2014-00162318-CU-FR

Nabil Samaan vs. Folsom Buick GMC

Nature of Proceeding: Motion to Strike Portions of Fourth Amended Complaint (JS Folsom

Filed By: Britton, John 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 paragraphs targeted by this motion 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. ***

Defendant JS Folsom Automotive dba Folsom Buick GMC’s (“JSFA”) motion to strike portions of the Fourth Amended Complaint (“4AC”) is GRANTED IN PART and DENIED IN PART, without leave to amend, as follows.

The opposition to this motion was not timely filed (since 2/12/2018 was a court holiday) but it was nevertheless considered.

The court did not consider the declaration which plaintiff filed in opposition to this motion since such extrinsic evidence is beyond the permissible scope of what may be considered in connection with a motion to strike, which is limited to the allegations found in the challenged pleading and other matters for which judicial notice is both requested and granted.

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. According to plaintiff, defendants other than JSFA are parties to this GMPP and are liable for a failure to perform after he sought vehicle repairs in 2012. Plaintiff maintains that JSFA is an agent of these other defendants and that JSFA is an authorized service provider under the GMPP, thereby being authorized to submit claims and invoices for payment under the GMPP.

Plaintiff took the vehicle to JSFA for repairs in 2012, 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 JSFA including breach of contract, “fraud” (consisting of mixed allegations of false promise, concealment and misrepresentation), negligence, violation of Business & Professions Code §17200 et seq., interference with contract and conspiracy plus similar causes of

action against other defendants.

Moving Papers. Defendant JSFA now moves to strike multiple portions of the 4AC primarily on the ground these allegations pertaining to punitive damages and attorney fees are improper, irrelevant, conclusionary [sic], inconsistent and contrary to law. In particular, JSFA contends that the use of “buzz words” like malicious, fraudulent and oppressive are insufficient to state a claim for punitive damages and that plaintiff, an attorney representing himself, cannot recoup his attorney’s fees.

Opposition. Plaintiff opposes, arguing inter alia that JSFA is attempting to improperly eliminate all allegations pertaining to the punitive damages and the attorney fees sought by the 4AC and that these allegations are adequately pled so as to mandate denial of this motion.

Analysis

Prior Motion to Strike. At the outset, it should be noted that JSFA made a similar motion to strike plaintiff’s claims for punitive damages and attorney fees in response to the Third Amended Complaint (“3AC”). In ruling on that motion, this court made the following observations:

First, JSFA moves for an order striking Plaintiff[’s] claim for punitive damages. In a concurrent ruling, the court has sustained JSFA’s demurrers to [plaintiff’s] causes of action supporting such a claim. Consequently, there is nothing for the court to strike, and this portion of the motion is dropped as moot.

JSFA also moves for an order striking [plaintiff’s] prayers for an award of attorney’s fees. [Plaintiff] seeks attorney’s fees on a variety of theories. Noting that [plaintiff] is in propria persona, JSFA argues the law bars any award of attorney’s fees.

In opposition, [plaintiff] asserts he has consulted an attorney advisor during this litigation. The court in Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, held that a pro per attorney who enlisted another attorney to assist in the case was entitled to attorney’s fees incurred for the assistance. Consequently, although the court expresses no opinion whether [plaintiff] has actually retained an attorney to assist in his case, it will not strike all [plaintiff’s] requests for attorney’s fees on the theory they are untenable. That being said, [plaintiff] will not be able to recoup fees he would otherwise charge for his own legal services. (See, Trope v. Katz (1995) 11 Cal.4th 274, 278-279.)

That said, the court now turns to the merits of the present motion to strike portions of the 4AC.

Attorney Fees. The motion to strike the claims for attorney fees is again denied. Although this court affirms its prior statement that plaintiff will not be able to recover here any fees he would normally charge clients for his own legal services based on Trope v. Katz, plaintiff may ultimately be entitled to recoup fees actually paid to another attorney who was retained to assist in the handling of this litigation pursuant to Mix v. Tumanjan Development Corp.

Punitive Damages. The motion to strike the punitive damages allegations must also

be denied, at least in part. As this court has already determined in connection with JSFA’s concurrent demurrer that the 4AC adequately states at least one claim for promissory fraud, the punitive damage claim included within the second cause of action for fraud as against JSFA is deemed sufficient to withstand this motion to strike. However, the allegations in Paragraph 53 of the “Statement of Facts” in the 4AC and in Paragraph 235 in the Interference with Contract/Conspiracy cause of action that JSFA acted fraudulently, maliciously and/or oppressively are impermissibly conclusory and do not support an award of punitive damages (see, e.g., Brousseau v. Jarrett (1977)

73 Cal.App.3d 864, 872), thereby warranting an order striking the allegations in these two paragraphs.

Other Allegations and Prayer for Relief. The court will also strike the cited allegations in Paragraphs 57, 68 (lines 11-15), 69-70, 94, 98, 211, 231 (lines 11-18), 232-233 and 235 along with the Prayer, Item 6 (“Plaintiff’s hourly rate for his time spent”) on the grounds these allegations are irrelevant, improper, false and/or not drawn in conformity with California law. The motion is denied as to the remainder of the allegations challenged by JSFA.

Conclusion

For the reasons set forth above, JSFA’s motion to strike is granted in part and denied in part.

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, JSFA to file and serve an answer to the remainder of the 4AC within ten days.