Response Reply

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

\OOOQO’N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381458 Santa Clara - Civil A. Flores 3 Electronically Filed by Superior Court of CA, County of Santa Clara, on 1/27/2022 10:52 AM Reviewed By: A. Floresca Case #21 CV381458 Envelope: 8152986 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) 233-1 150 Telephone (619) 233-6949 Facsimile rgustafson@lgclawoffice.com kbrach@1gclawoffice.com gburden@lgclawoffice.com Attorneys for Defendants LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC D/B/A HYATT CENTRIC MOUNTAIN VIEW, a Corporation; OTO DEVELOPMENT, LLC, a Corporation SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA TORI D. MOSES, an individual, Case N0.: 21CV381458 Plaintiff, DEFENDANTS LUSARDI CONSTRUCTION V. COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC D/B/A HYATT CENTRIC MOUNTAIN VIEW AND OTO HYATT CORPORATION, a Corporation; PALMETTO HOSPITALITY OF MOUNTAIN VIEW LLC D/B/A “HYATT DEVELOPMENT, LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST CENTRIC MOUNTAIN VIEW,” a AMENDED COMPLAINT Corporation; OTO DEVELOPMENT, LLC, a Corporation; LUSARDI CONSTRUCTION COMPANY, a Corporation; SIMMONS Judge: Hon. Drew C. Takaichi Dept. 2 Complaint Filed: April 1, 2021 GLASS & WINDOW, INC, a Corporation; Trial Date; Not Set CKB INDUSTRIES CO., LIMITED, a Corporation; DOES 1-100, inclusive; and Hearing Date: February 3, 2022 MANUFACTURER DOES 1-100, inclusive Hearing Time: 9:00am Defendants. COMES NOW, Defendants LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW LLC D/B/A “HYATT CENTRIC MOUNTAIN VIEW,” a Corporation, and OTO DEVELOPMENT, LLC, a Corporation (“Defendants”) and submits the following Reply t0 Plaintiff” s Opposition t0 the Motion t0 Strike Portions 0f Plaintiff” s First Amended Complaint (“FAC” or “Complaint”) (“Motion”). / / / 1 DEFENDANTS’ REPLY ISO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FAC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Preliminary Statement Lusardi Construction Company (“Lusardi”) filed a Motion t0 Strike Portions of Plaintiff” s First Amended Complaint 0n October 20, 2021 1. Defendants Palmetto Hospitality 0fMountain View, LLC DBA Hyatt Centric Mountain View (“Palmetto”) and Oto Development, LLC (“Oto”) filed a substantially similar Motion to Strike Portions 0f Plaintiff’s Complaint 0n September 22, 2021. Defendants Lusardi, Palmetto, and Oto hereby submit this Reply t0 Plaintiff’s Opposition and respectfully request that the Court grant Defendants’ Motions in their entirety. II. Argument A. Plaintiff’s Opposition Fails t0 Establish the Relevance 0f the Photos Throughout the Opposition, Plaintiff contends that the Photos are relevant as they “support the harm Plaintiff suffered from the defective shower glass, support Plaintiff’s request for punitive damages, and directly refute Defendants’ contentions that Defendants have not committed any additional torts aside from general negligence.” (Plaintiff’s Opposition t0 the Motion at P. 2 1] 24 - P. 3 1] 1). As identified in Defendants’ Motion, the court has the power t0 strike portions 0f a pleading Which add “nothing to the ultimate and issuable facts alleged in the complaint.” (San Joaquin County v. Budd, (1892) 96 Cal. 47, 50). Despite Plaintiff’s dissatisfaction With the San Joaquin case on the basis that there, a paragraph was stricken, and not a photograph, the purpose 0f the Court’s intention was t0 strike portions 0f a pleading that adds noting t0 the ultimate and issuable facts alleged in the complaint. The Photos are contained within the Complaint, a pleading, and do not add to the ultimate and issuable facts alleged in the Complaint. Therefore, they must be stricken. Despite the numerous contentions identified above Which Plaintiff claims that the Photos support, Plaintiff has still failed to establish how the Photos themselves add to the ultimate and issuable facts. As t0 the fist contention, Plaintiff’s Complaint details the nature and extent 0f Plaintiff’s injuries through Paragraphs 24 - 30 of the FAC. The photos d0 not add t0 Plaintiff” s account 0f the events 0r facts. Next, as described in more detail below, punitive damages must be plead with specificity (Which Plaintiff has failed to do.) A 1 Lusardi’s Motion was originally filed 0n August 19, 2021, but due to an error was refiled 0n October 20, 2021. 