Viviane Delaney vs Timothy Delaney et al

Case Number

21CV03600

Case Type

Hearing Date / Time

Fri, 07/19/2024 - 10:00

Nature of Proceedings

CMC; Motion to Strike; Hearing Return on Remittitur

Tentative Ruling

For the reasons set forth herein, defendants Wilson & Pettine, LLP and Paul A. Pettine, III’s’ motion to strike portions of plaintiff’s first amended complaint is denied. Wilson & Pettine, LLP and Paul A. Pettine, III shall file and serve their answer to plaintiff’s first amended complaint no later than August 9, 2024.

Background:

On September 8, 2021, plaintiff Viviane Delaney (Viviane) filed her original complaint in this action. On January 6, 2022, Viviane filed her first amended complaint (FAC). (Note: The court uses parties’ first names to avoid confusion among parties with the same surname. No disrespect is intended.) The FAC asserts four causes of action: (1) malicious prosecution; (2) intentional infliction of emotional distress; (3) negligent infliction of emotional distress; and (4) abuse of process. The FAC asserts claims arising from an earlier action, Delaney v. Delaney, Santa Barbara County Superior Court case No. 18CV02639 (the Underlying Action), in which defendant Timothy Delaney (Timothy), through his attorneys, defendants Wilson & Pettine, LLP (WP), Paul A. Pettine, III (Pettine), and William Poulis (Poulis), asserted claims against Viviane based upon Timothy’s allegations that Viviane falsely accused Timothy of sexually abusing Timothy and Viviane’s son. The Underlying Action was litigated for more than a year and ended in Viviane’s favor when it was voluntarily dismissed by Timothy.

On March 11, 2022, WP and Pettine filed a special motion to strike the FAC (sometimes, anti-SLAPP motion). Also on March 11, Timothy filed his special motion to strike the FAC. The motions were opposed by Viviane.

On April 20, 2022, the court granted both anti-SLAPP motions.

On May 12, 2022, Timothy filed a motion for an award of attorney fees.

On May 19, 2022, Viviane filed her notice of appeal as to the court’s order of April 20.

Timothy’s motion for an award of attorney fees was granted in the amount of $18,765.15.

On appeal, the appellate court reversed the ruling on the anti-SLAPP motion and ordered this court to vacate the attorney fee award.

WP and Pettine now move to strike portions of plaintiff’s FAC. Plaintiff opposes the motion.

Analysis:

“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.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “The grounds for a motion to strike shall 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, subd. (a).)

“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

“[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

The portions of the FAC that WP and Pettine seek to have stricken are:

“1. Page 5, lines 21-22: ‘humiliation, mental anguish, emotional and physical distress;’

2. Page 6, line 18: ‘humiliation, mental anguish, emotional and physical distress;’

3. Page 7, line 11: ‘humiliation, mental anguish, emotional and physical distress;’

4. Page 7, line 15: ‘humiliation, extreme and severe mental anguish, emotional distress;’

5. Page 7, line 16: ‘and pain and suffering;’

6. Page 9, line 3: ‘physical and emotional distress;’

7. Page 9, paragraph 3, in its entirety [“For general damages for pain and suffering in a sum to be determined at the time of trial”];

8. Page 9, paragraph 4, in its entirety [“For penalties and interest as prescribed by law”];

9. Page 9, paragraph 5, in its entirety [“For punitive damages as permitted by law, according to proof.”]” (Motion, p. 4, l. 15 - p. 5, l. 3.)

[Note: WP and Pettine make no argument at all in support of the ninth request to strike the prayer for punitive damages. As such, any request to strike that prayer will be summarily denied.]

WP and Pettine’s first argument is that “Viviane may not seek general damages or damages for emotional distress claims against W&P and Pettine because she was not their client and has not been incarcerated due to their conduct.” (Motion, p. 5, ll. 24-26.) By way of the argument, WP and Pettine seek to have items one through seven above stricken. (Motion, p. 7, ll. 16-19.)

In support of their argument, WP and Pettine cite several cases, none of which are applicable to a malicious prosecution action and, in some cases, do not hold what WP and Pettine claim.

The first case cited is Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42 (Ovando). The facts of Ovando are that plaintiff sued his former criminal defense attorney for legal malpractice resulting in his false conviction. The case was appealed on the trial court granting a motion for new trial. There is nothing in Ovando that states, or even implies, that general damages or damages for emotional distress are unavailable to a plaintiff in a malicious prosecution case.

