Jaime Caballero vs. Furst Enterprises Group

Motion to Strike

Cal. Super. - 4th Dist.December 22, 2016

© O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O Brad M. Elder, Esq. (SBN 174532) DIEDERICH & ASSOCIATES 21680 Gateway Center Drive, Suite 100 Diamond Bar, CA 91765 Main (909) 612-3930; Fax (855) 260-0261 Direct (909) 612-3945 E-mail: bmelder@travelers.com Attorneys for Furst Enterprises Group D, LLC, erroneously Named and Served as Furst Enterprises Group, DLLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE — CENTRAL JAIME CABALLERO, Case No.: 30-2016-00894002-CU-PO-CJC Plaintiff, NOTICE OF HEARING AND MOTIONTO VS. STRIKE OF DEFENDANT, FURST ENTERPRISES GROUPD,LLCTO FURST ENTERPRISES GROUP DLLC, PLAINTIFF'S COMPLAINT AND SUBWAY, PIZZA HUT, WING STREET, MEMORANDUM OF POINTS AND AUTO ZONE AND DOES 1TO 100, AUTHORITIES INCLUSIVE, Assigned to J udge Walter Schwarm, Defendants. Dept. C19 Complaint Filed: December 22, 2016 Trial Date: Not SetY et Hearing Date: April 25, 2017 Time: 1:30 p.m. Dept. C19 Reservation Number: 72537738 TO PLAINTIFF AND YOUR ATTORNEYS OF RECORD: NOTICE ISHEREBY GIVEN THAT on April 25,2017 at 1:30 p.m., or as soon thereafter as the matter may be heard in Department C19 of the above-entitled Court located at 700 Civic Center Drive W est, Santa Ana, California, Defendant, FURST ENTERPRISES GROUP D, LLC, will move the Court for an orderstriking the following from Plaintiff’s Complaint; Mi 1 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o U 1 B A W w W N D R N O N N N D N D N N N N N N N F P F P F P F P F P FP F F P F R P P C O ~ N O O U i B A W w W N N F P O O V U 0 0 N N O o o U l B A W w W N N + P o O o 1) Atpage 5 of the Complaint, First Cause of Action — Premises Liability, Prem.L-3. Count Two — Willful Failure to Warn [Civil Code §846]. This motion is based upon California Code of Civil Procedure §§435, 436 and 437, Civil Code §864 and upon the grounds that the claim of Willful Failure to Warn is irrelevant and improper matter and it is not drawn and filed with the conformity with the laws of this State. This Motion is based upon this Notice and the attached M emorandum of Points and A uthorities and upon such further documentary and oral evidence as may be presented at any time up to and including the hearing on this motion. DATED: February 22, 2017. DIEDERICH & ASSOCIATES Brad M. Elder, Esq., Attorneys for Defendant, FURST ENTERPRISES GROUPD, LLC 2 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION Plaintiff, JAIME CABALLERO (“Plaintiff”) filed a Complaint on or about December 22, 2016 against Defendant, FURST ENTERPRISES GROUP D, LLC (hereinafter “FURST ENTERPRISES”), PIZZA HUT, SUBWAY, WING STREET, AUTO ZONE and DOES 1 - 100, seeking damages for, injuries allegedly incurred when Plaintiff slipped on a substance in a parking lot at a small shopping center, located at 102 N.. Euclid Streetin Anaheim, California. Inthe First Cause of Action for Premises Liability at page 5 of the Complaint, paragraph Prem.L-1, Plaintiff alleges he was in a slip and fall accident on April 9, 2016 at a shopping mall located at 102 N. Euclid Street in Anaheim, California. However, nowhere in the Complaint is there one single fact alleging malicious or willful conduct by FURST ENTERPRISES (See Plaintiff’s Complaint at page 5, Premises Liability, PREM .L-1; at page 6, Premises Liability, Attachment to Complaint, PREM .L-1 Contd.; at page 7, General Negligence, GN-1; or at page 8, General Negligence, Attachment to Complaint, GN-1 Contd.) At paragraph Prem.L-3 Count Two—W illful Failure to Warn [Civil Code §846], Plaintiff alleges as follows: “The defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity were ... FURST ENTERPRISES GROUP, DLLC, PIZZA HUT, SUBWAY, WING STREET, AUTO ZONE and DOES 1-100.” Other than these facts, there are no other specific facts alleging willful, knowing or malicious conduct concerning the accident in Plaintiff’s Complaint. Based on the lack of specific facts and information plead by Plaintiff, the Complaint is deficient and uncertain in that it fails to state facts sufficient to constitute a cause of action for Premises Liability Willful Failure to Warn. Moreover, Plaintiff has not pled sufficient facts to establish any malice or willful conduct by FURST SJH Golf Club. In fact, the Complaint is completely devoid of any statement of facts sufficient to constitute elements of any willful or malicious behavior by FURST ENTERPRISES. Thus, as Count Two — Willful Failure to Warn in Plaintiffs First Cause of Action for Premises Liability has no facts to supportit, the paragraph should be stricken from the Complaint without leave to amend. 3 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O 11. ARGUMENT A. THISMOTIONTO STRIKE ISAUTHORIZED BY CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 436 & 437 (a) Plaintiff’s Complaint is a form complaint which has been approved for use by the California Judicial Council. The supposed idea behind the form complaintis simplicity and all one has to do is check the appropriate boxes for the particular action and plead basic facts. However, just because the form is an approved form does not guarantee that the final product will be objection-proof. As such, the Court is authorized to strike out any improper matter contained in a pleading or any part of a pleading not draw in conformity with the law. California Code of Civil Procedure §436, authorizes the Court, upon motion or at any time in its discretion,to: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an orderof the court. California Code of Civil Procedure §437(a) requires that the grounds for the motion to strike appear on the face of the challenged pleading or upon any matter which the court is required to take judicial notice. In this case, the grounds for the instant motion to strike appear on the four corners of Plaintiffs Complaint as well as the First Cause of Action. Specifically, Count Two - Willful Failure to Warn contains no general or specific facts to support an allegation of malicious or willful conduct by FURST ENTERPRISES, which is required by case law and California Civil Code §864. In fact, Plaintiff’s Complaint only alleges facts of general negligence and it does not allege one fact of “willful, malicious or knowing” conduct by FURST ENTERPRISES to support his cause of action for Willful Failure to Warn. However, as the Court is aware, in determining whether a cause of action sets forth sufficient facts to state a claim, facts not alleged are presumed not to exist. C&H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062. Moreover, “contentions, deductions or conclusions of fact or law 4 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O alleged in the complaint are not considered in judging its sufficiency.” Id. Furthermore, “it is well-settled that the presumptions are always against the pleader, and all doubts are to be resolved against him, for if] is to be presumed that he stated his case as favorably as possible to himself.” Richmond Redevelopment] Agency v. Western Tile Guaranty Co. (1975) 48 Cal.App.3d 343, 349. Most importantly, generalized characterizations of conduct as willful, reckless, or wrongful are insufficient to charge malice as| grounds for punitive damages. Gombos v. Ashe (1958) 158 Cal.App.2d 517 (emphasis added). Based on the foregoing, Defendant respectfully requests that the Court strike Plaintiff’s Count Two — Willful Failure to Warn in the First Cause of Action of Plaintiffs Complaint as within the four corners of the Complaint, there are simply no specific facts alleged to constitute a cause of action for Willful Failureto Warn (Civil Code §846) against FURST ENTERPRISES. 1. At Page 5 of the Complaint, Plaintiffs First Cause of Action for Premises, Liability fails to state facts sufficient to constitute a cause of action for Willful Failure to Warn pursuant to Civil Code$§ 846. Plaintiff checked the boxes for Count One — Negligence and Count Two — Willful Failureto Warn but the facts stated in Paragraph 1 [Prem.L-1] and paragraph three [Prem.L-3] do notstate facts sufficient to establish a cause of action for Count Two - Willful Failure to Warn. Paragraph Prem.L-3 reads as follows: Prem.L-3 X] Count Two — Willful Failure to Wam (Civil Code section 846) The defendant owners who willfully or maliciously failed to guard or warn against a dangerous condition, use, structure or activity were (names): FURST ENTERPRISESGROUP,DLLC,SUBWAY , PIZZA HUT, WING STREET,AUTO ZONE, X] Does 1 to 100. Plaintiff, a recreational user, was XX] an invited quest [X] a paying guest.” California Civil Code §846 is considered California’s Recreational Use Statute and provides as follows: “An owner of any estate or any other interest in real property, whether POSSESSOry or nonpossessory, owes no duty of care to keep the premises 5 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section. A “recreational purpose,” as used in this section, includes such activities as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites. An owner of any estate or any other interest in real property, whether POSSESSOry Or noNpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for such purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of such person to whom permission has been granted except as provided in this section. This section does not limit the liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner. Nothing in this section creates a duty of care or ground ofliability for injury to person or property.” W hen reviewing the entirety of Plaintiff’s Complaint,it is clear that the allegations above fail to support a cause of action for willful failure to warn pursuant to California Civil Code §846. The facts stated in the Complaint merely allege that Plaintiff was at a shopping center when he slipped and fell on a substance in the parking lot. However, these facts do not support the allegations of willful or malicious conduct by FURST ENTERPRISES as required by case law. In making the determination of whether the landowners actions amountto “willful and malicious behavior” within the meaning of Civil Code §846, the Courts must look at whether the landowner had actual or constructive knowledge of the peril; actual or constructive knowledge that an injury is a probable, as opposed to just possible; and a conscious failure to act to avoid the danger. In Bacon v. Southern Cal. Edison Co. (1997) 53 Cal. A pp 4th 854, the Courtstated: 6 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O “Landowner's conduct becomes willful or malicious, which would preclude recreational use immunity, only if three elements are present: (1) actual or constructive knowledge of peril to be apprehended, (2) actual or constructive knowledge that injury is probable, as opposed to possible, result of danger, and (3) conscious failure to act to avoid peril. (Emphasis added.) As demonstrated above, Plaintiff alleges personal injuries due to slipping on substance in a parking lot. However, when alleging Willful Failure to Warn pursuant to Civil Code §846, Plaintiff is required to allege specific facts sufficient to support this claim. Further, Plaintiff is required to allege actual or constructive knowledge of the peril to be apprehended, actual or constructive knowledge that injury is probable, as opposed to possible as well as a conscious failure to act and avoid the alleged danger. Nevertheless, Plaintiff has failed to allege any of these required elements. As such, Plaintiff’s Complaint fails to state specific facts sufficient to fall within the meaning of Civil Code §846. Therefore, Civil Code §846 does not apply and Count Two — Willful Failure to Warn in Plaintiff’s Complaint in the First Cause of Action for Premises Liability should be stricken without leave to amend. II. CONCLUSION Based on the above, Plaintiff’s Complaint fails to state specific facts sufficient to warrant an allegation of Willful Failure to Warn pursuant to Civil Code §846. Thus, FURST ENTERPRISES respectfully requests that the Court grant the motion and strike the following portions of Plaintiff's Complaint without leave to amend as there are simply no specific facts alleged to supportit: 1) Atpage5 of the Complaint, First Cause of Action — Premises Liability, Prem.L-3. Count Two — Willful Failureto Warn [Civil Code §846]. DATED: February 22,2017 DIEDERICH & ASSOCIATES Brad M. Elder, Esq., Attorneys for Defendant, FURST ETERPRISES GROUP D, LLC 7 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o u r B A W w W N D R N O N N N N N N N N NN N N N F P F P F P F P FP F FP F F P F P P R c o N N o o u n A W w W N N F P O O V U O O u N O O U l B W N M , o O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES | am employed in the County of Los Angeles, State of California, | am over the age of 18 and not a party to the within action; my business address is: 21680 Gateway Center Drive, Suite 100, Diamond Bar, CA 91765. On 2/22/17, | served the foregoing document described as: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFE’S COMPLAINT on all interested parties in this action by placing true copies thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST | am "readily familiar" with this firm's practice of collection and processing correspondence for mailing. Itis deposited with the United States Postal Service on that same day in the ordinary course of business. | am aware that on motion of parties served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [CCP §1013a] X BY MAIL: | caused such envelopes with postage thereon fully prepaid, to be placed in the United States mail at Diamond Bar, California. BY PERSONAL SERVICE: | caused such envelope to be delivered by hand to the offices of the addressees as listed on the service list. [] [] BY OVERNIGHT MAIL: | arranged for such envelope to be delivered via Federal E xpress- Priority Overnight to the addressees as listed on the service list. [] BY FACSIMILE: In addition to regular mail, | sent this document via facsimileto the numbers as listed on the following service list and pursuant to CCP §1013(e). Such transmissions were complete with no errors reported. [] BY ELECTRONIC SERVICE: Pursuantto CCP §1010.6(C)(2) and California Rules of Court, Rule 2.250, | also caused such documents to be served electronically at the e-mail addresses stated on the attached service list. Such e-mail transmissions were complete with no errors reported. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on 2/22/17, at Diamond Bar, California. (Nferoda“Loh Lo5— Teresa Harshaw (909) 612-3911 8 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT © O 0 0 d N o o U 1 B A W w W N D R N O N N N D N D N N N N N N N F P F P F P F P F P FP F F P F R P P C O ~ N O O U i B A W w W N N F P O O V U 0 0 N N O o o U l B A W w W N N + P o O o SERVICE LIST Caballero, | aime v. Furst Enterprises Group, DLLC et al. Case No.: 30-2016-00894002-CU-PO-CJC Garrett R. Chambers, Esq. Chambers, Noronha & Kubota 2070 North Tustin Ave. Santa Ana, CA 92705 (714) 558-1400; FAX (714) 558-0885; email: garrettchambers@ cnklegal.com Attorney for Plaintiff; JAIME CABALLERO 9 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT