Memorandum Points and Authorities

Cal. Super. - 6th Dist.April 1, 2021

5 7 Randall D. Gustafson, Esq. (SBN 115724) Katie C. Brach, Esq. (SBN 260136) Gabriella S. Burden, Esq. (SBN260136) LINCOLN, GUSTAFSON & CERCOS, LLP 550 West “C” Street, Suite 1400 San Diego, California 92101 (619) 233-1150 Telephone (619) 233-6949 Facsimile Attorneys for Defendant LUSARDI CONSTRUCTION COMPANY SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA HYATT CORPORATION, a Corporation; HYATT CENTRIC MOUNTAIN VIEW, a Corporation; OTO DEVELOPMENT, LLC, a Corporation; LUSARDI CONSTRUCTION COMPANY, a Corporation; SIMMONS GLASS & WINDOW, INC, a Corporation; DOES 1-100, inclusive; and MANUFACTURER DOES 1-100, inclusive, Defendants. TO ALL PARTIES AND TO THEIR Case No.: 21CV381458 Judge: Hon. Drew C. Takaichi Dept. 2 DEFENDANT LUSARDI CONSTRUCTION COMPANY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT Hearing Date Time: Dept: 2 Complaint Filed: Trial Date: ATTORNEYS OF RECORD: Defendant LUSARDI CONSTRUCTION COMPANY (“Lusardi”) respectfully submits the following Memorandum of Points and Authorities in Support of Lusardi’s Motion to Strike Portions of Plaintiff’s First Amended Complaint. I. INTRODUCTION Defendant Lusardi moves to strike post-accident photos and news articles of an unrelated incident from Plaintiff Tori D. Moses’ First Amended Complaint (“FAC”) on the grounds that they are irrelevant, improper, and serve no essential purpose to the allegations within the FAC. 1 1 2 3 4 6 TORI D. MOSES, an individual, Plaintiff, v. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 April 1, 2021 Not Set P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/20/2021 1:02 PM Reviewed By: V. Castaneda Case #21CV381458 Envelope: 7502621 21CV381458 Santa Clara - Civil V. Castaneda 1 Lusardi also moves to strike Plaintiff’s improper and factually devoid prayer for punitive 2 damages, restitution and/or disgorgement, and attorneys’ fees. Plaintiff has failed to allege conduct 3 that arises to the level of malice, fraud, or oppression required to claim punitive damages. Plaintiffs 4 prayer for restitution and/or disgorgement fails to allege specific facts warranting the imposition of 5 such damages against Lusardi. Finally, Plaintiff has failed to establish any factual, legal, or statutory 6 basis for attorney’s fees. 7 II. STATEMENT OF FACTS 8 A. Relevant Factual and Procedural Background 9 Plaintiff filed a Complaint on April 1, 2021, and a First Amended Complaint on June 14, 2021, 10 alleging causes of action for (1) Premises Liability; (2) Negligence; (3) Failure to Warn; (4) Breach of 11 Implied Warranty, Merchantability and Fitness. (See Plaintiff’s First Amended Complaint “FAC”; 12 RJN at ¶ 1). Plaintiff named Hyatt Corporation, Hyatt Centric Mountain View, OTO Development, 13 LLC, Lusardi Construction Company, Simmons Glass & Window, Inc., and Manufacturer DOES 1- 14 100 (collectively “Defendants”) (Id.). Plaintiff alleges that Lusardi was the general contractor, retained 15 to construct, design, and develop the hotel rooms for the construction of the Hotel (FAC ¶ 19). 16 Per the FAC, on August 7, 2020, Plaintiff Tori D. Moses was staying as a guest at the Hotel 17 (FAC ¶ 17). On the evening of August 7, Plaintiff had just finished using the shower in her room when 18 the tempered glass shower door shattered (FAC ¶ 24). As a result, Plaintiff fell to the ground, and 19 sustained injuries from the broken glass (Id.). Plaintiff alleges that she received medical treatment and 20 was unable to work for a period of time as a result of the accident (FAC 9[ 30). 21 Plaintiff maintains that all defendants had notice of the faulty glass as an incident occurred at 22 a Hyatt hotel in Newport Beach in 2018 where a patron was allegedly injured when the glass shower 23 door shattered (“Newport Beach Incident”) (FAC9[ 12). Plaintiff alleges that Defendants failed to take 24 any action to protect against foreseeable bodily injury that could occur to hotel guests. (FAC at ¶ 59). 