On October 24, 2013 a
Motion-Secondary
was filed
involving a dispute between
Copernicus Dynamics, Lp,
Fleming, Norman C.,
Geisler, Fred,
Roes 1-25, Inclusive,
Zischke, Gena,
Tedan Surgical Innovations, Llc, A Texas Limited Liability Company,
and
3Cor, Inc, A California Corporation,
3Cor Medical, Inc.,
Azucena, Kimberly,
Bass, Daniel,
Does 1 To 25,
Does 2 To 25,
Fishman, Daniel,
Glynn, Robert John, Jr,
Industry Of The Redwoods, Llc, A Nevada Llc,
Johnston, Terry,
Magnolia Group, Llp,
Mier, Rowena,
Rhausler, Inc.,
Rhausler, Inc., A California Corporation,
Sims, Katie, Certified Public Acc,
Tedan Surgical Innovations, Llc, A Texas Limited Liability Company,
for Complex Civil Unlimited
in the District Court of San Mateo County.
Preview
Ro5ert
Katrina
M.
R.
Bodzin,
Durek,
State
State
Bar
Bar
No.
No.
201327
289461 ‘FILED
BURNHAM
A Professional
BROWN
Law Corporation
SAN
-
mm? COUNTY
OCT 201a
P.O. Box 119 $2
Oakland, California 94604
1901
©WQGNUIAMNb-l
Harrison Street, 14th Floor
Oakland, California 94612
Telephone: (510)444-6800
Facsimile: (510)835—6666
rbodzin@burnhambrown.com
kdurek@burnhambrown.com
Attorneys for Defendants TEDAN SURGICAL
INNOVATIONS, LLC and DANIEL BASS
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
CIVIL DIVISION — SOUTHERN BRANCH
UNLIMITED JURISDICTION
FRED H.‘ GEISLER, M.D., Ph.D., an Case No. 17C|V02888
individual and NORMAN C. FLEMING, an
individual, directly, and derivatively on DEFENDANTS TEDAN SURGICAL
behalf of RHAUSLER, lNC., a California INNOVATIONS, LLC and DANIEL
Corporation, -
BASS’S MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
Plaintiffs, MOTION TO STRIKE PORTIONS 0F
THIRD AMENDED COMPLAINT
NNNNNNNNNHHHI—tr—Ir—ty—ty—t—i—t
v.
TERRY J. JOHNSTON, an individual; Date: November 28, 2018
KATIE SIMS, CPA, an individual; Time: 2 p.m.
ROBERT JOHN .GLYNN,
0045\mAMNHGNDooqaxUIAMNh-lc
JR., an Dept.: 2
individual; 300R MEDICAL, |NC., a
California Corporation; TEDA'N Complaint Filed: June 28, 2017
SURGICAL INNOVATIONS, LLC, a Second Amended Complaint Filed:
Texas Limited Liability Company, and May 29, 2018 ,
DOES 1 to 25, Third Amended Complaint Filed:
September 27, 201 8
Defendants. Trial Date: None Set
‘
And RHAUSLER, lNC., a California 17— CIV— 02888
' MPAS I
Corporation, Memorandumof Paints
and Authorities
Supp‘l
in
Nominal Defendant.
I‘Tfl’iiuuW}
DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case No. 17C|V02888
BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE PORTIONS OF_TH|RD AMENDED COMPLAINT
‘
'
H I. INTRODUCTION
N Defendants TeDan Surgical Innovations (“TeDan" or “TSI_”) and Daniel Bass
move to strike portions of the Third Amended Complaint (“TAC”). Plaintiff’s allegations
A'OJ
regarding attorney’s fees and punitive damages are the subject of this motion to strike.
Ul A partylis Hot éntitled to attorney’s fees except where authorized by statute or
GN contract. Plaintiffs make n; contractual claims and hgve’not cited to any statute upon
\l which the prayer fgr attorneys’ fees may be based. Accordingly, Plaintiffs’ allegations
w related to, and their prayer for attorvney’s fees should be stricken from the TAC'as
w against Mr. Bass and TeDan.
