Clauson v. Superior Court

Opinion

TURNER, P. J. Plaintiffs, James, Yolanda, and Carol Clauson and Michelle Clauson-Esparaza, have filed a mandate petition challenging an [1255]order filed April 8, 1998, striking punitive damage allegations in their second amended complaint for a violation of Penal Code provisions relating to unlawful wiretapping and common law invasion of privacy. We conclude that plaintiffs stated sufficient facts to permit them to proceed past the pleading stage with their punitive damage allegations and issue our peremptory writ of mandate setting aside the April 8, 1998, order granting the motion to strike. However, based on well-established authority, we agree with defendants, Pedus Security Services, Inc., Pedus Services, Inc., Pedus Building Services, Inc., Pedus Food Services, Inc., Irving and Mark Singer, and Brian Blomberg, that plaintiffs must after trial make a choice between punitive damages and the statutory Penal Code section 637.2, subdivision (a) penalties if they prevail on both the common law violation of privacy and statutory wiretapping theories.

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. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [203 Cal.Rptr. 556]; Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 962-963 [178 Cal.Rptr. 470].) 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. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 [11 Cal.Rptr.2d 161]; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91 [168 Cal.Rptr. 319]; see Cal. Judges Benchbook, Civil Proceedings Before Trial (1995) Attacks on Pleadings,. § 12.94, p. 611.) In ruling on a motion to strike, courts do not read allegations in isolation. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [172 Cal.Rptr. 427].) We review an order striking punitive damages allegations de novo. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1223 [44 Cal.Rptr.2d 197].)

Plaintiffs’ second amended complaint, in the first cause of action, alleged certain of defendants’ employees had installed eavesdropping devices in Mr. Clauson’s office. Further, it was alleged defendants had wiretapped Mr. Clauson’s private office and telephone. Mr. Clauson had been employed by defendants. Mr. Clauson engaged in several hundred telephone conversations with his. wife and children, who are the other plaintiffs. These telephone conversations between Mr. Clauson and his family were tape-recorded. The conversations that were tape-recorded involved “confidential communications, including private family matters . . . .” The second amended complaint sought: actual damages; emotional distress damages; punitive damages; and statutory penalties pursuant Penal Code section 637.2, subdivision (a).