The next case cited is Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464 (Gonzales). In Gonzales, plaintiff sued a storage facility for breach of contract, breach of warranty, breach of the implied covenant of good faith and fair dealing, negligence and conversion. Gonzales has nothing to do with an action against an attorney for malicious prosecution. The only relevance that the case may have is its statements regarding the recovery of emotional distress damages in an attorney malpractice case at page 474. However, and as stated above, this is not a malpractice case. It is a malicious prosecution action. The two are not the same.

The next case cited is Merenda v. Superior Court (1992) 3 Cal.App.4th 1 (Merenda). Merenda was disapproved of in several subsequent decisions. To the extent that Merenda’s holdings are good law, again, it was a legal malpractice case by a plaintiff against her former attorneys and not a malicious prosecution case. As with the above cases, it is inapplicable to the current action.

The next two cases cited, Smith v. Superior Court (1992) 10 Cal.App.4th 1033 and Pleasant v. Celli (1993) 18 Cal.App.4th 841, are also legal malpractice actions and their holdings are inapplicable to this action.

The final two cases cited by WP and Pettine are Silberg v. Anderson (1990) 50 Cal.3d 205 (Silberg) and Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 (Potter).

Silberg was an action against the attorney that had represented plaintiff’s wife in dissolution proceedings. The causes of action were breach of contract, negligence, and intentional tort, based on representations made by the attorney regarding a psychologist that the attorney recommended for evaluation and counseling for the purposes of determining visitation and custody. The case involves the invocation of the litigation privilege based on allegations of specific statements by the defendant, during the dissolution proceedings, that were contained in the complaint. Here, that is not what is at issue and, even if it were the issue, it would not properly be determined by way of a motion to strike because it would require the court to weigh evidence outside of the FAC and things of which it is required to take judicial notice.

WP and Pettine cite Potter solely for the proposition that “there is no independent tort of negligent infliction of emotional distress.” (Motion, p. 7, ll. 4-6.) However, that argument is inapplicable in that WP and Pettine did not move to strike the entire cause of action or demur to the cause of action for negligent infliction of emotional distress. Potter in no way implies that a plaintiff in a malicious prosecution action is precluded from recovering general damages or damages for emotional distress claims.

Compensatory damages recoverable in a malicious prosecution action include:

“[T]he measure of compensatory damages for the malicious prosecution of a civil action includes attorney fees and court costs for defending the prior action and compensation for emotional distress, mental suffering and impairment to reputation proximately caused by the initiation and prosecution of the action.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 59.)

“Damages potentially recoverable in a malicious prosecution action are substantial. They include out-of-pocket expenditures, such as attorney’s and other legal fees [Citation]; business losses [Citation]; general harm to reputation, social standing and credit [Citation]; mental and bodily harm [Citation]; and exemplary damages where malice is shown [Citation].” (Babb v. Superior Court (1971) 3 Cal.3d 841, 848, fn. 4.)

If certain conditions are met, and she prevails, Viviane may be able to recover general damages, special damages, interest, penalties, and attorney fees and costs in the present case as well as the underlying case. If those conditions are not present, Viviane may not be able recover all of those items.

Further, as to attorney fees: Although argued in the body of the motion, WP and Pettine failed to include the prayer for attorney fees and for costs of suit, in their notice of motion, as an item to be stricken. That prayer is prayer for relief number 6. The only prayers for relief included in the motion are numbers 3, 4, and 5.

“Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010.)

“A basic tenet of motion practice is that the notice of motion must state the grounds for the order being sought [citations], and courts generally may consider only the grounds stated in the notice of motion [citation].” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.)

No grounds for striking the prayer for attorney fees and costs were given because that prayer for relief was not included in the notice of motion. Even if it had been, it would be denied for the reasons set forth above.

WP and Pettine’s motion to strike portions of plaintiff’s FAC will be denied in its entirety, and they will be ordered to answer the FAC.

            Requests for Judicial Notice

Plaintiff and defendants each request that the court take judicial notice of several documents. There are no objections to the requests.

Judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or any state of the United States.” (Evid. Code, § 452, subd. (d).)

“ ‘Judicial notice may not be taken of any matter unless authorized or required by law.’ ” (Evid. Code, § 450.) Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.] Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9.)

“ ‘Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.’ ” [Citation.]” (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

The court will take judicial notice of all the documents requested, but will not take judicial notice of the truth of the factual matters asserted in those documents. None of the documents have any bearing on the court’s ruling and it is unclear why most of them were even included by the parties.