Memorandum Points and Authorities

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

22 23 Randall D. Gustafson, Esq. (SBN 115724) Katie C. Brach, Esq. (SBN 260136) Gabriella S. Burden, Esq. (SBN 322932) LINCOLN, GUSTAFSON & CERCOS, LLP 550 West “C” Street, Suite 1400 San Diego, California 92101 (619) 233-1150 Telephone (619) 233-6949 Facsimile rgustafson@lgclawoffice.com kbrach @lgclawoffice.com gburden@lgclawoffice.com Attorneys for Defendants LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW LLC DIBIA “HYATT CENTRIC MOUNTAIN VIEW,” a Corporation; OTO DEVELOPMENT, LLC, a Corporation SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA Case No.: 21CV38 1458 HYATT CORPORATION, a Corporation; PALMETTO HOSPITALITY OF MOUNTAIN VIEW LLC DIB/A “HYATT CENTRIC MOUNTAIN VIEW,” a Corporation; OTO DEVELOPMENT, LLC, a Corporation; LUSARDI CONSTRUCTION COMPANY, a Corporation; SIMMONS GLASS & WINDOW, INC, a Corporation; CKB INDUSTRIES CO., LIMITED, a Corporation; DOES 1-100, inclusive; and MANUFACTURER DOES 1-100, inclusive Defendants DEFENDANTS PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC DIR/A HYATT CENTRIC MOUNTAIN VIEW AND OTO DEVELOPMENT, LLC’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT Judge: Dept. Complaint Filed: Trial Date: Hearing Date: Time: __________ Dept: TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: Defendants PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC DIB/A HYATT CENTRIC MOUNTAIN VIEW AND OTO DEVELOPMENT, LLC (“Defendants”) respectfully submit the following Memorandum of Points and Authorities in Support of Defendants’ Motion to Strike Portions of Plaintiff’s First Amended Complaint. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 TORI D. MOSES, an individual, Plaintiff, v. Hon. Drew C. Takaichi 2 April 1, 2021 Not Set 2 24 25 26 27 28 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 9/22/2021 2:13 PM Reviewed By: D Harris Case #21CV381458 Envelope: 7319094 21CV381458 Santa Clara - Civil D Harris 1 I. INTRODUCTION 2 Defendants move to strike post-accident photos and news articles of an unrelated incident from 3 Plaintiff Tori D. Moses’ First Amended Complaint (“FAC”) on the grounds that they are irrelevant, 4 improper, and serve no essential purpose to the allegations within the FAC. 5 Defendants also move to strike Plaintiff’s improper and factually devoid prayer for punitive 6 damages, restitution and/or disgorgement, and attorneys’ fees. Plaintiff has failed to allege conduct 7 that arises to the level of malice, fraud, or oppression required to claim punitive damages. Plaintiffs 8 prayer for restitution and/or disgorgement fails to allege specific facts warranting the imposition of 9 such damages against Defendants. Finally, Plaintiff has failed to establish any factual, legal, or 10 statutory basis for attorney’s fees. 11 IL STATEMENT OF FACTS 12 A. Relevant Factual and Procedural Background 13 Plaintiff filed a Complaint on April 1,2021, and a First Amended Complaint on June 14,2021, 14 alleging causes of action for (1) Premises Liability; (2) Negligence; (3) Failure to Warn; (4) Breach of 15 Implied Warranty, Merchantability and Fitness. (See Plaintiff’s First Amended Complaint “FAC”; 16 RJN at ¶ 1). Plaintiff named Hyatt Corporation, Palmetto Hospitality of Mountain View, LLC DBA 17 Hyatt Centric Mountain View, OTO Development, LLC, Lusardi Construction Company, Simmons 18 Glass & Window, Inc., and Manufacturer DOES 1-100. (Id.). Plaintiff alleges that Defendant Palmetto 19 Hospitality of Mountain View, LLC dba Hyatt Centric Mountain View (“Palmetto”) is a hotel brand 20 of defendant Hyatt, and is in the business of providing hotel and lodging to consumers within the state 21 of California. (FAC 9[ 9). Plaintiff alleges that Defendant OTO Development, LLC (“OTO”) is in the 22 business of constructing, developing, as well as providing hotel operational management services to 23 hotels across the nation, and Plaintiff alleges that OTO provided construction, development, and/or 24 management services to Defendant Palmetto regarding the construction of the Hotel. (FAC ¶ 10). 25 Per the FAC, on August 7, 2020, Plaintiff Tori D. Moses was staying as a guest at the Hotel 26 (FAC ¶ 17). On the evening of August 7, Plaintiff had just finished using the shower in her room when 27 the tempered glass shower door shattered (FAC ¶ 24). As a result, Plaintiff fell to the ground, and 28 sustained injuries from the broken glass (Id.). Plaintiff alleges that she received medical treatment and 2 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 was unable to work for a period of time as a result of the accident (FAC ¶ 30). 2 Plaintiff maintains that all defendants had notice of the faulty glass as an incident occurred at 3 a Hyatt hotel in Newport Beach in 2018 where a patron was allegedly injured when the glass shower 4 door shattered (“Newport Beach Incident”) (FAC 9112). Plaintiff alleges that Defendants failed to take 5 any action to protect against foreseeable bodily injury that could occur to hotel guests. (FAC at 9[ 59). 6 B. Meet and Confer 7 On September 17, 2021, counsel for Defendants Palmetto and Oto met and conferred with 8 Plaintiff’s counsel outlining the deficiencies in the FAC and requesting that Plaintiff strike portions of 9 the FAC (Declaration of Gabriella S. Burden “Burden Decl.” at 9[ 2). On the same day, Plaintiff’s 10 counsel responded to the meet and confer, refusing to amend any of the deficiencies identified within 11 the FAC. (Burden Decl. at 9[ 3). 12 III. LEGAL ARGUMENT 13 A. Legal Standard for a Motion to Strike 14 Any party, within the time allowed to respond to a pleading, may serve and file a notice of 15 motion to strike the whole or any part thereof. California Code of Civil Procedure (“Cal. Code Civ. 16 Proc.”) §435(b)(l). In doing so, “The Court may (a) Strike out any irrelevant, false, or improper 17 matter inserted in any pleading... [or] (b) Strike out all or any part of any pleading not drawn or filed 18 in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civ. Proc., § 19 436.) 20 Irrelevant matter includes allegations not essential to any claim or defense, allegations neither 21 pertinent to nor supported by an otherwise sufficient claim or defense, and requests for relief not 22 supported by the allegations of the Complaint. (Cal. Code Civ. Proc. §431.10). Conclusory allegations 23 not supported by factual allegations are appropriate matter for a motion to strike. (Perkins v. Superior 24 Court (1981) 117 Cal. App. 3d 1,6). 25 The grounds for a motion to strike shall appear on the face of the challenged pleading or from 26 any matter of which the court is required to take judicial notice. (Cal. Code Civ. Proc. §437(a)). The 27 motion to strike may be directed against a whole pleading or any part of it. (Cal. Code Civ. Proc. 28 §435(b)(l)). Even an objectionable word or phrase maybe stricken. Moreover, any allegations “neither 3 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 pertinent to nor supported by another otherwise sufficient claim or defense” are properly stricken. 2 (Cal. Code Civ. Proc. §435.10(b)). 3 B. The Photographs are Irrelevant. Improper, and Serve No Essential Relationship to the 4 Claims and Must Be Stricken 5 As discussed, a motion to strike can be used as a tool to cut out any “irrelevant, false or 6 improper” matters inserted therein. (Code Civ. Proc. § 436(a).) Further, an allegation that is not 7 essential to the statement of a claim or defense is an immaterial allegation that is subject to be stricken 8 as an irrelevant matter. (Code Civ. Proc. §~ 43l.lO(b)(1), (c); 436 (a).) In addition, it has long been 9 established that a court has the power to strike portions of a pleading which add “nothing to the 10 ultimate and issuable facts alleged in the complaint.” (Sa;z Joaquin County v. Budd, (1892) 96 Cal. 47, 11 50). 12 The FAC should not include any irrelevant, conclusory, or inflammatory matters against 13 Defendants and to which Defendants must defend, and yet have no bearing on the merits of Plaintiff’s 14 Complaint. Plaintiff’s FAC contains several photographs purportedly showing the bloody scene as it 15 existed immediately after the accident occurred (collectively, “the Photos”). The Photos do not serve 16 an essential important relationship to any elements of Plaintiff’s causes of action. The Photos also add 17 nothing to the ultimate and issuable facts as alleged in the FAC. In fact, the FAC details the nature and 18 extent of Plaintiff’s injuries through Paragraphs 24 - 30 of the FAC. The Photos are immaterial and 19 serve no essential relationship to any of Plaintiff’s causes of action. 20 In addition to their immateriality, the Photos serve to prejudice Defendants as the color photos’ 21 depiction of the bloody post-accident scene will prejudice the trier of fact to draw unwarranted 22 inferences adverse to Defendants at trial. Therefore, Defendants request that the Photos (FAC ¶9[ 1, 23 27, 29) be stricken from the FAC on the grounds that they are improper, immaterial, and serve no 24 essential relationship to the claims alleged. 25 C. The News Article is Improper and Must Be Stricken 26 Next, Plaintiff’s FAC contains references to news articles regarding an unrelated accident. In 27 the FAC, Plaintiff refers to an accident from 2018, where a patron staying at a Hyatt hotel in Newport 28 Beach, a different hotel, was injured when tempered glass shattered, causing injuries. The references 4 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 to the Newport Beach incident are improper, and likewise must be stricken. 2 Mere conclusions, whether of fact or opinion, are insufficient to support a claim (Freeman v. 3 San Diego Ass’n ofRealtors (1000)77 Cal. App. 4°~ 171, 189). 4 Plaintiff refers to the Newport Beach incident in an attempt to draw the conclusion that 5 “defendants had notice” of the alleged faulty glass. The allegation is unsupported by the claims and 6 must be stricken (Code of Civ. Proc., § 431.10, subd. (b).) Plaintiff has failed to establish or allege 7 any facts indicating that Defendants were involved, authorized, or knew about the Newport Beach 8 incident. While Plaintiff correctly identified Palmetto as being in the business of providing hotel and 9 lodging to consumers within the state of California, and likewise correctly identified OTO as being in 10 the business of constructing, developing, and providing hotel operational management services to 11 hotels, Plaintiff did not establish or allege any involvement of either Palmetto or OTO in the 12 construction, providing of services, or any other relation to the Newport Beach hotel. The News Article 13 is conclusory in that it seeks to establish a connection between the current action and the Newport 14 Beach accident, yet Plaintiff has failed to allege any facts showing Defendants’ involvement in the 15 Newport Beach accident in order to draw that comparison. Defendants should not be forced to defend 16 against allegations that are unsupported by evidence. As a result, Defendants requests that the News 17 Article (FAC ¶ 2) be stricken. 18 D. Plaintiff Has Not Set Forth Sufficient Facts to Justify an Award for Punitive Damages 19 In California, punitive damages are governed by Cal. Civ. Code §3294, which specifically 20 requires the Plaintiff to plead and prove by clear and convincing factual evidence that defendants have 21 been guilty of oppression, fraud, or malice. (Cal. Civ. Code §3294(a)). Further, per Cal. Civ. Code 22 §3294 (b), an employer is not liable for punitive damages for an employee’s oppression, fraud or 23 malice unless employer had advance knowledge that the employee was unfit and employed him/her 24 in conscious disregard of the rights or safety of others or authorized or ratified the employee’s conduct 25 or was himlherself personally guilty of the oppression, fraud or malice. Also per statute, when the 26 defendant is a corporate employer, like Palmetto and OTO, the advance knowledge and conscious 27 disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an 28 officer, director, or managing agent. 5 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 “Section 3294 is no longer silent on who may be responsible for imputing punitive 2 damages to a corporate employer. For corporate punitive damages liability, section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary 3 damages be committed by an ‘officer, director, or managing agent.” White v. Ultramar, inc. (1999) 21 Cal. 4th 563, 572. 5 At best, Plaintiffs’ allegations support negligent acts on the part of Palmetto and Oto, which 6 by law do not give rise to punitive damages. 7 Punitive damages are subject to a strict pleading standard and Plaintiff must plead his claim 8 for punitive damages with specificity. (See G. D. Searle & Co. v. Superior Court (1975)49 Cal.App.3d 9 22, 29-30.) Moreover, it is well established that mere negligence, even gross negligence, does not 10 suffice to warrant punitive damages. (Ebaugh v. Rabkin (1972)22 Cal. App. 3d 891). Rather, punitive 11 damages are only awarded in a narrow set of circumstances where a defendant intends to cause harm. 12 (Woolstrum v. Mailoux (1983) 141 Cal. App. 3d Supp. 1, 10.) Thus, a claim for punitive damages can 13 be stricken if it fails to provide facts sufficient to support allegations of intent. (Tunnan v. Turning 14 Point of Cent. CaL, Inc. (2010) 191 Cal. App. 4th 53, 63). 15 Therefore, in pleading punitive damages, Plaintiffs must plead facts from which it can be 16 reasonably inferred that defendants’ conduct met the requirements for punitive damages liability under 17 Civil Code § 3294, which requires both an intentional tort and that Plaintiffs allege facts which show 18 the circumstance of oppression, fraud, or malice. (Grieves v. Superior Court (1985) 157 12 Cal. App. 19 3d 159, 166). 20 Specifically, a finding of “malice” for punitive damages purposes requires proof by clear and 21 convincing evidence that a defendant’s tortious wrong amounts to “despicable conduct” and, further, 22 that the despicable conduct was carried on with a “willful and conscious disregard of the rights or 23 safety of others.” (California Practice Guide: Personal Injury, William F. Flahavan et al., Section 3:262 24 (2016 edj; see also Civil Code § 3294(c)(l); CACI 3940-3941). “Despicable” conduct is not defined 25 by Civ. Code § 3294, nor does it have any prior known legal usage. “Used in its ordinary sense, the 26 adjective “despicable” is a powerful term that refers to circumstances that are “base,” “vile,” or 27 “contemptible.” (College Hospital. Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725). The mere 28 carelessness or ignorance of the defendant does not justify the imposition of punitive damages. 6 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 (Flyer’s Body Profit Sharing Plan v. Ticor Title Insurance Company (1986) 185 Cal.App.3d 1149, 2 1154.) Punitive damages also generally disfavored in the law. (See Beck v. State Fund Mutual Auto 3 Ins. (1976) 54 Cal.App.3d 347, 355.) 4 While Plaintiff has alleged negligence-based theories against Defendants due to their role in 5 the construction, management, and services provided regarding the Hotel, Plaintiff has failed to 6 identify any intentional tort or specific conduct of Defendants that would warrant the imposition of 7 punitive damages. Specifically, Plaintiff has failed to establish conduct that rises to the levels of 8 oppression, fraud, or malice sufficient to justify an award of punitive damages. While Plaintiff 9 demands punitive damages with regard to the Premises Liability and Negligence causes of action, the 10 only reference to the demand is a slap-dash phrase at the end of each cause of action stating that 11 Defendants “committed malicious and oppressive acts with the wrongful intention of harming 12 Plaintiff.” Plaintiff has failed to offer any support for these acts. In fact, the rest of the allegations 13 within each cause of action assert negligence-based accusations. Even if Plaintiff’s allegations were 14 accepted as true, mere negligence, even gross negligence, does not suffice to warrant punitive 15 damages. (Ebaugh v. Rabkin (1972)22 Cal. App. 3d 891). Such conclusory allegations, without more, 16 are insufficient to support a claim for punitive damages. 17 Further, Plaintiffs have completely missed the fact that Defendants Palmetto and Oto are 18 corporate entities, and therefore, the law requires that allegations establishing that the wrongful act 19 giving rise to the exemplary damages be committed by an “officer, director, or managing agent.” In 20 Cruz v. HonieBase (2000) 83 Cal.App.4th 160, the court specifically addressed this, reasoning that 21 “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent 22 to injure or deceive. An award of punitive damages against a corporation therefore must rest on the 23 malice of the corporation’s employees.” (Id at 167.) The Court reasoned that “this is the group whose 24 intentions guide corporate conduct... the statute avoids punishing the corporation for malice of low- 25 level employees which does not reflect the corporate “state of mind” or the intentions of corporate 26 leaders. This assures that punishment is imposed only if the corporation can be fairly be viewed as 27 guilty of the evil intent sought to be punished.” (Id.) 28 Here, Plaintiff fails to meet this requirement. Plaintiff has not pled any facts to show that any 7 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 officer, director or managing agent of any Defendants had advance knowledge of the unfitness of any 2 employee who engaged in recklessness, malice, oppression, or fraud. Rather, Plaintiff simply alleges 3 the conclusion that Defendants had advanced knowledge of the unfitness of their employees. 4 As a result, given the lack of requisite specificity in the allegations of punitive damages and 5 the resulting failure to allege any specific facts as to Defendants that would warrant the imposition of 6 punitive damages, Defendants request that Plaintiff’s prayer for relief iii. “for punitive damages 7 allowed by law” be stricken from the FAC, or expressly disclaimed as to Defendants Palmetto and 8 Oto. 9 E. Plaintiff has Not Sufficiently Pled Relief for Restitution and/or Disgorgement 10 Plaintiff’s prayer for relief also includes an improper remedy for restitution and/or 11 disgorgement. Again, Plaintiff fails to allege any facts in support of this claim. The only mention 12 whatsoever to restitution and/or disgorgement is found within the prayer for relief. Plaintiff has not 13 established any facts that would support this award and has failed to establish what Plaintiff is seeking 14 restitution or disgorgement of. Defendants are unable to defend against such demands and the prayer 15 is improper in that the relief is not supported by the allegations within the FAC. (Code of Civ. Proc., 16 § 431.10, subd. (b).) As a result, Defendants request that Plaintiff’s prayer for relief v. “for restitution 17 and/or disgorgement” be stricken from the FAC, or specifically disclaimed as to Defendants Palmetto 18 and Oto. 19 F. Plaintiff Has Not Set Forth Sufficient Facts to Justify an Award of Attorneys’ Fees 20 Finally, Plaintiff has likewise failed to plead any facts or authority in support of the prayer for 21 attorneys’ fees, and the prayer must be stricken from the FAC or disclaimed as to Defendants Palmetto 22 and Oto. 23 Under California law, attorneys’ fees are generally not awarded as an element of tort damages 24 to the prevailing party. Consequently, attorneys’ fee awards are generally not an element of tort 25 damages. (See, Gray v. Don Miller & Associates, Inc., (1984) 35 Cal. 3d 498, 506-507) Rather, 26 attorneys’ fees are most typically recoverable as costs of suit if authorized by statute, contract or law. 27 (Civ. Proc. Code, § 1033.5 (a)(10), (c)(5)). 28 The FAC does not specify the basis of an award of attorneys’ fees, and does not allege any 8 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT 1 contractual causes of action. Instead, the FAC alleges negligence-based theories against Defendants, 2 with no statutory basis upon which Plaintiff would be entitled to an award of attorneys’ fees. Plaintiff 3 has failed to offer any grounds, whether factual or pursuant to statute, contract, or law, that supports 4 the prayer for attorney’s fees as to Defendants Palmetto and Oto. 5 As the relief is not supported by any allegations within the FAC, Defendants request 6 that the prayer for relief vi. “and reasonable attorneys’ fees” be stricken from Plaintiff’s FAC, or 7 specifically disclaimed as to Defendants Palmetto and Oto. 8 IV. CONCLUSION 9 Based on the foregoing, Defendants respectfully request that this Court order Plaintiff to strike 10 from the FAC the following: (1) the Photos, (2) the references to the Newport Beach Incident, and (3) 11 the prayer for punitive damages, restitution and/or disgorgement, and attorneys’ fees, or specifically 12 disclaim each as to Defendants Palmetto and Oto. 13 14 LINCOLN, GUSTAFSON & CERCOS, LLP 15 17 Dated: September 22, 2021 By: __________________________ Randall D. qu’stâfson, Esq. 18 Katie C. Bräch, Esq. Gabriella S. Burden, Esq. 19 Attorney for Defendants LUSARDI CONSTRUCTION COMPANY, PALMETTO 20 HOSPITALITY OF MOUNTAIN VIEW, LLC DIB/A HYATT CENTRIC MOUNTAIN 21 VIEW, OTO DEVELOPMENT, LLC. 22 23 24 25 26 27 28 9 P&A’S ISO OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT