Nazita Gaff vs. Ariyas Incorporated

Motion to Strike

Cal. Super. - 4th Dist.April 20, 2015

BUCHALTER A Prorsssion AL CORPORA! IRVINE 10 11 12 13 14 15 16 17 18 19 20 21 22 2553 24 2:5 26 27 28 TION BUCHALTER A Professional Corporation MARK M. SCOTT (SBN: 138569) 18400 Von Karman Avenue, Suite 800 Irvine, California 92612-0514 Telephone: 949.760.1121 Fax: 949.720.0182 Email: mscott@buchalter.com Attorneys for DOE Defendants 3 and 4 Mehrdad Mark Moshayedi and Classic Investments ELECTRONICALLY FILED Superior Court of California, County of Orange 12/22/2017 at 06:38:00 Fi Clerk of the Superior Court By hanique Ramirez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER NAZITA GAFFE, an individual, Plaintiff, v. ARIYAS INCORPORATED, a California Corporation doing business as GOLDEN LEASING INC.; NADER AMIRVAND, an individual; GREEN LIGHT AUTO INC. doing business as GREEN LINE AUTO SALES; WASHINGTON INTERNATIONAL INSURANCE COMPANY, a New Hampshire Corporation and DOES 1 through 100, inclusive, Defendants. 1 CASE NO. 30-2015-00783243-CU- FR-CJC Reservation No. 72722680 UNLIMITED JURISDICTION DEFENDANT MEHRDAD MARK MOSHAYEDI AND DEFENDANT CLASSIC INVESTMENTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: February 22, 2018 TIME: 1:30 p.m. DEPT: C33 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409vi1 BUCHALTER A PROFESSIONAL CORPORA Irving 10 11 1.2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TION TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on February 22, 2018 at 1:30 p.m. in Department C33 of the above-referenced Court located at 700 Civic Center Drive West, Santa Ana, California 92702, DOE Defendant 3 Mehrdad Mark Moshayedi (“Moshayedi”) and DOE Defendant 4 Classic Investments (“Classic”) (collectively the “Classic Defendants”) will move to strike page 19, para 103, 11. 20-21; page 21, para 110, 11. 12-13; page 26, para 140, 11. 6-10; page 33, 11. 4-7 in the prayer for relief; page 41, para 29, 11. 1-3; page 41, para 32, 11. 19-23; page 49, para 63, 11. 3-5; page 54, para 85, 11. 16-18; page 55, para 90, 11. 16-20; page 56, para 94, 11. 16-20; page 59, 11. 1-5 of the prayer for relief in the Amendment to Third Amended Complaint (the “Amended Amended Complaint”) filed herein by Plaintiff Nazita Gaff (the “Plaintiff”) with respect to the Classic Defendants. The Motion to Strike is made pursuant to Sections 436(a) and (b) of the Code of Civil Procedure on the grounds that the Plaintiff has failed to allege sufficient facts in the Third Complaint to warrant the imposition of punitive damages against the Classic Defendants. Plaintiff has failed to allege facts sufficient to support a finding of fraud, oppression or malice, and is therefore precluded from seeking punitive damages under Code of Civil Procedure Section 3294. This Motion to Strike is based upon this Notice and the Memorandum of Points and Authorities in Support Thereof, the accompanying Demurrer and Memorandum of Points and Authorities in Support Thereof, the relevant pleadings, records, documents, 2 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409vl BUCHALTER 10 11 12 1.3 14 1B "16 17 18 19 20 21 22 23 24 25 26 27 28 A PROFESSIONAL CORPORATION IRVINE files and matters of which the Court may take judicial notice and such oral and documentary evidence as may be presented at the hearing of this Motion. - 7 DATED: December &¢&; 2017 BUCHALTER A Professional Corporation hyn By: MARK M. SCOTT Attorneys for DOE Defendants 3 and 4 Mehrdad Mark Moshayedi and Classic Investments 3 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409v1 BUCHALTER 10 11 12 1.3 14 15 16 14 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The Classic Defendants respectfully request the Court to strike those portions of the Plaintiff’s Amended Amended Complaint which do not comport with the pleading requirements of California law. Specifically, the punitive damage allegations should be stricken as to the Classic Defendants since the Plaintiff has failed to plead facts sufficient to warrant the imposition and threat of punitive damages. There is no support for a finding of fraud, oppression or malice as to the Classic Defendants. Punitive damages are particularly inappropriate given that there are no specific allegations of misconduct on the part of the Classic Defendants and the allegations of the Amended Amended Complaint contradict the Plaintiff’s Claims. Clearly, this action does not involve conduct giving rise to punitive damages with respect to the Classic Defendants. As discussed in more detail in the accompanying Demurrer, Plaintiff has failed to plead all the facts necessary to support Claims giving rise to punitive damages. The Classic Defendants respectfully request the Court to grant this Motion and to strike the punitive damage allegations and the improper portions of the prayer for relief contained in the Amended Amended Complaint. II. STATEMENT OF RELEVANT FACTS To spare the Court and the parties the burden of unnecessary repetition, the Classic Defendants hereby incorporate by reference their Statement of Facts (Section II) and Statement of 4 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409v1 BUCHALTER A PROFESSIONAL CORPORA IRVINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TION Allegations (Section III) contained in the Memorandum of Points and Authorities filed concurrently herewith in support of the Classic Defendants’ Demurrer. III. THE PUNITIVE DAMAGE ALLEGATIONS IN THE COMPLAINT SHOULD BE STRICKEN Section 3294 of Code of Civil Procedure requires that a plaintiff plead and prove facts demonstrating that Plaintiff acted with oppression, fraud or malice in order to recover punitive damages. As the California Supreme Court has acknowledged, punitive damages are only statutorily authorized “where the tortious event involves an additional egregious component.” College Hospital, Inc. v. Superior Court, (1994) 8 Cal.4th 704, 712. This means that “something more than the mere commission of a tort is required for punitive damages.” Scott v. Phoenix School, Inc., (2009) 175 Cal.App.4th 702, 716 citing Taylor v. Superior Court, (1979) 24 Cal.3d 890, 894-895. In fact, “simple negligence cannot support an award for punitive damages.” Jackson v. Johnson, (1992) 5 Cal.App.4th 1350, 1354. “[P]Junitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” Lackner v. North, (2006) 135 Cal.App.4th 1188, 1210 citing Tomaselli v. Transamerica Ins. Co., (1994) 25 Cal.App.4th 1269, 1287; See also American Airlines, Inc. v. Sheppard Mullin, Richter & Hampton LLP, (2002) 96 Cal.App.4th 1017, 1053 [conduct of a lawyer who acted improperly and violated State Bar Rules of Professional Conduct did not justify punitive 5 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409v1 BUCHALTER A PROFESSIONAL CORPORA Irving 10 11 12 13 14 15 16 17 18 19 20 21 2.2 23 24 25 26 27 28 TION damages because such conduct was “not so opprobrious as to compel the conclusion that he acted with a pernicious motive”]. Here, Plaintiff fails to plead anything remotely close to facts showing that Defendants acted with oppression, fraud or malice sufficient to justify Plaintiff’s claim for punitive damages. Plaintiff seeks to recover punitive damages against the Classic Defendants pursuant to the fraud, fraudulent transfer and conversion causes of action in the Amended Amended Complaint. However, virtually no specific allegations against the Classic Defendants are pleaded in the Amended Amended Complaint. In fact, Plaintiff concedes that the Classic Defendants did not make any actual representation to the Plaintiff. Further, Plaintiff acknowledges in the Amended Amended Complaint that the Classic Defendants paid substantially more than the value of the Vehicle in order to purchase the Vehicle from the dealer. In the end, Plaintiff has failed to adequately plead a right to punitive damages in this action as against the Classic Defendants, thereby resulting in a complaint that is not in conformity with the laws of the State of California. See CCP § 436. A plaintiff has not automatically pleaded sufficient facts to warrant punitive damages simply by alleging a valid claim for a business tort or fraud. Silberqg v. California Life Ins. Co., 11 Cal.3d 452 (1974). Although punitive ‘damages may be sought on a tort cause of action, a plaintiff is still required to meet the necessary pleading elements for such relief. Mere legal conclusions are insufficient to sustain an award of punitive damages under Section 3294 of the Civil Code. Actual allegations 6 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409v1 BUCHALTER 10 1:1 12 1.3 14 1.9 16 17 18 19 20 A 22 23 24 25 26 27 28 must be made. Brousseau v. Jarrett, 73 Cal. App. 3d 864 (1977); G.D. Searle & Co. v. Superior Court, 49 Cal. App. 3d 22 (1975). In G.D. Searle & Co., the plaintiff made conclusory and ambiguous allegations similar to the claims in the instant case. In holding that plaintiffs claim for punitive damages had been inadequately pleaded, the Court reviewed the possible grounds for punitive damages. The Court pointed out that, like deceit claims, actions for punitive damages must be specifically pleaded: "Notwithstanding relaxed pleading criteria, certain tortuous injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction ... When the plaintiff alleges intentional wrong, a prayer for exemplary damage may be supported by a pleading that the wrong was committed willfully or with a design to injure... Where non-deliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice... When a defendant must produce evidence in defense of an exemplary claim, fairness demands that he receive adequate notice of the kind of conduct charged against him." G.D. Searle & Co., supra, 49 Cal.Rpp. 3d at 29. In Brousseau, the Court upheld the sustaining of a general demurrer to a claim for punitive damages because plaintiff had merely made conclusory allegations that the defendant acted "intentionally, willfully, fraudulently, and with a wanton, reckless disregard to the possible injuries ..." supposedly suffered by the plaintiff. The Court held that this characterization of the defendant's conduct was a "patently insufficient statement of oppression, fraud and malice, express 7 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409v1 BUCHALTER 10 11 12 13 14 15 16 17 18 19 20 21 22 2:3 24 25 26 277 28 or implied, within the meaning of Section 3294." Brousseau, supra 73 Cal. App. 3d at 872. Plaintiff’s allegations against the Classic Defendants in the Amended Amended Complaint herein are not more specific than the pleadings condemned by the courts in G.D. Searle and Brousseau. Despite the Plaintiff’s unsupported conclusions, nowhere in these allegations are any facts which would support the requisite showing of "bad faith", "malice", "despicable conduct", or "fraud" on the part of each of the Classic Defendants. Assuming Plaintiff has a valid claim against the Classic Defendants, Plaintiff has failed to allege sufficient, specific facts which support Plaintiff’s conclusion that the Classic Defendants conduct warrants punitive damages. The Amended Amended Complaint is devoid of any such allegations. In fact, the Amended Amended Complaint demonstrates that the Classic Defendants did nothing wrong and have been sued wrongfully as a matter of law. Simply put, fairness dictates that the Classic Defendants receive adequate notice of the alleged conduct which potentially cEpeses them to punitive damages. Therefore, the Classic Defendants submit that, as a matter of law, Plaintiff has not pleaded sufficient facts to support a claim of punitive damages against each of the Classic Defendants. Accordingly, Plaintiff’s’ punitive damage allegations and prayer for punitive damages are irrelevant and improper and should be stricken pursuant to Section 436 of the Code of Civil Procedure. 8 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409vl BUCHALTER A PROFESSIONAL CORPORATI Inving 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 oN Iv. CONCLUSION For all the foregoing reasons, the Classic Defendants respectfully request the Court to grant this Motion and to strike page 19, para 103, 11. 20-21; page 21, para 110, 11. 12-13; page 26, para 140, 11. 6-10; page 33, 11. 4-7 in the prayer for relief; page 41, para 29, 11. 1-3; page 41, para 32, 11. 19-23; page 49, para 63, 11. 3-5; page 54, para 85, ll. 16-18; page 55, para 90, 11. 16-20; page 56, para 94, 11. 16-20; page 59, 11. 1-5 of the prayer for relief of the Amended Amended Complaint with respect to the Classic Defendants. DATED: December gi, 2017 BUCHALTER A Professional Corporation By: hn ly” MARK M. SCOTT Attorneys for DOE Defendants 3 and 4 Mehrdad Mark Moshayedi and Classic Investments 9 DEFENDANT MOSHAYEDI AND DEFENDANT CLASSIC’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF BN 31610409v1 Co 0 a3 O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is at BUCHALTER, a Professional Corporation, 18400 Von Karman Avenue, Suite 800, Irvine, CA 92612-0514. On the date set forth below, I served the foregoing document described as: DEFENDANT MEHRDAD MARK MOSHAYEDI AND DEFENDANT CLASSIC INVESTMENTS’ NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF AMENDMENT TO THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on all other parties and/or their attorney(s) of record to this action by [1 faxing and/or X placing a true copy thereof in a sealed envelope as follows: SEE ATTACHED LIST M BY MAIL Iam readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service. The address(es) shown above is(are) the same as shown on the envelope. The envelope was placed for deposit in the United States Postal Service at Buchalter in Irvine, California on December 22, 2017. The envelope was sealed and placed for collection and mailing with first-class prepaid postage on this date following ordinary business practices. © OVERNIGHT DELIVERY On December 22, 2017, I placed the Federal Express/Overnite Express package for overnight delivery in a box or location regularly maintained by Federal Express/Overnite Express at my office, or I delivered the package to an authorized courier or driver authorized by Federal Express/Overnite Express to receive documents. The package was placed in a sealed envelope or package designated by Federal Express/Overnite Express with delivery fees paid or provided for, addressed to the person(s) on whom it is to be served at the address(es) shown above, as last given by that person on any document filed in the cause; otherwise at that party’s place of residence. C1 BY PERSONAL DELIVERY On December 22, 2017, I placed the above-referenced envelope or package in a box or location regularly maintained at my office for our messenger/courier service or I delivered the envelope or package to a courier or driver authorized by our messenger/courier service to receive documents. The package was placed in a sealed envelope or package designated by our messenger/courier service with delivery fees paid or provided for, addressed to the person(s) on whom it is to be personally served at the address(es) shown above as last given by that person on any document filed in the cause. The messenger/courier service was provided with instructions that the envelope or package be personally served on the addressee(s) by same day delivery (C.C.P. §1011). OO 0 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BUCHALTER A PROFESSIONAL CORFORATION IRVINE Ol BY EMAIL On December 22, 2017, I caused the above-referenced document(s) to be sent in electronic PDF format as an attachment to an email addressed to the person(s) on whom such document(s) is/are to be served at the email address(es) shown above, as last given by that person(s) or as obtained from an internet website(s) relating to such person(s), and I did not receive an email response upon sending such email indicating that such email was not delivered. “1 BY ELECTRONIC SERVICE On December 22, 2017, via electronic transmission to One Legal e -service via the Internet as a scanned image of the document by electronically uploading a true copy thereof to One Legal LLC e-service. M I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. Executed on December 22, 2017, at Irvine, California. ) J / Laura Urias Aria ts (Sighature) BUCHALTER A PrRoFESsioNAL CORPOR. A” IrvINE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TION SERVICE LIST Robert J. Bekken, Esq. The Bekken Law Group 668 North Coast Highway, Suite 514 Laguna Beach, California 92653 Telephone: 949-916-7111 Facsimile: 949-480-1740 E-Mail: rob@bekkenlawgroup.com Attorneys for Plaintiff Nazita Gaff VIA U.S. MAIL Brad Jensen, Esq. Jensen & Associates 28056 Kings Lynn Mission Viejo, California 92692 Telephone: 949-468-8255 E-Mail: jensentrialawyers@gamail.com Attorneys for Plaintiff Nazita Gaff VIA U.S. MAIL Brad A. Mokri, Esq. Jennifer N. Harris, Esq. Law Offices of Mokri & Associates 1851 E. First Street, Suite 900 Santa Ana, California 92705 Telephone: 714-619-9395 Facsimile: 714-619-9396 Attorneys for Defendants Green Light Auto, Inc. and Nader Amirvand VIA U.S. MAIL Stacie L. Brandt, Esq Booth, Mitchel & Strange LLP 701 S. Parker Street, Suite 6500 Orange, California 92868 Attorneys for Defendant Washington International Insurance Com VIA U.S. MAIL BN 31054811v1