Hermant Patel vs. Fleming Distinctive Homes

Reply to Opposition

Cal. Super. - 4th Dist.February 22, 2018

C O O K S E Y , T O O L E N , G A G E , D U F F Y & W O O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r Co st a Me sa , Ca li fo rn ia 9 2 6 2 6 - 1 9 7 7 H W OO 0 3 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RICHARD E. BUCK, ESQ. (State Bar No. 117589) rbuck@cookseylaw.com LISA L. CASTELLANET, ESQ. (State Bar No. 245225) Icastellanet@cookseylaw.com COOKSEY, TOOLEN, GAGE, DUFFY & WOOG A Professional Corporation 535 Anton Boulevard, Tenth Floor Costa Mesa, California 92626-1977 Telephone: (714) 431-1100 Facsimile: (714) 431-1119 Cafe S pe ni rC o By Ck D ep t Cl ELE CTR ONI CAL LY FLED par r Cou to Cal f, Cour y o f Or ing I G E Attorneys for Defendants/Cross-Complainants FLEMING DISTINCTIVE HOMES ~ A PARTNERSHIP (erroneously named as FLEMING DISTINCTIVE HOMES — A PARTNERSHIP dba FDH CUSTOM HOMES, a California Partnership) and JONATHAN CARY ROBINSON SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE HERMANT PATEL, an individual; KIRTI Case No.: 30-2018-00975177-CU-BC-CJC PATEL, an individual, (Case assigned to Hon. James Crandall/Dept. C33) Plaintiffs, FLEMING DISTINCTIVE HOMES - A Vv. PARTNERSHIP and JONATHAN CARY ROBINSON’S REPLY TO PLAINTIFFS’ FLEMING DISTINCTIVE HOMES - A OPPOSITION TO MOTION TO STRIKE PARTNERSHIP dba FDH CUSTOM HOMES, a| PORTIONS OF PLAINTIFFS’ SECOND California partnership; JONATHAN CARY AMENDED COMPLAINT ROBINSON, an individual; and DOES 1 through 50, inclusive, Reservation No.: 72853741 Hearing Date: September 13, 2018 Defendants. Time: 1:30 p.m. Dept.: C33 AND RELATED CROSS-ACTIONS. Complaint Filed: 02/22/18 Defendants FLEMING DISTINCTIVE HOMES — A PARTNERSHIP (hereinafter “FDH”) and JONATHAN CARY ROBINSON, an individual, (hereinafter “Robinson”) (collectively “Defendants™), hereby submit the following reply to plaintiffs HERMANT PATEL’s and KIRTI PATEL’s (hereinafter “Plaintiffs”) Opposition to Defendants' Motion to Strike Portions of Plaintiffs’ 1 REPLY TO OPPOSITION TO MOTION TO STRIKE 278.0114 3306963.1 Co st a Me sa , Ca li fo rn ia 9 2 6 2 6 - 1 9 7 7 C O O K S E Y , T O O L E N , G A G E , D U F F Y & W o O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r wm BA W N OO ce 3 O h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Second Amended Complaint (hereinafter “Opposition”), specifically Plaintiffs’ request for punitive damages. A. INTRODUCTION Plaintiffs’ Opposition fails to adequately address the pleading deficiencies in the allegations supporting their claim for punitive damages. Instead, Plaintiffs merely restate the allegations in the Second Amended Complaint (“SAC”) and state that they are sufficient to support a punitive damages claim, without meaningfully addressing the issues raised by the moving papers. The allegations in the SAC to support Plaintiffs’ punitive damages claims are conclusory and are not sufficient to demonstrate that Defendants’ actions rise to the necessary level of malice, fraud, or oppression. As discussed in the initial moving papers, the crux of Plaintiffs’ fraud claims arise from instances of a typical construction defect/breach of contract action. At worst, these allegations involve potential negligence in not meeting industry building standards or performing as expeditiously as due care may have required (which, of course, is disputed). Therefore, Defendants again respectfully request that the Court strike Plaintiffs’ prayer for punitive damages (and all language related thereto). B. THE ALLEGATIONS IN THE SECOND AMENDED COMPLAINT ARE INSUFFICIENT TO SUPPORT A PUNITIVE DAMAGES CLAIM. Plaintiffs fail to adequately address the specific inadequacies raised in Defendants’ moving papers. Instead, Plaintiffs’ Opposition merely restates the conclusory allegations in the SAC, and states that they are sufficient to support a claim for punitive damages. It is well established precedent which states that, in order “[t]o support punitive damages, the plaintiff asserting one of those causes of action must allege ultimate facts of defendant's oppression, fraud or malice.” Cyrus v. Haveson (1976) 65 Cal. App.3d 306, 316-317. It is not sufficient to allege merely that defendants “engaged in the acts alleged above malicious, willfully, and oppressively, and with the intent to harm the Patels.” See SAC, 24:15-17. Rather, plaintiffs must allege specific facts showing that defendants’ conduct was oppressive, fraudulent or malicious (e.g., that defendant acted with the intent to inflict great bodily harm on plaintiff or to destroy plaintiff's property or reputation). See Smith v. Sup.Ct. 2 REPLY TO OPPOSITION TO MOTION TO STRIKE 278.0114 3306963.1 C O O K S E Y , T O O L E N , G A G E , D U F F Y & W O O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r Co st a Me sa , Ca li fo rn ia 9 2 6 2 6 - 1 9 7 7 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Bucher) (1992) 10 CA4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 CA4th 598, 643 —allegations that defendant's conduct was intentional, willful, malicious, performed with ill will toward plaintiffs and in conscious disregard of plaintiffs’ rights did not satisfy specific pleading requirement]. See Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2017) Complaints, §6:158. The Opposition lists a plethora of vague “misrepresentations” allegedly made by Defendants in support of their contention that punitive damages have been adequately pled. See Opposition, 3:6- 14. The instant Reply will spare the Court from repeating the alleged ‘misrepresentations’, (which are in fact examples of breach of contract allegations, rife with punitive damage related “buzz words”), but Defendants confirm that these allegations are severely lacking in factual detail. When a plaintiff seeks punitive damages, defendant is entitled to know with great specificity, exactly what acts or omissions of which it is accused so that an appropriate defense may be mounted. Fairness demands that a defendant receive adequate notice of a kind of conduct charged against it. G. S. Searle and Company v. Superior Court (1975) 49 Cal. App.3d 22. A request for punitive damages cannot be plead generally. Specific factual allegations are required to support a punitive damages claim. see Brousseau v. Jarrett (1977) 73 Cal.App.3d 864; Perkins v. Superior Court (1981) 117 Cal. App.3d 1. Here, Plaintiffs SAC failed to allege when the purported misrepresentations were made. It is not stated by whom these statements were made, except by “Defendants”, lumped together as a group. It is unclear whether these alleged statements were made at one time or if each statement was made in a separate instance. It is not alleged to whom each specific statement is made, or if all statements were made to both Mr. Patel and Mrs. Patel. It is not specified under what context these statements were allegedly made and by what means (i.e. oral communication, telephonic, written, contract, etc.). Clearly, the intentional misrepresentation allegations are lacking in factual details. Plaintiffs’ failure to pled ultimate facts of malice, oppression or fraud exist with respect to every alleged instance of misrepresentation. At worst, these allegations involve potential negligence in not meeting industry building standards or not performing as expeditiously as due care may have 3 REPLY TO OPPOSITION TO MOTION TO STRIKE 278.0114 3306963.1 Co st a Me sa , Ca li fo rn ia 9 2 6 2 6 - 1 9 7 7 C O O K S E Y , T O O L E N , G A G E , D U F F Y & W O O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 required (which is, of course, is disputed). Such is not the nature of conduct that the legislature intended for the extraordinary imposition of exemplary damages under Civil Code section 3294 for “oppressive, malicious, or fraudulent” conduct. Plaintiffs’ SAC simply does not allege the kind “despicable conduct” required. It should also be noted that the Opposition states, “Notably, Defendants fail to attack Plaintiff's allegations as irrelevant or false because they cannot.” To the contrary, Defendants have not attacked the Plaintiffs allegations as false because to do so at this pleading stage would be inappropriate. C. PLAINTIFFS’ SECOND AMENDED COMPLAINT FAILS TO PROPERLY PLEAD PUNITIVE DAMAGES AGAINST FDH An additional level of allegations is required to impose a punitive damages award on entities such as Defendant FDH. “An award of punitive damages against a corporation ... must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation.” Cruz v. HomeBase (2000) 83 Cal. App.4th 160, 167. Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. Cal. Civ. Code § 3294, subd. (b). “’[M]anaging agent’... include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporation’s decision making so that their decisions ultimately determine corporate policy.” White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567. Here, the Plaintiffs include allegations against FDH. As stated in the moving papers, the SAC is void of any allegations that FDH ever ratified, authorized or had knowledge that a purported false statement was made, except for sweeping allegations regarding ratification. Clearly, Plaintiffs’ SAC is wholly lacking any specific factual allegations in this regard. Accordingly, this Court should grant the Motion to Strike all allegations and requests for punitive damages in the SAC with respect to FDH. 11 1/ 4 REPLY TO OPPOSITION TO MOTION TO STRIKE 278.0114 3306963.1 Co st a Me sa , Ca li fo rn ia 92 62 6- 19 77 C O O K S E Y , T O O L E N , G A G E , D U F F Y & W O O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r No OO 0 N N Wn A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It should be noted that this issue was raised in the moving papers, but not addressed in the Opposition. As such, it appears that Plaintiffs do not dispute that they have failed to adequately plead punitive damages against FDH. D. THE MOTION TO STRIKE MUST BE GRANTED WITHOUT LEAVE TO AMEND. As discussed in the Demurrer, it would be inappropriate to grant leave to amend in this third instance, since clearly, Plaintiffs will not be able to cure the pleading defect. Defendants’ counsel sent a “meet and confer” letter to Plaintiffs’ counsel exploring the issues discussed in these moving papers on April 24, 2018. Since that time, Plaintiffs have amended their complaint twice, without adding adequate factual allegations. It is apparent that the requisite factual allegations do not exist. Further, the Opposition does not state how the SAC could be amended to cure the pleading deficiencies. As such, this is a proper case where the Motion to Strike must be granted without leave to amend. E. CONCLUSION For the foregoing reasons, Defendants respectfully requests that the Court grant their Motion to Strike the punitive damage claims from Plaintiffs’ SAC without leave to amend. DATED: September 5, 2018 COOKSEY, TOOLEN, GAGE, DUFFY & WOOG By: hse Vref RICHARD E. BUCK LISA L. CASTELLANET Attorneys for Defendants/Cross-Complainants FLEMING DISTINCTIVE HOMES - A PARTNERSHIP and JONATHAN CARY ROBINSON 5 REPLY TO OPPOSITION TO MOTION TO STRIKE 278.0114 3306963.1 C O O K S E Y , T O O L E N , G A G E , D U F F Y & W O O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r Co st a Me sa , Ca li fo rn ia 9 2 6 2 6 - 1 9 7 7 $s OS N O c e 3 O n Wn 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PROOF OF SERVICE C.C.P. §1013(a), C.R.C. 2003(3), 2005) STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 535 Anton Boulevard, Tenth Floor, Costa Mesa, California 92626-1977. On September 6, 2018, I served the foregoing document described as FLEMING DISTINCTIVE HOMES ~ A PARTNERSHIP and JONATHAN CARY ROBINSON’S REPLY TO PLAINTIFFS’ OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ SECOND AMENDED COMPLAINT on the interested parties in this action. EE £3] Executed on September 6, 2018, at Costa Mesa, California. by placing the original and/or a true copy thereof enclosed in (a) sealed envelope(s), addressed as follows: SEE ATTACHED MAILING LIST BY REGULAR MAIL: I deposited such envelope in the mail at 535 Anton Boulevard, Costa Mesa, California 92626. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day 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 (1) day after date of deposit for mailing in affidavit. BY ELECTRONIC SERVICE VIA ONE LEGAL INC (WEBSITE): By submitting an electronic version of the foregoing document(s) via file transfer protocol to ONE LEGAL, INC. for service on the interested parties registered for e-filing in this action. BY OVERNIGHT MAIL: By depositing copies of the above document(s) in a box or other facility regularly maintained by FEDERAL EXPRESS, in an envelope or package designed by FEDERAL EXPRESS with delivery fees paid or provided for and sent to the person(s) named on the attached service list [C.C.P.§1013, 2015.5]. BY E-MAIL: I transmitted a true copy of said document(s) via e-mail, and no error was reported. Said e-mail transmission(s) were directed as indicated as follows: BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand to the above addressee(s). (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (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. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Ny CeCe Gue 6 REPLY TO OPPOSITION TO MOTION TO STRIKE 278.0114 3306963.1 C O O K S E Y , T O O L E N , G A G E , D U F F Y & W O O G 53 5 An to n Bo ul ev ar d, Te nt h Fl oo r Co st a Me sa , Ca li fo rn ia 9 2 6 2 6 - 1 9 7 7 Re: Patel, et al. v. Fleming Distinctive Homes — A Partnership, et al. Orange County Superior Court Case No. 30-2018-00975177-CU-BC-CJC SERVICE LIST James G. Bohm T: (714) 384-6500 Plaintiffs Annie Ventocilla Won F: (714) 384-6501 Klaus Heinze jbohm@bohmwildish.com Bohm Wildish & Matsen, LLP awon@bohmwildish.com 695 Town Center Drive, Suite 700 kheinze@bohmwildish Costa Mesa, CA 92626 1 278.0114 3256002.1