Response ReplyCal. Super. - 6th Dist.December 14, 20201 SPINELLI, DONALD & 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 2 3 4 5 6 7 IN THE SUPERIOR COURT OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SANTA CLARA 9 10 Case No.: 20CV374714JANE MC DOE, an individual, by and through her Guardian ad litem JANE MG DOE,11 REPLY ON MOTION TO STRIKE 12 DATE: March 1, 2022 TIME: 9:00 a.m. DEPT: 7 Plaintiffs, vs.13 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. 14 15 [FEES EXEMPT PURSUANT TO GOVERNMENT CODE SECTION 6103] Complaint Filed: December 14, 2020 16 17 18 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT Mount Pleasant Elementary School District hereby and 19 20 herewith replies to Plaintiff, Jane McDoe’s, Opposition to Defendant’s Motion to Strike Portions ot First Amended Complaint. 21 22 I.23 REINTRODUCTION24 Rather than offer any meaningful explanation to justify opposing Mount Pleasant Elementary School District’s (“MPESD”) Motion to Strike Portions of First Amended Complaint, Plaintiff instead is critical of what was a lengthy meet and confer process, asserting that portions of the original pleading were not subject to motion to strike which are now subject to motion to strike Reply in Support of Motion to Strike Certain Portions of Plaintiff s First Amended Complaint 25 26 27 28 SPINELLI,DONALD & NOTT 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 2/22/2022 4:04 PM Reviewed By: A. Floresca Case #20CV374714 Envelope: 8343713 20CV374714 Santa Clara - Civil A. Floresca while ignoring that the first pleading was not only subject to strike, but also successful demurrer. The Order on the Demurrer and Motion to Strike had the effect of rendering even more of Plaintiffs pleadings superfluous, immaterial and factual nonstarters. Moreover, Plaintiff alleges that the meet and confer process was insufficient, yet the very documents offered by the Plaintiff in opposition demonstrate how substantial that meet and confer process was, how Plaintiff refused to budge on topics that they now concede, and fails to explain why the motion has been in Plaintiffs possession since October of 2021, and nothing was done to make this motion moot. Instead, Plaintiff opposes the motion. Plaintiffs excuses notwithstanding, the portions identified in the First Amended Complaint by the moving papers are contrary to this Court’s ruling on MPESD’s Demurrer and Motion to Strike, and on that basis, they are subject to strike pursuant to Code of Civil Procedure §436(a) and 1 2 3 4 5 6 7 8 9 10 11 (b).12 13 II. THE PARTIES SUFFICIENTLY MET AND CONFERRED PURSUANT TO CODE14 OF CIVIL PROCEDURE 8435.5 15 As outlined in the Declaration of Ross Nott submitted on MPESD’s Motion (see Points and 16 Authorities in Support of Motion to Strike Portions of Plaintiffs First Amended Complaint, 4:19- 5:6; Declaration of Ross Nott in Support of Motion to Strike Portions of Plaintiffs Complaint and 18 Request for Treble Damages, ^[5:10). By way of those documents, the meet and confer process was1^ identified as beginning on July 29, 2021, with a meet and confer letter, an August 6, 2021, voicemail 20 message that defense counsel left for Plaintiffs counsel, Plaintiffs counsel’s response on August 9, 21 2021, as well as a subsequent phone conversation between counsel wherein it was agreed that 22 defense counsel would prepare a stipulation addressing the paragraphs of Plaintiff s First Amended 23 Complaint subject to prior determination on Demurrer or Motion to Strike which should not be 24 repeated as to MPESD on the First Amended Complaint. The meet and confer effort was also 25 described as including a September 28, 2021 response by Plaintiffs counsel changing the stipulation 26 substantially. 17 27 28 Reply in Support of Motion to Strike Certain Portions of Plaintiff s First Amended ComplaintSPINELLI,DONALD & NOTT 2 That meet and confer process is now further described with the actual documents exchanged 2 between the parties as offered by Plaintiffs Opposition, Exhibits 2, 3, 4, 5, and 6. On this record, it 3 cannot be reasonably argued that the parties did not sufficiently meet and confer regarding the 4 Motion to Strike First Amended Complaint. Moreover, Plaintiffs claim that the Motion to Strike §§14, 24 and 27(a) were not subject to 6 meet and confer effort is inconsistent with the substance of the meet and confer effort.1 However, 7 this position ignores the crux of the meet and confer effort - Padilla was never employed by 8 MPESD, and the unification of interests contained in ^[8 of the FAC attributes an ongoing 9 employer/employee relationship between MPESD and Padilla which was previously rejected. As 10 for1J27(a), contrary to the Court’s Order on Demurrer and Motion to Strike the Complaint, Plaintiff 11 alleges that “Padilla engaged in such abuse of Plaintiff while acting in the course and scope of his 12 employment, agency, duties and responsibilities with Defendants, in such locations as Plaintiffs 13 cabin and/or Padilla’s residence at Walden West.” (FAC, f̂27(a), 8:27-9:2.) This section is directly 14 contrary to the rejection of an employer/employee relationship between MPESD and Padilla which 15 was dealt with on the Court’s Order on Demurrer and Motion to Strike Complaint and was a focal 16 point of Defendant’s meet and confer efforts regarding the First Amended Complaint. (See, 17 Plaintiffs Opposition, Exhibit 2, 6/29/21 meet and confer letter addressing sole basis of claim 18 against MPESD pursuant to Ed. Code §44807, as well as those bullet points regarding any 19 employment related allegation between Padilla and MPESD.) In other words, Plaintiff was well 20 aware that any allegation within the First Amended Complaint alleging that Padilla was employed 21 by MPESD or served in an agent/principal relationship would be subject to Motion to Strike. That 22 is exactly the crux of ^|27(a) which violates this Court’s prior Order on the Demurrer. 1 5 23 I I I 24 I I I 25 I I I 26 1 As to U14 of the First Amended Complaint, this paragraph was mistakenly included in the Motion to Strike. It does not include any allegation offensive to this Court’s Order on MPESD’s prior demurrer or Motion to Strike, and is, therefore, abandoned by MPESD here. Reply in Support of Motion to Strike Certain Portions of Plaintiff s First Amended Complaint 27 28 SPINELLI,DONALD & NOT! 3 1 III. PARAGRAPH 8 OF THE FAC VIOLATES THE COURT’S ORDER ON DEMURRER AS2 IT CONTINUES TO ASSERT A VICARIOUS RESPONSIBILITY BY MPESD FOR PADILLA’S ALLEGED MISCONDUCT3 The Court sustained MPESD’s Demurrer to all employment-related claims in Plaintiffs Complaint - negligent hiring, supervision and retention and negligent supervision. (See, RFJN, The Demurrer to any claim that MPESD employed Padilla was 4 5 Exhibit A, Order 3:12-4:14.)6 sustained without leave to amend.7 That ruling makes TJ8 of the FAC not only superfluous because it can only be based upon alleged vicarious liability of MPESD for Padilla’s conduct, but also contrary to the Court’s Order for that very reason. No employer/employee relationship exists between MPESD and the alleged child abuser, Padilla. Moreover, lumping all “Defendants” into the same name or heading on the basis of alleged vicarious liability that does not exist renders the First Amended Complaint contrary to this Court’s Order on Demurrer and Motion to Strike because it injects an employer/employee relationship between MPESD and Padilla which was rejected by the Court and Plaintiff was not allowed to file an amendment on that topic. Describing all “Defendants” as set forth in ]f8 continues to unity their interests contrary to the Court’s ruling on the Motion to Strike Portions of Plaintiff s Complaint. Plaintiffs efforts to continue to circumvent this Court’s prior Order on Demurrer and Motion to Strike should be rejected. There is no need to lump SCCOE, MPESD and the child abuser, Padilla, in such fashion. ]|8 of the FAC should be stricken at least as to MPESD because it continues to assert a vicarious responsibility for Padilla’s conduct absent any relationship sufficient to do so. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 IV.23 PLAINTIFF’S AGREEMENT TO STRIKE mil .13.27(b). 42. 53. 66 and 61.63. 79, 80 and 82 SHOULD BE ACCEPTED BY THE COURT24 A party’s failure to oppose an issue with reasoned legal analysis or citation of legal precedence, demonstrates forfeiture of that claim then under scrutiny. ( Provost v. Regents of University of CA, (2011) 201 Cal.App.4th 1289, 1300.) Here, Plaintiffs Opposition concedes that 1f1fl2, 13, 27(b), 42, 53 and 66 should be stricken as to MPESD. (See Opposition 4:18-6:25.) In Reply in Support of Motion to Strike Certain Portions of Plaintiff’s First Amended Complaint 25 26 27 28 SPINELU,DONALD& NOTT 4 addition, Plaintiffs opposition concedes that 1fl[61, 63, 79, 80, and 82 should be stricken as to1 MPESD. (Plaintiffs Opposition, 11:22-13:13.) Therefore, the Motion to Strike 12, 13, 27(a), 42, 53, 61, 63, 66, 79, 80 and 82 should be granted. 2 3 4 V. PARAGRAPHS 22 AND 33 ARE NOT CONSISTENT WITH THE COURT’S PRIOR5 ORDER ON DEMURRER AND MOTION TO STRIKE 6 Paragraph 22 of the FAC again utilizes *[[8’s unification of “Defendants” to attribute employer/employee or vicarious liability between MPESD and Padilla. To this end, ^|22 includes 8 subparagraphs of conduct through which “Defendants” placed Padilla based upon an implied employee/employer relationship which was previously rejected by the Court. Plaintiffs claim that this paragraph is consistent with this Court’s prior Order ignores the Order Sustaining MPESD’s Demurrer to any employer/employee-based liability for Padilla’s conduct because MPESD never employed Padilla nor had any other relationship with him. (See RFJN, Ex. A, Order re Demurrer to and Motion to Strike Portions of Complaint, 3:11-4:14.) Because there is no employer/employee relationship, and the Demurrer to the two causes of action based upon that alleged relationship between MPESD and Padilla were sustained without leave to amend, Plaintiffs continued assertion under Tf22(a)-(h) is subject to strike- it is immaterial to any allegation against MPESD, is contrary to this Court’s prior Order that there is no employer/employee relationship between those two Defendants, and use of the term “Defendants” unifies interest contrary to the Court’s Order on the Motion to Strike. For this reason, ^|22(a)-(h) should be stricken as to MPESD. Moreover, 1|33 in the FAC attributes a “mandatory duty” claim pursuant to Government Code §815.6. Plaintiff claims that §33 and its various bullet points in the FAC are consistent with this Court’s prior Order. However, that ignores the Court’s ruling on Demurrer to the Twelfth Cause of Action in the Complaint (Manadatory Duty). (See RFJN, Exhibit A - Order re Demurrer to and Motion to Strike Portions of Complaint, 9:9-10:19.) The mandatory duty claim under Government Code §815.6 was sustained without leave to amend. Plaintiffs efforts to inject various “mandatory duties” imposed upon “Defendants” attempts to circumvent this Court’s prior Order on the Demurrer by attributing various “mandatory duties” alleged breached by MPESD. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply in Support of Motion to Strike Certain Portions of Plaintiff s First Amended ComplaintSPINELLI,DONALD & NOTT 5 As was made clear in the prior Demurrer, but a single cause of action can be legally stated by the Plaintiff against MPESD - alleged negligent supervision of pupils. Plaintiffs allegations going beyond that basis for potential liabilities has been rejected by the Court on the Demurrer to the Complaint, and Plaintiffs efforts to include overly-generalized “mandatory duties” should be rejected by the Court as contrary to its prior Order on the Demurrer. 1 2 3 4 5 6 VI. 7 CONCLUSION Defendant, Mount Pleasant Elementary School District, respectfully requests that the Court8 9 grant its Motion to Strike Portions of Plaintiff s First Amended Complaint. The District attempted 10 to meet and confer with the Plaintiff by initially exchanging correspondence, and then engaging in 11 email and telephonic conferencing regarding the problems with the amended pleading. The District 12 went so far as to prepare a Stipulation to deem paragraphs in the Complaint that are contrary to the Court’s Order on the Demurrer and Motion to Strike to the initial pleading into perspective. However, Plaintiff gutted that Proposed Stipulation and took inconsistent positions not only with themselves, but also with this Court’s prior Order and its opposition papers. Now, Plaintiff agrees that her prior amended Stipulation was too narrow, and she now agrees that Yifl2, 13, 27(b), 42, 53, 61, 63, 66, 79, 80 and 82 should be stricken at least as to Mount Pleasant Elementary School District. However, f̂l|8, 22, 24, 27(a) and 33 should also be stricken from the First Amended Complaint as they are inconsistent with this Court’s prior Order for the reasons set forth herein. 13 14 15 16 17 18 19 20 Respectfully submitted,21 22 Dated: February 22, 2022 SPINELLLD & N0TTc23 By: ROSSR. NOTT v Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT 24 25 26 27 28 Reply in Support of Motion to Strike Certain Portions of Plaintiff s First Amended ComplaintSPINELLI,DONALD & NOTT 6 1 PROOF OF SERVICE 2 COURT: CASE NO.: CASE NAME: Superior Court of California, County of Santa Clara 20CV374714 Me Doe v. Santa Clara County Office of Education, et al.3 4 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. 5 6 I am readily familiar with Spinelli, Donald & 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 office 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.) 7 8 9 10 On February 22, 2022 I caused the within, REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT the original of which was produced on recycled paper, to be served via 11 12 MAIL- Placed in the United States Mail at Sacramento, California in an envelope with postage thereon fully prepaid addressed as follows: 13 14 15 Counsel for PlaintiffHaley Aanestad haanestad@manlvstewart.com 16 Manly, Stewart & Finaldi 19100 Von Karman Avenue, Suite 800 Irvine, CA 92612 17 18 kfrederiksen@manlvstewart.com acunnv@manlvstewart.com cpendrv@manlvstewart.com 19 20 21 Mark E. Davis Eric J. Bengtson Morgan Hansen Davis & Young, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 Counsel for Santa Clara Co. Office of Education22 23 24 25 669/245-4200 408/985-1814 26 eric@davisvounglaw.com iheaton@dbv-law.com mhansen@dbv-law.com 27 28 SPINELLI,DONALD & NOTT 1 G FAX AND MAIL-- 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: G BY ELECTRONIC SERVICE- I caused such document to be electronically served to the above 2 3 4 5 6 7 8 9 10 11 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 22, 2022, at SaoYamento, California. / / 12 13 14 / Shelley L. ijeda15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPINELLI,DONALD & NOTT