John B Beach v. Kevin H Kim

Assn. (2010) 182 Cal.App.4th 247, 253.) Here, the Court overruled the demurrer as to Plaintiff's fraud claim. Therefore, Plaintiff can sustain a cause of action for violation of Business and Professions Code section 17200 on the basis of Defendants' alleged fraudulent acts. The demurrer as to this cause of action is overruled.

Motion to Strike

Defendants Ash Ashour and Ashour Yehoshua, APC move to strike Plaintiff's request for certain damages. Specifically, Defendants move to strike the following allegations: 1. Prayer for restitution and injunctive relief under Business & Professions Code Sec. 17200 2. Prayer for punitive and exemplary damages (Notice of Motion to Strike, at p. 2.)

The Court declines to strike Plaintiff's prayer for restitution and injunctive relief under Business & Professions Code section 17200. The demurrer as to this cause of action was overruled. These are available remedies under this cause of action. (See SAC, P. 91.) Plaintiff adequately pleads that he suffered loss of money requisite for standing. Whether Plaintiff will potentially be able to recover injunctive relief will be revealed in later stages of this case.

The Court declines to strike the prayer for punitive damages. Courts may strike allegations related to punitive damages where the facts alleged "do not rise to the level of malice, oppression or fraud necessary" to recover punitive damages under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) Here, Plaintiff adequately alleges that Defendants acted fraudulently by intentionally concealing facts material to the underlying litigation. (SAC, P. 95.) These omissions caused damages of approximately $5,985,000. (Id., P. 100.) The Court cannot rule as a matter of law that this conduct was not malicious, fraudulent or oppressive.

Disposition

Defendants Ash Ashour and Ashour Yehoshua, APC's demurrer to Plaintiff Saeed Ghafoori's second amended complaint is overruled as to the fifth and sixth causes of action. It is sustained without leave to amend as to the second and third causes of action. Defendants Ash Ashour and Ashour Yehoshua, APC's motion to strike portions of Plaintiff Saeed Ghafoori's second amended complaint is denied.

Kim

Plaintiff John B Beach's Request for Default Judgment

Plaintiff John B Beach requests court judgment by default against Defendant Kevin H Kim. Plaintiff's application for default judgment suffers two defects.

Prejudgment Interest

On the proposed judgment, Plaintiff checked the box for "Prejudgment interest at the annual rate of" and filled in the rate as "10.00%." (JUD-100, Sec. 6.a(2).) Plaintiff requests $139,204.10 in interest. Plaintiff did not include interest computations to support his request. Plaintiff must provide "[i]nterest computations as necessary." (Cal. Rules of Court, rule 3.1800(a)(3).) Such computations require identifying the principal amount, beginning date, end date, and interest rate.

Excessive Attorney Fees

Plaintiff also seeks excessive attorney fees. Attorney fees for a default judgment are generally limited to a specified schedule based on the amount of damages. (Local Rules 3.207(a), 3.214(a).) A plaintiff may recover "a fee greater than listed in the [default] schedule because of extraordinary services." (Rule 3.214(d).) Plaintiff's proposed judgment includes a request for $12,348.85 in attorney fees. That is greater than the schedule, which provides for attorney fees of "$2,890 plus 1% of the excess over $100,000" for judgments over $100,000. (Rule 3.214(a).) Plaintiff does not show extraordinary services justifying a greater fee.

Disposition

Plaintiff John B Beach's request for default judgment is denied without prejudice. | Home -->)" -->