Response ReplyCal. Super. - 6th Dist.December 14, 2020SPINELLI, DONALD 4 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 5 Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT 10 IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA 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 REPLY ON DEFENDANT MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT'S 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 I. INTRODUCTION Defendant Mount Pleasant Elementary School District (MPESD) brings this motion to strik to cut out irrelevant, false, or improper matters identified in Plaintiff s Complaint. Specifically, Plaintiff s vague allegations that Defendants were the agents or employees of the other (Paragraph 9, 11, 12, and 58) are conclusory and unsupported by facts or law. Furthermore, Plaintiff s claims fo 27 treble damages under C.C.P. section 340.1 are not properly asserted against Defendant MPESD 28 under Gov. Code section 818. Instead, as has now been fully discussed and analyzed in I.os Angeles SPINELLI, DONALD 8t NQTr Reply on Defendant MPESD 's Motion to Strike 1 Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/15/2021 3:39 PM Reviewed By: F. Miller Case #20CV374714 Envelope: 6654890 20CV374714 Santa Clara - Civil F. Miller Unified School District v. Superior Court (2021 WL 2024615), treble damages under section 340.1 are primarily punitive in nature and, therefore, cannot be asserted against a public entity under Gov. Code section 818. Thus, Defendant MPESD's motion to strike should be granted in its entirety. II. LEGAL ARGUMENT A. A motion to strike is the proper vehicle cut out "irrelevant, false, or improper" matters. 10 12 13 14 15 16 17 Plaintiff s Opposition first argues that "a Motion to Strike is not the proper vehicle to argue insufficiency of the pleadings; that is the function of a demurrer-which MPESD has already filed. ... For this reason, alone, MPESD's Motion to Strike must be denied." (Pl's Opp., 3:10-15.) This flawed and mistaken argument misconstrues the MPESD's motion to strike. MPESD's motion to strike does not merely seek to "attack a complaint for insufficiency of allegations to justifyrelef's Plaintiff suggests. (Pl's Opp., 3:8-10.) Rather, MPESD takes specific allegations and paragraphs from Plaintiff s complaint (e.g. Plaintiff's claims for treble damages under C.C.P. $340.1) and uses this motion to strike as a scalpel to cut out such "irrelevant, false, or improper" matters. (Code Civ. Proc. )436(a).) That is exactly how a motion to strike is meant to be used. Therefore, a motion to strike is entirely proper here and is the most appropriate means to cut out Plaintiffs irrelevant, false, or improper matters in Plaintiff s Complaint. 19 B. Language related to Plaintiff's vague allegations that Defendants were the agents or employees of the other are conclusory and unsupported by facts or law. 20 21 22 23 24 26 27 28 SPINELLI, DONALD 4 NQTr Defendant MPESD argues on this motion to strike that the Plaintiff s vague allegations in Paragraphs 9, 11, 12, and 58 are not supported by facts or by the law. In these paragraphs, Plaintiff vaguely contends that Defendants are separate parts of one identical entity and that the acts of one must be deemed to be the acts of all. However, there is no factual support in Plaintiff s Complaint for the conclusion that Defendants were the agents or employees of the other. Instead, the facts are to the contrary. This case involves three defendants-a public school district (MPESD), a county office of education (SCCOE), and an individual who was allegedly employed by SCCOE. As a matter of law, individuals who sexually abuse others are acting outside the scope of their employment. (John R. v. Oakland Unified School District (1989) 48 Cal.3d 438, 447-453.) Reply on Defendant MPESD 's Motion to Strike 2 10 12 13 14 15 16 17 18 19 20 21 22 23 24 Furthermore, Plaintiff admits that Defendant Padilla was not Defendant MPESD's employee. (Pl's Compl. $ 10.) These facts and legal principles do not support Plaintiff s contention that the three Defendants are separate parts of one identical entity and that the acts of one must be deemed to be the acts of all. Moreover, Defendant SCCOE also filed a demurrer and motion to strike with respect to essentially the same allegations in Plaintiffs Complaint. In the Court's tentative ruling, the Court agreed with Defendant SCCOE that Plaintiff failed to plead facts to support her claims that a fiduciary duty existed between Plaintiff and Defendant SCCOE. Accordingly, the Court stated that "[a]ll other references to a fiduciary or special relationship not contained in this cause of action are consequently stricken." Here, like Defendant SCCOE, Defendant MPESD similarly contends that the Plaintiff s Complaint alleges insufficient facts to support her conclusory claims that MPESD owed her a fiduciary duty or was otherwise in a special relationship with her. The same reasoning should apply to the vague and conclusory paragraphs in Plaintiffs complaint stating that Defendants were the agents or employees of the other-specifically paragraphs 9, 11, 12, and 58. Plaintiff appears to argue in her Opposition, without citing any facts from her Complaint, that Defendant MPESD "ratified" the conduct of the other defendants. (Pl's Opp., 4:20-5:9.) Plaintiff ultimately falls back on her argument that "[w]hether an employer has ratified an employee's conduct is generally a factual question." (Pl's Opp., 5:4-5.) But in this case, there is no employer-employee relationship between Defendant MPESD and Defendant Padilla. Instead, Plaintiff concedes that Defendant Padilla was Defendant SCCOE's employee. (Pl's Compl, $10.) There are no facts in Plaintiff's Complaint to show how a school district like Defendant MPESD "ratified" Padilla's actions when Padilla was not its employee. The lack of factual or legal support for Plaintiff s conclusory allegations is enough reason to strike Plaintiff s allegations in Paragraphs 9, 11, 12, and 58. Defendant MPESD respectfully requests that the Court do so here. 27 28 C. Treble damages under C.C.P. section 340.1 are not properly asserted against Defendant MPKSD under Gov. Code section 81S. Government Code section 818 provides that "[n]otwithstanding any other provision of law, public entity is not liable for damages awarded under Section 3294 of the Civil Code or othe SPINELLI, DONALD & NOTT Reply on Defendant MPESD 's Motion to Strike 3 10 12 13 14 15 16 17 19 20 21 22 23 24 25 damages imposed primarily for the sake of example and by way of punishing the defendant.'laintiffs Opposition reviews case law pertaining to Government Code Section 818 at length, bu ultimately misapplies it. The case law does not support Plaintiff s position that she is entitled to treble damages under Code of Civil Procedure section 340.1 against a public entity and the mos recent case authority explicitly states that "section 340.1 does not have a compensatoryfunction'nd that a public entity is "immune from these enhanced damages under section 818." (Los Angeles Unified School District v. Superior Court (2021 WL 2024615.)'laintiffs Opposition relies most heavily on Los Angeles County Metropolitan Transp. Authority v. Superior Court (2004) 123 Cal.App.4th 261 and concludes that "[t]he Court recognize that civil penalties are not punitive for section 818 purposes if some other remedial purpose exists and thus the penalty is not simply and solely intended to punish the defendant." (Pl's Opp. p. 6:12- 14.) While that case did indicate that civil penalties can be sustained against a public entity if suc penalties primarily serve a compensatory function, that is not the case with respect to the trebl damages under C.C.P. section 340.1. Treble damages go even farther than mere "civil penalties" an serve primarily if not solely a punitive function. Thus, treble damages cannot be reasonabl analogized to the "civil penalties" at issue in Los Angeles County Metropolitan Transp. Authority. Plaintiff also cites People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30. That cas was also about "civil penalties," but for oil spills provided for in the Water Code. Thus, the case ha nothing to do with treble damages which are far more punitive in nature and are primarily punitive i nature compared to the civil penalty at issue in Younger. The same can be said about Kizer v. Coun of San Mateo (1991) 53 Cal.3d 139 which concerned "civil penalties" pursuant to the Health 2 Safety Code and not treble damages. Neither Los Angeles County Metropolitan Transp. Authority, Younger, Kizer, nor any of the cases cited by Plaintiff in her Opposition have anything to do wit treble damages like those under C.C.P. section 340.1. Thus, these cases are distinguishable to th case at hand on their face. 26 27 28 'his case was decided after MPESD filed its Motion to Strike. SPINELLI, DONALD & NOTT Reply on Defendant MPESD 's Motion to Strike 4 10 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 28 SPINELLI, DONALD k NOTT Plaintiff argues that Assembly Bill 218 serves the purpose of "expand[ing] the statutes o limitations to permit access to courts by victims of childhood sexual abuse." (Pl's Opp., 8:14-16.) But treble damages under section 340.1 does not serve this purpose. While the expansion of th statute of limitations period permits greater access to the courts by victims of childhood sexual abuse, the imposition of treble damages does not. Indeed, the same access to the courts can b allowed with or without the imposition of treble damages - Plaintiff s case will go on after the Cou strikes the treble damage claim. Therefore, expanding access to courts cannot rationally be said to b the primary purpose behind treble damages under C.C.P. section 340.1. Rather, treble damages fro that C.C.P. section 340.1 are primarily, ifnot solely punitive in nature. Plaintiff also contends that C.C.P. section 340.1 also helps to "prevent future assaults b raising the costs for this abuse." (Pl's Opp., 8:21). But the prevention or deterrence of future assault falls directly in line with the very definition of "punitive damages." Punitive damages "operate as 'private fines'ntended to punish the defendant and to deter future wrongdoing," whereas compensatory damages "are intended to redress the concrete loss that the plaintiff has suffered b reason of the defendant's wrongful conduct." (Cooper Industries, Inc. v. Leatherman Tool Group, Inc. (2001) 532 U.S. 424, 432.) The treble damages at issue here are far more similar to the forme as opposed to the latter. Thus, Plaintiff s claim that the treble damages under C.C.P. section 340.1 helps to "prevent future assaults by raising the costs for this abuse" lends further support to th classification of these treble damages as primarily punitive in nature. Importantly, in May 2021, the case Los Angeles Unified School District v. Superior Cour (2021 WL 2024615) was published. That case squarely and thoroughly assessed the very sam issues that are raised on this motion-whether Government Code section 818 precludes an award o treble damages under Code of Civil Procedure section 340.1 against a public entity. The Court i LA USD concluded that such treble damages were precluded under section 818. The plaintiff in LAUSD made the very same arguments that the Plaintiff Jane McDoe makes here. In LA USD, the Court of Appeal thoroughly reviewed C.C.P. section 340.1's legislative histo and conclusively determined that such treble damages are primarily punitive in nature, and therefor cannot be brought against a public entity. (Id. at 11.) The Court in LAUSD could discern no Reply on Defendant MPESD 's Motion to Strike 5 10 12 13 14 15 16 17 18 19 20 21 22 uncompensated injury or unfulfilled right to compensation "for which normal tort damages fail to provide full compensation." (Id. at 7.) The court reasoned that "damages to compensate fo [psychological trauma from sexual assault] are by no means unquantifiable, nor are they unavailabl to the victim under normal tort damages principles." (Id.) In other words, there is nothing that is compensated for that is included C.C.P. section 340.1's treble damages that would not already b included under normal tort damages principles. This highly suggests that C.C.P. section 340.1 i primarily punitive in nature. The court concluded that "[b]ecause the treble damages provision unde section 340.1 plainly is designed to punish those who cover up childhood sexual abuse and thereb to deter future cover ups, rather than to compensate victims, the imposition of these damages is primarily punitive under section 818." (Id.) The Court of Appeal in MUSD found several distinctions between the civil penalties at issue in Kizer and treble damages under section 340.1. (Id. at 10.) Unlike the civil penalties such as those in Kizer, to obtain treble damages under section 340.1, a plaintiff must prove she suffered actual harm, whereas civil penalties require no showing of actual harm per se. (Id.) In other words, it is not until compensatory damages are already found that the possibility of treble damages is triggered under section 340.1. And even when actual harm is found under section 340.1, civil damages are imposed at the discretion of the fact finder, implying that the treble damages under section 340.1 are meant to be an expression of moral condemnation. (Id.) For all of these reasons, the treble damages under section 340.1 were held to be punitive in nature and distinguishable from mere civil penalties identified in cases like Kizer. IA USD is on all fours with Defendant MPESD's motion to strike. As a result, a similar conclusion should be reached here that treble damages are not available against Defendant MPESD. 23 24 26 27 28 D. There Are Insufficient Facts in Plaintiff's Complaint to Support Treble Damages Under Section 340.1. Finally, Plaintiff s Complaint does not plead facts showing that she should be entitled to treble damages under C.C.P. section 340.1. There are no factual allegations, only legal conclusions, that Defendant MPESD engaged in a "cover up" of Defendant Padilla's conduct. The only references at all to an alleged "cover up" by Defendant MPESD are in paragraphs 56 and 58, which SPINELL1, DONALD & Norr Reply on Defendant MPESD 's Motion to Strike 6 10 12 13 14 15 16 17 18 contain no specific facts to support the Plaintiff s allegations. Because Plaintiff's claims that Defendant MPESD engaged in a "cover up" are merely conclusory and not factually unsupported, Plaintiff's claims for treble damages under C.C.P. section 340.1 should be stricken from her Complaint. III. CONCLUSION There are numerous allegations in Plaintiffs Complaint that should be stricken. First, Plaintiff's claims that Defendant MPESD had an agency or employment relationship with Defendants SCCOE and Defendant Padilla are entirely unsupported by facts. Plaintiff s Complaint states that Defendant Padilla was Defendant SCCOE's employee, not an employee of Defendant MPESD. If Plaintiff contends that Defendant MPESD otherwise ratified or controlled Defendant Padilla, then Plaintiff must allegefacts, not mere conclusions, supporting such a contention. She has not done so in her Complaint. Second, Plaintiff s claims for treble damages are unsupported by both facts and recent case law, including MUSD, which squarely decides the very issues presented here with respect to C.C.P. section 340.1. Because the treble damages under C.C.P. section 340.1 are primarily punitive in nature and because Plaintiff has failed to state facts to support a cover up under that section by Defendant MPESD, Plaintiff s claims for such treble damages should be stricken. For all of these reasons, Defendant MPESD respectfully requests that this Court grant its motion to strike. 19 20 Dated: June 15, 2021 SPINELLI, DONALD k, NOTT 21 22 23 24 By: ROSS R. NOTT Attorneys for Defendant MOUNT PLEASANT ELEMENTARY SCHOOL DISTRICT 26 27 28 SPINELLI, DONALD 4 Norr Reply on Defendant MPESD 's Motion to Strike 7 PROOF OF SERVICE COURT: CASE NO.: CASE NAME: Superior Court of California, County of Santa Clara 20CV374714 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 I am readily familiar with Spinelli, Donald Ez, 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.) On June 15, 2021, I caused the within, Reply on 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: 15 16 17 18 20 21 22 23 Morgan A. Stewart mstewart mani stewart.com Saul E. Wolf swolf mani stewart.com Christina J. Nolan cnolan mani stewart.com Manly, Stewart & Finaldi 19100 Von Karman Avenue, Suite 800 Irvine, CA 92612 Mark E. Davis Eric J. Bengtson Davis & Young, APLC 1960 The Alameda, Suite 210 San Jose, CA 95126 Counselfor Plaintiff Counselfor Santa Clara Co. Office of Education 25 669/245-4200 408/985-1814 eric davis oun law.corn 27 28 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 SPINELLI, DONALD dr NOTT 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: IZI BY ELECTRONIC SERVICE- I caused such document to be electronically served to the above 10 I declare under penalty of perjury under the laws of ate of California that the foregoing is true and correct. Executed on June 15, 2021, at Sacrame to, alifornia. 12 13 She yL. Graje a 14 15 16 17 19 20 21 22 23 24 25 26 27 SPINELLI, DONALD Ec NOTT