Johnny Lucero vs. Janessa Clark

Motion to Strike

Cal. Super. - 4th Dist.April 16, 2018

9 10 1.1: 1.2 13 14 1.5 16 17 18 19 20 21, 22 23 24 25 26 27 28 Law Offices of CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 Law Offices of Cullins & Grandy LLP Moulton Park Place 23141 Verdugo Drive, Suite 204 Laguna Hills, CA 92653-1341 (949)454-2500 James L. Grandy, SBN: 123352 Allison L. Grandy, SBN: 312477 Michael J. Lowell, SBN: 312466 Attorneys for Defendants, JANESSA CLARK and EDWARD MERDKHANIAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE-CENTRAL JUSTICE CENTER JOHNNY LUCERO, No: 30-2018-00986360-CU-PA-CJC Assigned For All Purposes To: HON. THOMAS A. DELANEY Dept. C24 Plaintiff, VS. NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S COMPLAINT [CCP 435 and 436]; REQUEST FOR JUDICIAL NOTICE; DECLARATION OF MICHAEL J. LOWELL; PROPOSED ORDER JANESSA CLARK, EDWARD MERDKHANIAN, and DOES 1 to 100 inclusive, Defendants. Date: August 17 2018 Time: 9:00 a.m. Dept: C24 Reservation #72832682Ne ’ N e N e N e N e N a N e N e N a S e S a a S a N a ” S a ” a N a S e S e ” S N S N TO THE COURT, PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on August 17, 2018 at 9:00 a.m. or as soon thereafter as the matter may be heard in Department C7 of the above captioned 1 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES [CCP 435 and 436] 1 resolves the objections to be raised in the Motion to Strike. “ Respectfully submitted. DATED: June 15, 2017 LAW OFFICES OF CULLINS & GRANDY LLP MES L. GRANDY 7 ALLISON L. GRANDY 8 MICHAEL J. LOWELL Attorneys for Defendants, 9 JANESSA CLARK and i. EDWARD MERDKHANIAN 11 12 13 14 15 16 17 18 19 20 21 &5 23 24 25 26 27 28 Law Offices of 3 CULLINS & GRANDYpr NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES Laguna Hills, CA 92653 [CCP 435 and 436] (949) 454-2500 Law Offices of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills. CA 92 (949) 434-2500 653 injury, naming JANESSA CLARK and EDWARD MERDKHANIAN as defendants. A copy of Plaintiffs Complaint is attached hereto as Exhibit “A” and incorporated herein by reference. Plaintiff pled three causes of action for general negligence, motor vehicle negligence and negligence per se. Plaintiff prayed for compensatory damages MEMORANDUM OF POINTS AND AUTHORITIES PLAINTIFF'S COMPLAINT On April 16, 2018, Plaintiff JOHNNY LUCERO filed his Complaint for personal according to proof, but did not pray for punitive damages. (Exhibit “A,” | 14(a).) Exemplary Damages Attachment, charging Defendant JANESSA CLARK with malice, fraud and oppression. (Exhibit “A,” p. 7.) After identifying the date of the accident, the Despite not praying for punitive damages, Plaintiffs Complaint contains an individuals involved and the vehicles being driven, the attachment alleges as follows: impermissible conclusion with no factual foundation and no facts whatsoever regarding Defendant JANESSA CLARK'S alleged consumption of alcohol and drugs. At all times herein mentioned defendant JANESSA CLARK drove her aforesaid vehicle while intoxicated by drugs and alcohol. From said defendant's consumption of alcohol and drugs, defendant became intoxicated with the full knowledge that said intoxication could lead to serious injury and damage to persons and/or property; and said defendant's willful intoxication was done with intentional, willful and reckless disregard for the safety of plaintiff and others. Defendants became intoxicated by drugs and alcohol and thereafter drove a car while in that condition, despite their knowledge of the safety hazard they created thereby. That in doing the acts and things herein above alleged, defendants and each of them, acted willfully and with malice and oppression and plaintiff requests that punitive and exemplary damages be asserted in an amount to be proven at trial. The Exemplary Damages Attachment contains nothing more than i, NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] 10 Lo. 142 13 14 19 16 17 18 19 20 21 22 23 24 25 26 27 28 LawOffices of CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills. CA 92653 (949) 454-2500 As outlined more fully below, these allegations are insufficient to support a claim for punitive damages as they do not meet the standard set out in Taylor and its progeny or the subsequent Amendments to Civil Code section 3294. II. MOTIONS TO STRIKE PUNITIVE DAMAGES California law authorizes a party to move to strike matters from an opposing party's pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A Motion to Strike is the proper procedure for testing the adequacy of a punitive damages claim, since punitive damages are not a cause of action and are an element of damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.) lll. JUDICIAL NOTICE Pursuant to Evidence Code section 453, the court shall take judicial notice of any matter specified in Evidence Code section 452 if a party requestsit and gives each adverse party sufficient notice and furnishes the court with sufficient information to enable it to take judicial notice of the matter. Defendant has complied with Evidence Code section 543. Defendant requests this Court take judicial notice of the following: A. Exhibit “A” the Complaint filed by Plaintiff on April 16, 2018. B. As of the filing of this Motion, the Orange County criminal court records indicate Defendant has never been charged or convicted of any crime or infraction as a result of the January 18, 2017 accident giving rise to this litigation. I 2 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] LawOffices of 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 241 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 LagunaHills, CA 92653 (949) 454-2500 IV. PUNITIVE DAMAGES Civil Code section 3294 authorizes punitive damages in non-contract cases ‘where the defendant has been guilty of oppression, fraud, or malice, express or implied.” (Civil Code § 3294(a).) Plaintiff did not pray for punitive damages. However, an Exemplary Damages Attachment asserts that Defendant JANESSA CLARK consumed alcohol and drugs before driving while intoxicated on the date of the accident. Plaintiff alleges that Defendant is guilty of malice, fraud and oppression, none of which is supported by the Complaint. A. FRAUD Civil Code section 3294(c)(3) defines fraud as “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Plaintiff's Exemplary Damages Attachment contains no factual allegations to support a claim that Defendant JANESSA CLARK performed any ‘intentional misrepresentation, deceit or concealment of a material fact.” B. OPPRESSION AND MALICE Pursuant to Civil Code section 3294(c)(1), malice “means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Subsection (2) of Civil Code section 3294(c) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” The California Supreme Court has held that punitive damages may be imposed 3 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] LawOffices of 10 11 12 13 14 15 16 1.7 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92 (949) 454-2500 653 for driving while intoxicated under certain circumstances, but has not held that punitive damages are always appropriate in cases involving allegations of driving while intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) Subsequently, the appellate court in Dawes v. Superior Court, (1980) 111 Cal.App.3d 82, held that that ‘tlhe risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant's decision to drive while intoxicated made the risk of harm to others probable. (/d., at p. 89.) As such, the California legislature never intended every driving under the influence case to support a claim for punitive damages. Instead, California law requires specific factual allegations of not only driving under the influence, but also additional, aggravating factors which make the risk of injury not only foreseeable, but probable. The Court in Dawes v. Superior Court, supra, 111 Cal.App.3d 82, 90, stated, “allegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages.” (Emphasis added.) In Dawes, the driver was not only intoxicated, but also ran a stop sign and zigzagged in and out oftraffic at speeds in excess of 65 mph in a 35 mph zone in a crowded beach area in the middle of the afternoon on a sunny weekend. (/d., at p. 89.) Similarly, in Taylor v. Superior Court, (1979) 24 Cal.3d 890, the a Motion to Strike was denied as the complaint alleged that the Defendant was an alcoholic: had previously caused a serious automobile accident while driving under the influence of alcohol; he had been arrested and convicted for drunk driving on NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] Law Offices of 10 I. 12 13 14 15 16 17 18 19 20 21 2.2 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 numerous prior occasions; had recently completed a period of probation; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge. Finally, in Peterson v. Superior Court, (1982) 31 Cal.3d 147, the defendant “drove with plaintiff in the vehicle at speeds in excess of 100 mph, and that the plaintiff objected to the high speed and demanded that defendant properly control the vehicle. The parties stopped at a restaurant, and defendant consumed additional alcoholic beverages, then returned to the car and defendant drove at a speed well in excess of 75 mph, losing control of the vehicle and injuring plaintiff.” (/d., at p. 162.) Here, Plaintiff presented no evidence that would support a claim that Defendant intended to cause injury. Moreover, Plaintiff has failed to provide any specific factual allegations which would support outrageous and despicable conduct. “The adjective ‘despicable’ connotes conduct that is *“. . . so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” [Citation].” (Lackner v. North, supra, 135 Cal.App.4th at p. 1210.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, Or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful (sic) or wanton.” (Taylor v. Superior Court, supra, 24 Cal.3d at pp. 894- 95.) 2 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] LawOffices of 10 11 1:2 13 14 1.95 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. 204 Laguna Hills, CA 92 (949) 454-2500 653 Plaintiff's Complaint contains merely conclusory statements that allege Defendant JANESSA CLARK consumed alcohol and drugs and became intoxicated before driving. Accordingly, there are no facts plead to establish any independent, despicable conduct. Intoxication alone is not enough to sustain a claim for punitive damages. As such, Plaintiff has failed to state a cause of action for punitive damages under Dawes, Taylor, and Peterson. V. CLEAR AND CONVINCING EVIDENCE STANDARD In 1987, the Civil Code was amended to increase the burden of proof, requiring that malice or oppression be established "by clear and convincing evidence." (Stats. 1987, ch. 1498, §5.) The clear and convincing evidence standard “requires a finding of high probability... “so clear as to leave no substantial doubt’; ‘sufficiently strong to command the unhesitating assent of every reasonable mind.” [Citation].”(Lackner v. North, supra, 135 Cal.App.4", at p. 1211.) Here, Plaintiff's conclusory allegations that Defendant was intoxicated at the time of the accident not only fail to meet the standard under Dawes, Taylor, and Peterson; they also fail to meet the standard under the subsequent 1987 amendment to Section 3294. Plaintiff alleged no specific factual allegations that would support a finding of despicable conduct by clear and convincing evidence. Indeed, Plaintiff has included no specific factual allegations whatsoever to support a claim for punitive damages. