Clauson v. Superior Court

• Decision Date: 20 November 1998
• Docket Number: No. B122521,B122521
• Citation: 79 Cal.Rptr.2d 747,67 Cal.App.4th 1253
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 8572, 98 Daily Journal D.A.R. 11,881 James CLAUSON et al., Petitioners, v. Los Angeles County SUPERIOR COURT, Respondent. Pedus Services, Inc. et al., Real Parties in Interest.

Page 747

79 Cal.Rptr.2d 747

67 Cal.App.4th 1253, 98 Cal. Daily Op. Serv. 8572,

98 Daily Journal D.A.R. 11,881

James CLAUSON et al., Petitioners, v. Los Angeles County SUPERIOR COURT, Respondent Pedus Services, Inc. et al., Real Parties in Interest.

No. B122521.

Court of Appeal, Second District, Division 5, California.

Nov. 20, 1998.

Riley & Riley and Timothy Charles Riley, Los Angeles, Terrance Francis Riley, Rancho Cucamnga, for Petitioners.

No appearance on behalf of Respondent.

Buchalter, Nemer, Fields & Younger and James H. Turken, Simone M. Bennett; Akre, Bryan & Chang and Geoffrey L. Bryan, Konrad L. Trope, Ronald J. Selgrath, Michael L. Stern, Yolanda A. Rodriguez; and Wilson, Elser, Mosokowitz, Edelman & Dicker and Steven R. Parminter, Terry L. Higham, Venus E. Griffith, Los Angeles, for Real Parties in Interest.

TURNER, P.J.

Plaintiffs, James, Yolanda, and Carol Clauson and Michelle Clauson-Esparaza, have filed a mandate petition challenging an 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 California Judges Benchbook, Civil Proceedings Before Trial (1995) § 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).

Defendants moved to strike the punitive damage allegations. Defendants argued that plaintiffs could not recover both the statutory penalties and punitive damages. They relied on Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228, 220 Cal.Rptr. 712, a case involving an appeal after a trial. On April 8, 1998, the respondent court granted the motion to strike and the present petition was filed. The express ground for granting the motion to strike was that both punitive damages and statutory penalties pursuant to Penal Code section 637.2, subdivision. (a) may not be sought simultaneously.

At issue in this extraordinary writ proceeding is whether plaintiffs may seek at the pleading stage to recover both punitive damages as permitted by Civil Code section 3294 and statutory penalties for unlawful wiretapping pursuant to Penal Code section 637.2, subdivision (a) which states: "Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts: [p] (1) Five thousand dollars ($5,000). [p] (2) Three times the amount of actual damages, if any, sustained by the plaintiff." The second amended complaint alleges sufficient facts for both common law invasion of privacy and a statutory wiretapping violations.

We agree with plaintiffs that ...