient to support an award of punitive damages. (Mot. 6.) Plaintiff did not file an opposition and does not respond to these arguments.

Accordingly, the court GRANTS the motion to strike the allegations related to Plaintiff’s punitive damages claim, with 20 days leave to amend.

C. General Damages and Certain Special Damages

The Rallo Defendants contend that Plaintiff fails to plead facts to support her request for damages for emotional distress, loss of past and future earnings, and medical and related expenses.

First, Defendants argue that Plaintiffs claims are based on allegations of legal malpractice, for which emotional distress damages are not allowed except in circumstances that are not applicable here. (Mot. 7-8, citing Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 474.) As such, Defendants argue that these claims cannot support an award of emotional distress damages. Plaintiff does not address this argument or distinguish the cited legal authority. Accordingly, the court finds that the requests for emotional distress damages for the remaining first, second, and ninth causes of action comprise improper matter.

Second, the Rallo Defendants argue that Plaintiff does not state any factual allegations to support her request for loss of past and future earnings in the Prayer for the first, second, third, fourth, fifth, and ninth causes of action. (Mot. 8.) Plaintiff did not file an opposition or respond to this argument. On independent review, the court finds that the SAC does not state facts regarding Plaintiff’s entitlement to such damages. The court therefore finds that the requests for such damages comprise improper matter.

Third, the Rallo Defendants argue that Plaintiff does not set forth any allegations that support an entitlement to damages for medical and related expenses in her Prayer for the second, third, fourth, fifth, and ninth causes of action. As with the other challenged requests for damages, Plaintiff did not file an opposition and therefore does not address this argument or identify any allegations that would support her damages claim. As such, the court finds that the requests for medical and related damages comprise improper matter.

For these reasons, the court GRANTS the motion to strike in-part as to the request for these general and special damages, with 20 days leave to amend.

III. Conclusion

In sum, the motion to strike is MOOT as to Paragraphs 157 and 164 of the SAC and the identified requests for damages in the Prayer to the SAC with respect to the third, fourth, fifth, sixth, and eighth causes of action. The motion is otherwise GRANTED with 20 days leave to amend.