A More Precise Strike on Damages

Abbott Labs. v. Superior Court, No. D072577 (D4d1 May 31, 2018)

This is the second time I’ve had the pleasure of writing about one of my own cases recently. This one’s a little older, but I’ve just gotten to it in the cue. I’m not going to much about the merits, which deal with a local district attorney’s ability (or lack thereof) to seek statewide relief for alleged violations of the UCL. 

But there’s a procedural issue baked in, and it’s potentially pretty useful for a defendant. The Court of Appeal held that a motion to strike under Code of Civil Procedure § 436 could be used to excise allegations from a complaint if they are relevant only to a damages theory under which the plaintiff cannot recover as a matter of law. That allows a more careful pleadings-stage parsing of damages theories than has previously been allowed.

The issue comes up a lot in civil enforcement cases. Government plaintiffs sometimes allege a right to recover all sorts of excessive remedies. (E.g, I once had a case where a California government agency alleged a wacky penalty theory that suggested a maximum penalty larger than the gross domestic product of the state!) From the perspective of a defendant, that can be pretty terrifying, even if the theory is clearly BS. 

Since theories of remedy aren’t whole causes of action, however, you can’t demur to them. It is also not easy to get get rid of them on summary judgment. § 437c(f) limits summary adjudication to a “claim of damages,” which is usually applied to punitives. There’s not good case law saying that a “claim of damages,” can apply to a particular theory, however wrong. So regardless if the theory is weak, or even outright silly, a defendant faces an enormous black swan risk by going to trial. Stranger things have happened in state court.

But now, a motion to strike will do the trick. Hooray!

Writ granted.