Plaintiffs’ prayer for punitive damages is unsufiported 'by the allegations in the
TeDan and. Bass under Code
TAC.. The alleged conliuct by Mr. is insufficient Ci\I/il.
'
section 3294 to support a prayer for punitive démages against them.
Defendants move that the following portions of the TAC be stricken:
1. “Punitive Damages as alleged and allowed by law for malicious conduct”
NHr—tmg—ir—tb—tb—thu—tn—n
'
‘
O¥DMQQMAUJNHO
(TAC, 118: 1o, 1121) v
2. “An aWard of Attorney’s Fees as allowed by Bus. & Prof. Code 17200 et
seq. for Unfair Business Practices, contracted and CCP 1021.5. and
‘
due to Willful misappropriation of trade secrets under Cal. 'Civ. Code sec.
3426.4” (TAC%,’118: 11-14 1122)
II.
x
BRIEF STATEMENT OF FACTS
H.
‘N
Plaintiffs filed their TAC on September 27, 2018. The TAC is the fourth iteration
NN of Plaintiffs’ Complaint. The TAC alleges that Daniel: Bass is a managing member of
N b3 Defendant TeDan SurgiCal Innoyations, LLC, along with Danny Fishman and Terry
I
N£ Johnéton.
N UI Mr. Bass and TeDan have also filed a demurrer to be concurrently heard with
I
Na this motion. -
N \l Defendants previously‘demurred to and moved to strike portions of the Second
Nw
‘
DEFENDANTS TEDAN SURGICAL INNOVAT|O1NS, LLC and DANIEL Case N0. 17C|V02888
BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE'PORTIONS OF THIRD AMENDED COMPLAINT
p—A
Amended‘Complaint, which were h'eard on September 12, 2018. The Couric‘took {hese
mvo'tiotn,
motions und/er submissli‘on. As of the writing of thié the Court has not yet issued
‘an order on fhe pending demurrer and motion to strike; I
does claims against 'Mf. Bass or Tedan.
Plaintiff not assert any contractual
Nonetheless,
QWQQUIADJN
Plaintiffs make multiple' assertions relgarding _their right to
-
recover
‘
‘
V
attorneysi fees'.
l||. LEGAL ARGUMENT x
Plaintiffs’ claims for attorney’s fees and punitive damages against TeDan and Mr.
Bass are improper matter not support'ed by the TAC and éhould therefore be stricken‘
.
from the compléint.
A. Defendants’ Motion to Strike is Proper ,
Sectién 435(b)(1) of the Code of Civil Procedure provides that “any party within
the time allowed to respond to a pleading may serve and file a notice of motion to strike
"
the whole or any part thereof
CGP Section 436 provides:
The court may, upon a motion made ‘pu‘rsuant to Section
mAMNHoewqam-thI—tc
435, or at any time in itsdiscretion, ‘and upon terms it deems
N‘N'NNNNHHHHwHHH-Hr—
proper: .
(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 laws of the State, a court rule or an
order of the court.
Pursuant to Section 431. 10(0), any irrelevant matter as used in Section 436 is
the equivalent of anximmaterial allegation. An “immaterial allegation is further defined in
Section 431 .1000):
'An immaterial allegation in"a pleading is any one of the
following:
27 1. An allegatijon that is not essential to the statement of the
4 '
'
‘
«\
28 2
DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DA‘NIEL Case NO- 17CIV02888
'
BASS'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT ‘
OF MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
f ‘<
claim or defense.
H
2. An allegation thatds neither pertinenfjto, or supported by,
.N
an otherwise sufficient claim or defense.'
OJ
3. A demand for judgment or requesting relief not supported
b b_y the allegations of the complaint or cross complaint.
(Emphasis added.)
Ul
Additionally, contentions, deductions orlconclusions of fact or law alleged in the
¢
complaint are not considered'in judging its sufficiency. (C&H Food Company v. Han‘ford
\l
Ins. Co. (1980163 Cal.App.3d 1055, 1062.)
m
B. The Prayer for Punitive Damages Should be Strick‘en Because
O the Allegations Do'Not Show TeDan and Mr. Bass’ Conduct
was “Malicious” or “Oppressive” as Defined in Civil Code
section 3294 ,
'
‘
Any party may file a motion to strike within the time allowed to respond. (Cal.
Code Civ. Proc. §435(b)(1).‘.)_ The court may, upon a motion made pursuant to California
A
Code Civil Procedure §435 at any time in its diécretion, and upon tefms itdeems prope‘r,‘
strike out any irrelevant, false, or improper matter inserted in any pleading. (Cal. Code
Civ. Proc. §436(a).) The court may also strike out all‘or any part of any pleading not
drawn or filed- in conformity'with the laws of this state, a court rule, or an order of the
court. (Cal. Code Civ. Proc. §435(b).) The grounds fora rfiotion to strike shall ‘appear on
the face of the challenged pleading or frpm any matter of which the court is required to
NNNNNNNN,NHHHHHp—immu—H
take judicial notice.
OOQGNUIAwa-tcwooqamhuaNt—tc
(Ca'l. Code Civ. Proc? §437(a).)
Pl'aintiffs’ claim for punitive damages shouldbe stricken, pursuant to Caiifornia
‘CiVil Code section 3294(a) and (b). This provisiorj' provides that a plaintiff cannot
maintain a claim for pUnitive damages absent a showing, by “clear and convincihg
evidence,” of oppres’sion, fraud or malice; “Not only muét there be cifcumstances of
oppression, fraud or malice, but facts must be alleged in the pleading to support such a
claim." (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)
Pursuant to Civil Code §3294,
(c)(1) “Malice” .méans conduct which is intended by the defendant to
‘
3
DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case No. 17C|V02888
'
'
BASS’S MEMORANDUM OF'POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRlKE PORTIONS OF THIRD AMENDED COMPLAINT
l
\
cause injury to the plaintiff or despicable CoriduCt which is carried on by
the defendant with a willful and consciOus disregard of the rights or safety
'
of others. w -
(c)(2) “Oppression” means despicable conduqi't‘that subjects a pérson to
cruel and unjust hardship in conscious disregard of that person’s rights.
(c)(3) “Fraud” means ant intentional misrepresentation, deceit, or
concealment of a material fact known t'o
the defendant with the intention
on the part of the defendant of thereby depriving a p'erson of property or _
\oqoqcxmauuw
legal right_s or othenNise causing injury.
Civil Code section 3294 and the cases interpreting such section require that there
be a specific evidentiary showing when a party alleges exemplary damages. A punitive
“a
damage claim _cannot bé mainfained without clea'r and convincing evidence of
willingness to vex, harass, or injure consistent with a wrongful intent to injure.” (KM
Yacht Corp. v.'
United California Bank (1975) 50 Cal.App.3d 949, 958;
‘fi fl
Thomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App‘.4th 1269, 1288.)
Following this settled rule 6f specificity, the clourt‘vin Brousseau v. Jarrett (1977) 73
Cal.App.3d 864, 872, affirmed, the granting of a motion to strike a plaintiff’s punitive
damage claim, Holding that specific factual allegations are required to support a punitive
-|‘n
claim. Br0usseau, the court held that a plaintiff cannot simply tack on conclusory nonV- ~
specific éllegations
mqamAMNchwQQUIAUJNh-lc‘
in order to support a punitive damag‘e‘claim. (ld_.at 871.) There, the
court found the conclusory
NNNNNNNNNr—tr—tt—dr—er—ai’d-HHHH
allegations of malice or oppression were insufficientto support
a claim for punitive dama‘ges: »
It is unnecessary f9r us to determine whether the second count alleges
facts showing the noncontraCtual obligation required by [Civil Code]
section 3294. We need not reach that issue because the second count’s
conclusory characterization of defendant’s conduct as intentional, willful
and fraudulent is a patently insufficient statement of “oppression, fraud or
malice,” express or implied,’ within the meaning of section 3294.
Id_.at 872. x
suppo-il't
In this case, the facts alleged in the TAC Ho not a conclusion that TeDan
or Mr. Bass acted in a mariner that intended to cause fhe Plaintiffs’ injury. The facts
v
.alleged do not support a conclusion that TeDan qr Mr: Bass engaged in any-déspicable
_
_
‘
‘
y
4 \
DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case No. 17CIV02888
BASS'S MEMORANDUM OF’ POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAI‘NT‘
)
H aci with willful and conscious disregard of Plaintiffs’ rights: Accordingly, Plaintiffs’
N allegations and prayer in the complaint seeking punitiVe damages should be dismissed.
DJ
C. The TAC is Devoid of Allegations to Support a Claim for
Attorney’ s Fees
A
Plaintiffs do not have any contractual or statutory basis fOr their request for
Ul
attorney’s fees. (See TAC, 82: 20—21, 1T 17.) It is well settled under California law that a
a
party is not entitled to attorney’s fees except where authorized by statute or by contract.
\l
(Anger v. Borden (1951) 38 Cal.2d 136, 145; California Code of Civil Procedure §
Aw
1021.)
\O
Plaintiffs cite the UCL and CCP 1021.5, which do not allow for attorney’s fees for
Plaintiffs in this case. The UCL does not provide for an award of éttorney's fees to the
prevailing party. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158,
1179.) Further, CCP 1021 .5 provides f_oran award of'attorney's fees only when a public
interest issue is being litigated. The ‘allegations in the TAC, which are essentially
disputes among shareholders, do not constitute a puinC‘interest issue.
There is no alleged contract between Plaintiffs and TéDan or Mr. Bass that
provide for an award of attorney’s fees. The TAC contains various allegations of
contractual disputes,
NNNNNNNNNHHHHHer—tr—tr—t
none of which involve Tedan or Mr. Bass.
As such,
ooqama-wNchmxlcxm-thr—Ic the prayer for attorney’s fees constitutes is‘immaterial and-irrelevant
and should be stricken from the complaint. (CCP § 431 .10, 435, 436.)
‘
IV. CONCLUSION
Defendants Mr. Bass and TeDan respectfully rgquest that the Court strike from
the TAC the following language:
1. “Punitive Damages as alleged'and allowed by law for malicious conduct”
'
(TAC, 118:1o,1121)
2. “An award of Attorney’s Fees as allowed by Bus. & Prof. Code 17200 et
seq. for Unfair Business Practices, contracted and .CCP 1021.5. . . and
5
DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case NO- 17C|V02888
BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
due to willful misappropriation of trade secrets under Cal. Civ. Code sec.,
3426.4” (TAC, 118: 11-14, 1122)
DATED: October 22, 2018 v
BURNHAM BROWN
©mfl®m£MNH
Y
ROBERT M. BODZIN
KATRINA R. DURE '
Attorneys for Defe dants
TEDAN SURGICAL INNOVATIONS, LLC
and DANIEL BASS
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DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL case NO. 17C|V02888
BASS'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO STRIKE‘PORTIONS OF THIRD AMENDED COMPLAINT
Preview
Ro5ert Katrina M. R. Bodzin, Durek, State State Bar Bar No. No. 201327 289461 ‘FILED BURNHAM A Professional BROWN Law Corporation SAN - mm? COUNTY OCT 201a P.O. Box 119 $2 Oakland, California 94604 1901 ©WQGNUIAMNb-l Harrison Street, 14th Floor Oakland, California 94612 Telephone: (510)444-6800 Facsimile: (510)835—6666 rbodzin@burnhambrown.com kdurek@burnhambrown.com Attorneys for Defendants TEDAN SURGICAL INNOVATIONS, LLC and DANIEL BASS SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO CIVIL DIVISION — SOUTHERN BRANCH UNLIMITED JURISDICTION FRED H.‘ GEISLER, M.D., Ph.D., an Case No. 17C|V02888 individual and NORMAN C. FLEMING, an individual, directly, and derivatively on DEFENDANTS TEDAN SURGICAL behalf of RHAUSLER, lNC., a California INNOVATIONS, LLC and DANIEL Corporation, - BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF Plaintiffs, MOTION TO STRIKE PORTIONS 0F THIRD AMENDED COMPLAINT NNNNNNNNNHHHI—tr—Ir—ty—ty—t—i—t v. TERRY J. JOHNSTON, an individual; Date: November 28, 2018 KATIE SIMS, CPA, an individual; Time: 2 p.m. ROBERT JOHN .GLYNN, 0045\mAMNHGNDooqaxUIAMNh-lc JR., an Dept.: 2 individual; 300R MEDICAL, |NC., a California Corporation; TEDA'N Complaint Filed: June 28, 2017 SURGICAL INNOVATIONS, LLC, a Second Amended Complaint Filed: Texas Limited Liability Company, and May 29, 2018 , DOES 1 to 25, Third Amended Complaint Filed: September 27, 201 8 Defendants. Trial Date: None Set ‘ And RHAUSLER, lNC., a California 17— CIV— 02888 ' MPAS I Corporation, Memorandumof Paints and Authorities Supp‘l in Nominal Defendant. I‘Tfl’iiuuW} DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case No. 17C|V02888 BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF_TH|RD AMENDED COMPLAINT ‘ ' H I. INTRODUCTION N Defendants TeDan Surgical Innovations (“TeDan" or “TSI_”) and Daniel Bass move to strike portions of the Third Amended Complaint (“TAC”). Plaintiff’s allegations A'OJ regarding attorney’s fees and punitive damages are the subject of this motion to strike. Ul A partylis Hot éntitled to attorney’s fees except where authorized by statute or GN contract. Plaintiffs make n; contractual claims and hgve’not cited to any statute upon \l which the prayer fgr attorneys’ fees may be based. Accordingly, Plaintiffs’ allegations w related to, and their prayer for attorvney’s fees should be stricken from the TAC'as w against Mr. Bass and TeDan. Plaintiffs’ prayer for punitive damages is unsufiported 'by the allegations in the TeDan and. Bass under Code TAC.. The alleged conliuct by Mr. is insufficient Ci\I/il. ' section 3294 to support a prayer for punitive démages against them. Defendants move that the following portions of the TAC be stricken: 1. “Punitive Damages as alleged and allowed by law for malicious conduct” NHr—tmg—ir—tb—tb—thu—tn—n ' ‘ O¥DMQQMAUJNHO (TAC, 118: 1o, 1121) v 2. “An aWard of Attorney’s Fees as allowed by Bus. & Prof. Code 17200 et seq. for Unfair Business Practices, contracted and CCP 1021.5. and ‘ due to Willful misappropriation of trade secrets under Cal. 'Civ. Code sec. 3426.4” (TAC%,’118: 11-14 1122) II. x BRIEF STATEMENT OF FACTS H. ‘N Plaintiffs filed their TAC on September 27, 2018. The TAC is the fourth iteration NN of Plaintiffs’ Complaint. The TAC alleges that Daniel: Bass is a managing member of N b3 Defendant TeDan SurgiCal Innoyations, LLC, along with Danny Fishman and Terry I N£ Johnéton. N UI Mr. Bass and TeDan have also filed a demurrer to be concurrently heard with I Na this motion. - N \l Defendants previously‘demurred to and moved to strike portions of the Second Nw ‘ DEFENDANTS TEDAN SURGICAL INNOVAT|O1NS, LLC and DANIEL Case N0. 17C|V02888 BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE'PORTIONS OF THIRD AMENDED COMPLAINT p—A Amended‘Complaint, which were h'eard on September 12, 2018. The Couric‘took {hese mvo'tiotn, motions und/er submissli‘on. As of the writing of thié the Court has not yet issued ‘an order on fhe pending demurrer and motion to strike; I does claims against 'Mf. Bass or Tedan. Plaintiff not assert any contractual Nonetheless, QWQQUIADJN Plaintiffs make multiple' assertions relgarding _their right to - recover ‘ ‘ V attorneysi fees'. l||. LEGAL ARGUMENT x Plaintiffs’ claims for attorney’s fees and punitive damages against TeDan and Mr. Bass are improper matter not support'ed by the TAC and éhould therefore be stricken‘ . from the compléint. A. Defendants’ Motion to Strike is Proper , Sectién 435(b)(1) of the Code of Civil Procedure provides that “any party within the time allowed to respond to a pleading may serve and file a notice of motion to strike " the whole or any part thereof CGP Section 436 provides: The court may, upon a motion made ‘pu‘rsuant to Section mAMNHoewqam-thI—tc 435, or at any time in itsdiscretion, ‘and upon terms it deems N‘N'NNNNHHHHwHHH-Hr— proper: . (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 laws of the State, a court rule or an order of the court. Pursuant to Section 431. 10(0), any irrelevant matter as used in Section 436 is the equivalent of anximmaterial allegation. An “immaterial allegation is further defined in Section 431 .1000): 'An immaterial allegation in"a pleading is any one of the following: 27 1. An allegatijon that is not essential to the statement of the 4 ' ' ‘ «\ 28 2 DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DA‘NIEL Case NO- 17CIV02888 ' BASS'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT ‘ OF MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT f ‘< claim or defense. H 2. An allegation thatds neither pertinenfjto, or supported by, .N an otherwise sufficient claim or defense.' OJ 3. A demand for judgment or requesting relief not supported b b_y the allegations of the complaint or cross complaint. (Emphasis added.) Ul Additionally, contentions, deductions orlconclusions of fact or law alleged in the ¢ complaint are not considered'in judging its sufficiency. (C&H Food Company v. Han‘ford \l Ins. Co. (1980163 Cal.App.3d 1055, 1062.) m B. The Prayer for Punitive Damages Should be Strick‘en Because O the Allegations Do'Not Show TeDan and Mr. Bass’ Conduct was “Malicious” or “Oppressive” as Defined in Civil Code section 3294 , ' ‘ Any party may file a motion to strike within the time allowed to respond. (Cal. Code Civ. Proc. §435(b)(1).‘.)_ The court may, upon a motion made pursuant to California A Code Civil Procedure §435 at any time in its diécretion, and upon tefms itdeems prope‘r,‘ strike out any irrelevant, false, or improper matter inserted in any pleading. (Cal. Code Civ. Proc. §436(a).) The court may also strike out all‘or any part of any pleading not drawn or filed- in conformity'with the laws of this state, a court rule, or an order of the court. (Cal. Code Civ. Proc. §435(b).) The grounds fora rfiotion to strike shall ‘appear on the face of the challenged pleading or frpm any matter of which the court is required to NNNNNNNN,NHHHHHp—immu—H take judicial notice. OOQGNUIAwa-tcwooqamhuaNt—tc (Ca'l. Code Civ. Proc? §437(a).) Pl'aintiffs’ claim for punitive damages shouldbe stricken, pursuant to Caiifornia ‘CiVil Code section 3294(a) and (b). This provisiorj' provides that a plaintiff cannot maintain a claim for pUnitive damages absent a showing, by “clear and convincihg evidence,” of oppres’sion, fraud or malice; “Not only muét there be cifcumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim." (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Pursuant to Civil Code §3294, (c)(1) “Malice” .méans conduct which is intended by the defendant to ‘ 3 DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case No. 17C|V02888 ' ' BASS’S MEMORANDUM OF'POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRlKE PORTIONS OF THIRD AMENDED COMPLAINT l \ cause injury to the plaintiff or despicable CoriduCt which is carried on by the defendant with a willful and consciOus disregard of the rights or safety ' of others. w - (c)(2) “Oppression” means despicable conduqi't‘that subjects a pérson to cruel and unjust hardship in conscious disregard of that person’s rights. (c)(3) “Fraud” means ant intentional misrepresentation, deceit, or concealment of a material fact known t'o the defendant with the intention on the part of the defendant of thereby depriving a p'erson of property or _ \oqoqcxmauuw legal right_s or othenNise causing injury. Civil Code section 3294 and the cases interpreting such section require that there be a specific evidentiary showing when a party alleges exemplary damages. A punitive “a damage claim _cannot bé mainfained without clea'r and convincing evidence of willingness to vex, harass, or injure consistent with a wrongful intent to injure.” (KM Yacht Corp. v.' United California Bank (1975) 50 Cal.App.3d 949, 958; ‘fi fl Thomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App‘.4th 1269, 1288.) Following this settled rule 6f specificity, the clourt‘vin Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872, affirmed, the granting of a motion to strike a plaintiff’s punitive damage claim, Holding that specific factual allegations are required to support a punitive -|‘n claim. Br0usseau, the court held that a plaintiff cannot simply tack on conclusory nonV- ~ specific éllegations mqamAMNchwQQUIAUJNh-lc‘ in order to support a punitive damag‘e‘claim. (ld_.at 871.) There, the court found the conclusory NNNNNNNNNr—tr—tt—dr—er—ai’d-HHHH allegations of malice or oppression were insufficientto support a claim for punitive dama‘ges: » It is unnecessary f9r us to determine whether the second count alleges facts showing the noncontraCtual obligation required by [Civil Code] section 3294. We need not reach that issue because the second count’s conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of “oppression, fraud or malice,” express or implied,’ within the meaning of section 3294. Id_.at 872. x suppo-il't In this case, the facts alleged in the TAC Ho not a conclusion that TeDan or Mr. Bass acted in a mariner that intended to cause fhe Plaintiffs’ injury. The facts v .alleged do not support a conclusion that TeDan qr Mr: Bass engaged in any-déspicable _ _ ‘ ‘ y 4 \ DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case No. 17CIV02888 BASS'S MEMORANDUM OF’ POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAI‘NT‘ ) H aci with willful and conscious disregard of Plaintiffs’ rights: Accordingly, Plaintiffs’ N allegations and prayer in the complaint seeking punitiVe damages should be dismissed. DJ C. The TAC is Devoid of Allegations to Support a Claim for Attorney’ s Fees A Plaintiffs do not have any contractual or statutory basis fOr their request for Ul attorney’s fees. (See TAC, 82: 20—21, 1T 17.) It is well settled under California law that a a party is not entitled to attorney’s fees except where authorized by statute or by contract. \l (Anger v. Borden (1951) 38 Cal.2d 136, 145; California Code of Civil Procedure § Aw 1021.) \O Plaintiffs cite the UCL and CCP 1021.5, which do not allow for attorney’s fees for Plaintiffs in this case. The UCL does not provide for an award of éttorney's fees to the prevailing party. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1179.) Further, CCP 1021 .5 provides f_oran award of'attorney's fees only when a public interest issue is being litigated. The ‘allegations in the TAC, which are essentially disputes among shareholders, do not constitute a puinC‘interest issue. There is no alleged contract between Plaintiffs and TéDan or Mr. Bass that provide for an award of attorney’s fees. The TAC contains various allegations of contractual disputes, NNNNNNNNNHHHHHer—tr—tr—t none of which involve Tedan or Mr. Bass. As such, ooqama-wNchmxlcxm-thr—Ic the prayer for attorney’s fees constitutes is‘immaterial and-irrelevant and should be stricken from the complaint. (CCP § 431 .10, 435, 436.) ‘ IV. CONCLUSION Defendants Mr. Bass and TeDan respectfully rgquest that the Court strike from the TAC the following language: 1. “Punitive Damages as alleged'and allowed by law for malicious conduct” ' (TAC, 118:1o,1121) 2. “An award of Attorney’s Fees as allowed by Bus. & Prof. Code 17200 et seq. for Unfair Business Practices, contracted and .CCP 1021.5. . . and 5 DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL Case NO- 17C|V02888 BASS’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF THIRD AMENDED COMPLAINT due to willful misappropriation of trade secrets under Cal. Civ. Code sec., 3426.4” (TAC, 118: 11-14, 1122) DATED: October 22, 2018 v BURNHAM BROWN ©mfl®m£MNH Y ROBERT M. BODZIN KATRINA R. DURE ' Attorneys for Defe dants TEDAN SURGICAL INNOVATIONS, LLC and DANIEL BASS O 4839—2640-1 144,v. 1 n—t N (A A U1 \l-GN NNNNNNNNNHHr—tr—Ar—dp—Ar—ty—tr—r— 00 \D c r-l N DJ A U: ON \l ‘ m 6 . DEFENDANTS TEDAN SURGICAL INNOVATIONS, LLC and DANIEL case NO. 17C|V02888 BASS'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE‘PORTIONS OF THIRD AMENDED COMPLAINT