2 DEFENDANTS’ REPLY ISO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FAC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 picture cannot possibly detail the specificity in which punitive damages must be plead. Finally, Plaintiff also contends that the Photos refute Defendants’ contentions that Defendants have not committed any additional torts aside from general negligence. It is unclear how a photo tells such a story. The Photos would depict the same scene whether the result was Via negligence, accident, or otherwise. As the Photos are prejudicial to Defendants, yet fail to add any relevance t0 the claims that have already been alleged and described by Plaintiff, Defendants respectfully request the Court strike the Photos from the FAC. B. Plaintiff Has Failed To Establish The Relevance 0f The News Article While Plaintiff argues that the News Article is relevant in that is purports t0 establish notice of an alleged dangerous condition, Plaintiffhas failed t0 plead sufficient facts in the face ofthe Complaint to establish the connection. The FAC fails t0 link Lusardi, Palmetto, or Oto t0 the Hyatt Newport Beach incident. Plaintiff has not alleged that Defendants owned the Newport Beach Hotel, worked in 0r at the Hotel, 0r were involved in the construction. As Plaintiff has failed t0 allege in the Complaint how Defendants were involved or linked in the Newport incident, Plaintiff cannot rely on the articles to establish notice, 0r for any other reason as the face 0f the Complaint is devoid of any connection. The News Article is therefore irrelevant, and must be stricken. C. Plaintiff Has Failed t0 State Sufficient Facts Warranting Punitive Damages Whether the causes 0f action for Premises Liability and Negligence can lead t0 a prayer for punitive damages is irrelevant in establishing Whether or not Plaintiff has met the pleading requirements with specificity. Defendants are not necessarily claiming that Premises Liability or Negligence causes 0f action can never lead t0 punitive damages, Defendants are simply maintaining that a specific pleading requirement is a prerequisite to such a prayer, and Plaintiff has failed to state with specificity facts that would warrant the imposition 0fpunitive damages. (Cal. CiV. Code §3294). Plaintiff has failed t0 specify how defendants have been guilty 0f oppression, fraud, 0r malice With regard to the claims alleged, and therefore have failed t0 establish Why punitive damages are warranted. /// 3 DEFENDANTS’ REPLY ISO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FAC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Simply put, Plaintiff has failed t0 offer facts t0 support the requisite that Defendants intended to cause harm, thereby warranting an imposition 0f punitive damages. Further, the use 0f the word “malice” 0r other similar term does not meet the requirements of the heightened pleading standard. Plaintiff must have established by clear and convincing evidence that a defendant’s tortious wrong amounts t0 “despicable conduct” and, further, that the despicable conduct was carried on With a “willful and conscious disregard 0fthe rights or safety 0f others.” (California Practice Guide: Personal Injury, William F. Flahavan et a1., Section 3:262 (2016 ed.); see also Civil Code § 3294(c)(l); CACI 3940-3941). The one-liner relied on by Plaintiff that Defendants’ “committed malicious and oppressive acts with the wrongful intention 0f harming Plaintiff” is insufficient to meet the requirements. Further, Plaintiff has not established how an employee 0f Defendants acted with oppression, fraud, or malice, and has also not established that Defendants’ corporate leader knew 0r ratified the conduct, as is required When seeking punitive damages from a corporate entity. T0 meet the heightened pleading requirements for punitive damages, Plaintiff has t0 offer more than mere conclusory and unsupported allegations. As Plaintiff has failed t0 meet the specific requirements (as opposed t0 conclusory allegations) the prayer for punitive damages must be stricken. D. Restitution, Disgorgement, and Attorneys Fees are Unsupported Plaintiff claims that Defendants cannot move to strike the prayer for restitution, disgorgement, 0r attorney’s fees as the argument is moot, and as Courts may award relief in excess 0f what is contained within the prayer. Plaintiff’s reliance on each as support for the prayers is misplaced. First, Plaintiff claims that the motion t0 strike is moot as t0 the prayer as Defendants have not yet defaulted. Frankly, Plaintiff’s initial argument the Defendants have not defaulted, and therefore cannot move to strike the prayer is nonsensical. The purpose 0fthe motion to strike is to cure the issues in the Complaint so that Defendants can then file an Answer. The contents 0f the prayer are therefore highly relevant prior t0 the Answer, as Defendants seek t0 limit unsupported reliefprior t0 filing an Answer. / / / / / / 4 DEFENDANTS’ REPLY ISO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FAC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next, Plaintiff concedes in the Opposition that “the court may grant the plaintiff any relief consistent with the case made by the Complaint and embraced within the issue.” (Cal Code CiV Proc § 580(a)). The restitution, disgorgement, and attorneys’ fees are not consistent with the case made by the Complaint and are not embraced within the issues. Plaintiff has offered no support that would warrant the imposition of restitution, disgorgement, or attorneys’ fees as t0 Defendants. The Opposition failed to state Which facts as plead in the Complaint support the prayers. As a result, the prayers for restitution, disgorgement, and attorneys’ fees unsupported and must be stricken from the Complaint. III. Conclusion Based 0n the foregoing, Defendants respectfully request that the Court grant Defendants Motion t0 Strike Portions of Plaintiff’s FAC in its entirety. LINCOLN, GUSTAFSON & CERCOS, LLP Dated: January 27, 2022 By: Mam de5W Kéndall D. Gustafson, Esq. Katie C. Brach, Esq. Gabriella S. Burden, Esq. Attorney for Defendants LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC D/B/A HYATT CENTRIC MOUNTAIN VIEW, OTO DEVELOPMENT, LLC. 5 3 DEFENDANTS’ REPLY ISO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FAC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Telephone (619) 233-1 150 Facsimile (619) 233-6949 Attorneys for Defendants LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC, d/b/a HYATT CENTRIC MOUNTAIN VIEW, a Corporation; OTO DEVELOPMENT, LLC, a corporation SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA TORI D. MOSES, an individual, Case No.2 21CV381458 Plaintiff, PROOF OF SERVICE V. Judge: Hon. Drew C. Takaichi HYATT CORPORATION, a Corporation; Dept 2 HYATT CENTRIC MOUNTAIN VIEW, a Complaint Filed: April 1, 2021 Corporatlon; OTO DEVELOPMENT, LLC, a Trial Date; Not Set Corporation; LUSARDI CONSTRUCTION COMPANY, a Corporation; SIMMONS GLASS & WINDOW, INC, a Corporation; DOES 1- 1 00, inclusive; and MANUFACTURER DOES 1- 1 00, inclusive, Defendants. I am employed in the county of San Diego, State 0f California. I am over the age of 18 and am not a party to the within action; my business address is Lincoln, Gustafson & Cercos, LLP, 550 West “C” Street, Suite 1400, San Diego, CA 92101. January 27, 2022, I served the following document(s): DEFENDANTS LUSARDI CONSTRUCTION COMPANY, PALMETTO HOSPITALITY OF MOUNTAIN VIEW, LLC D/B/A HYATT CENTRIC MOUNTAIN VIEW AND OTO DEVELOPMENT, LLC’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT Said documents were served upon: 1 PROOF OF SERVICE \OOOQO’N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNSEL OF RECORD PARTY Randy H. McMurray, Esq. Yana Henriks, Esq. Gabriel Henriquez, Esq. MCMURRAY HENRIKS, LLP 811 Wilshire Boulevard, Suite 1640 Los Angeles, CA 90017 (323) 931-6200 Telephone (323) 93 1-9521 Facsimile rmcmurrav@1aw-mh.com vhenriks@1aW-mh.com ghenriquez@1aw-mh.com mescorcia@law-mh.com tashvanian@1aW-mh.com Attorney for Plaintiff TORI D. MOSES Gregory P. Arakawa Howard Weber WOOD, SMITH, HENNING & BERMAN LLP 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 (925) 222-3400 Telephone (925) 356-8250 Facsimile GArakawa@wshblaw.com HWeber@wshblaw.com Attorney for Defendant HYATT CORPORATION Raymond Meyer, Jr. Bryan Stofferahn Joyce E. Clifford BREMER, WHYTE, BROWN & O’MEARA, LLP 300 Frank H. Ogawa Plaza, Suite 355 Oakland, CA 94612 (5 10) 540-4881 Telephone (510) 540-4889 Facsimile RMever@bremerwhvte.com BStofferahn@bremerwhvte.com JClifford@bremerwhvte.com MViiil@bremerwhvte.com Attorney for Defendant SIMMONS GLASS & WINDOW, INC. X (BY ELECTRONIC TRANSMISSION) (C.C.P. § 1010.6(6)) Our office caused the documents t0 be sent to the persons at the e-mail addresses listed. Any electronic message or other indication that the transmission was unsuccessful was not received Within a reasonable time after the transmission g (STATE) I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed 0n January 27, 2022, at San Diego, California. flaw3W JENNIFER BURRUP 2 PROOF OF SERVICE