Lark Ann Cobb etc. v. Todd H. Temanson etc

Case Number

23CV04113

Case Type

Hearing Date / Time

Tue, 06/04/2024 - 12:25

Nature of Proceedings

(1) Demurrer of Defendant to First Amended Complaint (2) Motion of Defendant to Strike Portions of First Amended Complaint

Tentative Ruling

For Plaintiff Lark Ann Cobb, individually and as trustee of the LarkTown Trust: Brant K. Berglund, John J. Thyne, Thyne Taylor Fox Howard, LLP                             

For Defendant Todd H. Temanson, individually and as trustee of the HotAirJazz Living Trust: Robert A. Aronson

RULING

(1) For the reasons set forth herein, the demurrer of Defendant Todd H. Temanson to Plaintiff Lark Ann Cobb’s first amended complaint is sustained, with leave to amend, as to the second (constructive fraud) and third (extortion) causes of action and is in all other respects overruled.

(2) For the reasons set forth herein, the motion of Defendant Todd H. Temanson to strike portions of the first amended complaint is granted to strike, with leave to amend, paragraph 61 of the text of the first amended complaint and paragraph 3 of the prayer of the first amended complaint.

(3) Plaintiff Lark Ann Cobb shall file and serve her second amended complaint on or before June 20, 2024.

Background

As alleged in the first amended complaint (FAC):

Plaintiff Lark Ann Cobb and Defendant Todd H. Temanson met in early 2018. (FAC, ¶ 10.) Temanson is and was a licensed real estate broker and developer. (Ibid.) Cobb and Temanson began dating in June 2020. (Ibid.)

In August 2020, Temanson offered to assist Cobb’s friends with buying a house. (FAC, ¶ 11.) Temanson waived his broker’s fee, which was applied to the buyers’ closing costs. (Ibid.) Temanson helped Cobb’s friends through the escrow process. (FAC, ¶ 12.) Temanson gave them an indemnity agreement that he prepared and they signed. (Ibid.)

In May 2021, Cobb began actively looking to purchase a home in Carpinteria where she lived and worked. (FAC, ¶ 13.) Temanson offered to act as Cobb’s agent for free, as he had done with Cobb’s friends. (Ibid.) At that time, Cobb worked as a registered nurse and had enough income to qualify for a bank loan, but lacked a down payment. (FAC, ¶ 14.) Cobb’s mother offered to contribute toward a down payment and Cobb’s friend Renee Henry (Henry) offered to lend her money if needed. (Ibid.) With Temanson acting as her real estate agent, Cobb made offers on two properties which were not accepted. (FAC, ¶ 15.)

On July 6, 2021, Cobb saw a “for sale” sign on a house across the street from her work. (FAC, ¶ 17.) Later that day, Cobb told Temanson about that house, located at 1051 Holly Lane, Carpinteria (the Property), and said she wanted to move forward with an offer. (FAC, ¶¶ 4, 17.)

On July 7, 2021, Cobb signed an Indemnify and Hold Harmless Agreement at the request of Temanson similar to the agreement Temanson had Cobb’s friends sign. (FAC, ¶ 16.) This agreement pertained to one of the unaccepted offers. (Ibid.)

On July 12, 2021, Temanson presented an offer on behalf of Cobb to buy the Property for $830,000. (FAC, ¶ 18.) The offer included a provision that that the Buyer had the sole and exclusive right to assign the entire purchase agreement at any time prior to the close of escrow to any entity or joint ownership which still included Cobb as a buyer. (Ibid.) Cobb always intended to be the sole owner of the Property. (Ibid.) When Cobb questioned Temanson about this language, Temanson assured Cobb that there was nothing to worry about and that this was not unusual when making an offer. (Ibid.) The same day that the offer was presented, Temanson asked Cobb to sign another indemnity agreement similar to the first indemnity agreement but including additional language of a waiver of claims of theft and misrepresentation. (FAC, ¶ 19.)

The money for the down payment came from three sources. $30,000 came from Cobb’s birth mother, who signed a gift letter, which was deposited directly into escrow. (FAC, ¶ 20.) $23,500 came from a first loan from Renee Henry, signed by Cobb as the sole borrower. (Ibid.) $136,643.23 came from a second loan from Henry. (Ibid.) Henry said she would feel more comfortable if someone co-signed the larger loan. (Ibid.) Temanson agreed to be a co-signer. (Ibid.) Cobb would have chosen a different co-signor if Temanson had requested a 50 percent share in the Property. (FAC, ¶ 21.) This was not discussed at the time Temanson co-signed the loan. (Ibid.) Per Temanson’s instructions, the money was wired from Henry’s account into Temanson’s account in two installments, and then wired to escrow. (FAC, ¶ 22.) The rest of the purchase price, $660,100 was funded through a mortgage held solely by Cobb. (Ibid.)

On August 30, 2021, Temanson signed two gift letters. One gift letter was for $24,900, previously transferred to escrow on August 23—it is unclear where the additional $1,400 came from. (FAC, ¶ 23.) The second gift letter was for $170,000, stating that the money would be gifted at “COE.” (Ibid.) In the gift letters, Temanson referred to himself as Cobb’s fiancé, but they were not engaged to be married. (Ibid.)

On August 31, 2021, without Cobb’s knowledge, Temanson sent an email instructing escrow to put title to the Property as tenants in common with 50 percent to Larktown Trust (Cobb’s trust) and 50 percent to HotAirJazz Trust (Temanson’s trust). (FAC, at p. 1 & ¶¶ 2, 24.) This was the first time Temanson revealed that he wanted to be on the deed at all rather than Cobb being the 100 percent owner. (Ibid.) The email was sent at a time when Cobb had limited access to her personal email and was sent with over 80 emails in two days. (FAC, ¶ 25.)

Around September 2, 2021, the escrow officer contacted Cobb to verify and discuss the vesting information. (FAC, ¶ 26.) Cobb responded that she would discuss the matter with Temanson. (Ibid.) Temanson told Cobb that he believed he had to be on title for the sale to go through. (FAC, ¶ 27.) Cobb asked the escrow officer and the loan broker if this was true; they both said it was not true and advised Cobb to seek legal counsel. (Ibid.) On September 3, Temanson took Cobb to see Temanson’s attorney, Dan Higson, to establish a trust and prepare estate planning documents for Cobb. (FAC, ¶ 28.) Cobb asked about Temanson’s request to be on title 50 percent, to which Higson told Cobb that she should retain an attorney of her own and that he could not advise her. (Ibid.)

On September 6, 2021, Cobb signed documents establishing the Larktown Trust. (FAC, ¶ 29.) Cobb also signed documents giving Temanson power of attorney for healthcare and durable power of attorney for financial purposes. (Ibid.)

On September 7, 2021, Cobb sent an email to the escrow officers and others, including Temanson, with instructions to place 100 percent ownership in the Larktown Trust. (FAC, ¶ 30.) Temanson did not respond to this email. (Ibid.) This began a 24-hour period of intensified pressure by Temanson, including a campaign of threats, manipulation, confusion, coercion, and extortion via hours of phone call with Cobb during her workday and late into that night. (FAC, ¶ 31.) That same day, the $136,000 from the second loan from Henry posted to Temanson’s account. (Ibid.) Temanson became overtly threating, stating that if he was not on title, the entire transaction would fall through. (Ibid.) Temanson had not transferred the borrowed funds to escrow and he made it clear that being on title was his requirement. (Ibid.)

When Cobb questioned Temanson, Temanson told Cobb that she did not understand real estate and that “this is how real estate works.” (FAC, ¶ 32.) Cobb explained that this arrangement would not protect her children if Temanson were to pass away. (Ibid.) Later that night, Temanson called Cobb and explained a solution to protect her children by tenant in common agreement. (FAC, ¶ 33.) Cobb found the agreement to be convoluted and difficult to understand. (Ibid.)

After employing significant and various forms of persuasion and coercion, Temanson convinced Cobb to reverse the vesting instructions Cobb had sent. (FAC, ¶ 34.) On September 8, 2021, Temanson dictated to Cobb what to write in the email to escrow to add Temanson as a 50 percent owner. (Ibid.)

On September 16, 2021, the loan documents were fully executed and Temanson transferred the money he was holding into escrow. (FAC, ¶ 35.) Escrow closed on September 22. (Ibid.)

Soon thereafter, Cobb received a check for approximately $21,000. (FAC, ¶ 36.) Temanson led Cobb to believe that this was the money he was giving her from his commission to pay for renovations. (Ibid.) Later Cobb found out from the loan broker that this money was reimbursement for escrow overpayment. (Ibid.) Cobb also learned that Temanson applied $9,507 of his commission to closing costs and he received a check for approximately $11,243 from escrow as commission. (Ibid.)

On November 24, 2021, Cobb received the notice for payment of property taxes. (FAC, ¶ 37.) Cobb emailed Temanson indicating that she would take care of the bill, but Temanson paid the $8,738 in property taxes. (Ibid.)

On September 20, 2023, Cobb, individually and as trustee of the Larktown Trust, filed her original complaint against Temanson, individually and as trustee of the HotAirJazz Living Trust. On March 15, 2024, without any response having been filed to the complaint, Cobb filed her FAC. The FAC asserts five causes of action: (1) breach of fiduciary duty; (2) constructive fraud; (3) extortion; (4) unjust enrichment/ restitution; and (5) negligence.

On April 24, 2024, Temanson filed his demurrer to each of the causes of action of the FAC. Temanson concurrently filed his motion to strike allegations and the prayer for punitive damages in the FAC.

Both the demurrer and the motion to strike are opposed by Cobb.

Analysis

(1)       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.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.)

In the demurrer, Temanson provides an alternative version of events described in the FAC. However, “[a] demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a demurrer will be sustained only where the pleading is defective on its face.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) In ruling on a demurrer, the Court does not consider whether or not a Plaintiff can prove her allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)

            (A) Fiduciary and Negligence Claims

Cobb’s first cause of action is for breach of fiduciary duty. “In order to plead a cause of action for breach of fiduciary duty, a Plaintiff must show the existence of a fiduciary relationship, its breach, and damage caused by the breach.” (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 244.)

Temanson argues that the elements of breach and damage caused by breach are not adequately pleaded. (Demurrer, at pp. 9-13.) Cobb alleges a fiduciary relationship that Temanson acted as Cobb’s agent. (FAC, ¶ 40.) Cobb alleges breaches of fiduciary duty as follows:

“a. Sending escrow, the Tenants in Common vesting instructions without prior approval or notice to COBB that placed TEMANSON on title with a 50% ownership share;

“b. Misrepresenting to COBB that TEMANSON had to be on title for the sale to

go through. Even if TEMANSON was unwilling to co-sign on the loan from Ms. [Henry], COBB could have simply gotten a different cosigner;

“c. Pressuring COBB to place TEMANSON on title through a campaign of threats, manipulation, confusion, coercion and extortion; and

d. Threatening COBB that if she did not put TEMANSON on title for 50%, TEMANSON would walk away from the deal and COBB would lose the house, the down payment money, and their relationship.” (FAC, ¶ 44.)

Cobb alleges that the breach of fiduciary duties caused Cobb damage “in the substantial value associated with 50 percent of the equity in the Property.” (FAC, ¶ 45.)

An agent “is not permitted to obtain any advantage over his principal by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. He may not use or deal with the subject matter of the agency for his own profit, or for any purpose unconnected with the agency in any manner.” (Southern California Disinfecting Co. v. Lomkin (1960) 183 Cal.App.2d 431, 444, internal quotation marks and citation omitted.) At the same time, there are no facts alleged by which Temanson, acting as Cobb’s agent, was obligated to co-sign the Henry loan. “Threats” to walk away from the deal by refusing to be obligated on the Henry loan, which was necessary for the transaction to be completed, are therefore not actionable threats in themselves. Also, the alleged fact that Temanson was willing to co-sign the Henry loan does not, by itself, imply any obligation on Cobb’s part to put Temanson on title—it is not legally inconsistent for Temanson to be a co-signor as an accommodation party without securing that obligation by some interest in the Property. (See, e.g., Cal. U. Com. Code, § 3419 [instruments signed for accommodation].) For pleading purposes, allegations of harassing conversations, phone calls, and emails designed to coerce Cobb into obtaining a title interest in the Property are sufficient to state a cause of action for breach of fiduciary duty. The demurrer to the first cause of action will be overruled.

Cobb’s fifth cause of action is for negligence. “[T]he well-known elements of [a] negligence cause of action [are] duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) Negligence may be generally pleaded. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 60.) Because Cobb states a cause of action for breach of fiduciary duty, Cobb also states a cause of action in negligence for failing to meet the standard of care based on the same fiduciary relationship. The demurrer to the fifth cause of action will be overruled.

Cobb’s second cause of action is 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.) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Cobb alleges the second element as: “TEMANSON breached his fiduciary duties when he failed to act, in the face of known duty to act, demonstrating a conscious disregard for his responsibilities when he coerced COBB into effectuating the purchase of the property with TEMANSON as 50% owner of the Property while COBB was responsible for 100% of the payments towards the mortgage and loans.” (FAC, ¶ 53.) Cobb alleges the fourth element of reliance as: “COBB relied on TEMANSON’s numerous misrepresentations and was significantly damaged as a direct result of TEMANSON’s extremely deceptive tactics.” (FAC, ¶ 57.)

The allegations of reliance are insufficient. “ ‘In order to recover for fraud, as in any other tort, the Plaintiff must plead and prove the “detriment proximately caused” by the Defendant’s tortious conduct. [Citation.] Deception without resulting loss is not actionable fraud. [Citation.] “Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.” ’ [Citations.]” (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 776.)

There are no allegations that Cobb relied upon the truth of any alleged misrepresentation by Temanson, or that Cobb relied upon the nondisclosure of any fact Temanson was obligated to state, in reversing Cobb’s prior instructions to escrow regarding vesting of title. While the alleged harassment and coercion may support a claim for breach of fiduciary duty, the general allegations of reliance are insufficient to meet the specific pleading requirements for fraud, including constructive fraud. The demurrer to the second cause of action will be sustained.

            (B) Extortion and Restitution

Cobb’s third cause of action is for extortion. Temanson argues that Cobb has failed to allege this cause of action because duress and undue influence are not alleged and because it fails to meet the definition of the crime of extortion. In opposition, Cobb argues that the civil action for extortion is different, citing Tran v. Nguyen (2023) 97 Cal.App.5th 523 (Tran). In Tran, the Plaintiff alleged that while separated from his wife, the Plaintiff began a romantic relationship with the Defendant. (Id. at p. 526.) After the Defendant informed the Plaintiff that she was pregnant, the Plaintiff ended the relationship. (Ibid.) After the child was born, the Defendant maintained the Plaintiff was the child’s father. (Ibid.) Although the Plaintiff did not tell his wife about the child, he voluntarily played a role in the child’s life. (Ibid.) The Defendant then began demanding that the Plaintiff pay the Defendant thousands of dollars, or the Defendant would disclose their relationship and the child’s existence to the Plaintiff’s wife. (Ibid.) Afraid that he might lose his family, the Plaintiff paid the Defendant approximately $500,000. (Ibid.) After other events, the Defendant informed the Plaintiff’s wife of their relationship and about the child. (Id. at p. 527.)

The Plaintiff in Tran filed an action against the Defendant asserting a cause of action for civil extortion. (Tran, supra, 97 Cal.App.5th at p. 526.) The Plaintiff argued liability for civil extortion because the Defendant obtained property or other consideration from the Plaintiff with his consent induced by a wrongful use of force or fear induced by a threat to expose a secret affecting him. (Id. at p. 527.) The Defendant demurred, arguing that California law does not recognize a cause of action for civil extortion under these circumstances. (Ibid.) The trial Court agreed and sustained the demurrer. (Id. at pp. 527-528.)

The Tran Court reversed. (Tran, supra, 97 Cal.App.5th at p. 535.) The Court distinguished the crime of extortion from the equivalent civil action:

“The crime of extortion focuses on coerced consent as a means of obtaining the victim's agreement to the transfer of property. Likewise, Civil Code section 1566 provides a civil remedy when a person’s consent to a transaction is obtained through wrongful means: ‘A consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties, in the manner prescribed by the Chapter on Rescission.’ Civil Code section 1567 expands the analysis: ‘An apparent consent is not real or free when obtained through: [¶] 1. Duress; [¶] 2. Menace; [¶] 3. Fraud; [¶] 4. Undue influence; or; [¶] 5. Mistake.’ ” (Tran, supra, 97 Cal.App.5th at pp. 529–530.)

“Civil Code section 1569 defines ‘[d]uress’ as the confinement of a party or family member; Civil Code section 1570 defines ‘[m]enace’ as the threat of duress, of ‘unlawful and violent injury to [a] person or property,’ or of ‘injury to the character of [a] person.’ These statutes provide a remedy of rescission in cases where a party’s consent to a transaction was obtained through threats of injury to a person’s character.” (Tran, supra, 97 Cal.App.5th at p. 530.)

