Perkins v. Superior Court

• Decision Date: 17 March 1981
• Citation: 117 Cal.App.3d 1,172 Cal.Rptr. 427
• Parties: Richard A. PERKINS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent. GENERAL TELEPHONE DIRECTORY COMPANY, Real Party in Interest. Civ. 60193.
• Court: California Court of Appeals Court of Appeals

Page 427

172 Cal.Rptr. 427

117 Cal.App.3d 1

Richard A. PERKINS, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent.

GENERAL TELEPHONE DIRECTORY COMPANY, Real Party in Interest.

Civ. 60193.

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

March 17, 1981.

Hearing Denied May 13, 1981.

George Magit, for petitioner.

John P. McNicholas, Lawrence R. Ramsey and Morgan, Wenzel & McNicholas, Los Angeles, for real party in interest.

ASHBY, Associate Justice.

Petitioner seeks a writ of mandate directing respondent to vacate its order striking from a complaint allegations relating to punitive damages.

The facts, quite simply, are these: Petitioner has sued real party in interest for "invasion of privacy and interference with business." Also named as defendants are General Telephone and Electronics Corp. (hereinafter GTE) and General Telephone Company of California (hereinafter Telephone Co.). The complaint contains the following allegations: GTE is a holding company, which operates through a number of subsidiaries and affiliates, including real party and Telephone Co. GTE owns all of the real party's stock and 99.06 percent of the stock of Telephone Co. The three defendants are all integral parts of a common enterprise which operates for the profit and advantage of GTE.

Petitioner is a member of the State Bar of California who has maintained offices in Century City since 1972. His office telephone service is with Pacific Telephone and Telegraph Co. On April 1, 1980, real party published and started distributing its "Neighborhood Phone Book" for the West Los Angeles and Beverly Hills areas which listed petitioner's telephone number as that of "Pep Boys Manny Moe & Jack of California," a chain if auto supply stores. Petitioner first learned of the erroneous listing on April 4, 1980, after receiving calls intended for Pep Boys. He complained to real party by phone the same day and in writing on April 7, 1980. "At the time plaintiff first complained to defendants they were just beginning the distribution of said directories. Notwithstanding plaintiff's complaints and defendants' knowledge of said wrong listing defendants intentionally persisted in the distribution of said directories, amounting to many thousands altogether. Defendants were induced by their anticipated profits from classified advertising in said directories to continue said distribution, regardless of the annoyance, inconvenience, and expense they would knowingly cause plaintiff thereby, deliberately taking the chance of liability to plaintiff for damages. P By means of the distribution of said directories, particularly after receiving plaintiff's complaints, defendants have wrongfully and intentionally invaded plaintiff's privacy and subjected him to annoyance, inconvenience, and interruption in the practice of his profession, to plaintiff's damage in the sum of $25,000." (Emphasis added.)

Petitioner resides in Malibu. His home telephone service is with defendant Telephone Co. "After plaintiff complained to defendants as aforesaid, and in retaliation therefor, defendants caused telephone service to plaintiff's residence to be terminated on or about April 22, 1980, and continuing to the present time. In response to numerous reports and complaints during that time defendants several times promised to repair the telephone service to plaintiff's home; and then on April 24, 1980, they made different and inconsistent reports to plaintiff, viz.: defendants' repair department admitted to him that the service was not out of repair but had been terminated by order of defendants' business office; but defendants' business office denied that the service had been terminated and insisted that it was a repair problem. One or the other of said reports was known to defendants to be false when made, and perhaps both were." By this conduct defendants were "guilty of oppression, fraud and malice," entitling petitioner to recover exemplary damages. ¹ (Emphasis added.)

Real party moved to strike the phrase "wrongfully and intentionally" from the eighth paragraph of the complaint, the word "retaliation" from the tenth paragraph and the words "oppression, fraud, and malice" from the eleventh paragraph, ² all on the grounds that said words constituted "conclusions of law and evidentiary facts" and left to "surmise, conjecture and speculation the ultimate facts" upon which petitioner sought relief. Real party also moved to strike all reference to "exemplary damages" on the ground that petitioner failed to state a cause of action for such damages. The motion to strike was granted and this petition followed.

Although respondent's order granting the motion to strike would be reviewable on appeal, mandamus will lie when it appears that the trial court has deprived a party of the opportunity to plead his cause of action, and when extraordinary relief at the pleading stage may prevent a reversal and retrial. (Taylor v. Superior Court, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854.) In the instant case an additional factor convinced us to exercise our discretion to issue the alternative writ. Petitioner alleges that he is past 70 and his cause of action is therefore entitled to preference under Code of Civil Procedure section 36. Review by way of extraordinary writ will effectuate the public policy of that statute.

In order to plead a cause of action, the...