NoticeCal. Super. - 6th Dist.December 14, 2020SPINKLLI, DONALD A NOTT A Professional Corporation ROSS R. NOTT (State Bar No. 172235) 601 University Avenue, Suite 225 Sacramento, CA 95825 Telephone: (916) 448-7888 Facsimile: (916) 448-6888 Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 10 12 13 14 15 16 17 18 19 20 21 JANE MC DOE, an individual, by and through her Guardian ad litem JANE MG DOE, Plaintiffs, vs. SANTA CLARA COUNTY OFFICE OF EDUCATION; a business entity of form unknown; MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT, business entity of for unknown; EDGAR COVARRUBIAS-PADILLA, an individual; and DOES 1 through 100, Defendant. Case No.: 20CV374714 DEFENDANT MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT'S SECOND AMENDED NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT AND REQUEST FOR TREBLE DAMAGES DATE: June 22, 2021 TIME: 9:00 a.m. DEPT: 7 [FEES EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103] Complaint Filed: December 14, 2020 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTr TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on June 22, 2021 at 9:00 a.m., in Dept. 7 of the above- referenced Court, Defendant, Mount Pleasant Elementary School District will have its Motion to Strike Portions of Plaintiff's Complaint pursuant to Code of Civil Procedure )435 and )436. To this end, the following portions of the Complaint are sought to be struck by way of this Notice of Motion and Motion: Second Amended Notice of Motion to Strike 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/17/2021 2:06 PM Reviewed By: A. Floresca Case #20CV374714 Envelope: 6458279 20CV374714 Santa Clara - Civil A. Floresca 1. 10 13 14 15 "Plaintiff is informed and believes, and on that basis alleges, that at all times mention herein, there existed a unity of interest and ownership among Defendants and each of them, such that any individuality and separateness between Defendants, and each of them, ceased to exist. Defendants, and each of them were the successors-in-interest and/or alter egos of the other Defendants, and each of them, in that they purchased, controlled, dominated and operated each other without any separate identity, observation of formalities, or other manner of division. To continue to maintain the facade of a separate and individual existence between and among Defendants, and each of them, would serve to perpetuate a fraud and an injustice." 2. ~C& ht 11: "Plaintiff is informed and believes, and on that basis alleges, that at all times mentioned herein, Defendants and each of them, were the agents, representatives and/or employees of each and every other Defendant. In doing the things hereinafter alleged, Defendants, and each of them, were acting within the course and scope of said alternative personality, capacity, identity, agency, representation, and/or employment and were within the scope of their authority, whether actual or apparent." ~C&'t 12: 17 18 19 20 "Plaintiff is informed and believes, and on that basis alleged, that at all times mentioned herein, Defendants and each of them, were the trustees, partners, servants, joint venturers, shareholders, contractors, and/or employees of each and every other Defendant, and the acts and omissions herein alleged were done by them, acting individually, through such capacity and within the scope of their authority, and with the permission and consent of each and every other Defendant and that said conduct was thereafter ratified by each and every other Defendant, and that each of them is jointly and severely liable to plaintiff." 21 4. ~Ch' 55; 22 23 24 25 26 27 28 SPINELLI& DONALD & NOTr "It is upon information, and therefore belief, that the sexual assault perpetrated upon the Plaintiff as a child (as more fully described supra), was the result of a "cover-up" or a "a concerted effort to hide evidence relating to childhood sexual assault." See Code of Civil Procedure )340.1(b). Specifically, it is based upon information and therefore belief, that the Defendant SCCOE and MPESD engaged in conduct to conceal the sexually inappropriate behavior of PADILLA and to hide facts from the Plaintiff, which would have apprised the Plaintiff, her family, and those who could have intervened in PADILLA abusive behavior (including but not limited to law enforcement, administrative authorities, and child protective agencies) and prevented the Plaintiff s sexual assault as a child. Therefore, the Plaintiff is entitled to the enhanced remedy provided for in Code of Second Amended Notice of Motion to Strike 2 Civil Procedure $340.1(b)(1) and may recover up to treble damages. 5. ~PI 4 - "T bl d g* p tt $340.1(bj(lj" 6. Cpm laint 56 at 16:3-6: 10 12 13 14 15 16 17 18 19 20 21 22 23 "...and, upon information and belief, actually undertook a concerted effort to cover up for the childhood sexual. As a result, defendants are liable for trouble damages pursuant to Code of Civil Procedure section 340.1." This Motion is based upon this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Ross Nott filed herewith, the records and files in this action, and upon such other and further evidence or argument as may be presented prior to or at the time of hearing on the motion. TENTATIVE RULING The Court follows CRC 3.1308(a)(1) for those departments that have elected to issue tentative rulings in civil law and motion and discovery matters. Counsel and litigants are responsible for determining whether the department hearing their motion has made this election. Those departments issuing tentative rulings will do so generally by 2:00 p.m., and no later than 3:00 p.m., on the court day preceding the scheduled hearing. If the Court has not directed oral argument, a party contesting a tentative ruling must give notice of its intention to appear to the other side and the Court no later than 4:00 p.m. on the court day preceding the scheduled hearing. Appearances may be made by telephone (through CourtCall) or in person. The tentative ruling will automatically become the order of the Court on the scheduled hearing date if the Court has not directed oral argument and if the contesting party fails to timely notice an objection to the other side and the Court. Tentative rulings will be posted on the Court's website, www.scscourt.or, where further information may be found. If a party does not have access to the internet, the tentative ruling may be accessed by calling Court Services at (408) 882-2515. Questions about these procedures may be 24 25 addressed to the specific department where the matter is to be heard. Dated: May 17, 2021 SPINELLI D By kN TT 26 27 28 ROSS R. N Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT SPINELLI, DONALD & NOTr Second Amended Notice of Motion to Strike 3 PROOF OF SERVICE COURT: CASE NO.: CASE NAME: Superior Court of California, County of Santa Clara 20CV3 74714 Mc Doe v. Santa Clara County Office ofEducation, et al. I am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 601 University Avenue, Sacramento, CA 95825. I am over the age of 18 and not a party to the above-entitled action. 10 12 13 14 15 I am readily familiar with Spinelli, Donald 4 Nott's practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the ofhce mail receptacle. Each day's mail is collected and deposited in a U.S. mailbox at or before the close of each day's business. (Code Civ. Proc., $ 1013a(3) or Fed.R.Civ.P.5(a) and 4.1.) On May 17, 2021, I caused the within, Second Amended Notice of Motion to Strike the original of which was produced on recycled paper, to be served via MAIL- for Defendant Padilla only Placed in the United States Mail at Sacramento, California in an envelope with postage thereon fully prepaid addressed as follows: 16 17 18 19 20 21 Morgan A. Stewart mstewart mani stewart.com Saul E. Wolf swolf mani stewart.com Christina J. Nolan cnolan mani stewart.com Manly, Stewart 8 Finaldi 19100 Von Karman Avenue, Suite 800 Irvine, CA 92612 Counselfor Plaintiff 22 23 24 25 26 27 28 Mark E. Davis Eric J. bengtson Davis 8 Young, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 669/245-4200 408/985-1814 eric davis oun law.corn FAX AND MAIL- Counselfor Santa Clara Co. Office of Education SPINELLI, DONALD d'e NOTT I personally sent to the addressee's telecopier number indicated below a true copy of the above-described document(s) before 5:00 p.m. I verified transmission without error by a transmission report issued by the facsimile machine upon which said transmission was made immediately following the transmission. Thereafter, I placed a true copy in a sealed envelope with the first class postage affixed and mailed as follows: PERSONAL SERVICE- By causing delivery by hand to the addressee addressed as follows: FEDERAL EXPRESS- By causing delivery by Federal Express of the document(s) listed above to the person(s) at the address(es) set forth below: 10 12 13 14 Z BY ELECTRONIC SERVICE- I caused such document to be electronically served to the above I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed on May 17,. 2021, at Sacramento, California. /s/Shelle L. Gra eda Shelley L. Grajeda 15 16 17 18 19 20 22 23 24 25 26 27 28 SPINELLI, DONALD & NOTT