“Thus, we conclude that a cause of action for rescission based on menace is the civil statutory counterpart to a criminal extortion claim. And although the categories of threats that could qualify as ‘menace’—i.e., threats of confinement, of physical violence or of harm to character—are relatively narrow, this case satisfies the statutory requirement because the threat of exposure alleged (that [the Plaintiff] had fathered a child with [the Defendant] while married to his wife), constitutes threatened harm to his character.” (Tran, supra, 97 Cal.App.5th at p. 531, italics added.)

Cobb’s cause of action for civil extortion, as explained in opposition as a statutory claim as described in Tran, is not sufficiently stated. The statutory claim as explained in Tran is based on Civil Code sections 1566, 1567, and 1570 to seek rescission on the grounds of menace—the civil equivalent of extortion. (See Tran, supra, 97 Cal.App.5th at p. 534.)

“Menace consists in a threat:

            “1. Of such duress as is specified in Subdivisions 1 and 3 of the last section;

            “2. Of unlawful and violent injury to the person or property of any such person as is specified in the last section; or,

            “3. Of injury to the character of any such person.” (Civ. Code, § 1570.)

“Duress consists in any of the following:

            “(a) Unlawful confinement of the person of the party, or of the spouse of such party, or of an ancestor, descendant, or adopted child of such party or spouse.

            “(b) Unlawful detention of the property of any such person.

            “(c) Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly harassing or oppressive.” (Civ. Code, § 1569.)

As Tran acknowledges, the categories of threats that could qualify as “menace” are narrow. (Tran, supra, 97 Cal.App.5th at p. 531.) Moreover, “statutory causes of action must be pleaded with particularity ….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Cobb has not alleged facts with particularity falling within any of these statutory categories. General allegations of coercion are not sufficient. The demurrer to the third cause of action will be sustained.

Cobb’s fourth cause of action is for unjust enrichment/ restitution. “The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’  [Citation.] … ‘[T]he “mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.” ’ [Citation.] ‘There is no equitable reason for invoking restitution when the Plaintiff gets the exchange which he expected.’ [Citation.]” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.)

Cobb alleges that the tenant in common interest in the Property of Temanson which appears by the title to the Property was not a benefit intended by Cobb and that Temanson retaining that interest obtained by coercion would be unjust. Temanson argues that it is not unjust for him to retain that interest because it is alleged that he contributed most of the down payment via the Henry loan. As noted earlier, there is no legal inconsistency in Temanson co-signing the Henry loan and not being on title to the Property. Cobb’s allegations that he obtained the title interest through coercion in violation of his fiduciary duties is sufficient, for pleading purposes, to state a cause of action for unjust enrichment/ restitution. The demurrer to the fourth cause of action will be overruled.

            (C) Leave to Amend

This is the first complaint to which a demurrer has been adjudicated. The Court will grant leave to amend.

(2) 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).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a Plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, Courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the Defendant has been guilty of oppression, fraud, or malice, the Plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the Defendant.” (Civ. Code, § 3294, subd. (a).) “ ‘Malice’ means 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.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “ ‘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 depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Temanson moves to strike the allegations for punitive damages in paragraphs 47 and 61 of the text of the FAC and paragraph 3 of the prayer of the FAC. Paragraph 61 is within the second cause of action for which the Court sustains Temanson’s demurrer as discussed above. The motion to strike paragraph 61 is therefore moot.

Paragraph 47 is within the first cause of action for breach of fiduciary duty. “ ‘[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.]’ [Citation.]” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715–716.)

As noted above, without more, the law neither requires nor prohibits a party who co-signs a loan used to purchase property from being on title to that property. As discussed above, alleging that Temanson applied pressure to coerce a personal benefit while in a fiduciary relationship is sufficient to state a cause of action for breach of fiduciary duty because a fiduciary has a duty not to apply adverse pressure to obtain an advantage against his principal. Allegations of breach of fiduciary duty are not, however, sufficient to claim punitive damages. Cobb has alleged threats, manipulation, confusion, and coercion only in general terms. These allegations are insufficient to show despicable conduct sufficient to support a claim of punitive damages. The motion to strike will therefore be granted with leave to amend.

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