Order After Hearing POSCal. Super. - 6th Dist.April 1, 2021\oooqoxmAuaw... MNNNNNNNNHHp-p-Hp-o-tn-AHH OOKJQU‘l-hUJNHOKDOO'QONM$U-)NHO SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA TORI D. MOSES, Case No. 21CV381458 Plaintiff, ORDER RE: MOTIONS TO STRIKE VS. PORTIONS OF THE FIRST AMENDED COMPLAINT HYATT CORPORATION, ET AL., Defendants, The motion to strike portions 0f the first amended complaint (“FAC”) by defendant Palmetto Hospitality of Mountain View, LLC d/b/a Hyatt Centric (“Palmetto”), and the motion t0 strike portions of the FAC by defendant Lusardi Construction Company (“Lusardi”) came 0n for hearing before the Honorable Drew C. Takaichi on February 3, 2022 at 9:00 am. in Department 2. The matter having been submitted, afier full consideration 0f the authorities submitted by. each party, and arguments made by the parties in their papers and the hearing, the court makes the following ruling: 1 ORDER RE: MOTIONS TO STRIKE POR’I'IONSOF THE FIRST AMENDED COMPLAINT H NNNNNNNNN-‘t-‘t-‘b-At-Hp-AHHH OO‘QCNLh-hUJNHOOOOflQM-bmwh‘ O \O 00 -J O\VUI L LA) N According t0 the allegations 0fthe first amended complaint (“FAC”), on August 7, 2020, plaintiff Tori D. Moses (“Plaintiff") was a hotel guest at defendant Palmetto Hospitality 0f Mountain View, LLC d/b/a Hyatt Cenm'c Mountain View (“Palmetto”), located at 509 San Antonio Road in Mountain View, owned and operated by defendant Hyatt Corporation (“Hyatt”). (See FAC, 11 17.) Defendant Lusardi Construction Company (“Lusardi”) was the general contractor retained to construct, design and develop the hotel rooms at Palmetto. (See FAC, 1] 11.) While staying at the hotel, after taking a shower, Plaintiff slid the tempered glass shower door when it suddenly exploded, shattering over Plaintiff‘s body, causing Plaintiff t0 fall to the ground and t0 sustain multiple lacerations and cuts to her wrists, hands, fingers, legs and feet. (See FAC, 1] 24.) Plaintiff necessitated medical treatment and was thereafter transported t0 Stanford Health Care’s Emergency Department. (See FAC, 1W 27-28.) The FAC includes photographs of the bloody towels and shattered glass at the scene of the incident, photographs of lacerations 0n her feet and wrist, bloody towels and a bloodied flip flop, presumably taken at Stanford Health Care’s Emergency Department, as well as photographs 0f a different incident at a different hotel where a person was bloodied by an exploding glass shower door. (See FAC, 1H] 1, 2, 27-29, fn. 2-3.) Defendants Palmetto and Lusardi separately move to strike the post-accident photos and news articles 0f the unrelated incident, as well as portions of the complaint supporting punitive damages, restitution and disgorgement, and attorney’s fees. Request for judicial notice In support 0f their motions t0 strike, the moving defendants request judicial notice of the FAC. The request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d).) Post-accident photos V Palmetto and Lusardi move t0 strike the post-accident photos pursuant to Code of Civil Procedure section 436, subdivision (a), which states that “[t]he court may... [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436, subd. (a).) Here, the photos are alleged to depict the scene 0fthe incident and Plaintiff‘s injuries. (See FAC, fl 1, fn. 2 (stating that “[t]he photos depict the scene ofthe incident, that occurred on August 2 ORDER RE: MOTIONS TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT \OOOQOUIADJNH NNNNNNNMNHHHHHHHHHp-t m‘dam-PUJNHOKOOO‘QONMAUJNHO 7, 2020, which gives rise t0 Plaintiff’s action, resulting from the glass shower in her hotel room at the Hyatt Centric Mountain View having shattered and exploded onto Plaintiff, thereby causing severe bodily injuries and emotional distress, among other things”), 11 23, fn. 4 (stating that “[t]his photo depicts the layout 0fthe hotel room guest restroom and tempered glass shower in the Hyatt Centric Hotel room in which Plaintiff was injured”), 11 27, fn. 5 (stating that “[d]epicted above is the shower glass that shattered and exploded onto Plaintiff, thereby injuring Plaintiff, while she was hotel guest [sic] at the Hyatt Centric on August 7, 2020”), fl 29, fn. 6 (stating that “[d]epicted above is the are [sic] photos 0f Plaintiff’s injuries, sustaified while she was hotel guest [sic] at the Hyatt Centric 0n August 7, 2020, immediately afier the hotel glass shower exploded and shattered onto Plaintiff’s body, thereby causing bodily injuries, permanent scars, and nerve damages [sic], amongst other injuries”).) These photos are neither irrelevant nor false. Thus, the question is whether they are “improper.” Citing County ofSan Joaquin v. Budd (1 892) 96 Cal. 47, Palmetto and Lusardi argue that “[t]he photos are contained within the Complaint, a pleading, and d0 not add t0 the ultimate and issuable facts alleged in the Complaint... [t]heref0re, they must be stricken.” (Defs.’ reply in support 0f motion t6 strike (“reply”), pp.2:9-26, 3:1-8.) In County 0f San Joaquin, supra, on January 27, 1891, a courthouse was erected in Stockton, and certain judges 0f the Superior Court 0f the County 0f San Joaquin took possession 0f certain rooms 0f the courthouse that were designated 0n the building plans as judge’s Chambers. (Id. at p.49.) The County assigled the rooms to the district attorney; however, the judges refused to surrender possession 0f the rooms. (Id. at p.50.) County filed an action for ejectment; the trial court sustained a demurrer t0 the complaint, and at the same time, granted a motion to sm'ke a portion of the complaint pertaining t0 County’s assignment and the judges’ refusal t0 surrender possession, and thereafter entered judgment in favor 0f the defendants. (Id. at pp.49-50.) The California Supreme Court reversed the judgment. However, the County of San Joaquin court noted that “[t]he court did not err in striking from the complaint the paragraph above quoted. .. [i]t was merely the statement of a matter which might be proper t0 be shown upon the trial of the action, but it added nothing to the ultimate and issuable facts alleged in the complaint.” (Id. at p.50.) It appears that Palmetto and Lusardi interpret this statement as one 3 ORDER RE: MOTIONS TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT OWOOQQLh-hDJNp-A NNNMNNNNNHHr-ap-‘HHHHHH WQQMAwN-‘OOOONJONUI-DUJNH that mandates the striking 0f any allegation that add nothing to the ultimate and issuable facts alleged in the complaint (sec reply, p.2221 (stating that [t]herefore, they must be stricken”) (emphasis added»; however, section 436, subdivision (a) explicitly states that “the court may, upon motion made pursuant to Section 435, 0r at any time in its discretion, and upon terms it deems proper. .. [s]trike out any irrelevant, false, 0r improper matter inserted in any pleading. . ..” (Code Civ. Proc. § 436, subd. (a) (emphasis added).) “Ordinarily, the word ‘may’ connotes a discretionary or permissive act; the word ‘shall’ connotes a mandatory or directory duty.” (Woodbury v. Brown-Dempsey (2003) 108 Ca1.App.4‘h 421, 433; see also Armando D. v. State Dept. ofHealth Services (2004) 124 Ca1.App.4‘h 13, 25 (stating same); see also In re Marriage ofFini (1994) 26 Cal.App.4'h 1033, 1039 (stating that “[i]t is a well established rule 0f statutory construction that the word ‘shalI’ connotes mandatory action and ‘may’ connotes discretiofiary action”); see also 1n re Marriage ofLusby (1998) 64 Cal.AppA‘h 459, 471 (stating same); see also County ofLake v. Palla (2001) 94 Cal.AppA‘h 418, 424 (stating same); see also County 0f Orange v. Bezaire (2004) 117 Cal.AppA‘h 121, 129 (stating that “the word ‘may’ is permissive”).) Here, while the photos may be subject t0 an Evidence Code section 352 objection at trial, that is an issue for the trial judge. The Court will not use its discretion to strike the photos in paragraphs I, 23, 27 and 29 of the PAC. The motions to strike the photos in paragraphs 1, 23, 27 and 29 of the FAC is DENIED. News articles Palmetto and Lusardi also move t0 stn'ke paragraph 2’s reference to a separate incident at a different hotel in Newport Beach and news articles thereto. Here, unlike the post-accident photos, despite an allegation that “Defendants, and each 0f them, have been 0n actual notice of its faulty glass showers since 2018,” the screenshots 0f news articles regarding an incident at a different location, at a different time does not appear relevant t0 the instant incident. The FAC does not allege facts supporting how “each of” the defendants were 0n actual notice ofan incident that took place two years earlier about 400 miles away. In opposition, Plaintiff argues that the allegation is an ultimate fact, and that she need not allege any further facts. However, while 4 ORDER RE: MOTIONS TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT \OWQONm-PWNp-t NNNNNNNNND-‘b-‘D-‘I-ID-‘D-Iv-Ip-In-Ip-n WQQM-fiWNHO‘OWNQM-hwfi-JHO actual notice may be an ultimate fact, here, Plaintiff avers specific facts with regards to such notice. “[I]t is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4‘h 1228, 1236; see also Chen v. PayPal, Inc. (2021) 61 Ca1.App.5‘h 559, 571 (stating same); see also Medical Marijuana, Inc. v. ProjectCBD.com (201 6) 6 Cal.Appj‘h 602, 619 (stating same); see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4”‘ 1337, 1352 (Sixth District, stating same).) At issue is notjust the allegation that each 0f the defendants had actual notice, but the specific allegation that each of the defendants had actual notice based 0n a separate incident, or news reports of a separate incident. The FAC does not allege facts that state or show that each of the defendants have actual notice based on that separate incident. The motions to strike paragraph 2 from the FAC is GRANTED with 10 days leave to amend. Accordingly, paragraph 2 of the FAC is hereby stricken as to both Palmetto and Lusardi. Punitive damages Palmetto and Lusardi move t0 strike paragraph iii ofthe prayer seeking punitive damages. In opposition t0 the motion, Plaintiff asserts that “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 d0 so Defendants acted maliciously and oppressively with the wrongful intention of injuring Plaintiff.” (Opposition, pp.5:24-27, 6:1.) Plaintiff also argues that section “3294 provides for punitive damages for unintentional negligent conduct.” (Id. at p.629.) Plaintiffis mistaken. “[M]ere negligence, which -- even if gross, 0r reckless -- cannot justify punitive damages.” (Krusi v. Bear, Stearns & C0. (1983) 144 Cal.App.3d 664, 679; see also Central Pathology Service Medical Clinic, Inc. v. Super. Ct. (Hull) (1992) 3 Cal.4‘h 181, 191 (stating that “[t]here are, however, few situations in which claims for punitive damages are predicated 0n mere negligence or a conscious disregard of the rights 0r safety 0f others and in which no intentional torts are alleged”); see also Delaney v. Baker (I999) 20 Ca1.4‘h 23, 39 (stating same); see also Davis v. Hearst (191 1) 160 Cal. 143, 5 ORDER RE: MOTIONS TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT \oooummthH NNNNNNNNNHHHn-tfi-nt-tp-Ap-np-n 172 (stating that “the truth is that mere negligence or mere carelessness can never be evidence of malice in fact... [i]n the same act they cannot even co-exist... [m]alice necessarily imports an evil purpose... [n]egligence necessarily implies an absence 0f intent or purpose”).) The FAC does not allege facts warranting the imposition 0f punitive damages. The motions t0 strike paragraph iii 0fthe prayer is GRANTED with 10 days leave t0 amend. Paragraph iii 0f the prayer of the PAC is hereby stricken as t0 both Palmetto and Lusardi. Restitution, disgorgement, and attorney’s fees Palmetto and Lusardi move to strike paragraphs v and vi seeking restitution, disgorgement and attomey’s fees from the prayer 0fthe FAC, asserting that there are no facts that would support such an award. Indeed, the FAC does not allege any facts suggesting what restitution would be necessary, for what Plaintiff would seek disgorgement and what the basis for attorney’s fees is. In opposition, Plaintiff argues that “[b]ecause 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.” (Opposition, p.7:5-24.) This argument is perplexing, but regardless, it is without merit. (See Code Civ. Proc. § 1021 (stating that “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode 0f compensation 0f attorneys and counselors at law is lefi to the agreement, express 0r implied, 0fthe parties”).) The motions t0 strike paragraphs v and vi 0f the prayer is GRANTED with 10 days leave to amend. Paragraphs v and vi 0f the prayer of the FAC is hereby stricken as to both Palmetto and Lusardi. February i,mzz W// xJ/ 45/ 4/; ’WV V Drew C. Takaichi Judge ofthe Supefior Court 6 ORDER RE: MOTIONS T0 STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 19 1 NORTH FIRST STREET SANJOSE, CALIFORNLA 95113 CIVIL DIVISION ' ‘ L E FEB 04202 RE: Tori Moses vs Hyatt Corporation et al Case Number: 21 CV381458 PROOF OF SERVICE ORDER RE: MOTIONS TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT was delivered to the parties listed betow the above entitled case as set forth in the sworn declaration below. If you, a party represented by you. or a witness to be called on behalf 0f that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 0r the Voice/TDD California Relay Service (800) 735-2922. DECLARATION OF SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose. CA on February 04. 2022. CLERK OF THE COURT. by Farris Bryant. Deputy. cc: Randy Hue McMurray MCMURRAY HENRIKS LLP 811 Wilshire Blvd Suite 1640 Los Angeles CA 90017 Raymond Meyer Jr BremerWhyte Brown & OMeara LLP 300 Frank H Ogawa Plaza Ste 355 OAKLAND CA 94612 Howard R Weber 1401 Willow Pass RD STE 7'00 Concord CA 94520 Randall D Gustafson Lincoln Gustafson & Cercos LLP 550 West C Street Suite 1400 San Diego CA 92101 cw-9027 REV 12/08116 PROOF OF SERVICE
