Clauson

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…