Opposition ObjectionsCal. Super. - 6th Dist.April 1, 2021MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV38 1 458 Santa Clara - Civil Randy H. McMurray, Esq. (SBN: 126888) Email: RMcMurray@laW-mh.com Yana Henriks, Esq. (SBN: 25063 8) Email: YHenriks@laW-mh.com Khachatur Ayvazyan, Esq. (SBN: 332650) Email: KAyvazyan@laW-mh.com MCMURRAY HENRIKS, LLP 811 Wilshire B1Vd., Suite 1640 Los Angeles, California 90017 Telephone: (323) 931-6200 Facsimile: (323) 93 1 -9521 Attorneysfor Plaintiff, TORI D. MOSES R. Bur Electronically Filed by Superior Court of CA, County of Santa Clara, on 1l21l2022 1:03 PM Reviewed By: R. Burciaga Case #21 CV381458 Envelope: 8111013 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA TORI D. MOSES, an individual, Plaintiff, V. HYATT CORPORATION, a Corporation; PALMETTO HOSPITALITY OF MOUNTAIN VIEW LLC D/B/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. Case N0.: 21CV381458 PLAINTIFF’S OPPOSITION TO DEFENDANTS LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC D/B/A HYATT DEVELOPMENT, LLC’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT Judge: Hon. Drew C. Takaichi Dept: 2 Complaint Filed: April 1, 2021 Trial Date: TBD 1 CENTRIC MOUNTAIN VIEW AND OTO PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT :iaga MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Plaintiff Tori D. Moses (hereinafter “Plaintiff’) hereby submits the attached opposition t0 Defendants Lusardi Construction Company, Palmetto Hospitality 0f Mountain View, LLC D/B/A Hyatt Centric Mountain View and OTO Development, LLC’S (hereinafter “‘Defendants”) Motion to Strike portions of Plaintiff’s First Amended Complaint. INTRODUCTORY STATEMENT Defendants Lusardi Construction Company, Palmetto Hospitality 0f Mountain View, LLC D/B/A Hyatt Centric Mountain View and OTO Development, LLC have filed a motion to strike (1) various photographs depicting the scene of the accident, Which lay the basis 0f this present action; (2) reference to news articles regarding Newport Beach Hyatt Hotel accidents relating t0 this incident; and (3) Plaintiff’ s allegations and prayer for punitive damages, restitution and/or disgorgement, and for an award 0f attorney’s fees. MEMORANDUM OF POINTS AND AUTHORITIES I. DEFENDANTS’ MOTION TO STRIKE VARIOUS PHOTOGRAPHS IN THE FIRST AMENDED COMPLAINT SHOULD BE DENIED Defendants assert in their Motion that the photographs depicting the scene of the accident be stricken from the First Amended Complaint (“FAC”) 0n the “grounds that they are improper, immaterial, and serve no essential relationship t0 the claims alleged.” (Def. MTS p. 4:23-24.) Even though Defendants restate Code CiV. Proc. § 436(a) and §§ 431.10(b)(1) and (c), Defendants do not provide any supporting authority to their conclusory statements. Defendants improperly characterize the photographs as “irrelevant, false, or improper.” On the contrary, the photographs are highly relevant because they support the harm Plaintiff suffered from the defective shower glass, support Plaintiff’s request for punitive damages, and directly refute Defendants’ contentions that that Defendants have not committed any additional torts aside 2 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 from general negligence. Moreover, Defendants’ reliance 0n San Joaquin County v. Budd, (1892) 96 Cal. 47, is improper as it is not applicable t0 this case. There, the motion to strike was related t0 striking aparagraph and not a photograph. (Id. at 50.) (emphasis added.) As such, Defendants are impermissibly relying on case law that is irrelevant and inapplicable to the case here. It is both proper and highly relevant in the context of the pleadings t0 include the photographs depicting the scene of the accident. It is ironic that Defendants seek t0 exclude these photographs in the same motion Where they contend that Plaintiff has not adequately alleged a claim for punitive damages relative t0 Defendants’ conduct, which resulted in the harm suffered by Plaintiff. II. DEFENDANTS’ MOTION TO STRIKE REFERENCE TO NEWS ARTICLES SHOULD BE DENIED Defendants’ motion t0 strike seeks an order striking Plaintiff s references t0 news articles regarding a 2018 incident, where a patron at a Hyatt Hotel in Newport Beach was injured when tempered glass shattered, causing injuries. (Def. MTS p.4z36-28.) Once again, Defendants cite Code of CiV. Proc. § 43 1 . 10(b), alleging that Plaintiff s claim that Defendants had notice is “unsupported by the claims.” (Id. at p.525.) However, Plaintiff in her First Amended Complaint alleges that Defendants knew or should have known of the glass shower’s tendency t0 explode and shatter. (Comp. W 40, 55, 80.) Plaintiffs allegations are applicable t0 all Defendants who are part of the action herein and had actual and/or constructive notice of their faulty glass showers since at least 2018. (Id. at 1] 2 [“Defendants, and each of them, have been on actual notice 0f its faulty glass showers since 2018-and nevertheless have failed to safeguard its guests, as evidenced in a similar incident that occurred on Defendants’ property in Newport Beach, depicted below.”].) Plaintiff has properly alleged What is required at this stage in litigation to state a claim upon Which relief can be granted. Anything more would be inappropriate at this early stage, and through this present motion. (See, e.g., Birke v. Oakwood Worldwide, (2009) 169 Cal. App. 4th 1540, 1548, reh'g denied (Jan. 26, 2009) (“A plaintiff 3 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 need not plead evidentiary facts supporting the allegation of ultimate fact The pleading is adequate so long as it apprises the defendant of the factual basis for the claim”) Whether or not Defendants had notice is a matter to be proven at trial, and not at this stage in litigation. As such, the news articles Which Defendants obj ect t0 are pertinent to and are supported by the claims raised in Plaintiff s First Amended Complaint. (See Code of CiV. Proc. § 43 1 . 10(b).) Defendants’ request t0 strike the aforementioned should be denied. III. DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S CLAIM FOR PUNITIVE DAMAGES SHOULD BE DENIED Defendants’ motion t0 strike seeks an order striking Plaintiff s claim for punitive damages, asserting that Plaintiff has not properly alleged oppression, fraud, or malice as required by Civil Code section 3294 or plead an intentional tort. As explained herein, Defendants’ claims have n0 merit because the First Amended Complaint adequately states a claim for Premises Liability and Negligence, which afford punitive damages. A. Standard for Ruling 0n Motion to Strike Punitive Damages Section 3294 0f the Civil Code allows for recovery of punitive damages in all civil actions “not arising from contract.” (Cal. CiV. Code § 3294(a).) 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. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as t0 the defendant's conduct may adequately plead the evil motive requisite to recovery 0f punitive damages. (Perkins V. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) Accordingly, to survive a motion to strike a claim for punitive damages, the ultimate facts showing an entitlement t0 such relief must be pled. (Grieves V. Superior Court (1984) 157 Cal.App.3d 159, 166.) In passing on the correctness of a ruling on a motion to strike, the court must read the allegations of a pleading subject t0 motion t0 strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service V. Superior Court (1992) 8 4 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App.4th 1504, 1519.) In ruling on a motion to strike, courts do not read allegations in isolation. (Code of Civil Procedure § 452; See Perkins V. Superior Court 117 Ca1.App.3d at 6.) A. Plaintiff Has Properly Alleged Facts Sufficient t0 State a Claim for Relief “The complaint in a civil action serves a variety of purposes, ofWhich two are relevant here: it serves to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery. In fulfilling this function, the complaint should set forth the ultimate facts constituting the cause 0f action, not the evidence by Which plaintiff proposes to prove those facts.” (Committee 0n Children's Television, Inc. V. General Foods Corp. (1983) 35 Cal.3d 197, 21 1-212 [citations omitted].) “‘[U]ltimate fact[ ]’ ” is a slippery term, but in general it refers to a core fact, such as an element of a claim or defense, without which the claim or defense must fail. (See Black's Law Dictionary (8th ed.2004) p. 629 [‘A fact essential to the claim 0r the defense.-Also termed elemental fact; principal fact.’].) It is distinguished conceptually from “evidentiary facts” and “conclusions of law.” (Yield Dynamics, Inc. V. TEA Systems Corp. (2007) 154 Ca1.App.4th 547, 559. “What is important is that the Complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief . . . .” (Perkins V. Superior Court (198 1) 117 Cal.App.3d 1, 6.) “It is both improper and insufficient for a plaintiff to simply plead the evidence by Which he hopes t0 prove such ultimate facts.” (Careau & Co. V. Security Pac. Business Credit, Inc. (1990) 222 Ca1.App.3d 1371, 1390.) Defendants in their Motion to Strike assert that Plaintiff “has failed to identify any intentional tort 0r specific conduct 0f Defendants that would warrant the imposition 0f punitive damages.” (Def. MTS p. 7:5-7.) Here, the First Cause of Action, Which asserts Premises Liability and the Second Cause 0f Action for Negligence specifically allege that Defendants failed to properly maintain their hotel rooms and showers when Defendants knew that the glass doors for the shower were defective, and by failing to do so Defendants acted maliciously and oppressively With the 5 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wrongful intention of injuring Plaintiff. (FAC pp. 5; 9-16.) Moreover, “Malice” includes both conduct intended t0 cause injury as well as conduct that causes injury unintentionally. (See CiV. Code § 3294(c)(1).) In order t0 justify an award 0f punitive damages on the basis of a “conscious disregard” 0f the safety 0f others, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of its conduct and that it willfully and deliberately failed t0 avoid those consequences. (Hilliard V. A.H. Robins C0,, (1984) 148 Cal.App.3d 374.) Thus, Defendants' assertion that they must have “intentionally” caused injury or death for Plaintiff to be entitled t0 an award of punitive damages is erroneous. CiV. Code § 3294 provides for punitive damages for unintentional negligent conduct. To the extent Defendants assert that more is required, they improperly attempt t0 require pleadings 0f evidence. As such, Defendants’ claims lack merit. “If defendants require further specifics in order to prepare their defense, such matters may be the subj ect of discovery proceedings.” (Committee on Children's Television, Inc., 35 Cal.3d at 212.) Secondly, Defendants assert that “Plaintiff has not pled any facts t0 show that any officer, director 0r managing agent of any Defendants had advance knowledge of the unfitness of any employee Who engaged in recklessness, malice, oppression, 0r fraud.” (Def. MTS pp. 7- 8.) Here, Defendants” argument has n0 merit for two reasons. First, Defendants rely on Cruz v. Homebase, 83 Cal. App. 4th 160 (2000), t0 support their argument, but this argument fails in light of the clear language 0f Section 3294. (See Roby v. McKesson Corp, 47 Cal. 4th 686 (Nov. 30, 2009).) (Def. MTS p.7, L 22-23.) “Section 3294 does not require allegations that a corporate leader acted With oppression, fraud, or malice. Rather, plaintiffs need only allege that an employee acted with oppression, fraud, or malice, and that a corporate leader knew 0f the employee's unfitness and acted with a conscious disregard for the rights or safety 0f others, or authorized 0r ratified the employee's wrongful conduct. Cal. CiV. Code § 3294(b).” (McNutt V. Veolia Transportation Services, Inc. (2010) WL 11507371.) In fact, Defendants in their Motion concede that Plaintiff has plead that “Defendant has advanced knowledge 0f the 6 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unfitness 0f their employees.” (Def. MTS p. 8:3.) As such, and once again, Plaintiff has properly alleged facts to require imposition 0f punitive damages, and anything more would be improper at this stage 0f the litigation. Thus, Defendant’s Motion t0 Strike should be denied. IV. THE MOTION TO STRIKE PLAINITFF’S CLAIM FOR RESTITUTION AND/OR DISGORGEMENT AND ATTONREY’S FEES IS MOOT BECAUSE DEFENDANT HAS NOT DEFAULTED Defendants’ motion to strike seeks an order striking Plaintiff s prayer for restitution and/or disgorgement and attorney’s fees, noting that the Complaint contains no allegations supporting such a prayer for relief. This argument has n0 merit, however, because the prayer only limits recovery when the defendant defaults, and Defendants have not defaulted. (Code CiV. Proc., § 580, subd. (a) [“The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint. . . .].) Once an Answer has been filed, however, “the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced Within the issue.” (Id.) Thus, When a defendant files an answer t0 a complaint, the Court may award relief in excess 0f that sought by the prayer, including attorney fees. (Estrin V. Superior Court in and for Sacramento County (1939) 14 Cal.2d 670, 676 [“[I]n contested cases the relief granted is not limited to that specifically prayed for, as is the case Where judgment goes by default; any relief authorized by the facts alleged and proved or admitted may be awarded.”]; Wright V. Rogers (1959) 172 Cal.App.2d 349, 367-68 [same].) Because Defendants have not defaulted and Will Answer once the Court overrules any Motion t0 Strike, the contents of Plaintiff’s prayer are no longer relevant. Thus, Defendant’s request for an order striking the contents of the prayer should be denied. /// /// /// 7 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. DEFENDANTS HAVE FAILED TO COMPLY WITH CCP 436 Defendants' motion t0 strike fails to comply With Cal. Code of Civ. Proc. § 436. Though Defendants' motion accurately recites the language ofCCP § 436, Defendants fail t0 state Which grounds their motion to strike falls under, subdivision (a) or subdivision (b). Defendant simply makes the argument that Plaintiff cannot make a showing and justify an award for punitive damages, restitution and/or disgorgement, and attorney’s fees. Defendants d0 not state as t0 how the portions identified are irrelevant, false 0r improper. In fact, neither subdivision is improper because there is nothing irrelevant, false or improper in the FAC. For the reasons articulated herein, since punitive damages are available on the claims plead, striking portion where it recites exactly the same would be incorrect. IV. IF THE COURT FINDS THE COMPLAINT DEFECTIVE, THE COURT SHOULD GRANT PLAINTIFF LEAVE TO AMEND THE COMPLAINT If the Court grants the motion t0 strike, Plaintiff requests leave t0 amend. It is an abuse of discretion for the court t0 deny leave to amend Where there is any reasonable possibility that the complaint can be amended t0 state a claim. (Goodman V. Kennedy (1976) 18 Cal.3d 335, 349.) Amendments should be liberally permitted, not only When a complaint is defective in form, but also When substantial defects are apparent. (Von Batsch V. American Dist. Telegraph Co., (1985) 175 Cal. App. 3d 1111, 222.) V. THE COURT SHOULD REFUSE TO CONSIDER ANY NEW ARGUMENTS MADE IN DEFENDANTS’ REPLY BRIEF, OR SHOULD CONTINUE THE MOTION AND GRANT PLAINTIFF LEAVE TO SUBMIT A SUPPLEMENTAL OPPOSITION Plaintiff anticipates that Defendant’s reply brief will attempt to supplement this motion by arguing that there are additional reasons t0 grant the motion beyond those which are stated in the moving papers. T0 the extent that Defendants do so, the Court should either refilse t0 8 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 consider the new arguments, or continue the motion and allow Plaintiff to file a supplemental opposition. (Balboa Ins. C0. V. Aguirre (1983) 149 Cal.App.3d 1002, 1010 [“The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before”]; Alliant Ins. Services, Inc. V. Gaddy (2008) 159 Cal.App.4th 1292, 1307-1308 [If the Court accepts new claims made in reply papers, it must give the opposing party an opportunity t0 respond].) CONCLUSION For all 0f the foregoing reasons, Defendants’ motion to strike portions of Plaintiff’s Complaint should be overruled. DATED: January 21, 2022 MCMURRAY HENRIKS, LLP By: (a Yana G. Henrik, Esq., Randy H. McMurray, Esq., Khachatur Ayvazyan, Esq. Attorneysfor Plaintiff, TORI D. MOSES 9 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County 0f Los Angeles, State 0f California. I am over the age of 18 and not a part t0 the within action; my business address is 811 Wilshire B1Vd., Suite 1640, Los Angeles, Ca ifornia 90017. On January 21, 2022 I served the foregoing document(s) described as: PLAINTIFF’S OPPOSITION TO DEFENDANTS LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC D/B/A HYATT CENTRIC MOUNTAIN VIEW AND 0T0 DEVELOPMENT, LLC’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT by method indicated below, 0n the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope, addressed as follows: MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SEE ATTACHED SERVICE LIST BY PERSONAL DELIVERY: I caused a copy 0f the document t0 be delivered personally t0 the individual(s) named in the attached service list. BY OVERNIGHT DELIVERY: I enclosed the above-listed document(s) in an envelope 0r package provided by an overnight delivery carrier and addressed it t0 the referenced in attached service list. I placed the envelope 0r package for collection and overnight delivery at an area regularly utilized by said delivery carrier. BY FAX TRANSMISSION: Itransmitted the foregoing document(s) by facsimile transmission from (323) 93 1-9521 t0 the facsimile numbers indicated 0n the attached mailing list. The transmission was reported as complete and without error on the transmission report, which was properly issued by the transmitting facsimile machine and, pursuant t0 Rule 2.306(h)(4), a copy of which is attached t0 the original 0f this proof of service. BY U.S. MAIL: I enclosed said document(s) in a sealed envelope 0r package to each addressee. I placed the envelope for collection and mailing, following our firm’s ordinary business practices. I am readily familiar With the firm’s practice for collecting and processing correspondence for mailing. Under that practice, the correspondence is deposited With the United States Postal Service, With postage fully prepaid, on the same day in the ordinary course 0f business. BY ELECTRONIC MAIL: I transmitted the foregoing document(s) by electronic mail from kayvazyan@Law-MH.com to the electronic mail addresses indicated on the attached mailing list. The transmission was reported as complete and Without error. gSTATE 1: I declare under penalty 0f perjury under the laws 0f the State 0f California that the above is true and correct. Executed 0n January 21, 2022 at Los Angeles, California. /J/Khac}1aZu//Aymgym Khachatur Ayvazyan SERVICE LIST: 10 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT MCMURRAY HENRIKs, LLP 811 WILSHIRE BOULEVARD, SUITE 1640 Los ANGELES, CA 90017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tori D. Moses v. Hyatt Corporation, et al. Case N0. 21CV381458 Randall D. Gustafson, Esq. Katie C. Brach, Esq. Gabriella S. Burden, Esq. LINCOLN GUSTAFSON & CERCOS 550 W. “C” Street, Suite 1400 San Diego, CA 92101 Telephone: 619-233-1 150 Facsimile: 619-233-6949 Email: rgustafson@lgclawoffice.com; kbrach@lgclawoffice.com; gburden@lgclawoffice.com Attorneysfor Defendant, LUSARDI CONSTRUCTION COMPANY; PALMETTO HOSPITALITY OFMOUNTAINVIEW, LLC D/B/A HYATT CENTRIC MOUNTAIN; 0T0 DEVELOPMENT Howard Roy Weber, Esq. WOOD SMITH HENNING BERMAN, LLP 1401 Willow Pass Road, Suite 700 Concord, CA 94520-3969 Telephone: 925-222-341 8 Email: hweber@wshblaw.com SReindl@wshblaW.com Attorneysfor Defendant, HYATT CORPORATION Raymond Meyer, Jr., Esq. Bryan Stofferahn, Esq. Joyce E. Clifford, Esq. BREMER, WHYTE, BROWN & O’MEARA, LLP 300 Frank H. Ogawa Plaza, Suite 355 Oakland, CA 94612 Telephone: (5 10) 540-4881 Facsimile: (510) 540-4889 Email: rmeyer@bremerwhyte.com bstofferahn@bremerwhyte.com jclifford@bremerwhyte.com mvijil@bremerwhyte.com Attorneysfor Defendant, SIMMONS GLASS & WINDOW, INC. 11 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT