Kerry J. Snyder vs. Steven A. Alexander

Reply to Opposition

Cal. Super. - 4th Dist.July 26, 2016

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF NICHOLAS J. COCHRAN Nicholas J. Cochran (SBN 225050) 2021 E. Fourth Street, Suite 201 Santa Ana, California 92705-3912 (714) 835-8100 Telephone (714) 835-8193 Facsimile Attorney for Defendants, STEVEN A. ALEXANDER and ROt__ ELECTRONICALLY FILED Superior Court of California, County of Orange 1072472016 at 02:54:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER KERRY J. SNYDER, an individual and as Trustee of the Snyder Family Trust; MICHELLE E. SNYDER as Trustee of the Snyder Family Trust; Plaintiffs, v. STEVEN A. ALEXANDER aka Steven A. Afghani; ROGELIO F. DOMINGUEZ; and DOES 1-10, Defendants. CASE NO, 30-2016-00865761-CU-DF-CJC Honorable Judge Geoffrey T. Glass Department C32 REPLY TO OPPOSITION TO MOTION TO STRIKE (RE: VERIFIED FIRST AMENDED COMPLAINT FOR DAMAGES ...) Date: October 31, 2016 Time: 1:30 p.m. Dept: C32 TO PLAINTIFFS AND TO THEIR ATTORNEYS OF RECORD: Defendants, STEVEN A. ALEXANDER and ROGELIO F. DOMINGUEZ, reply to Plaintiffs’ Opposition to Motion to Strike regarding Plaintiffs’ Verified First Amended Complaint for Damages and Injunctive Relief (“FAC”), as follows: FACTUAL BACKGROUND AND PROCEDURAL STATUS This action arises from what should have been a relatively simple wage claim action. Rogelio F. Dominguez initiated an action for unpaid wages and monetary penalties for violations of CALIFORNIA LABOR CODE as against Kerry J. Snyder (“Snyder”) and his respective corporations in Orange County Superior Court case no. 30-2012-006611672. Dominguez alleged he worked for Snyder and his corporations doing landscaping type of work. Dominguez is a 55 year old Hispanic man with an eighth grade education while Snyder is a 1 Reply to Opposition to Motion to Strike 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 sophisticated businessman. That Snyder took advantage of Dominguez is without question as a jury awarded Dominguez $13,548.00 in unpaid wages as against K. J. Snyder & Associates, Inc. (*judgment debtor”), which is no small sum when viewed against the 18 month period of time Dominguez worked for this defendant. In other words, Dominguez was intentionally deprived of more than $9,000 per year in just and lawful wages. After obtaining judgments for his unpaid wages and for the attorneys fees Dominguez incurred to get his unpaid wages, Dominguez recorded abstracts of judgment with the Orange County Recorder’s Office. Right on the heels of obtaining a judgment in his favor and recording his abstracts, however, Snyder dissolved the judgment debtor and filed bankruptcy for it, stating in its bankruptcy schedules filed under penalty of perjury that it had gross income in 2014 of $1,798,840 and in 2015 of $1,769,540 — all to avoid paying Dominguez $13,548.00 in unpaid wages (in fact, the bankruptcy petition lists only four creditors: Snyder himself as the largest creditor, his past and current attorneys, and Dominguez). This action arises as Snyder alleges that Dominguez sued him “without probable cause and for an improper purpose” for which he seeks punitive damages. Snyder and his wife, Michelle E. Snyder, as co-Trustees of the Snyder Family Trust, also claim that Dominguez and his attorney slandered title to the Trust’s real property (“Property”), for which they again seek punitive damages. Finally, Snyder also seeks punitive damages for statements Dominguez’ attorney posted on Yelp.! Plaintiffs’ FAC improperly requests punitive damages based on insufficient allegations. Thus, for all of the reasons which follow, this motion should be granted. IL A COMPLAINT OR CROSS-COMPLAINT THAT FAILS TO STATE FACTS SUFFICIENT TO SUPPORT AN AWARD OF PUNITIVE DAMAGES IS SUBJECT TO A MOTION TO STRIKE ON THAT GROUND CODE OF CIVIL PROCEDURE § 435 et seq. Plaintiffs first argue at paragraph 7 that “failure to state sufficient facts is not a ground for a motion to strike” and cite to CALIFORNIA CODE OF CIVIL PROCEDURE § 436. They are wrong. CoDE OF CIVIL PROCEDURE § 436 provides that a motion to strike may strike out any “irrelevant matter”, which include allegations “requesting relief not supported by the allegations of the ! The complaint also includes a cause of action for quiet title, which does not include a request for punitive damages. A demurrer to all four causes of action is set to be heard at the same time as this motion to strike. A request for judicial notice in support of the demurrer and motion to strike has also been filed. 2 Reply to Opposition to Motion to Strike 10 dal, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 complaint ...”. CODE OF CIVIL PROCEDURE §§ 431.10(b) and (c). Thus, a motion to strike is proper where the alleged facts do not rise to the level of “malice, fraud, or oppression” that is required to support a punitive damages award. Turman v. Turning Point of Central Calif, Inc., 191 Cal. App. 4™ 53, 63 (2010). Thus, failure to state facts sufficient to support a request for punitive damages is well within the acceptable grounds to bring a motion to strike. IIL THE ALLEGATIONS OF THE ENTIRE COMPLAINT ARE INSUFFICIENT TO SUPPORT AN AWARD OF PUNITIVE AND/OR EXEMPLARY DAMAGES Plaintiffs’ FAC alleges causes of action for malicious prosecution, slander of title, quiet title, and defamation per se, and includes multiple requests for punitive damages. Here, the entire FAC fails to state facts sufficient to support an award of punitive and/or exemplary damages as to any of these causes of action. As such, the allegations and any prayer for punitive and/or exemplary damages contained in the FAC should be stricken. A. THE ALLEGATIONS OF THE EXEMPLARY DAMAGES IN THE FIRST CAUSE OF ACTION ARE INSUFFICIENT TO SUPPORT AN AWARD OF PUNITIVE AND/OR EXEMPLARY DAMAGES Snyder does not deny that the allegations of his claim for punitive damages are primarily contained in paragraph 49, where he alleges that the “conduct of the herein defendants, particularly Dominguez and Alexander, were willful, wanton, oppressive, and in bad faith, and thus warrant the imposing of punitive and/or exemplary damages.” This allegation is obviously a conclusion, so it violates the holding of Cyrus v. Haveson, Cal. App. 3d 306, 316-317 (1976). This allegation also fails to show an intent to injure or despicable conduct, so it violates Smith v. Sup. Ct. (Bucher), 10 Cal. App. 4™ 1033, 1041-1042 (1992). But even when all of the allegations preceding the first cause of action are considered, there are insufficient facts to show that Dominguez or Alexander ever intended to injure Snyder or that Dominguez or Alexander acted despicably. In fact, as shown in the concurrently filed demurrer, even sufficient factual allegations of no probable cause and malice are missing from the FAC. And, ‘no probable cause’ and ‘malice’ are required elements of this cause of action. In fact, Snyder admits he relies solely on allegations of lack of probable cause to constitute malice, because he has no allegations of malice sufficient to support an award of punitive damages. So in his opposition he merely 3 Reply to Opposition to Motion to Strike 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 repeats the allegations of this cause of action. Plaintiff first argues at paragraph 9 of his opposition that “malice may be inferentially proven from showing a want or lack of probable cause”. Then, in paragraph 10 he argues that regarding “both probable cause and malice”, paragraphs 12 and 13 of the FAC include allegations that “shortly after being served with Dominguez’s lawsuit for unpaid wages” he sent Dominguez’ attorney a letter “expressly stating” that he had never employed Dominguez and that based thereon Dominguez’ attorney should have simply believed him and dismissed him from the lawsuit on that basis (rather than demanding proof), and that Dominguez’ failure to do so “strongly indicates” a lack of probable cause“, such that his action “was therefore initiated and prosecuted with malice”. Obviously, Dominguez’ refusal to simply agree with a letter from Snyder’s attorney that he did not employ Dominguez affer the complaint was already filed and after it was served does not show that Dominguez did not reasonably believe that there were any grounds (probable cause) to initiate his action, and certainly does not infer malice. Next, Snyder argues at paragraph 11 of his opposition that paragraphs 16 and 17 of the FAC shows that the underlying action “lacked probable cause, and was thus initiated with malice” because the court “overruled practically all of Dominguez’ demurrer” to his amended answer. Again, these allegations are insufficient to show the prior action lacked probable cause because they are insufficient to show that Dominguez did not reasonably believe that there were any grounds to initiate his action. Then, at paragraph 12 plaintiffs argue that paragraph 19 of the FAC alleges that Dominguez’ attorney “made an 11™ hour speaking motion to the court to reclassify his action” from unlimited to limited jurisdiction. Again, this allegation on the eve of trial is insufficient to show that Dominguez did not reasonably believe that there was probable cause to initiate his action. At paragraph 13 Snyder cites to paragraph 23 of the FAC for allegations that Dominguez did not produce at trial any evidence that he had ever been employed by Snyder to show lack of probable cause when combined with his letter to Dominguez’ attorney at the outset of the litigation.” Again, these allegations are insufficient to show that Dominguez did not reasonably believe that there were any grounds to initiate his action, and certainly does not infer malice. 4 Reply to Opposition to Motion to Strike 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, at paragraph 14, Snyder cites to paragraphs 39 through 42 of the FAC to again “provide additional evidence” that Dominguez’ action was initiated without probable cause, “and therefore with malice”. These paragraphs are completely irrelevant to a determination of probable cause as they allege conversations affer trial and affer a jury verdict against K. J. Snyder & Associates, Inc., regarding the potential for a malpractice action against the attorney that defended K. J. Snyder & Associates, Inc., et al., for failure to settle the Dominguez action for a paltry sum when compared with the final judgment of ~$135,000.00 obtained against K. J. Snyder & Associates, Inc. Snyder’s spin on these conversations isn’t even accurate when he asserts that Dominguez’ attorney “did not believe Dominguez’s lawsuit had merit and that Dominguez should have totally lost his wage claim case”, because, to the contrary, Dominguez’ attorney knew from the outset that his client would prevail on his unpaid wage claim and had initially offered to settle the claim for much, much less than the ~$135,000.00 judgment Dominguez ended up getting after trial. Regardless, these allegations do not show lack of probable cause and certainly do not show malice. Obviously, the tortured logic and argument and irrelevant facts alleged by Snyder to support the element of lack of probable cause, and, more importantly, the element of malice, do not justify an award of punitive damages. A complaint must plead ultimate facts of a defendant's oppression, fraud or malice and the basis for the award cannot be pled in conclusory terms. Cyrus v. Haveson, Cal. App. 3d 306, 316-317 (1976). And while malice may be inferred from lack of probable cause, the facts presented in the FAC are insufficient to show lack of probable cause let alone malice, especially when malice means conduct intended by the defendant to cause injury to the plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of other. CiviL CODE § 3294(c)(1). B. THE ALLEGATIONS OF THE EXEMPLARY DAMAGES IN THE SECOND CAUSE OF ACTION ARE INSUFFICIENT TO SUPPORT AN AWARD OF PUNITIVE AND/OR EXEMPLARY DAMAGES The second cause of action for “slander of title” is made on behalf of Snyder and his wife, Michelle E. Snyder, as co-Trustees of the Snyder Family Trust. The concurrently filed demurrer to the complaint shows that this cause of action has no merit insofar as they suffered no damage ? For what its worth, plaintiffs self-servingly fail to point out that their motion for non-suit after Dominguez rested at time of trial, was denied. Likewise, they fail to point out that their CODE OF CIVIL PROCEDURE § 128.7 motion 5 Reply to Opposition to Motion to Strike 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 | i since his alleged attempt to get a loan secured by the home in which he lives (“Property”), which is owned by the Snyder Family Trust, was not declined by Union Bank because of the abstracts recorded by Dominguez and since the abstracts recorded by Dominguez did not create a lien on the Property. The allegations of the Snyders’ claim for punitive damages are primarily contained in paragraph 59, where plaintiffs again allege that the “conduct of the herein defendants, particularly Dominguez and Alexander, were willful, wanton, oppressive, and in bad faith, and thus warrant the imposing of punitive and/or exemplary damages”. Plaintiffs do not deny that this allegation is word for word the same allegation as that found at paragraph 49 in the first cause of action, and again is obviously a conclusion that fails to state facts showing an intent to injure or despicable conduct and so it violates Cyrus v. Haveson, Cal. App. 3d 306, 316-317 (1976). Yet even when all of the allegations preceding and including the first cause of action are considered, there are insufficient facts to show that Dominguez or Alexander intended to injure plaintiffs or that Dominguez or Alexander acted despicably. Thus, insofar as the allegations of the FAC are insufficient to support an award of punitive damages as against defendants, they should be stricken. C. THE ALLEGATIONS OF THE EXEMPLARY DAMAGES IN THE FOURTH CAUSE OF ACTION ARE INSUFFICIENT TO SUPPORT AN AWARD OF PUNITIVE AND/OR EXEMPLARY DAMAGES The allegations of Snyder’s claim for punitive damages here are primarily contained in paragraph 75, where Snyder alleges that the “conduct of the herein defendants, particularly Alexander, were willful, wanton, oppressive, and in bad faith, and thus warrant the imposing of punitive and/or exemplary damages” — again, this is essentially the same allegation as found in paragraphs 49 and 59 in the first and second causes of action. And again, Snyder does not deny that this allegation is obviously a conclusion and fails to state facts showing an intent to injure or despicable conduct, and violates Cyrus v. Haveson, Cal. App. 3d 306, 316-317 (1976). Yet even when all of the preceding allegations are considered, there are insufficient facts to show that Alexander intended to injure Snyder or that Alexander before Judge Sheila Fell was denied and in a written ruling she stated that Dominguez’ action had merit. 6 Reply to Opposition to Motion to Strike 10 1.3 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acted despicably. Snyder argues at 8:27 that Alexander’s Yelp posts “suggest Kerry Snyder is dishonest, untrustworthy, and lawless” — nothing of which rises to the level of libel per se, let alone defamation. His argument that Alexander said that “Kerry [Snyder] does not like to pay his employees according to law” is, again, not libelous per se, and not even defamatory. Likewise, his allegation that Alexander said that Snyder “is a dishonest fraud who does not want to play by the rules” is, once again, not libelous per se, and not even defamatory. Snyder argues at paragraph 33 that he may rely on inferences drawn from circumstantial evidence to show actual malice, citing Sanders v. Walsh, 219 Cal. App. 4" 855, 873 (2013). Then Snyder attempts to infer malice by arguing that because Alexander was Dominguez’ attorney and because Snyder was not found liable to Dominguez, “the false and defamatory comments Alexander published on Yelp about Kerry Snyder were clearly made out of malice.” Obviously, the ‘circumstantial evidence’ in the allegations in the FAC is insufficient to infer malice in this instance. There is no failure to investigate, no anger and hostility to Snyder, no reliance on sources known to be unreliable or know to be biased against Snyder. Some of the Yelp statements were hyperbole; some of the statements are true but not defamatory. But it is too much of a stretch to infer malice from the facts presented in the FAC. As such, there is insufficient support for an award of punitive damages. IV. CONCLUSION For all of the above reasons, defendants, Rogelio F. Dominguez and Steven A. Alexander, respectfully requests that the Court grant their motion to strike paragraphs 49, 59 and 75 of the first, second, and fourth causes of action, respectively, and paragraph 5 of the prayer of the FAC (i.e., the punitive damage allegations and p ame). Dated: October 24, 2016 LAW QFFICES QF NICHOLAS J. COCHRAN NICHOLAS J. COCHRAN — Attorney for Defendants, STEVEN A. ALEXANDER and ROGELIO F. DOMINGUEZ 7 Reply to Opposition to Motion to Strike 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. Iam over the age of 18 years and not a party to the within action. My business address is 1717 N. Broadway, Santa Ana, California 92706. On October 24, 2016, I served the foregoing documents described as: REPLY TO OPPOSITION TO MOTION TO STRIKE on all parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: Attorneys for Plaintiffs Wenzel & Associates, A Law Corporation Roger C. Ho, Esq. 1800 N. Broadway, Suite 101 Santa Ana, California 92706 XXX (BY HAND) I caused such document, referenced above, to be hand delivered to the offices of the person(s) named above. (BY FACSIMILE TRANSMISSION) I sent by facsimile transmission the above- referenced document(s) on October 24, 2016, to the appropriate facsimile number(s). (BY EXPRESS MAIL) I caused such envelope with postage thereon fully prepaid to be delivered by express mail in compliance with CODE OF CIVIL PROCEDURE § 1005(b). (BY ELECTRONIC SERVICE) On the below date and time, I electronically served the foregoing document(s) to the electronic service address above pursuant to CALIFORNIA RULES OF COURT Rule 2.251(g). (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Santa Ana, California. I am "readily familiar" with firm's practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. [ am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after the date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on October 24, 201 6, at Santg. Ana, California. \ - ~~