25 B. Meet and Confer 26 On July 26, 2021, counsel for Lusardi met and conferred with Plaintiff’s counsel via a 27 telephone call pursuant to Code of Civil Procedure Section 435.5, subd. (a), outlining the deficiencies 28 in the FAC and requesting that Plaintiff strike portions of the FAC (Declaration of Gabriella S. Burden 2 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 “Burden Deci.” at 9[ 3). On the same day, counsel for Lusardi sent a letter to Plaintiff’s counsel again 2 identifying the deficiencies as discussed during the teleconference and outlining the requested portions 3 to be stricken from the FAC (Burden Deci. at ¶ 4). On August 6, 2021, Plaintiff’s counsel responded 4 to the meet and confer, refusing to amend any of the deficiencies identified within the FAC. (Burden 5 DecI. at ¶ 5). 6 III. LEGAL ARGUMENT 7 A. Legal Standard for a Motion to Strike 8 Any party, within the time allowed to respond to a pleading, may serve and file a notice of 9 motion to strike the whole or any part thereof. California Code of Civil Procedure (“Cal. Code Civ. 10 Proc.”) §435(b)(1). In doing so, “The Court may (a) Strike out any irrelevant, false, or improper 11 matter inserted in any pleading... [on (b) Strike out all or any part of any pleading not drawn or filed 12 in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civ. Proc., § 13 436.) 14 Irrelevant matter includes allegations not essential to any claim or defense, allegations neither 15 pertinent to nor supported by an otherwise sufficient claim or defense, and requests for relief not 16 supported by the allegations of the Complaint. (Cal. Code Civ. Proc. §431.10). Conclusory allegations 17 not supported by factual allegations are appropriate matter for a motion to strike. (Perkins ic Superior 18 Court (1981) 117 Cal. App. 3d 1,6). 19 The grounds for a motion to strike shall appear on the face of the challenged pleading or from 20 any matter of which the court is required to take judicial notice. (Cal. Code Civ. Proc. §437(a)). The 21 motion to strike may be directed against a whole pleading or any part of it. (Cal. Code Civ. Proc. 22 §435(b)(l)). Even an objectionable word or phrase maybe stricken. Moreover, any allegations “neither 23 pertinent to nor supported by another otherwise sufficient claim or defense” are properly stricken. 24 (Cal. Code Civ. Proc. §435.10(b)). 25 B. The Photographs are Irrelevant, Improper, and Serve No Essential Relationship to the 26 Claims and Must Be Stricken 27 As discussed, a motion to strike can be used as a tool to cut out any “irrelevant, false or 28 improper” matters inserted therein. (Code Civ. Proc. § 436(a).) Further, an allegation that is not 3 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 essential to the statement of a claim or defense is an immaterial allegation that is subject to be stricken 2 as an irrelevant matter. (Code Civ. Proc. §~ 431. 10(b)( 1), (c); 436 (a).) In addition, it has long been 3 established that a court has the power to strike portions of a pleading which add “nothing to the 4 ultimate and issuable facts alleged in the complaint.” (San Joaquin County v. Budd, (1892) 96 Cal. 47, 5 50). 6 The FAC should not include any irrelevant, conclusory, or inflammatory matters against 7 Lusardi and to which Lusardi must defend, and yet have no bearing on the merits of Plaintiff’s 8 Complaint. Plaintiffs FAC contains several photographs purportedly showing the bloody scene as it 9 existed immediately after the accident occurred (collectively, “the Photos”). The Photos do not serve 10 an essential important relationship to any elements of Plaintiff’s causes of action. The Photos also add 11 nothing to the ultimate and issuable facts as alleged in the FAC. In fact, the FAC details the nature and 12 extent of Plaintiffs injuries through Paragraphs 24 - 30 of the FAC. The Photos are immaterial and 13 serve no essential relationship to any of Plaintiff’s causes of action. 