2015-00181308-CU-PO

Keith D. Grayson vs. Robin C. Bevier

Nature of Proceeding: Motion to Strike Portions of Plaintiff’s Second Amended Complaint

Filed By: Lewis, Luther R.

The motion of Defendants Robin C. Bevier and Martorana & Bevier, APC (collectively “Defendants”) to strike the prayer for punitive damages and associated allegations from the second amended complaint (SAC) is DENIED.

Overview

This is a professional negligence case. The plaintiffs are Keith D. Grayson and Nicole Hamlin (Hamlin) (collectively “Plaintiffs). The SAC contains a single cause of action for legal malpractice.

Plaintiffs allege that they are beneficiaries of a family trust (the “Trust”). They contend that, after each of the original trustees died, Defendants failed to take certain actions in relation to the Trust. Among other things, Plaintiffs allege that (1) Defendants failed properly to advise the surviving trustee after the other trustee died, (2) proper notice of the Trust’s administration was not served, and (3) trust assets were not properly distributed to Plaintiffs. Plaintiffs also allege that they ultimately obtained a court order compelling Defendants to take required action on the Trust, yet Defendants delayed and appealed without justification. Relevant for present purposes are allegations that Defendants refused to acknowledge Plaintiffs’ interests in the Trust, and refused to provide an accurate accounting, with malice and oppression. (SAC, ¶ 19; see also id.,

¶ 30 [Defendants acted in conscious disregard of Plaintiffs’ rights, acted with malice and oppression, and acted with an intent to harm Plaintiffs].)

Defendants move to strike the claim for punitive damages on grounds the allegations

are insufficient. Plaintiffs oppose.

The court granted Defendants’ prior motion–which was unopposed–strike the punitive damages allegations and prayer. Leave to amend was granted. (See Order of 10/25/18.)

Discussion

Defendants characterize the allegations in the SAC as largely conclusory. They argue that the well-pleaded factual allegations do not describe the “despicable conduct” supporting a claim for punitive damages based on malice or oppression. (See CC § 3294(c)(1), (c)(2).)

Plaintiffs counter by citing allegations that Defendants knew they were required to take certain actions but failed to do so anyway. For example, Plaintiffs allege in Paragraph 16 that Defendants “knew, and acknowledged that Plaintiffs were the intended beneficiaries of the Trust, however, Defendants failed to distribute the Trust assets to Plaintiffs.” Similarly, Plaintiffs allege in Paragraph 17 that Defendants “refused to create Trust B even after acknowledging its requirement.” Plaintiffs go on to allege that they lost their inheritance as a result of Defendants’ conduct, (SAC, ¶ 28), that Defendants had no factual or legal reason to act as they did, (id., ¶ 30), and that Defendants acted in a “deliberate attempt to deprive [Plaintiffs] of their rightful inheritance.” (Id.)

Plaintiffs have the better argument. First, the allegations need not be construed to describe solely negligence, which does not support an award of punitive damages. (See Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1354-1355.) Rather, the allegations can be construed to describe Defendants’ knowing, unjustified decisions to take action harmful to Plaintiffs. The court must adopt the construction most favorable to Plaintiffs at this juncture.

Secondly, the court is not persuaded that the intentional deprivation of assets intended as an inheritance cannot qualify as “despicable conduct” under CC § 3294(c). (See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [“the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible’”]; see also Moving Memo. at 7:19-23 [describing despicable conduct as that which “arouses the same type of outrage associated with crime”].) In any event, Plaintiffs allege an intent to harm, which supports a punitive award even absent allegations of despicable conduct. (See CC § 3294(c)(1).)

In denying the motion, the court is aware that many of Plaintiffs’ allegations focus on Defendants’ alleged failure to advise a non-party trustee. In addition, the court notes Plaintiffs’ allegation in Paragraph 15 that Defendants “knew, or should have known” that Hamlin was an intended beneficiary, yet they failed to send her proper notice of trust administration. While these allegations support a finding that Defendants were merely negligent, they do not bar a finding of malice when the entire SAC is considered.

Disposition

The motion is denied.

Defendants are directed to file and serve their answer to the SAC no later than 1/18/19 .

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