Reply To Opposition To Motion To Strike Portions of The Second Amended Crosscomplaint

Reply

Cal. Super. - 4th Dist.January 29, 2018

10 12 13 14 5 16 17 18 19 20 21 22 23 24 26 27 28 FITZGERALD YAP KREDITOR LLP Michael J. FitzGerald (SBN 70842) mfitzgerald@fyklaw.com ELECTRONICALLY FILED David M. Lawrence (SBN 210408) Superior Court of California, dlawrence@fyklaw.com County of Orange i Park ire a 03/15/2019 at 04:15:00 FM rvine, California Clerk of the Superior Court Telephone:(949) 788-8900 By & Clerk, Deputy Clerk Facsimile: (949) 788-8980 Attorneys for Plaintiff and Cross-Defendant True Fresh HPP, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER TRUE FRESH HPP, L1.C, Case No.: 30-2018-00970102 [Unlimited Jurisdiction] Plaintiff, [Assigned to Judge Robert J. Moss, Dept. 14] Vv. REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE SECOND TOP BRANDS DISTRIBUTION INC. a AMENDED CROSS-COMPLAINT California corporation dba Oasis Naturals; STEVE KWON, an individual; and DOES 1 through 20, inclusive, Date: March 22,2019 Time: 9:00 a.m. Defendants. Dept.: Cl4 Complaint Filed: January 29,2018 AND ALL RELATED CROSS-ACTIONS. Trial Date: May 28,2019 Plaintiff and cross-defendant True Fresh HPP, LLC (“True Fresh”) submits the following reply to Top Brands Distribution, Inc.’s (“Top Brands”) opposition to True Fresh’s motion to strike portions of Top Brands’ Second Amended Cross-Complaint (“SACC”). 1. The Sixth and Seventh Causes of Action Are Entirely Unrelated to the Reasoning the Court Provided When It Sustained the Demurrer to the First Amended Cross-Complaint and Must be Struck from the Second Amended Cross-Complaint. Top Brands’ opposition does not dispute that the court did not grant it leave to assert two new causes of action for negligent interference with contractual relations and violation of Business & -1- REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED CROSS-COMPLAINT 17 8 19 20 21 2 23 24 25 27 28 Professions Code section 17200, but, rather, disingenuously seeks to justify their failure by making an unsupported argument that the two new causes of action directly respond to the Court’s reasoning in sustaining the demurrer to the First Amended Cross-Complaint. Top Brands, however, failed to even attempt to show how the two new causes of action were responsive to the Court’s prior ruling. The prior ruling sustained the demurrer to the breach of the implied covenant of good faith and fair dealing cause of action, because the breach of the implied covenant of good faith and fair dealing cause of action was duplicative of the breach of contract cause of action and to the fraud cause of action because the elements were not sufficiently alleged. (Request for Judicial Notice, Exhibit C). The subsequent filing of new causes of action for negligent interference with contractual relations and violation of Business & Professions Code section 17200 is in no way responsive to the Court’s reasons for previously sustaining the demurrer to the breach of the implied covenant of good faith and fair dealing and fraud causes of action. Accordingly, since Top Brands did not have leave to assert the new causes of action, the cause of action must be struck from the SACC. See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015. 2. Disgorgement of True Fresh’s Profits Is Not A Proper Remedy. Top Brands’ opposition did not even attempt to argue that it is entitled to recover a disgorgement of profits via the Violation of Business & Professions Code section 17200 Cause of Action. California law is very clear on this point. Not only is the relief not permitted by the Service Contract between the parties, disgorgement of profits is not an authorized remedy for an alleged Violation of Business & Professions Code § 17200. Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal 4th 1134, 1146-1147. Thus, the prayer for disgorgement of profits should be struck from Paragraph 59 and section (g) of the prayer for relief. 3. Top Brands Cannot Avoid the Clear Terms of the Service Agreement Between the Two Commercial Entities by Arguing that the Agreement is Unconscionable. It is undisputed that the contract between True Fresh and Top Brands limits True Fresh’s potential liability to the amount of the fees Top Brands paid for the services provided by True Fresh. (Request for Judicial Notice, Exhibit B,J 13). It specifically provides that Top Brands may not recover consequential damages, punitive damages, or loss profits. (Request for Judicial Notice, Exhibit B, 13.) 9. REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED CROSS-COMPLAINT a © VW © N A N Wn Yet, Top Brands attempts to avoid this clear language by arguing that this contract between the two commercial entities is unconscionable. This absurd argument is not supported by the terms of the commercial contact, which trump any inconsistent allegations to the contrary in the body of the SACC. Frantz v. Blackwell (1987) 189 Cal. App.3d 91,94; Barnet v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505; George v. Automobile Club of Southern Calif. (2011) 201 Cal.App.4th 1112, 1130; Moran v. Prime Healthcare Mgmt., Inc. (2016) 3 Cal.App.5th 1131, 1145-1146; Stella v. Asset Mgmt. Consultants, Inc. (2017) 8 Cal. App.5th 181, 193-194. Thus, the Court should enforce the terms of the parties’ agreement and strike the allegations seeking said damages that are not inconformity with the law and the parties’ agreement from the SACC. 4. If the Court Strikes the Prayer for Punitive Damages it Sustains the Demurrer to the SACC’s Fraud Cause of Action. True Fresh maintains that the prayer for punitive damages should be struck due to the contractual limitation on damages agreed to by the parties. If, however, the Court disagrees with that assertion in connection with this motion to strike, True Fresh submits that the prayer for punitive damages should still be struck from the SACC if the Court sustains True Fresh’s demurrer to the fraud cause of action in the SACC. CONCLUSION For the reasons set forth in the moving papers and above, True Fresh submits that its motion to strike should be granted in its entirety. DATED: March 15,2019 ITER YAP KREDITOR LLP 72 M Luis neys for Plaintiff and Cross-Defendant True Fresh HPP, LLC 3 REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED CROSS-COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE True Fresh HPP, LLC v. Top Brand Distribution, Inc. et al. Superior Court of California, County of Orange Case No. 30-2018-00970102 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 2 Park Plaza, Suite 850, Irvine, California 92614. On March 15, 2019, I served the foregoing document(s) described as follows: REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED CROSS-COMPLAINT on the interested parties in this action by placing [X] a true copy [] the original thereof addressed as follows: SEE ATTACHED SERVICE LIST [] (MAIL) (C.C.P. § 1013(a)) Pursuant to CCP § 1013(a) and under firm practice said envelope would be deposited with the U.S. Postal Service on the same day with postage thereof fully prepaid at Irvine, California in the ordinary course of business. I am readily familiar with FitzGerald Yap Kreditor LLP’s ordinary business practice of collection and processing correspondence for mailing. I followed this business practice and I placed the envelope for collection and mailing on the date identified above. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage date is more than one day after date of deposit for mailing in affidavit. [] (ELECTRONIC SERVICE) (CCP § 1010.6(a)(4)) I caused such document(s) to be electronically served on all interested parties in this action shown by email. Electronic service is complete at the time of transmission. My electronic notification address is 2 Park Plaza, Suite 850, Irvine, CA 92614. E-mail: tkossick@fyklaw.com. X (ELECTRONIC SERVICE) (CCP § 1010.6(a)(4)) I caused such document(s) to be electronically served, via One Legal Attorney Service, served on all interested parties in this action shown by Electronic-Filing through One Legal Attorney Service which is then printed and maintained with the original documents in our office. Electronic service is complete at the time of transmission. My electronic notification address is 2 Park Plaza, Suite 850, Irvine, CA 92614. E- mail: tkossick@fyklaw.com. X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 15, 2019, at Irvine, California. Tiffany Kossick 1 PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Byron T. Ball, Esq. Sarah Oh, Esq. Matthew Hoesly, Esq. The Ball Law Firm 100 Wilshire Boulevard, Suite 700 Santa Monica, CA 90401 T: 310-980-8039 E: btb@balllawllp.com soh@balllawllp.com matthew.hoesly@gmail.com Attorneys for Defendant Steve Kwon and Defendant and Cross-Complainants Top Brands Distribution, Inc. Gregory Morrow, Esq. The Morrow Group 10401 Wilshire Boulevard, Suite 1102 Los Angeles, CA 90024 M: 310-721-3833 0: 310-894-9149 F: 310-470-9013 E: Gregory.j.morrow@hotmail.com Attorneys for Defendant Steve Kwon and Defendant and Cross-Complainants Top Brands Distribution, Inc. 2 PROOF OF SERVICE