14 In addition to their immateriality, the Photos serve to prejudice Lusardi and all defendants as 15 the color photos’ depiction of the bloody post-accident scene will prejudice the trier of fact to draw 16 unwarranted inferences adverse to Lusardi at trial. Therefore, Lusardi requests that the Photos (FAC 17 ¶~[ 1, 27, 29) be stricken from the FAC on the grounds that they are improper, immaterial, and serve 18 no essential relationship to the claims alleged. 19 C. The News Article is Improper and Must Be Stricken 20 Next, Plaintiff’s FAC contains references to news articles regarding an unrelated accident. In 21 the FAC, Plaintiff refers to an accident from 2018, where a patron staying at a Hyatt hotel in Newport 22 Beach, a different hotel, was injured when tempered glass shattered, causing injuries. The references 23 to the Newport Beach incident are improper, and likewise must be stricken. 24 Mere conclusions, whether of fact or opinion, are insufficient to support a claim (Fz-eeman v. 25 San Diego Ass’n ofRealtors (1000)77 Cal. App. 4th 171, 189). 26 Plaintiff refers to the Newport Beach incident in an attempt to draw the conclusion that 27 “defendants [including Lusardi] had notice” of the alleged faulty glass. The allegation is unsupported 28 by the claims and must be stricken (Code of Civ. Proc., § 431.10, subd. (b).) Plaintiff has failed to 4 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 establish or allege any facts indicating that Lusardi was involved in the Newport Beach incident. 2 Plaintiff correctly identified Lusardi as the general contractor for the Hotel that is the subject of this 3 current action accident, however did not establish or allege any involvement of Lusardi in the 4 construction of the Newport Beach hotel. The News Article is conclusory in that it seeks to establish 5 a connection between the current action and the Newport Beach accident, yet Plaintiff has failed to 6 allege any facts showing Lusardi’s involvement in the Newport Beach accident in order to draw that 7 comparison. Lusardi should not be forced to defend itself against allegations that are unsupported by 8 evidence. As a result, Lusardi requests that the News Article (FAC ¶ 2) be stricken. 9 D. Plaintiff Has Not Set Forth Sufficient Facts to Justify an Award for Punitive Damages 10 In California, punitive damages are governed by Cal. Civ. Code §3294, which specifically 11 requires the Plaintiff to plead and prove by clear and convincing factual evidence that defendants have 12 been guilty of oppression, fraud, or malice. (Cal. Civ. Code §3294(a)). Further, per Cal. Civ. Code 13 §3294 (b), an employer is not liable for punitive damages for an employee’s oppression, fraud or 14 malice unless employer had advance knowledge that the employee was unfit and employed him/her 15 in conscious disregard of the rights or safety of others or authorized or ratified the employee’s conduct 16 or was him/herself personally guilty of the oppression, fraud or malice. Also per statute, when the 17 defendant is a corporate employer, like Lusardi, the advance knowledge and conscious disregard, 18 authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, 19 director, or managing agent of the corporation. 20 “Section 3294 is no longer silent on who may be responsible for imputing punitive damages 21 to a corporate employer. For corporate punitive damages liability, section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be 22 committed by an ‘officer, director, or managing agent.” 23 White v. Ultrarnar, Inc. (1999) 21 Cal. 4th 563, 572. 24 At best, Plaintiffs’ allegations support negligent acts on the part of Lusardi, which by law do 25 not give rise to punitive damages. 26 Punitive damages are subject to a strict pleading standard and Plaintiff must plead his claim 27 for punitive damages with specificity. (See G. D. Searle & Co. v. Superior Court (1975)49 Cal.App.3d 28 22, 29-30.) Moreover, it is well established that mere negligence, even gross negligence, does not 5 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 suffice to warrant punitive damages. (Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891). Rather, punitive 2 damages are only awarded in a narrow set of circumstances Where a defendant intends to cause harm. 3 (Woolstrum v. Mailoux (1983) 141 Cal. App. 3d Supp. 1, 10.) Thus, a claim for punitive damages can 4 be stricken if it fails to provide facts sufficient to support allegations of intent. (Tunnan v. Turning 5 Point of Cent. CaL, Inc. (2010) 191 Cal. App. 4th 53, 63). 6 Therefore, in pleading punitive damages, Plaintiffs must plead facts from which it can be 7 reasonably inferred that defendants’ conduct met the requirements for punitive damages liability under 8 Civil Code § 3294, which requires both an intentional tort and that Plaintiffs allege facts which show 9 the circumstance of oppression, fraud, or malice. Grieves v. Superior Court (1985) 157 12 Cal. App. 10 3d 159, 166. 11 Specifically, a finding of “malice” for punitive damages purposes requires proof by clear and 12 convincing evidence that a defendant’s tortious wrong amounts to “despicable conduct” and, further, 13 that the despicable conduct was carried on with a “willful and conscious disregard of the rights or 14 safety of others.” (California Practice Guide: Personal Injury, William F. Flahavan et al., Section 3:262 15 (2016 edj; see also Civil Code § 3294(c)(l); CACI 3940-3941). “Despicable” conduct is not defined 16 by Civ. Code § 3294, nor does it have any prior known legal usage. “Used in its ordinary sense, the 17 adjective “despicable” is a powerful term that refers to circumstances that are “base,” “vile,” or 18 “contemptible.” (College HospitaL Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725). The mere 19 carelessness or ignorance of the defendant does not justify the imposition of punitive damages. 20 (Flyer’s Body Profit Sharing Plan v. Ticor Title insurance Company (1986) 185 Cal.App.3d 1149, 21 1154.) Punitive damages also generally disfavored in the law. (See Beck v. State Fund Mutual Auto 22 Ins. (1976) 54 Cal.App.3d 347, 355.) 23 While Plaintiff has alleged negligence-based theories against Lusardi due to their role in the 24 construction of the Hotel, Plaintiff has failed to identify any intentional tort or specific conduct of 25 Lusardi that would warrant the imposition of punitive damages. Specifically, Plaintiff has failed to 26 establish conduct that rises to the levels of oppression, fraud, or malice sufficient to justify an award 27 of punitive damages. While Plaintiff demands punitive damages with regard to the Premises Liability 28 and Negligence causes of action, the only reference to the demand is a slap-dash phrase at the end of 6 P&A’S ISO OF MOTJON TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 each cause of action stating that Defendants “committed malicious and oppressive acts with the 2 wrongful intention of harming Plaintiff.” Plaintiff has failed to offer any support for these acts. In fact, 3 the rest of the allegations within each cause of action assert negligence-based accusations. Even if 4 Plaintiff’s allegations were accepted as true, mere negligence, even gross negligence, does not suffice 5 to warrant punitive damages. (Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891). Such conclusory 6 allegations, without more, are insufficient to support a claim for punitive damages. 7 Further, Plaintiffs have completely missed the fact that Defendant Lusardi is a corporate entity, 8 and therefore, the law requires that allegations establishing that the wrongful act giving rise to the 9 exemplary damages be committed by an “officer, director, or managing agent.” In Cruz v. HomeBase 10 (2000) 83 Cal.App.4th 160, the court specifically addressed this, reasoning that “Corporations are 11 legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or 12 deceive. An award of punitive damages against a corporation therefore must rest on the malice of the 13 corporation’s employees.” (Id at 167.) The Court reasoned that “this is the group whose intentions 14 guide corporate conduct... the statute avoids punishing the corporation for malice of low-level 15 employees which does not reflect the corporate “state of mind” or the intentions of corporate leaders. 16 This assures that punishment is imposed only if the corporation can be fairly be viewed as guilty of 17 the evil intent sought to be punished.” (Id.) 18 Here, Plaintiff fails to meet this requirement. Plaintiff has not pled any facts to show that any 19 officer, director or managing agent of any Defendant had advance knowledge of the unfitness of any 20 employee who engaged in recklessness, malice, oppression, or fraud. Rather, Plaintiff simply alleges 21 the conclusion that Defendants had advanced knowledge of the unfitness of their employees. 22 As a result, given the lack of requisite specificity in the allegations of punitive damages and 23 the resulting failure to allege any specific facts as to Lusardi that would warrant the imposition of 24 punitive damages, Lusardi requests that Plaintiff’s prayer for relief iii. “for punitive damages allowed 25 by law” be stricken from the FAC, or expressly disclaimed as to Lusardi. 26 E. Plaintiff has Not Sufficiently Pled Relief for Restitution and/or Disgorgement 27 Plaintiff’s prayer for relief also includes an improper remedy for restitution and/or 28 disgorgement. Again, Plaintiff fails to allege any facts in support of this claim. The only mention 7 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 whatsoever to restitution and/or disgorgement is found within the prayer for relief. Plaintiff has not 2 established any facts that would support this award and has failed to establish what Plaintiff is seeking 3 restitution or disgorgement of. Lusardi is unable to defend against such demands and the prayer is 4 improper in that the relief is not supported by the allegations within the FAC. (Code of Civ. Proc., § 5 431.10, subd. (b).) As a result, Lusardi requests that Plaintiff’s prayer for relief v. “for restitution 6 and/or disgorgement” be stricken from the FAC, or specifically disclaimed as to Lusardi. 7 F. Plaintiff Has Not Set Forth Sufficient Facts to Justify an Award of Attorneys’ Fees 8 Finally, Plaintiff has likewise failed to plead any facts or authority in support of the prayer for 9 attorneys’ fees, and the prayer must be stricken from the FAC or disclaimed as to Lusardi. 10 Under California law, attorneys’ fees are generally not awarded as an element of tort damages 11 to the prevailing party. Consequently, attorneys’ fee awards are generally not an element of tort 12 damages. (See, Gray v. Don Miller & Associates, Inc., (1984) 35 Cal. 3d 498, 506-507) Rather, 13 attorneys’ fees are most typically recoverable as costs of suit if authorized by statute, contract or law. 14 (Civ. Proc. Code, § 1033.5 (a)(l0), (c)(5)). 15 The FAC does not specify the basis of an award of attorneys’ fees, and does not allege any 16 contractual causes of action. Instead, the FAC alleges negligence-based theories against Lusardi, with 17 no statutory basis upon which Plaintiff would be entitled to an award of attorneys’ fees. Plaintiff has 18 failed to offer any grounds, whether factual or pursuant to statute, contract, or law, that supports the 19 prayer for attorney’s fees as to Lusardi. 20 As the relief is not supported by any allegations within the FAC, Lusardi requests that the 21 prayer for relief vi. “and reasonable attorneys’ fees” be stricken from Plaintiff’s FAC, or specifically 22 disclaimed as to Lusardi. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 8 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 IV. CONCLUSION 2 Based on the foregoing, Lusardi respectfully requests that this Court order Plaintiff to strike 3 from the FAC the following: (1) the Photos, (2) the references to the Newport Beach Incident, and (3) 4 the prayer for punitive damages, restitution and/or disgorgement, and attorneys’ fees, or specifically 5 disclaim each as to Lusardi. 6 LINCOLN, GUSTAFSON & CERCOS, LLP 7 9 Dated: August 19, 2021 By: __________________________ Randall D. GØ,btafson, Esq. 10 Katie C. Brac’h, Esq. Gabriella S. Burden, Esq. 11 Attorney for Defendant LUSARDI CONSTRUCTION COMPANY 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT