Opposition ObjectionsCal. Super. - 6th Dist.March 25, 2021Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 KOOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381 328 Santa Clara - Civil RONALD R. ROSSI (SBN 43067) MISSY M. CORNEJO (SBN 281242) MADELEINE W. DOUGLASS (SBN 280574) ROSSI, HAMERSLOUGH, REISCHL & CHUCK 1960 The Alameda, Suite 200 Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/15/2021 12:31 PM Reviewed By: F. Miller Case #21 CV381 328 Envelope: 7270642 San Jose, CA 95126-1493 Tel: (408) 261-4252 Fax: (408) 261-4292 ron@rhrc.net miss rhrc.net madd rhrc.net Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED CIVIL CASE ROBERT C. SANNER and BARBARA MOOR SANNER, Trustees 0f The Robert and Barbara Sanner Family Trust 0f 1983, dated December 28, 1983, Case No.2 21CV381328 PLAINTIFFS’ OPPOSITION TO SYED AON MUJTABA'S MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES Plaintiffs, FROM COMPLAINT FOR NUISANCE vs. Date: September 28. 2021 SYED AON MUJTABA, Trustee of The Time: 9:00 am. Syed Aon Mujtaba Revocable Trust; and Dent; 7 DOES 1-10, inclusive, Judge: Hon. Christopher G. RudV Defendants. Action Filed: March 25. 2021 Trial Date: Not set. PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. FACTUAL BACKGROUND ............................................................................................. 1 III. LEGAL ARGUMENT ........................................................................................................ 4 A. PLAINTIFFS HAVE ALLEGED SUFFICIENT FACTS TO SUPPORT A CLAIM OF PUNITIVE DAMAGES ..................................................................... 4 B. THE AUTHORITY CITED BY DEFENDANT IS INAPPLICABLE AND THE MOVING PAPERS ARE BEREFT OF ANALYSIS .......................... 8 C. EVEN IF THE PLEADING IS INSUFFICIENT, PLAINTIFFS SHOULD BE GRANTED LEAVE TO AMEND AS THEY CAN EASILY ALLEGE ADDITIONAL FACTS TO DEMONSTRATE MALICE .................. 10 IV. CONCLUSION ................................................................................................................. 12 PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE i DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES M Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826 ................. 5 Carney v. Simmonds (1957) 49 Cal.2d 84 ..................................................................................... 4 Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253 ........................................................... 4 College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 .................................................... 5 G.D. Searle Ins. C0. v. Superior Court (1975) 49 Cal.App.3d 22 ............................................... 5 Grieves v. Superior Court (1984) 157 Cal. App. 3d 159 .............................................................. 5 Grieves v. Superior Court (Fox) (1984) 157 Cal.App.3d 159 .................................................... 10 James v. Herbert (1957) 149 Cal.App.2d 741 .............................................................................. 5 Lackner v. North (2006) 135 Cal.App.4th 1188 ........................................................................... 9 Mange v. Superior Court (1986) 176 Cal. App. 3d 503 ............................................................... 4 Perkins v. Superior Court (1981) 117 Cal.App.3d 1 .................................................................... 5 Price v. Dames & Moore (2001) 92 Cal.App.4th 355 .................................................................. 5 Richardson v. Employers Liab. Assur. Corp. (1972) 25 Cal.App.3d 232 .................................... 6 Tomaselli v. Transamerica (1994) 25 Cal.App.4th 1269 ............................................................. 8 Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761 ........................................................................... 4 STATUTES C.C.P. §437 ................................................................................................................................... 4 C.C.P. § 437 ................................................................................................................................... 1 C.C.P. § 452 ................................................................................................................................... 4 Civil Code § 3294 .................................................................................................................. 5, 6, 9 PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE ii DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant Syed Aon Mujtaba (“Defendant”)’s motion t0 strike is based upon his own misconstrued version 0f the facts, not upon the facts as pleaded in the Complaint. In considering the Motion t0 Strike, Plaintiffs are entitled t0 have this Court assume that the facts as alleged in the Complaint are true. In considering the facts as pleaded in the Complaint, Plaintiffs have stated a claim for punitive damages given Defendant’s malicious conduct, which is in knowing disregard 0f Plaintiffs’ rights. In sum, Defendant purchased his property in 20 1 8 knowing that the subj ect trees were causing damage t0 Plaintiffs’ property, subsequently agreed t0 remove the trees, then refused t0 pay for the damage and fought Plaintiffs every step 0f the way - even going so far as misleading the City 0f Palo Alto so as t0 avoid removing the trees. Meanwhile, Plaintiffs continue t0 suffer the consequences 0f the nuisance and Defendant’s refusal t0 abate same. These facts amount t0 malice, and the motion t0 strike should be denied. Even if this Court is inclined to grant the motion t0 strike, Plaintiffs request leave t0 amend. Plaintiffs can easily allege additional facts which bolster the claim for punitive damages as explained below. II. FACTUAL BACKGROUND The facts as presented in Defendant’s introduction are not based 0n the Complaint, or even in reality, but rather are Defendant’s own version 0f the facts. (See Moving Papers at p. 3- 4.) For this reason, Defendant conveniently does not cite t0 the Complaint itself. This is not a trial 0r evidentiary hearing and Defendant’s own version 0f the facts is inappropriate for the Court to consider in deciding a motion to strike. See C.C.P. § 437. Plaintiffs therefore submit the following factual background based upon the allegations in the Complaint for the Court’s proper consideration in the context 0f the instant motion to strike: Plaintiffs own 3925 E1 Cerrito Road in Palo Alto, California (the “Sanner Property”). (Complaint at 1] 1.) Defendant Syed Aon Mujtaba, Trustee of The Syed Aon Mujtaba Revocable Trust (hereinafter “Defendant” 0r “Mujtaba”) owns 975 Shauna Lane in Palo Alto, California (the “Mujtaba Property”). (Id. at 1] 2.) Several decades ago, Defendant’s predecessors planted three (3) sequoia sempervirens PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 1 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trees (the “Trees”) along the common boundary between the Sanner Property and the Mujtaba Property. The Trees now range from approximately ninety (90) feet to one hundred and five (105) feet tall. (Id. at 1] 6.) The largest tree is located approximately thirteen (13) feet from the Sanners’ home and the other two trees are between nine (9) and ten (10) feet from the home. (Id. at 11 6.) The trunk of the largest tree is six (6) t0 eight (8) feet from the fence on the boundary between the two properties, the trunks of the smaller two are less than one (1) foot from the fence. (Id.) Previously, the Sanners were forced t0 install a root barrier to stop the unchecked growth 0f the Trees’ roots. (Id. at 1] 8.) The roots had invaded the Sanner property, going under the landscaping, concrete, and into and under the foundation 0f the home and garage. (Id.) Roots had t0 be dug out, exposed and cut by hand. (Id.) This was a multi-month proj ect which cause a significant amount 0f stress for Plaintiffs. (Id.) Defendant’s predecessor admitted responsibility and tendered the claim t0 his insurance, which acknowledged liability and covered the costs, which were in excess 0f $84,000. (Id.) On information and belief, the root barrier along the side 0f the home and garage has approximately seven (7) t0 ten (10) years of life left. (Id.) Following these events, Defendant purchased the Mujtaba Property. (Id. at 1] 9.) Before purchase, it was disclosed t0 Defendant that the trees had been and are causing significant M. (Id.) Defendant went ahead and purchased the property anyway. (Id.) In Summer 2019, the roots damaged the Sanner’s sprinkler system closest to the largest tree. (Id. at fl 10.) The Sanners billed repair 0f this damage to Defendant, which he contested. (Id.) This was despite disclosures made at the time 0f Defendant’s purchase in 2018 about the nature of the trees and the damage they had caused. (Id.) Due t0 Defendant’s refusal t0 pay for the repairs, in October 2020 the Sanners were forced to take Defendant t0 small claims court. (Id. at 1] 11.) The Sanners prevailed and the small claims court ordered Defendant t0 pay for the repairs. (Id.) In Summer 2020 there were two additional instances of root damage t0 the Sanners’ sprinkler system. (Id. at 1] 12.) The Sanners billed Defendant for the repairs, which he refused t0 pay. (Id.) PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 2 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, in October 2020, Defendant filed with the City of Palo Alto an application for removal of the trees. (Id. at fl 13.) Appended thereto was an arborists report Which did n_0t reflect the damage caused by the trees t0 the Sanner Property. (Id.) The failure to mention the economic damage being caused to the Sanner Property was misleading and an example 0f Defendant’s bad faith. (Id.) What was presented t0 the city was substantially incomplete and, thus, inaccurate. (Id.) The removal application was rejected by the City. (Id.) The Trees litter and leave debris 0n the Sanner Property, unreasonably and significantly affecting the intended use of the property. (Id. at 1] 14.) Leaves, branches, and other detritus from the Trees, are deposited onto the Sanner Property. (Id.) Although the current chemical root barrier along the side 0f the home and garage appears s0 far t0 be effective, the roots have begun to grow away from the root barrier - towards the “path 0f least resistance” - and have begun to affect other portions 0f the Sanner Property away from the root barrier. (Id. at 1] 15.) The entire front yard, landscaping, and City water meter box are now damaged, with the strong potential t0 damage the in-ground swimming p001 and the City water line itself. (Id.) The growth of the Trees and their roots have caused and continues t0 cause damage t0 the Sanner Property, interfering with the Sanners’ use and enjoyment 0f their property. (Id.) The roots have caused cracking in the concrete flooring 0f the Sanner garage, extended underneath the foundation 0f the Sanners’ home, and lifted the pathway along the side 0f the home changing the flow of drainage towards rather than away from the home. (Id. at 1] 16.) The roots 0f the trees have now also damaged their landscaping choking their plants and damaging their sprinkler system adjacent to the largest tree. (Id.) As a result, the Sanners have had to repair the damage t0 their home, as well as repair and replace their sprinkler system and repeatedly replace their vegetation and landscaping. (Id.) On information and belief, the roots 0f the trees are affecting the Sanners’ City water meter box, and potentially the in-ground p001 and water line, which if unabated could cause significant damage. (Id. at fl 17.) The Trees and their roots have caused, and continue t0 cause, significant economic harm PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 3 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 the Sanner Property forcing the Sanners t0 make repeated and continued repairs to their property and improvements. (Id. at 1] 18.) On information and belief one 0r two additional root barriers may need t0 be installed at the front of the property on each side of the driveway at significant cost in order t0 mitigate the damage being caused t0 the Sanner Property. (Id.) Defendant has acknowledged that the Trees and their roots are causing damage t0 the Sanner Property, however, Defendant has refused t0 remove the offending Trees or to reimburse the Sanners for the repairs t0 the damage caused by the Trees. (Id. at fl 19.) Plaintiffs incorporate by reference the foregoing allegations into their single cause 0f action for nuisance (Id. atW 21-28) and seek punitive damages (Id. at 11 29). III. LEGAL ARGUMENT A. PLAINTIFFS HAVE ALLEGED SUFFICIENT FACTS TO SUPPORT A CLAIM OF PUNITIVE DAMAGES Motions to strike are disfavored, and pleadings must be “liberally construed, With a View t0 substantial justice between the parties.” C.C.P. § 452; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761 , 768-769. The grounds for a motion t0 strike must appear on the face 0f the challenged pleading 0r from matter subj ect t0 judicial notice. C.C.P. §437. In ruling 0n a motion t0 strike, the allegations 0f the challenged pleading are t0 be considered in context and their truth is assumed. “[J]udges read allegations 0f a pleading subject to a motion to stn'ke as a Whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255; see also Mange v. Superior Court (1986) 176 Cal. App. 3d 503, 5 10 [“In determining Whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint.”] (emphasis added). The California Legislature explicitly adopted a rule 0f liberal construction in C.C.P. § 452, which provides in full: “In the construction 0f a pleading, for the purpose 0f determining its effect, its allegations must be liberally construed, with a View t0 substantial justice between the parties.” This rule 0f liberal, yet reasonable, construction means that inferences are drawn favorable t0 the plaintiff, not the defendant. Carney v. Simmonds (1957) 49 Ca1.2d 84, 93; Advanced Modular PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 4 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sputtering, Inc. v. Superior Court (2005) 132 Ca1.App.4th 826, 835 [“pleadings are t0 be liberally construed in favor 0f the pleader”]. Additionally, as when a demurrer is sustained, there is a liberal policy ofamendment when a motion t0 strike is granted. Price v. Dames & Moore (2001) 92 Ca1.App.4th 355, 360; Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 168. As long as the defect is correctible, an amended pleading should be allowed. Grieves, supra, 157 Ca1.App.3d at 168; California Practice Guide: Civil Procedure Before Trial, supra, 1] 7 2203. Despite Defendant’s claim t0 the contrary, Plaintiffs are not required t0 plead their claim for punitive damages in minute and specific detail; they need only allege facts that give adequate notice 0f the basis for the claim. “When a defendant must produce evidence in defense of an exemplary damage claim; fairness demands that he [or she] receive adequate notice 0f the kind 0f conduct charged against him [0r her].” G.D. Searle Ins. C0. v. Superior Court (1975) 49 Ca1.App.3d 22, 29. When pleading punitive damages, a general allegation that the defendant is guilty of malice, fraud, 0r oppression, as defined in Civil Code § 3294, along with the details 0f the malice, oppression or fraud is sufficient. James v. Herbert (1957) 149 Ca1.App.2d 741, 750. It is true that conclusory allegations ofpunitive damages must be supported by allegations 0f fact in the complaint, but where a tort is properly pleaded, the prayer for punitive damages may be supported simply by pleading that the tort was committed willfully 0r With the design t0 injure. GD. Searle Ins. C0., supra, 49 Ca1.App.3d at 29 (1975) (citation omitted). Pleading in the language of the statute is not objectionable When sufficient facts are alleged to support the allegation. Perkins v. Superior Court (1981) 117 Ca1.App.3d 1, 6-7 (emphasis added). Civil Code § 3294 defines the type of conduct relevant to a punitive damages claim. “Oppression” is conduct that is despicable and that subjected the plaintiff t0 cruel and unjust hardship in knowing disregard ofhis 0r her rights. Civil Code § 3294. “Malice” refers t0 despicable conduct done With a willful and knowing disregard 0fthe rights 0r safety ofanother. Knowing disregard is established if the defendant is aware 0f the probable consequences 0f his conduct and deliberately fails t0 avoid those consequences. Civil Code § 3294; College Hospital, Inc. v. Superior Court (1994) 8 Ca1.4th 704, 725. “Fraud” means that a defendant intentionally PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 5 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 misrepresented 0r concealed a material fact and did so intending to harm Plaintiff. Civil Code §3294. Malice and oppression may be inferred from the circumstances 0f a defendant’s conduct. Richardson v. Employers Liab. Assur. Corp. (1972) 25 Ca1.App.3d 232, 245-46. Plaintiff properly pleaded all the elements entitling him t0 seek punitive damages. Defendant contends that “allegations 0f damage from the roots 0f the three subject redwood trees cannot by any stretch of the imagination rise to the extreme and outrageous despicable conduct necessary t0 withstand this challenge.” (See Motion at 8:24-26.) Defendant then has the audacity to claim that the only facts alleged by Plaintiffs in support punitive damages are at Paragraph 29 of the Complaint. Once again, Defendant creates his own version 0f reality and ignores the facts as pleaded in the Complaint, and ignores the detailed meet and confer letter sent by Plaintiffs’ counsel outlining all facts. Plaintiffs have introduced sufficient facts showing malice, oppression and fraud. Those facts are as follows: o Before defendant purchased his home it was disclosed to defendant that the trees have been and are causing significant issues (11 9.) o In Summer 201 9, the roots damaged the Sanners’ sprinkler system closest t0 the largest tree. The Sanners billed the repair 0f this damage to defendant, which he contested. This was despite disclosures made at the time 0f Defendant’s purchase in 201 8 about the nature of the trees and the damage they had caused. (fl 10.) o Due t0 the defendant’s refusal t0 pay for the repairs, in October 2020 the Sanners were forced to take defendant t0 small claims court. The Sanners prevailed and the small claims court ordered defendant t0 pay for the repairs. (fl 11.) o In Summer 2020 there were two additional instances 0f root damage t0 the Sanners’ sprinkler system. The Sanners billed defendant for the repairs, which he refiJsed t0 PaY- (1T 12-) 0 In October 2020, Defendant filed with the City of Palo Alto an application for removal 0f the trees. Appended thereto was an arborist’s report which did not reflect the damage caused by the trees to the Sanner Property. The failure t0 mention the PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 6 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 economic damage being caused to the Sanner Property was misleading and an example 0f Defendant’s bad faith. What was presented t0 the city was substantially incomplete and, thus, inaccurate. The removal application was rejected by the City. (1T 13 -) o Defendant has acknowledged that the Trees and their roots are causing damage to the Sanner Property, however, Defendant has refused to remove the offending Trees 0r t0 reimburse the Sanners for the repairs t0 the damage caused by the Trees. (1119.) o Defendant was aware 0f the damage t0 Plaintiffs’ property and rights caused by the Trees. Plaintiffs have asked Defendant to remove the Trees so as to allow Plaintiffs the ability t0 fully exercise their property rights. T0 date, Defendant has refused t0 abate the nuisance. (11 22.) 0 Defendant has threatened t0 and Will, unless restrained by this Court, continue t0 maintain the nuisance and continue the acts complained 0f, and each and every act has been, and Will be, Without the consent, against the will, and in Violation 0f the rights of Plaintiffs. (1] 23.) These allegations pertaining to the malicious acts 0f Defendant are not merely conclusory, but instead supported by factual allegations as t0 conduct by Defendant that is alleged t0 have been done With knowledge of its wrongfillness and With the intent t0 injure Plaintiffs and interfere with their property rights. In other words, Defendant purchased the property With knowledge of the trees and the damage they caused, has acknowledged responsibility for the trees, has acknowledged the damage that the trees caused and will cause, and yet has gone t0 every length t0 avoid responsibility for same, including making misrepresentations to the City 0f Palo Alto. Plaintiffs agree that it is insufficient t0 merely allege that Defendant acted with oppression, fraud 0r malice. Here, however, Plaintiffs have pleaded specific facts, and alleged that those acts were conducted with intent t0 injure. Plaintiffs’ complaint bridges the gap in terms of explaining how Defendant’s conduct was outrageous, malicious and committed with the intent t0 injure Plaintiffs. Plaintiffs are not obligated t0 plead anything further. Whether Plaintiffs Will be able t0 make the requisite showing t0 support such allegations is a matter beyond the scope 0f this motion PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 7 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 strike, and is not properly considered by this Court. Whether plaintiff021nm the allegations is t0 be decided at trial by the trier 0f fact, and not the pleadings stage 0f this case. Additionally, any alleged “inference” must be drawn favorable t0 plaintiffs, not defendant, as noted above. The factual allegations in Plaintiffs’ Complaint are sufficient t0 state a claim for punitive damages, and Defendant’s Motion t0 Strike should be denied. B. THE AUTHORITY CITED BY DEFENDANT IS INAPPLICABLE AND THE MOVING PAPERS ARE BEREFT OF ANALYSIS Defendant’s moving papers are hardly persuasive. Defendant presents t0 this Court over six (6) pages 0f case authority, yet the “analysis” is comprised of only 12 lines. (See Moving Papers at pp. 14-26.) This is insufficient and Defendant has not met his burden is demonstrating to this Court that the factual allegations are insufficient. Even setting aside Defendant’s fatal failure t0 apply the authority cited t0 the instant Complaint, the cases upon Which Defendant relies in his Motion t0 Strike are distinguishable, and in some instances actually support Plaintiffs’ position. Defendant cites Tomaselli v. Transamerica (1994) 25 Cal.App.4th 1269. First, this case is inapposite in that it involves the Court 0f Appeal’s consideration 0f an actual punitive damages award after a trial on the merits, as opposed t0 an analysis 0f a punitive damages claim in the context 0f a motion t0 strike. Second, Tomaselli is factually distinguishable in that it involved a bad faith insurance claim. The Court found (in considering the evidence) that while the actions 0f the appellant insurance company may be found t0 be negligent (failing to follow up information provided by the insured), overzealous (taking an unnecessary deposition under oath of the insured), legally erroneous (relying on an endorsement which was not shown to have been delivered), and callous (failing t0 communicate), there was nothing which could be described as evil, criminal, recklessly indifferent to the rights of the insured, or With a vexatious intention t0 injure. On those grounds, the award 0f punitive damages was reversed in its entirety. The same is not true in the instant case. Defendant was not merely negligent, overzealous, legally erroneous, or callous. Defendant purchased his property knowing that the PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 8 DAMAGES FROM COMPLAINT FOR NUISANCE 1 subj ect trees were causing damage t0 Plaintiffs’ property, subsequently agreed t0 remove the 2 trees, then refused to pay for the damage and fought Plaintiffs every step 0f the way - even going 3 so far as misleading the City of Palo Alto and making misrepresentations so as to avoid 4 removing the trees. Defendant has done so all t0 the sole detriment of Plaintiffs (and in complete 5 disregard for their rights), Whose property continues to be decimated by the very trees that 6 Defendant once agreed to remove. 7 Defendant also cites Lackner v. North (2006) 135 Ca1.App.4th 1188. Again, this case is 8 inapposite in that it involves the Court 0f Appeal’s consideration 0f a motion for summary 9 adjudication (i.e., an evidentiary motion) 0n the merits, as opposed t0 an analysis 0f a punitive 10 damages claim in the context 0f a motion t0 strike. 11 Second, Lackner is factually distinguishable in that the defendant there was involved in a 12 collision on a ski slope, and only engaged in reckless conduct. The Court there specifically 13 noted “Plaintiff has not cited any cases involving a collision where the court found the 14 defendant's conduct was despicable, and we have found n0 California cases 0n point.” (Id. at 15 1212.) And, more significantly, the Court noted: “Because punitive damages are imposed ‘for 16 the sake of example and by way of punishing the defendant’ (§ 3294, subd. (a)), they are 17 typically awarded for intentional torts such as assault and battery, false imprisonment, intentional 18 infliction of emotional distress, defamation, nuisance intentionally maintained, fraud, trespass, 19 conversion, civil rights Violations, insurer's breach of covenant of good faith, wrongful 20 termination and job discrimination, and products liability cases.” (Id. (emphasis added.)) 21 Here, as opposed t0 Lackner, Defendant Mujtaba is not an expert skier going down a 22 slope at a reckless speed (and, note that in Lackner the skier testified that he desperately tried to 23 avoid the collision but was unable t0 do s0). Instead, he is a homeowner who (1) purchased his 24 property with express knowledge 0f prior and existing damage t0 Plaintiffs’ property caused by 25 trees on his property, (2) made representations that he would remove the trees, (3) refused t0Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Sai“}fs§,°2A 26 remove the trees and pay for the resulting damage, and (4) submitted a misleading request for (4%5522‘2‘3392352 Fax (408) 261-4292 27 removal t0 the City of Palo Alto, knowing that it would be denied When he concealed the damage 28 t0 Plaintiffs’ property. And, Defendant is intentionally maintaining the nuisance (i.e., the PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 9 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 invasive and harmful trees) despite the foregoing. Unlike the defendant in Lackner, there was no effort by Defendant Mujtaba t0 avoid this situation. T0 the contrary, he made malicious misrepresentations not only to Plaintiffs but even to the City of Palo Alto to avoid liability and keep his trees - again, all t0 the extreme detriment of Plaintiffs and in complete disregard for their rights. The two cannot be compared. In sum, Defendant - in six pages of cited authority - has failed to produce even a single case supporting his position. On those grounds, the motion to strike should be denied. C. EVEN IF THE PLEADING IS INSUFFICIENT, PLAINTIFFS SHOULD BE GRANTED LEAVE TO AMEND AS THEY CAN EASILY ALLEGE ADDITIONAL FACTS TO DEMONSTRATE MALICE The facts as currently pleaded are sufficient. Even if this Court is inclined t0 disagree, however, Plaintiffs can easily allege additional facts t0 correct any defect. The same liberal policy regarding amendment 0f pleadings applies t0 the denial 0f a motion t0 strike as 0n sustaining demurrers. As long as the defect is correctible, an amended pleading Will usually be allowed. See Grieves v. Superior Court (Fox) (1984) 157 Cal.App.3d 159, 168. The additional facts that Plaintiffs can allege include, but are not limited t0, the following: o On March 6, 2018, and in relation t0 Mujtaba’s contemplated purchase 0f his property, Plaintiffs gave a notice to the listing agent of the property, Michael Repka, advising of the issues with the trees. Defendant received this document. Between March 6, 2018 and March 22, 2018, there was no effort by Defendant or any of his agents to contact Plaintiffs to discuss this material issue. Defendant closed the transaction With knowledge 0f the trees and the damage they were causing the Plaintiffs’ property, all with n0 intention 0fremoving the trees and 0r paying for damage caused t0 Plaintiffs’ property. o On March 14, 2018, and in relation t0 Mujtaba’s purchase 0f his property, the listing agent for the Mujtaba Property, Michael Repka (Who is also a licensed attorney) sent an email t0 Mujtaba’s agent, Ms. Saba Nazar, just eight (8) days before close 0f escrow. In this email, and in express acknowledgement by all PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 10 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 parties involved as to the issues With the trees and damage caused by them, Michael Repka offered t0 indemnify Mujtaba for a period 0f three (3) years for any issues related t0 the tree removal. Mr. Repka explicitly stated: “I understand your concern that [Plaintiffs] could come back in a year 0r two and ask for the tree t0 be removed.” Mujtaba agreed, yet still has refused t0 acknowledge the damage t0 Plaintiffs’ property and pay for same. Mujtaba - desperate to close escrow - chose to fly blind, save some arborist fees, and rely instead 0n the short period 0f indemnity provided by the listing agent. Defendant performed these acts with (1) n0 intention 0f removing the trees and (2) no intention 0f ever paying for damage caused t0 Plaintiffs’ property. Defendant made a representation t0 Plaintiffs in August 2019 that he wanted t0 and would fully remove the subj ect trees, but did not d0 so. Defendant informed Plaintiffs Within a week that he had no intention ofmoving the trees and would not pay for any damage caused thereby. He continues t0 refuse t0 date. In August 2019, Defendant admitted in writing that the trees have caused damage to Plaintiffs’ property. In August and September 2020, Plaintiffs contacted Defendant about new damage to Plaintiffs’ property. Defendant refused t0 respond in any manner. Plaintiffs informed Defendant in August or September 2020 that they had incurred tremendous damage to their plants, that they suspected it was caused by the redwood roots, and would need t0 d0 an excavation in Plaintiffs’ front yard to confirm the trees were the cause of the damage and repair the damage. Defendant asked Plaintiffs t0 postpone this excavation until after the small claims hearing in October 2020. In January 2021, Defendant informed Plaintiffs would not remove the trees, but promised t0 pay for any damage t0 Plaintiffs’ property using his insurance. Plaintiffs then proceeded with the excavation. Defendant thereafter refused t0 pay for damage in the amount of $42,000.Defendant PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 11 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 promised Plaintiffs in August 2019 that he would pay for repairs t0 cure damage to Plaintiffs’ property, but has not done so. o Defendant ordered from the City of Palo Alto and submitted t0 the Court a misleading request for removal 0f the trees in which Defendant intentionally omitted any reference t0 the damage t0 Plaintiffs’ property, despite knowing and acknowledging same previously. For the foregoing reasons, Plaintiffs respectfully request that even if this Court is inclined t0 grant the motion t0 strike that Plaintiffs be granted leave t0 amend. IV. CONCLUSION Plaintiffs have adequately pleaded their claim for punitive damages, and respectfully request that this Court deny Defendant’s Motion t0 Strike. Even if this Court is inclined to grant the motion t0 strike, Plaintiffs respectfully request that they be granted leave to amend for the reasons set forth above. Dated: September 15. 2021 ROSSL HAMERSLOUGH. REISCHL & CHUCK BY: Av/Mbwv M. Corneio RONALD R. ROSSI, ESQ. MISSY M. CORNEJO, ESQ. MADELEINE W. DOUGLASS. ESQ. Attorneys for Plaintiffs ROBERT C. SANNER and BARBARA MOOR SANNER, Trustees of The Robert and Barbara Sanner Family Trust 0f 1983. dated December 28. 1983 S:\CL\R\R21041\PLEADINGS\MUJTABA MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES\OPPO\OPPO MPA - CLEAN [09-10- 202 1 ].DOCX PLAINTIFFS’ OPPOSITION TO DEFENDANT‘S MOTION TO STRIKE CLAIM FOR PUNITIVE 12 DAMAGES FROM COMPLAINT FOR NUISANCE Rossi, Hamerslough, Reischl & Chuck 1960 The Alameda Suite 200 San Jose, CA 95 126-1493 (408) 261-4252 Fax (408) 261-4292 KOOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA: I, the undersigned, state that I am a citizen 0f the United States and am employed in the County of Santa Clara; that I am over the age 0f eighteen (18) years and not a party t0 the within action; and that my business address is 1960 The Alameda, Suite 200, San Jose, CA 95126-1493. On the date set forth below, I served the following documents: PLAINTIFFS’ OPPOSITION TO SYED AON MUJTABA'S MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE on the person(s) listed below: John R. Brydon, Esq. Dalen Saludes, Esq. Amber Lee Kelly, Esq. DEMLER, ARMSTRONG & ROWLAND, LLP 101 Montgomery Street, Suite 1800 San Francisco, CA 94104 Facsimile: (415) 354-8380 Emails: bg@darlaw.com; alk@darlaw.com Attorneys for Defendant Syed Aon Mujtaba, Trustee 0f the Syed Aon Mujtaba Revocable Trust D (BY MAIL) I enclosed documents in sealed envelope(s) or package(s) addressed to the persons at the addresses listed above and placed said envelope(s) 0r package(s) for collection and mailing following Rossi, Hamerslough, Reischl & Chuck’s ordinary business practices, with which I am readily familiar. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, with postage thereon fully prepaid. (BY ELECTRONIC TRANSMISSION) Pursuant t0 C.C.P. §1010.6, by my contemporaneous submission herewith to a Court-approved electronic filing service provider, I caused said document(s) t0 be transmitted by electronic transmission on this date to the electronic service address(es) 0f the addressee(s). A true and correct copy 0f said provider’s electronic notification of service [C.C.P. §1010.6(a)(1)(C)] Will be produced if requested by any party t0 the Within action 0r the Court. (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be transmitted by electronic mail service 0n this date t0 the offices 0f addressee(s), using the email addresses noted above. My email address is carmen@rhrc.net. (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed 0n September 15, 2021 at San Jose, California. /s/ Cawmm Me/mde/z/ CARMEN MENDEZ PLAINTIFFS’ OPPOSITION TO DEFENDANT'S MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES FROM COMPLAINT FOR NUISANCE
