Mike Harling vs Lynn & O'Brien LLP et al

Case Number

22CV02807

Case Type

Hearing Date / Time

Mon, 10/30/2023 - 10:00

Nature of Proceedings

Motion: Strike Second Amended Complain

Tentative Ruling

Mike Harling vs. Lynn & O’Brien, LLP, et al.              

Case No. 22CV02807

           

Hearing Date: October 30, 2023                                             

HEARING:              (1) Demurrer To Plaintiff’s Second Amended Complaint

                                    (2) Motion To Strike Portions Of Plaintiff’s Second Amended Complaint

                                                           

ATTORNEYS:        For Plaintiff Mike Harling: Michael Labrum, Law Offices of Michael Labrum

                             For Defendants Lynn & O’Brien, LLP, Joshua Lynn, Elizabeth O’Brien, and Andrew B. Mitchell: David Davidson, O’Hagan Meyer

TENTATIVE RULING:

(1) Defendants’ demurrer to plaintiff’s second amended complaint is overruled in its entirety.

(2) Defendants’ motion to strike portions of plaintiff’s second amended complaint is granted as follows:

            (a) The motion to strike the following language is granted without leave to amend: “ ‘However, Defendants carried too heavy a caseload, were dealing with personal issues such as Joshua Lynn’s business dealings.’ (Page 11, ¶ 24, ll. 1-2.)”; “ ‘Consequential damages,’ (Prayer for relief in ¶ 2.)”;

            (b) The motion to strike the prayer for relief in ¶ 5, for exemplary damages, is granted with leave to amend.

(3) Plaintiff shall file and serve his third amended complaint no later than November 20, 2023.

Background: 

The first amended complaint (FAC) by plaintiff Mike Harling in this matter on November 10, 2022, alleges two causes of action for professional negligence and breach of fiduciary duty against defendants Lynn & O’Brien, LLP, Joshua Lynn, Elizabeth O’Brien, and Andrew B. Mitchell (collectively, defendants). Defendants filed a demurrer and a motion to strike portions of the FAC. Prior to the hearing on the demurrer and the motion to strike, plaintiff filed the operative second amended complaint (SAC). As a result of the filing of the SAC, the demurrer was sustained with leave to amend and the motion to strike was granted with leave to amend.

The SAC contains causes of action for professional negligence and breach of fiduciary duty. As alleged in the SAC, on January 21, 2014, plaintiff retained defendants to represent him in his dissolution of marriage matter. (SAC, ¶ 9.) After being retained, “defendants did nothing on plaintiff’s divorce matter and failed to request the court to set aside the unfair and inequitable stipulation and order filed on September 20, 2012.” (Ibid.) On April 1, 2015, defendants filed plaintiff’s response and request for dissolution and ratified and confirmed the validity of the 2012 stipulation and order by failure to seek timely set aside of the stipulation and order. (Ibid.)

On March 18, 2022, the family law court found that plaintiff had two years after 2015 to request to set aside the 2012 stipulation and order. (SAC, ¶ 10.) The failure to seek timely set aside of the stipulation and order, by defendants, “clearly prejudiced plaintiff’s legal interests regarding, inter alia, equal division of the community property.” (Ibid.)

Defendants’ legal representation of plaintiff ended on September 17, 2021. (SAC, ¶ 11.) “Defendants failed to perform and provide diligent, competent, and careful representation, advise, counsel, and legal services to plaintiff who was not a skilled attorney at law.” (SAC, ¶ 12.) “Plaintiff relied on defendants’ promises, representations, and assurances regarding the ineffectiveness of the 2012 stipulated order as well as the assertion that the division of community properly was actively pending as an issue in dispute.” (Ibid.)

Defendants rarely communicated with plaintiff regarding the divorce and assured him that they were proceeding to have the community estate divided equally between the parties. (SAC, ¶ 13.)

Plaintiff has sustained damages in excess of $1,375,000.00. (SAC, ¶ 14.)

Defendants now demur to plaintiff’s SAC as follows:

“1. As to the entire Second Amended Complaint on the grounds that the claims are barred by issue estoppel. (See Cal. Code Civ. Proc. § 430.10 (e).)

“2. As to the First Cause of Action for Professional Negligence on the grounds that the Plaintiff’s claims were barred before Defendants were retained as legal counsel thereby showing there can be no breach of duty or causation related to Plaintiff’s alleged damages. (See Cal. Code Civ. Proc. § 430.10 (e).)

“3. As to the First Cause of Action for Professional Negligence on the grounds that the Plaintiff’s claims do not state facts sufficient to constitute a cause of action, as Plaintiff does not plead any underlying facts and instead relies on conclusions of law. (See Cal. Code Civ. Proc. § 430.10 (e).)

“4. As to the Second Cause of Action for Breach of Fiduciary Duty on the grounds that the Plaintiff’s claims were barred before Defendants were retained as legal counsel thereby showing there can be no breach of duty or causation related to Plaintiff’s alleged damages. (See Cal. Code Civ. Proc. § 430.10 (e).)

“5. As to the Second Cause of Action for Breach of Fiduciary Duty on the grounds that the Plaintiff’s claims do not state facts sufficient to constitute a cause of action, as Plaintiff does not plead any underlying facts and instead relies on conclusions of law. (See Cal. Code Civ. Proc. § 430.10 (e).)

“6. As to the Second Cause of Action for Breach of Fiduciary Duty on the grounds that the allegations fail to allege more than Professional Negligence which is insufficient to bring a claim for Breach of Fiduciary Duty as a matter of law. (See Cal. Code Civ. Proc. § 430.10 (e).)” (Notice of Demurrer, p. 2, ll. 5-25.)

Additionally, defendants move to strike the following language from the SAC:

“ ‘However, Defendants carried too heavy a caseload, were dealing with personal issues such as Joshua Lynn’s business dealings.’ (Page 11, ¶ 24, ll. 1-2.)”

“ ‘Consequential damages,’ (Prayer for relief in ¶ 2.)”

“ ‘For exemplary damages, according to proof.’ (Prayer for relief in ¶ 5.)” (Notice of Motion, p. 2, ll. 3-11.)

Plaintiff opposes the demurrer and motion to strike.

Analysis:

          Requests for Judicial Notice

Defendants request that the court take judicial notice of exhibits one through five to the declaration of David Davidson pursuant to Evidence Code section 452, subdivision (d).

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).)

“The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:

(a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

(b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.] The courts, however, will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citations.] Thus, a pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)

“Judicial notice is properly taken of the existence of a factual finding in another proceeding, but not of the truth of that finding. [Citations.] ‘A court may take judicial notice of [another] court’s action, but may not use it to prove the truth of the facts found and recited. [Citations.]’ [Citation.]” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.)

Each of the exhibits to the Davidson declaration are court records. As such, the court will take judicial notice of the documents.

          Demurrer

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)’ (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

“To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879.)

“What is important is that the complaint as a whole contains sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.)

            Demurrer as to Entire Second Amended Complaint

Defendants first argue that the entire SAC is subject to demurrer based on the doctrine of issue preclusion.

“Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.]  There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party. [Citation.]” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.)

“Issue preclusion differs from claim preclusion in two ways.  First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit. [Citation.] “ ‘Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.]’ ” In summary, issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id. at pp. 824-825.)

In support of their argument, defendants rely on a March 18, 2022, order, from the family law court, that is attached as Exhibit 4 to the Davidson declaration. That order denies Harling’s request for Oder to set aside the September 20, 2012 stipulation and order. Defendants argue: “Plaintiff has already litigated the issue as to whether he had a legal or factual basis for setting aside the 2012 stipulation. The court found, independently of any time bar issue, that he did not. Moreover, on the record, Plaintiff agreed to waive his right to appeal.” (Demurrer, p. 4, ll. 18-20.) Defendants point out that the stipulation and order contains the following language: “The Court finds there is no legal basis to rescind the 2012 Stipulation and Order and even if there was, his Request is time barred.” (Exhibit 4, p. 2.)

Plaintiff argues that the complaint is not barred by the doctrine of issue preclusion based, primarily, on CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631. That case’s holdings include:  When a demurrer is based upon an affirmative defense, “the affirmative defense must clearly appear on the face of the complaint in order to support a demurrer. A demurrer based on an affirmative defense cannot properly be sustained where the action might be barred by the defense, but is not necessarily barred. [Citation.] Nor is a demurrer the appropriate procedure for determining the truth of disputed facts or what inferences should be drawn where competing inferences are possible.” (Id. at p. 635.)

The March 18, 2022 order also includes the following: “On April 1, 2015, with the assistance of his legal counsel, Mike served his Response under penalty of perjury where he confirmed the validity of the 2012 Stipulation and Order, asking the Court to confirm the property . . .” (Exhibit 4, p. 2.) [The court has taken judicial notice of the response, as requested by defendants, and notes that it was prepared and signed by defendants as well as Harling.]; “In November 2017, Mike served his Preliminary Declaration of Disclosure including a Schedule of Assets and Debts signed under penalty of perjury. The Schedule was prepared by Mike’s then attorney and did not list any community real property or any mortgage.” (Ibid.); “Mike had until two years after hiring counsel in 2015 to file a Request to Set Aside the 2012 Stipulated Order. He failed to do so.” (Ibid.) “The Court finds that Mike’s Request to Set Aside is barred by the Doctrine of Judicial Estoppel. Mike’s position in these proceedings is inconsistent with the positions he took in 2012, 2015 and 2017. Mike is estopped by his own conduct.” (Ibid.)

While the family law court did find Harling’s request for order to set aside the stipulation time-barred in 2022, it did not find that the request would have been time-barred while Harling was represented by defendants. On the contrary, as stated above, the court stated that Harling “had until two years after hiring counsel in 2015 to file a Request to Set Aside the 2012 Stipulated Order.” Thus, defendants’ arguments regarding the claim being time-barred prior to their representation of Harling are insufficient to overcome demurrer.

The following dates, as set forth above, are relevant in this analysis: 2012 is when the stipulation and order was signed by Harling; January 21, 2014, is when Harling retained defendants; 2015 is when, with the assistance of defendants, Harling filed his response and request for dissolution; and 2017 is when, with the assistance of defendants, Harling served his preliminary declaration of disclosure. Thus, the inconsistent “conduct” discussed in the March 18, 2022, order after hearing, except for the initial signing of the stipulation and order, were done while being represented and assisted by defendants.

A determination of whether defendants’ actions or inactions, while representing Harling, contributed to the family law court’s ruling denying the set aside in 2022, would require this court to improperly determine the truth of disputed facts and make improper inferences. At the pleading stage, plaintiff has alleged sufficient facts to overcome demurrer on the grounds of issue preclusion.

            First Cause of Action for Professional Negligence (Legal Malpractice)

“To prove a legal malpractice cause of action, the plaintiff must show: (1) a duty by the attorney to use such skill, prudence and diligence as members of his or her profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney’s negligence.” (Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1356.)

Defendants argue that the legal malpractice cause of action was barred prior to them becoming Harling’s counsel on January 21, 2014. Defendants state that the last date that Harling could have moved to set aside the stipulation and order under Code of Civil Procedure section 473 would have been six months after September 30, 2012, and the last date Harling could have moved to set aside the stipulation and order under Family Code section 2122 would have been one year after September 30, 2012. Defendants conclude: “As Plaintiff sought to set it aside more than 1 year and 7 months later, Defendants did not breach any duty of care owed to Plaintiff.” (Demurrer, p. 7, ll. 9-11.)

Pursuant to Family Code section 2122, a motion to set aside a judgment based on actual fraud is “one year after the date on which the complaining party either did discovery, or should have discovered, the fraud.” (Id. at subd. (a), italics added.) “An action or motion based on duress shall be brought within two years after the date of entry of judgment.” (Id. at subd. (c).)

The SAC alleges: “Defendants could have utilized the permissible methods under the Family Code, including Family Code Section 2122 to set aside the stipulation and order for actual fraud, duress, mistake, or failure to fully disclose the value of assets.”

“ ‘When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence . . . can support only one reasonable conclusion.’ [Citations.]” (Alexander v. Exxon Mobil (2013) 219 Cal.App.4th 1236, 1252.) Likewise, in the present case, it is a question of fact as to when Harling should have discovered the alleged fraud that led to the entry of the 2012 stipulation and order. On demurrer, as stated above, the court is not permitted to weigh evidence. As such, the demurrer must be overruled as it pertains to this argument.

Defendants next argue that plaintiff has failed to plead more than conclusions of law. “The court treats the demurrer as admitting all material facts properly pleaded, but does not assume the truth of contentions, deductions or conclusions of law.” (Bichai v. Dignity Health (2021) 61 Cal.App.5th 869, 877.) Defendants’ argument focuses primarily on the merits of setting aside the 2012 stipulation and order. Such focus is misplaced at the pleading stage. What is determinative on demurrer is whether plaintiff has pled sufficient facts of the essential elements of legal malpractice and whether those facts reasonably apprise defendants of the claims against them.

To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged “facts sufficient to establish every element of that cause of action. [Citation.]” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879–880.)

Plaintiff alleges that he “relied on Defendants’ promises, representations, and assurances regarding the ineffectiveness of the 2012 Stipulated Order as well as the assertion that the division of community property was actively pending as an issue in dispute. If defendants had performed diligent, careful, and competent review of the 2012 Stipulated Order as well as legal research regarding setting aside the improper 2012 Stipulated Order, defendants would have requested to set aside the 2012 Stipulated Order based on plaintiff entering into the 2012 Stipulated Order by mistake, under duress, and based on misrepresentations of opposing counsel and his ex-spouse.” (SAC, ¶ 12.) These alleged facts, in conjunction with the other allegations of the complaint, are sufficient to overcome demurrer. Additional facts and evidence will be the subject of discovery.

Defendants’ next argument is that there is no nexus of defendants’ acts or omissions to establish causation and that the failure to seek immediate relief was a result of plaintiff’s own conduct. Defendants’ argument, in this regard, is based on the argument that “plaintiff will never be able to establish causation because the time to seek to vacate the September 30, 2012, order had already lapsed before the defendants were retained on January 21, 2012.” (Demurrer, p. 10, ll. 24-26.) Defendants’ argument is evidence based in nature and asks this court to weigh that evidence, which, as explained above, is improper at the pleading stage. To the extent that the argument is not asking the court to weigh conflicting evidence, defendants reassert their argument that the setting aside of the stipulation and order was time-barred. That argument is addressed above, and the demurrer will be overruled, as to defendants’ causation argument, on the same grounds.

Second Cause of Action for Breach of Fiduciary Duty

“The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.” (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.)

Defendants first argument is based on the same initial assertions that they argue in demurrer to the first cause of action: The ability to set aside the 2012 stipulation and order was time-barred, there was no breach of a duty, and plaintiff cannot show proximate cause. The demurrer will be overruled on the same grounds as set forth above with respect to those arguments.

Defendants next argue that the second cause of action for breach of fiduciary duty is duplicative of the professional negligence claim. Plaintiffs are entitled to plead alternative legal theories. (Adams v. Paul (1995) 11 Cal.4th 583, 593.) At most, defendants’ argument is that this cause of action is redundant to the first cause of action. “ ‘[R]edundancy’ is not a cause for demurrer.” (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303.) The demurrer will be overruled based on defendants’ redundancy argument.

            Motion to Strike

“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).)

“An immaterial allegation in a pleading is any of the following:

“(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 claim or defense.

“(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code Civ. Proc., § 431.10, subd. (b).)

“An ‘immaterial allegation’ means ‘irrelevant matter’ as that term is used in Section 436.” (Code Civ. Proc., § 431.10, subd. (c).)

“[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. Sup.Ct. (Pedus Services, Inc.) (1998) 67 CA4th 1253, 1255.)

As noted above, defendants seek to have the following language, and prayers for relief, stricken from the SAC:

“ ‘However, Defendants carried too heavy a caseload, were dealing with personal issues such as Joshua Lynn’s business dealings.’ (Page 11, ¶ 24, ll. 1-2.)”

“ ‘Consequential damages,’ (Prayer for relief in ¶ 2.)”

“ ‘For exemplary damages, according to proof.’ (Prayer for relief in ¶ 5.)” (Notice of Motion, p. 2, ll. 3-11.)

Plaintiff presents no argument, and no legal authority, in opposition to the first two requests. As such, plaintiff appears to concede that they should be stricken from the SAC. As such, the language referred to, at page 11, paragraph 24, lines 1-2 and prayer for relief in paragraph 2 will be stricken without leave to amend.

Plaintiff’s sole argument, in opposition to striking his claim for exemplary damages, is that the factual allegations support a cause of action for constructive fraud against the defendants and that a jury could find that defendants’ conduct was oppressive, malicious, or fraudulent, entitling plaintiff to exemplary damages.

“Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship. [Citation.] [¶] [A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)

Plaintiff does not set forth an independent cause of action for constructive fraud. “ ‘The elements for the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).’ ” (Stokes v. Henson (1990) 217 Cal.App.3d 187, 197; citing Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.) “Constructive fraud, like actual fraud, must be pleaded with specificity.” (Knox v. Dean (2012) 205 Cal.App.4th 417, 434.)

“The question is whether defendants’ conduct may be characterized as “ ‘despicable.’ ‘Despicable conduct’ has been described as conduct which is “ ‘ “... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ ” [Citations.] “ ‘Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ ” [Citation.] As well stated in Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149 . . .: “ ‘[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] . . . Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . .. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ ” [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050-1051.)

“Malice is defined as ‘conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.’ (§ 3294, subd. (c)(1).) Oppression is defined as ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’ (§ 3294, subd. (c)(2).) Fraud is defined as ‘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 depriving a person of property or legal rights or otherwise causing injury.’ (§ 3294, subd. (c)(3).).” (Today’s IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)

“In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendant’s conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. (Citation.) Punitive damages may not be pleaded generally.” (Ibid.)

Plaintiff’s allegations are utterly insufficient to support exemplary damages. Plaintiff does not even allege in conclusory terms that defendants acted with malice, fraud, or oppression, let alone set forth specific factual allegations, as required, to show despicable conduct or extreme indifference to plaintiff’s rights. As such, the motion to strike the prayer for exemplary damages will be granted. As there is a possibility that the SAC can be amended to support a prayer for exemplary damages, the granting of the motion will be without prejudice. Should plaintiff seek exemplary damages by way of his third amended complaint, he will be required to meet the specific pleading requirements for seeking such relief.

“The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so . . .” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Plaintiff will be ordered to not add any new causes of action to his third amended complaint without following the proper legal procedure.