Response Reply

Cal. Super. - 6th Dist.March 29, 2021

COOONQO‘l-wa-A NNNNNNNNNAAAAAAAAAA OOVODCh-waAOOmflmm-wa-AO 21 CV381442 Santa Clara - Civil A. Floresca Electronically Filed QERE’EEEIEETGEOSOQR’ Slit; Bar NO' 125850 by Superior Court of CA, 16501 Ventura Boulevard, Suite 610 county °f santa Clara! Encino, California 91436-2072 0n 1_1/19/2021 4:05 PM Telephone Number: (818) 784-6899 Rewewed By: A. Floresca Facsimile Number (818) 784-0176 Case #21CV381442 Envelope: 7707884 Attorneys for Defendants SERENO GROUP, INC. and NICHOLAS A. FRENCH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA BO WANG AND ALICIA WANG, Case N0. 21CV381442 Plaintiffs, [Assigned to the Hon. Peter H. Kirwan, Dept. 19] VS. DEFENDANTS SERENO GROUP, INC. AND NICHOLAS A. FRENCH’S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE PORTIONS 0F PLAINTIFFS’ COMPLAINT DATE: November 30, 2021 TIME: 9:00 a.m. DEPT: 19 Action filed: March 29, 2021 SERENO GROUP, lNC.; NICHOLAS A. FRENCH; and DOES 1 THROUGH-SO, inclusive, vvvvvvvvvvvvv Defendants. Defendants SERENO GROUP, INC. and NICHOLAS A. FRENCH (herein collectively “SERENO”), submit the following Reply Brief in support of Motion to Strike Portions of the Complaint filed by Plaintiffs BO WANG AND ALICIA WANG (herein collectively referred to as “Plaintiffs”). 1. PLAINTIFFS INTRODUCTION MAY NOT BE CONSIDERED California law provides that because the pleadings establish the scope of an action, “absent an amendment to the pleadings, parties cannot introduce evidence about issues outside the pleadings.” Emerald Bav Communitv Assn. v. Golden anle 1 DEFENDANTS SERENO, INC. & FRENCH’S ’S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE OQOQNGU‘l-bOON-l NNNNNNNNNAJAAAAAAAA mVOUU‘l-th-‘OQQNGDUI-bOON-A Ins. Corp. (2005) 130 Cal. App.4th 1078, 1091; Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, 1214. The “Introduction” at pp. 1-3 that tries to influence this Court by arguing the merits of the case, but in a motion to strike the Complaint alone frames the Plaintiff’s allegations. The Introduction should be disregarded in its entirety. 2. PUNIT|VE DAMAGES ARE IMPROPERLY ALLEGED AGAINST SERENO AND SHOULD BE STRICKEN “Punitive damages are never awarded as a matter of right . . . They are not favored by the law and they should be granted only with the greatest of caution. . . They will be allowed only in the clearest of cases.” Henderson v. Securitv National Bank (1977) 72 Cal. App.3d 764, 771. As against SERENO GROUP, INC., the Opposition does not address that no person in management at SERENO GROUP, INC. is even named in the Complaint let alone that said management person had knowledge of a fraud committed by NICHOLAS FRENCH. Against a corporation, a plaintiff must set forth the advanced knowledge, conscious disregard, authorization, ratification or act of oppression, fraud or malice must be on the part of an officer, director, or managing agent of the corporation. Civil Code § 3294 (b); Scannell v. Countv of Riverside (1984) 152 Cal. App.3d 596, 614. Corporate ratification in the punitive damages context requires “actual knowledge of the conduct and its outrageous nature” by a managing agent and for purposes of determining corporate liability for punitive damages, “a corporation cannot ratify that which it does not actually know about.” Colleqe Hospital. Inc. v. Superior Court (1994) 8 Ca|.4th 704, 726; Cruz v. HomeBase (2000) 83 Cal. App.4th 160, 168. As held in gig; “Turning to Cruz’s theory that HomeBase ratified Kinsel’s misconduct, “ratification” is the “[c]onfirmation and acceptance of a previous act.” (Black’s Law Diet, supra, p. 1268.) A corporation cannot confirm and accept that which it 2 , DEFENDANTS SERENO, INC. & FRENCH’S ’S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE COWNIOUU'IAOJNA NNNNNNNNNQAAAAAAAAA mNODCH$QDNAOCOmNCDCflAwNAO does not actually know about. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726 [34 Ca|.Rptr.2d 898, 882 P.2d 894] [for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character].” In College Hospital the plaintiff named the corporate official as Westbrook as he was the person in management who ratified the misconduct by employee Berry. Herein, no one in management is named as the only person who allegedly committed misconduct who is named is NICHOLAS FRENCH. In College Hospital, the Court held as follows: “As a matter of law, plaintiffs have not established malicious conduct by Westbrook. The proposed amended complaint and the evidence submitted under section 4.2513(3) do not show Westbrook knew or possessed information indicating that Berry was engaged in harmful activities towards plaintiffs. Specifically, such materials do not show that Westbrook was aware that the rumored relationship between Berry and Laura was sexual or destructive, that Berry had been involved in a prior relationship with a patient (destructive or otherwise), or that Berry lied when confronted with the rumor about Laura. As a result, plaintiffs have necessarily failed to state or demonstrate that Westbrook intended to injure plaintiffs or willfully disregarded their safety and well-being by accepting Berry’s denial. For similar reasons, no vile or ‘despicable’ conduct by Westbrook appears from the face of the proposed complaint or the evidence before us. Plaintiffs also have not established that Westbrook ‘ratified’ Berry’s conduct under Civil Code section 3294, subdivision (b). (10) For purposes of determining an employer’s liability for punitive damages, ratification generally occurs where, under the particular circumstances, the employer demonstrates an intent to /// 3 DEFENDANTS SERENO, INC. & FRENCH’S ’S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE O(Dm‘dOU‘l-wa-k NNNNNNNNNAA-xg-sgggag mflmmwaAOOmNmmLWN-A adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties.” (pp. 725-726). Consequently, the Court held that “Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature. Under no view of the proposed amended complaint or the evidence submitted under section 425.1 3(a) can Westbrook’s conduct be characterized as ratification.” (pp. 726-727). As against SERENO GROUP, INC. and NICHOLAS FRENCH, Civil Code § 3294(0): (1) “Despicable conduct used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers t0 circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” Colleqe Hospital. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725. As held in American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal App. 4th 1017, 1050---“Despicable conduct" has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been describe?[having] the character of outrage frequently associated with crime.”«dws NICH LAS FRENCH’s alleged misconduct does not amount to the misconduct of a character of outrage frequently associated with crime. The gravamen of the Complaint is that the Plaintiffs relied on non-attorney real estate agent NICHOLAS FRENCH that they were “fully in the right with a 3-day right or recision” when they should not have done so. (See Complaint, pp. 4-5, paras. 16-18). Therefore, the Complaint does not allege misconduct the character of outrage frequently associated with crime, so the Plaintiffs have failed to satisfy the stringent pleading requirements for an award of punitive damages. All references to punitive damages should be stricken against SERRENO GROUP, lNC. on two grounds and against NICHOLAS FRENCH on one ground. /// /// /// 4 DEFENDANTS SERENO, INC. & FRENCH’S ’S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE ommflmm-th-A NNNNNMNNN44444A4444 mNODW-DCDNAOCOmNOOT-bWN-A 3. THE SECOND CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD DOES NOT SUPPORT PUNITIVE DAMAGES AND PUNITIVE DAMAGES SHOULD BE STRICKEN WITHOUT LEAVE TO AMEND The Motion directed to the Second Cause of Action is moot if this Court grants SERRENO’S Motion directed to the entire Complaint. Constructive fraud also does not support punitive damages. Pursuant to 1 Within, Summary of California Law, Tenth Edition, Contracts § 294, Witkin (June 2016 update), VII. Reality and Freedom of Consent, Constructive Fraud: “Constructive fraud consists of (1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; (2) any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (C.C. 1573.) Based on the express terms of the statute, there is authority that punitive damages cannot be awarded for a constructive fraud, in the absence of actual fraud. l_d_; __D__e_!__o__§__\_/_; Farmers Group, Inc. (1979) 93 Cal. App. 3d 642, 656-657. The Opposition claims that NICHOLAS FRENCH allegedly committed fraud. The fact is that the Complaint does not plead fraud against NICHOLAS FRENCH. Punitive damages should be stricken from the Second Cause of Action, without leave to amend, as constructive fraud does not support punitive damages. 4. CONCLUSION Based upon the foregoing, SERENO requests that the court strike Plaintiffs’ claim for punitive damages as set forth above. DATED: September 19, 2021 SPILE, LEFF & GOOR, LLP ‘ I By: ANDREW LE/F, ESQ”V Attorneys for Defendants SERENO GROUP, INC. and NICHOLAS A. FRENCH 5 DEFENDANTS SERENO, INC. & FRENCH’S ’S REPLY BRIEF IN SUPPORT 0F MOTION TO STRIKE OOOOVODU'l-th-A NMNNNNNNNAAAAA-xggég OOVGUI-wa-AOCQOOVOU‘ILOONA PROOF OF SERVICE STATE OF CALIFORNIA ) )§ COUNTY OF LOS ANGELES ) I am employed in the County of Los Angeles, State of California. 1am over the age of 18 and not a party to the within action. My present business address is 16501 Ventura Boulevard, Suite 610, Encino, California 91436. On November 19, 2021, I served a true and correct copy 0f the document described as DEFENDANTS SERENO GROUP, INC. AND NICHOLAS A. FRENCH’S REPLY BRIEF IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ COMPLAINT 0n the interested parties, as follows: Eric T. Hartnett Esq. 563 Murphy Ave. Sunnyvale, CA 94086 Telephone: (408) 290-8228 Email: ehartnett@erichartnettlaw.com Attorneyfor Plaintifi’ BY HAND DELIVERY By Third Party, Ace Messenger and Attorney Service, Inc. BY FACSIMILE TRANSMISSION: By use of facsimile machine telephone number (8 1 8) 784-0176, in accordance With Code of Civil Procedure §1013(e) and California Rules of Court 20008(e), to the within parties at the facsimile number(s) indicated. This transmission was repofied as complete and without error, and a copy 0f the transmission report which was issued by the transmitting facsimile machine is attached to the original hereof. E BY UNITED STATES POSTAL SERVICE: lam “readily familiar” With the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course 0f business. BY NEXT DAY BUSINESS DELIVERY: I am “readily familiar” With the firm’s practice 0f collection and processing documents for delivery Via Federal Express Overnight Mail. Under that practice it would be deposited in the Federal Express Service drop-off box on that same day prior to the 5:00 p.m. pick-up time for delivery the next business day in the ordinary course 0f business. BY E-MAIL ELECTRONIC: from our firm’s Microsoft Outlook e-mail system for delivery t0 the above e-mail addresses, read receipt requested. E (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 19, 2021 at Encino, California. [77” @J/{Zéff fl/‘j' a Jax'wzw f Barbara Birlew 1 Proof of Service