1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RAN ZHENG, Case No. 21-cv-07925-SK

8 Plaintiff,

ORDER ON MOTION TO STRIKE

9 v.

10 JOSEPH MAROUN, et al., Regarding Docket Nos. 40, 41 11 Defendants.

12 This matter comes before the Court upon consideration of the motion to strike filed by 13 Defendants Fredrick William Voigtmann and Law Office of Fred Voigtmann (“Defendants”). The 14 Court finds the motion suitable for disposition without oral argument and thus VACATES the 15 hearing scheduled for October 31, 2022. See N.D. Civ. L.R. 7-1(b). Having carefully considered 16 the parties’ papers, relevant legal authority, and the record in the case, the Court hereby GRANTS 17 Defendants’ motion for the reasons set forth below. Pursuant to Federal Rule of Evidence 201, the 18 Court GRANTS Defendants’ request for judicial notice. Fed. R. Evid. 201. 19 BACKGROUND 20 Plaintiff Ran Zheng (“Plaintiff”) initially filed her complaint against Joseph Maroun Jr., 21 Joseph Maroun Sr., and Linyue Luan, as well as Defendants, related to their conduct in connection 22 with Plaintiff’s application in the EB-5 Immigrant Investor Program (“EB-5”) provided by the 23 United States Citizenship and Immigration Services (“USCIS”). Plaintiff hired Defendants as her 24 attorneys in connection with EB-5 visa and names only Defendants in her amended complaint. 25 However, in her amended complaint, Plaintiff also includes allegations of misconduct by 26 Defendants which go beyond mere legal advice. 27 / / / 1 ANALYSIS 2 A. Legal Standards on Motion to Strike. 3 Under Rule 12(f), a court may strike from a pleading “any insufficient defense or any 4 redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). Immaterial 5 matter “is that which has no essential or important relationship to the claim for relief or the 6 defenses being pleaded.” Fantasy Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on 7 other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (internal citations and quotations 8 omitted). Impertinent material “consists of statements that do not pertain, and are not necessary, 9 to the issues in question.” Id. (internal citations and quotations omitted). Motions to strike are 10 regarded with disfavor because they are often used as delaying tactics and because of the limited 11 importance of pleadings in federal practice. Colaprico v. Sun Microsystems Inc., 758 F. Supp. 12 1335, 1339 (N.D. Cal. 1991). A motion to strike should be resorted to only when the matter to be 13 stricken could have no possible bearing on the issues in litigation. LeDuc v. Kentucky Central Life 14 Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Ultimately, the decision as to whether to strike 15 allegations is a matter within the Court’s discretion. Colaprico, 758 F. Supp. at 1339. 16 B. Defendants’ Motion to Strike. 17 1. Procedural Issues. 18 A motion to strike is not a procedural mechanism to strike punitive damages. Whittlestone, 19 Inc. v. Handi-Craft Co., 618 F.3d 970, 971 (9th Cir. 2010) (Rule 12(f) “does not authorize a 20 district court to strike a claim for damages on the ground that such damages are precluded as a 21 matter of law.”); see also Rees v. PNC Bank, N.A., 308 F.R.D. 266, 272-73 (N.D. Cal. 2015) 22 (denying motion to strike because “Defendants’ first argument – that [p]laintiffs cannot recover 23 punitive damages as a matter of law – fails because it is expressly precluded by the Ninth Circuit’s 24 holding in Whittlestone []”); Harvey v. Bank of Am., N.A., 906 F. Supp. 2d 982, 996 (N.D. Cal. 25 2012) (applying Whittlestone to deny defendant’s Rule 12(f) motion to strike the portions of 26 Plaintiff’s amended complaint that mention punitive damages). 27 Some courts in this District have construed motions to strike punitive damages as motion 1 Co., 2018 WL 1243085, at *5 (N.D. Cal. Mar. 9, 2018) (“where a motion is in substance a Rule 2 12(b)(6) motion, but is incorrectly denominated as Rule 12(f) motion, a court may convert the 3 improperly designated Rule 12(f) motion into a Rule 12(b)(6) motion.”) (quoting Consumer Sols. 4 REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1021 (N.D. Cal. 2009)); see also Powell v. Wells 5 Fargo Home Mortg., 2017 WL 2720182, at *7 (N.D. Cal. June 23, 2017) (relying on Whittlestone 6 and construing Rule 12(f) motion to strike punitive damages as motion to dismiss); Linares v. 7 CitiMortgage, Inc., 2015 WL 2088705, at *8 (N.D. Cal. May 5, 2015) (same). The Court concurs 8 with the courts that have construed the motion to strike as a motion to dismiss and will do the 9 same. 10 Next, Plaintiff contends that Defendants are barred from bringing a second motion under 11 Federal Rule of Civil Procedure 12(b) because Defendants brought a previous motion to dismiss 12 under Rule 12(b)(3). Plaintiff argues that, pursuant to Federal Rule of Civil Procedure 12(g), 13 which prohibits successive motions to dismiss, the Court should not consider Defendants’ 14 arguments. However, some courts have held that, although Rule 12(g) “technically prohibits 15 successive motions to dismiss that raise arguments that could have been made in a prior motion . . 16 . courts faced with a successive motion often exercise their discretion to consider the new 17 arguments in the interests of judicial economy.” Amaretto Ranch Breedables, LLC v. Ozimals, 18 Inc., 2011 WL 2690437, *2 n. 1 (N.D. Cal. 2011) (“Rule 12(g) merely prohibits them from raising 19 it before filing an answer because they did not raise it in their initial response under Rule 12(b). 20 Plaintiffs do not dispute that Defendants would simply be able to renew their motion as a Rule 21 12(c) motion for judgment on the pleadings after filing an answer.”); see also Banko v. Apple, Inc., 22 2013 WL 6623913, at *2 (N.D. Cal. Dec. 16, 2013); Green v. ADT, LLC, 2016 WL 5339800, at *6 23 (N.D. Cal. Sept. 23, 2016) (“Some courts have, however, exercised their discretion to consider the 24 untimely arguments if they were not interposed for delay and the final disposition of the case 25 would thereby be expedited.”) (quotation marks omitted) (citing cases). 26 Defendants respond to Plaintiff’s arguments with citations to state law and a discussion of 27 special appearances, neither of which are relevant to this issue, which is a federal procedural issue. 1 considering Defendants’ arguments. Accordingly, the Court will address the merits of 2 Defendants’ motion. 3 2. Merits of Defendants’ Motion. 4 i. Punitive Damages. 5 Defendants move to strike (or dismiss as construed by the Court) Plaintiff’s claims for 6 punitive damages on the grounds that Plaintiff’s allegations regarding Defendants’ legal 7 immigration related services under the EB-5 immigration visa program do not include any factual 8 allegations of wrongful motive, intent or purpose to support a claim for punitive damages. 9 California Civil Code section 3294 authorizes punitive damages “where it is proven by clear and 10 convincing evidence that the defendant has been guilty of oppression, fraud, malice, the plaintiff, 11 in addition to the actual damages, may recover damages for the sake of example by the way of 12 punishing the defendant.” To obtain punitive damages the: 13 act complained of must not only be wilful [sic] in the sense of intentional, but it must also be accompanied by aggravating 14 circumstances, amounting to malice. The malice required implies an act conceived in a spirit of mischief or with criminal indifference 15 towards the obligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient; and mere 16 negligence[.] Even gross negligence is not sufficient to justify an award of punitive damages. 17 Ebaugh v. Rabkin, 22 Cal. App. 3d 891, 894 (1972); see also Mock v. Michigan Millers Mut. Ins. 18 Co., 4 Cal. App. 4th 306, 328 (1992) (for punitive damages “[t]here must be circumstances of 19 aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the 20 defendant, or such a conscious and deliberate disregard of the interests of others that his conduct 21 may be called wilful or wanton.’ [Citation.]” (emphasis in original) (quoting Taylor v. Superior 22 Court, 24 Cal. 3d 890, 894-895 (1979)). In her opposition brief, Plaintiff argues that she alleges 23 that Defendants conspired with the other individuals who Plaintiff initially sued but dropped as 24 defendants from this case. However, the paragraphs to which she points to in her Complaint do 25 not actually contain any allegations regarding a conspiracy. (Dkt. No. 18 (First Amended 26 Compl.).) Moreover, while Plaintiff alleges that Defendants did not act in her best interest, 27 provided negligent legal advice and services, and interfered with prospective economic advantage, 1 she does not presently allege any “circumstances of aggravation or outrage, such as spite or 2 ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and 3 deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’” 4 || Mock, 4 Cal. App. 4th at 328. Accordingly, the Court GRANTS Defendants’ motion to dismiss 5 || Plaintiffs request for punitive damages WITH LEAVE TO AMEND. 6 ii. Constructive Trust. 7 “[A] constructive trust may only be imposed where the following three conditions are 8 satisfied: (1) the existence of a res (property or some interest in property); (2) the right of a 9 complaining party to that res; and (3) some wrongful acquisition or detention of the res by another 10 || party who is not entitled to it. [Citations.]” Campbell v. Superior Ct., 132 Cal. App. 4th 904, 920 11 (2005) (emphasis omitted) (quoting Communist Party v. Valencia, Inc., 35 Cal. App. 4th 980, 990 12 (1995); see also In re Marriage of Chapman, 3 Cal. App. 5th 719, 727 (2016) (quotation marks 5 13 and citation omitted) (“A constructive trust cannot exist unless there is evidence that property has 14 || been wrongfully acquired or detained by a person not entitled to its possession.”). Plaintiff fails to 3 15 allege that Defendants wrongfully possess Plaintiff's property. Accordingly, the Court grants a 16 || Defendant’s motion to dismiss Plaintiff's request for a constructive trust but will provide Plaintiff 3 17 with leave to amend.

CONCLUSION

19 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss, but 20 || provides Plaintiff with leave to amend to address the deficiencies addressed in this Order. If 21 Plaintiff elects to amend the First Amended Complaint, she shall file a Second Amended 22 || Complaint by no later than November 15, 2022. 23 IT IS SO ORDERED. 24 Dated: October 25, 2022 . . 25 □□□ .

SALLIE KIM

26 United States Magistrate Judge 27 28