I

•
LAW OFFICES OF RONALD JASON PALMIERI
•
Ronald Jason Palmieri, State Bar #96953
2 Robert P. Wargo, State Bar #175177
911 Linda Flora Drive
3 Los Angeles, caliform.'a 90049 ./'
Tel: (310) 471-1881
4 Fax: (310) 471-3511

D~~ants ~;
5
Attorneys for Cirgadyne, ABC Escrow;
6 Craig A. Block and Cindy Block 7H~'

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES
10
MARCIA J. HOLTZMAN, an individual ) CASE NO.: BC254506
11 )
Plaintiff, ) NOTICE OF MOTION AND MOTION TO
12 ) STRIKE PORTIONS OF COMPLAINT;
vs. ) MEMORANDUM OF POINTS AND
13 ) AUTHORITIES
CIRGADYNE, INC., et al. )
14 ) Date: September 20,2001
Defendants ) Time: 8:30 AM
15 ) Dept.: 32
Hon. William Highberger
16
Complaint Filed: July 20, 2001
17
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
18
YOU ARE HEREBY NOTIFIED that on September 20, 2001, at 8:30 AM, in
19
Department 32 of this Court, located at III N. Hill Street, Los Angeles, CA, Defendants
20
Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy Block will, and hereby do move the
21
Court to strike portions of the Complaint filed in this action. Specifically, these Defendants will
22
move the Court to strike the claims throughout the Complaint for punitive damages, as the [!l ~ ~
m
lTIXtT'ltT1
[!l
_
9
......
M
23 1-1

<:: 2: "'T,;l ""0 :l>

m
Complaint contains no factual allegations supporting such claims. ("") C"') n n
:J>X:t>::::C::··
t::I.-- l :l> - I 0')
1-1
'='= •.
f'T1

24 :::0 ::l>
,=,%:Z;:M
to ".,
otA-
•• ••
to
The Motion will be based on the instant Notice of Hearing, and MemorandUnf.bf~ints* a; '" Q
....... n J:::.
25 r oo=~
dmd Authorities, and such other and further evidence as the Court may deem appropriate at.j:he 0 ~ [;;, ~
26 ~:f
~:j
~
•
~ 0-- ~
t1 :J>
t;bearing.
"':
2: f3 ~
8u-.om
27 .' J~ ~
(I
28 !)
Ii.o, Page I
f; NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT

OR\G\NAL
 I Dated: AUgUSt~2001
• •
2 By :'---4.."".-~*"""';il..----";;';:"'l.L.:lo.L...-l\.
Robert P. Wargo
3 Attorneys for Defendants Cirga n, Inc.; ABC
Escrow; Craig A. Block and Cin y lock
4

6
7

8
9
10

11

12

13
14
15
16

17

18

19

20

21

22

23

24

28
Page 2
'.'.;
" NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT
1
-~

•
MEMORANDUM OF POINTS AND AUTHORITIES
•
2 I

3 INTRODUCTION

4 On or about July 20, 2001, Plaintiff Marcia 1. Holtzman filed a two-count complaint for:

5 (1) Invasion of Privacy under Common Law, and (2) Invasion of Privacy under Civil Code §3344

6 against seven defendants, including moving parties Cirgadyne, Inc.; ABC Escrow; Craig A.

7 Block and Cindy Block. Moving parties request that the Court strike certain portions of the

8 complaint which are "not drawn or filed in conformity with the laws of this state, a court rule, or

9 an order of the court," as permitted by CCP §436. Specifically, these Defendants request that the

10 Court strike the claims throughout the Complaint for punitive damages as Plaintiff has alleged no

11 facts to support such a claim.

12 II.

13 THE COURT MAY STRIKE ANY PORTION OF A PLEADING WHICH IS NOT

DRAWN OR FILED IN CONFORMITY WITH THE LAWS OF THIS STATE, A
14 COURT RULE, OR ANY ORDER OF THE COURT

15 Code of Civil Procedure §435(b) provides, in pertinent part: "Any party within the time

16 allowed to respond to the pleading, may serve and file a notice of motion to strike the whole or

17 any part thereof." Code of Civil Procedure §436 states:

18 The court may, upon a motion made pursuant to Section 435, or at any time in its
discretion, and upon terms it deems proper:
19 (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
20 laws of this state, a court rule, or an order of the court.

21 As stated in CCP §431.1 0, "Irrelevant matters," as that term is used in §436, means:

22 (1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient
23 claim or defense.
(3) A demand for judgment requesting relief not supported by the allegations of the
24 complaint or cross-complaint.
{I
25 ,:A· The Court Should Strike The Requests for Punitive Damages Throughout the
t!
t.:,
Complaint Because Plaintiff Has Plead No Facts Showing An Entitlement To Such
26 tj Relief
!:j
.~

27 In paragraph 21 (located within the first cause of action for Invasion of Privacy under
n
28 n
6\ Page 3
n NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT
 I
• •
Common Law)and paragraph 24 (located within the second cause of action for Invasion of

2 Privacy under Civil Code §3344), Plaintiff seeks punitive damages against all Defendants based

3 on the allegations of her Complaint (all of which are alleged on information and belief) that

4 Defendants acted "were guilty of oppression, fraud, or malice, in that said defendants engaged in

5 the above-specified conduct and transactions with the intent to vex, injure or annoy Plaintiff,

6 and/or with a willful and conscious disregard of Plaintiffs rights." Since these allegations are

7 wholly devoid of factual support, the Court must strike paragraphs 21 and 24, as well as

8 paragraphs A.2 and 8.2 of the prayer for relief (requesting punitive damages), from the

9 Complaint.

l O I n order to survive a motion to strike an allegation of punitive damages, the ultimate facts
II showing an entitlement to such relief must be pled by a plaintiff. Clauson v. Superior Court

12 (1998) 67 Cal.App.4th 1253, 1255, citing Grieves v. Superior Court (1984) 157 Ca1.App.3d 159,

13 166; Blegen v. Superior Court (1981) 125 Cal.AppJd 959, 962-963. Indeed, the mere allegation

14 an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not

15 only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the

16 pleading to support such a claim. Grieves v. Superior Court (1984) 157 Ca1.AppJd 159, 166.

17 Civil Code §3294(c) defines malice, oppression and fraud as follows:

18
(I) "Malice" means conduct which is intended by the defendant to cause injury to the
19 plaintiff or despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.
20 (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.
21 (3) "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
22 depriving a person of property or legal rights or otherwise causing injury.

23 Plaintiffs allegations that Defendants' conduct was malicious, fraudulent or oppressive

24 are conclusory and not supported by any facts whatsoever. Rather, allegations of"ultimate facts"
II
25 K~howing an entitlement to punitive damages are wholly absent from the complaint. Accordingly,
H
26 '~fhe Court must strike paragraphs 21 and 24, and the prayers for relief for punitive damages from
(l
27 !the Complaint.
1;1

~:
28
Page 4
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT
 I
• III.
•
2 CONCLUSION

3 For all the reasons set forth above, the Court should strike paragraphs 21 and 24, and the

4 prayers for relief for punitive damages, from the Complaint.

5
6 Dated: AUgUstC[: 2001 MIERI
7 By:.......l."'T>':"i~-n--;~~_.....:..~'4-­
Robert P. Wargo
8 Attorneys for Defendants dyne, Inc.; ABC
Escrow; Craig A. Block and Cindy Block
9

10

II

12

13

14

15

16

17

18

19

20

21

22
23

24
il:j
25
~;!
26 ~;
~i.
tf
27 ~
l'l
28 n
.'.,
{(~ Page 5
fi NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT
1
• PROOF OF SERVICE
•
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,
I am employed in the County of Los Angeles, State of California. I am over the age of 18
3 and not a party to the within action; my business address is 9 I 1 Linda Flora Drive, Los Angeles,
CA 90049.
4 On August ii, 2001, I served the following documents described as NOTICE OF
MOTION AND MOTION TO STRIKE PORTIONS OF CROSS-COMPLAINT;
5 MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by
as follows:
6
Lawrence M. Adelman, Esq.
7 Law Offices of Lawrence M. Adelman
5850 Canoga Avenue #400
8 Woodland Hills, CA 91367-6554
FAX: 8181710-3844
9

10 l BYMAIL
l As follows: "I am readily familiar" with the firm's practice of collection and processing
11 correspondence for mailing. Under that practice, it would be deposited with the U.S.
Postal Service on that same day with postage thereon fully prepaid at Los Angeles,
12 California, in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if the postal cancellation date or postage meter date is
13 more than one day after date of deposit for mailing in affidavit.

14 BY FACSIMILE
I faxed copies of such document listed above to the persons whose name, address and
15 facsimile number appears above.

16 BY PERSONAL SERVICE
I caused such envelope to be delivered by hand to the individual(s) whose name(s)
17 appear(s) above.

18 Executed on August 8, 2001, at Los Angeles, California.

19 l (STATE) I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
20
(FEDERAL) I declare under penalty of perjury under the laws of the United States of
21 America that the foregoing is true and correct.

22

23

24
:,
25
"
~: l
oj
26 .:'':i
jJ
,
27
;i!
28
~;~ Page 6
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT