Turner Construction Company vs. City of Anaheim

Reply to Opposition

Cal. Super. - 4th Dist.November 17, 2017

oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 Collins Collins Muir + Stewart LL 1999 Harrison Street, Ste.1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101 Sharon Sanner Muir, Esq. (SBN 97888) Stephen B. Litchfield (SBN 284951) COLLINS COLLINS MUIR +STEWART LLP 1999 Harrison Street, Suite 1700 BE AL FILED Oakland, CA 94612 County of Orange (510) 844-5100 - FAX (510) 844-5101 07/11/2018 at 03:52:00 PM Clerk of the Superior Court Attorneys for Defendant STV CONSTRUCTION, INC. By e Clerk. Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE TURNER CONSTRUCTION COMPANY, a New York corporation, CASE NO. 30-2017-00956538-CU-BC-CJC [Assigned to Judge Kim Dunning, Dept. CX104] Plaintiff, DEFENDANT STV CONSTRUCTION, INC.’S REPLY TO PLAINTIFF TURNER VS. CONSTRUCTION COMPANY’S OPPOSITION TO MOTION TO STRIKE city; STV CONSTRUCTION, INC., a Date: July 18, 2018 Pennsylvania corporation; and DOES 1 Time: 1:30 p.m. through 20, inclusive, Dept.: CX104 Defendants. Complaint Filed: 11/17/17 ) ) ) ) ) ) ) CITY OF ANAHEIM, a California charter ) ) ) ) ) ) ) Trial Date: None Defendant STV CONSTRUCTION, INC. (“STV”) hereby submits its Reply in support of its Motion to Strike the Second Amended Complaint (“SAC”) of TURNER CONSTRUCTION COMPANY (“Turner”). I. INTRODUCTION Turner wants to have it not just both ways, but at least three different ways. First, it wants its Second Amended Complaint (“SAC”) read as a whole to establish the City of Anaheim’s (“City”) breach of contract. Next, it wants its SAC read as a whole to recast the same set of facts as sounding in negligence against STV. Finally, it wants its SAC read as a whole to recast the same 20924 - REPLY TO OPP TO MTN TO STRIKE (7-18-18) 1 STV’S REPLY IN SUPPORT OF MOTION TO STRIKE oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 Collins Collins Muir + Stewart LL 1999 Harrison Street, Ste.1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101 set of facts as alleging intentional interference by STV. STV respectfully requests that the Court draw a line in the sand and recognize Turner’s drastic overreach for what it is-an unapologetic attempt to find an extra pocket to boost its profit margin. II. EVEN IF TRUE, NONE OF TURNER’S ALLEGATIONS SUPPORT A FINDING OF FRAUD, OPPRESSION, OR MALICE Even the hand-picked set of facts presented in Turner’s Opposition does not rise to the level necessary to support a finding of fraud, oppression, or malice. Each allegation, taken as true, would support a finding of negligence, at best. The only time that Turner comes close to alleging an intentional act is when it purports to understand the subjective intent behind the actions taken by STV on behalf of the City. Relevant cases hold clearly that facts must be alleged to support an award of punitive damages-not mere conclusions. (See Hillard v. A.H. Robins (1983) 148 Cal.App.3d 374, 391 (“Punitive or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 3294.7) Any action taken by STV on behalf of the City could be construed as “intentional” because STV’s role on the project was to manage the construction, and Turner was responsible for the construction. Moreover, STV’s “intentional” acts were merely STV assisting the City and carrying out the City’s directives. STV’s scope of work is defined as “monitoring the Project and assisting the CITY in making decisions related to the Project” including to “assist CITY staff in planning, research, coordination and related matters in implementation of the tasks set forth in the Scope of Services.” (Ex. F to Turner’s SAC, City of Anaheim-STV Agreement, § 1 at p. 2.) The hallmark intentional interference case is when a third party interferes with the contract of two other parties for its own benefit. In this case, STV’s entire purpose was to assist the City in managing its contract with Turner. To find that STV’s actions amount to intentional interference would be to find that any action taken by a construction manager perceived as detrimental to a general contractor would be grounds for punitive damages. Recovery for punitive damages is available for a narrowly tailored category of situations, and its definition involves phrases like “despicable conduct,” “deceit,” and “concealment.” (Civil Code § 3294(c).) 20924 - REPLY TO OPP TO MTN TO STRIKE (7-18-18) 2 STV’S REPLY IN SUPPORT OF MOTION TO STRIKE oe RX N n R A W O N N N N N N N N N N e e m m em p m em em N S A nt RA W N = O O R N T R W N = Oo 28 Collins Collins Muir + Stewart LL 1999 Harrison Street, Ste.1700 Oakland, CA 94612 Phone (510) 844-5100 Fax (510) 844-5101 The factual allegations, and Turner’s arguments in support of its contemporaneously filed Opposition to STV’s Demurrer, sound in negligence. The types of decisions that STV took-as part of its role in assisting the City and implementing the City’s instructions-were the types of decisions that construction managers make every day on construction projects in California. To find that such actions could subject a construction manager to punitive damages would virtually end the practice of owner's retaining professionals to assist in project construction management. III. CONCLUSION Even when given the opportunity to hand pick the factual assertions in its SAC that support an entitlement to punitive damages, Turner was unable to do so. Taken as a whole, Turner’s SAC sounds in breach of contract against the City, and, if one wants to be charitable, negligence against STV. The facts do not give rise to a finding that STV engaged in despicable conduct or malice of any kind. STV respectfully requests that this Court grant this Motion and strike all references to punitive damages in the SAC, as requested above. STV further requests any other relief that this Court deems just and proper. DATED: July 11, 2018 COLLINS COLLINS MUIR + STEWART LLP By: _[, SHARON SANNER MUIR STEPHEN B. LITCHFIELD Attorneys for Defendant STV CONSTRUCTION, INC., a Pennsylvania corporation 20924 - REPLY TO OPP TO MTN TO STRIKE (7-18-18) 3 STV’S REPLY IN SUPPORT OF MOTION TO STRIKE PROOF OF SERVICE (CCP §§ 1013(a) and 2015.5; FRCP 5) State of California, ) ) ss. County of Alameda. ) I am employed in the County of Alameda, State of California. I am over the age of 18 and not a party to the within action; my business address is 1999 Harrison St., Suite 1700, Oakland, California 94612. On this date, I served the foregoing document described as DEFENDANT STV CONSTRUCTION, INC.’S REPLY TO PLAINTIFF TURNER CONSTRUCTION COMPANY’S OPPOSITION TO MOTION TO STRIKE on the interested parties in this action by placing same in a sealed envelope, addressed as follows: Alex R. Baghdassarian, Esq. Mary A. Salamone, Esq. Ronald L. Helmuth, Esq. Dan J. Bulfer, Esq. Joseph S. Sestay, Esq. ATKINSON, ANDELSON, LOYA, RUUD & ROMO PECKAR & ABRAMSON, P.C. 20 Pacifica, Suite 1100 1875 Century Park East, Suite 550 Irvine, CA 92618 Los Angeles, CA 90067 (949) 453-4260 - FAX (949) 453-4262 (310) 228-1075 - FAX (310) 228-1076 msalamone @aalrr.com abaghdassarian @pecklaw.com DBulfer@aalrr.com rhelmuth @pecklaw.com ATTORNEYS FOR CITY OF ANAHEIM ATTORNEYS FOR PLAINTIFF TURNER CONSTRUCTION COMPANY [J (BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Oakland, California to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Oakland, California in the ordinary course of business. I am aware that on motion of the party 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. [J BY CERTIFIED MAIL) I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt Requested to be placed in the United States Mail in Oakland, California. O BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY X (BY ELECTRONIC FILING AND/OR SERVICE) - I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: 07/11/18 (Date) at p.m. (Time) E-service per agreement of parties XI FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [J BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (510) 844-5101, indicated all pages were transmitted. [J BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressees). Executed on July 11, 2018 at Oakland, California. XJ (STATE) - I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [0 (FEDERAL) - I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Lorna M. YOGORE ayogore @ccmslaw.cof