2014-00162318-CU-FR

Nabil Samaan vs. Folsom Buick GMC

Nature of Proceeding: Motion to Strike Portions of Fourth Amended Complaint (Ally Financial,

Filed By: Givental, Alisa A.

*** If oral argument is requested, the parties must at the time oral argument is requested notify the clerk and opposing counsel of the specific issues that will be addressed at the hearing. Counsel are also reminded that pursuant to local rules, only limited oral argument is permitted on law and motion matters. ***

The motion of Defendants Ally Financial, Inc. (“Ally Financial”), MIC Property and Casualty Insurance Corporation (“MIC”), and Ally Service Agreement Corporation fka GMAC Service Agreement Corporation (“Ally Service”) (collectively “Defendants”) to strike portions of the Fourth Amended Complaint (“4AC”) is GRANTED IN PART and DENIED IN PART, without leave to amend, as follows.

The notice of motion does not comply with CRC Rule 3.1322(a), expressly requiring the moving parties “to quote in full [all] portions [of the pleading] sought to be stricken” unless it is “an entire paragraph, cause of action, count or defense.”

The memorandum of points & authorities in opposition fails to comply with CRC Rule 3.1113(f).

Both moving and opposing papers fail to comply with CRC Rule 3.1110(b)(3)-(4).

The court did not consider the declaration which plaintiff filed in opposition to this motion to strike since such extrinsic evidence is beyond the permissible scope of what may be considered in connection with motion to strike, which like a demurrer is limited to the facts alleged in the challenged pleading and those for which judicial notice is both requested and granted. (Code Civ. Proc. §437.)

Factual Background

This case arises from plaintiff’s purchase of a GMC truck from a Roseville dealership

in 2008. Plaintiff alleges he purchased a General Motors Protection Plan, Major Guard Insurance Policy (“GMPP”) at the same time. A copy of the GMPP is attached to the 4AC, identifying “GMAC Service Agreement Corporation” (i.e., Ally Service) as the “Provider” thereunder and MIC as a “California-approved insurance company” guaranteeing performance. Nonetheless, the dealership allegedly told plaintiff the GMPP was a contract with Ally Financial, not Ally Service. Plaintiff contends that Ally Financial, Ally Service and MIC are parent and subsidiary, undisclosed principals or agents, and/or otherwise affiliated with each other such that Ally Financial gave authority to Defendant Ally Service to handle claims made under the GMPP and to MIC to guarantee performance. Thus, according to plaintiff, Defendants are parties to this GMPP and are liable for a failure to perform after he sought vehicle repairs in 2012 at JS Folsom Automotive dba Folsom Buick GMC (“JSFA”), which plaintiff maintains is an agent of the other Defendants and an authorized service provider under the GMPP, thereby giving JSFA authorization to submit claims and invoices for payment under the GMPP.

Plaintiff had problems with the vehicle in 2012 and took it to JSFA for repairs, when JSFA allegedly indicated it was authorized to submit claims and make repairs under the GMPP. JSFA thereafter made repairs and issued invoices for payment by plaintiff even though JSFA had submitted claims for work it previously done on the truck pursuant to the GMPP. According to plaintiff, JSFA employee Shawn Vishney promised he would handle diagnostics, repairs and invoices in 2012 and these promises are part of oral and written agreements with JSFA, with the written portions being JSFA’s invoices. Plaintiff adds that JSFA did not properly diagnose problems with the vehicle, failed to submit invoices for his claims under the GMPP, forged plaintiff’s signature, wrongfully disposed of vehicle parts and engaged in other fraudulent conduct.

The 4AC spans nearly 250 pages including exhibits (e.g., deposition transcripts, discovery responses) and it purports to state several causes of action against the demurring Defendants including breach of contract (both written and oral), “fraud” (consisting of mixed allegations of false promise, concealment and misrepresentation) based on Defendants’ alleged agent JSFA’s conduct as well as Defendants’ own alleged promise to investigate JSFA’s fraud and to promptly reimburse plaintiff for covered repairs, negligence and violation of Business & Professions Code §17200 et seq., plus similar causes of action against JSFA.

Moving Papers. Defendants now move to strike those portions of the 4AC which purport to seek damages for emotional distress, punitive damages and attorney fees as well as “voidance of a contract term” on the grounds that such relief may not be obtained against Defendants. The motion also seeks to strike all references to defendant MIC since MIC’s prior demurrer to plaintiff’s complaint was sustained without leave to amend.

Opposition. Plaintiff opposes, arguing inter alia that Defendants’ motion attempts to “unjustly undercut Plaintiff’s action by prematurely removing [the claims for punitive damages and attorney fees,” the recovery of which will ultimately be determined by the success or failure of plaintiff to prove his causes of action against Defendants, and that all of the allegations at issue here are both proper and supported by the facts set forth in the 4AC.

Analysis

Punitive Damages. The motion to strike the punitive damages allegations must be denied since the court has overruled Defendants’ demurrer to the 4AC’s fraud cause of action and since punitive damages may be permissibly recovered by plaintiff if he is able to prove this cause of action as against Defendants.

Attorney Fees. The motion to strike plaintiff’s claims for attorney fees is granted. Although this court held in its ruling on defendant JSFA’s motion to strike relative to the Third Amended Complaint and affirmed in its ruling on JFSA’s current motion to strike relative to the 4AC that plaintiff is based on Trope v. Katz not entitled to recover in this action any fees he would normally charge clients for his own legal services but is pursuant to Mix v. Tumanjan Development Corp. not otherwise precluded from recouping fees actually paid to another attorney retained to assist him in the handling of this litigation, none of the causes of action alleged against the moving Defendants in the 4AC which have survived the latter’s pending demurrer (i.e., oral contract, fraud, negligence) support a valid claim for attorney fees as against the moving Defendants.

Emotional Distress. The motion to strike all claims for damages based on plaintiff’s alleged emotional distress is granted since such damages are not recoverable under any theory of liability currently asserted against moving Defendants.

References to Defendant MIC. The motion to strike these references from the cause of action for Breach of Contract (both oral and written) is denied since this cause of action is, consistent with the court’s prior ruling sustaining without leave to amend this cause of action as against defendant MIC, is by its own terms not directed at MIC and since the mere references to MIC in this cause of action as part of the relevant factual circumstances are, without more, not impermissible or otherwise violative of Code of Civil Procedure §436 [grounds for motion to strike].

“Voidance of Contract Term.” Paragraph 5 of the concluding Prayer states, “For termination of or voiding the [GMPP] limitations that state the defendants’ total liability or loss to a plaintiff is the “value of the vehicle.” The court finds no legal or factual support for this claim for relief and will therefore strike it, adding that plaintiff may otherwise recover those monetary damages he can ultimately prove in connection with his surviving claims against Defendants.

Conclusion

For the reasons set forth above, Defendants’ motion to strike is granted as to the alleged emotional distress damages and the prayer to void the GMPP’s limitation of liability but denied as to the remainder.

Leave to amend is denied since plaintiff has already had five opportunities to plead his causes of action in this case.

If not already done, moving Defendants to file and serve an answer to the remainder of the 4AC within 10 days.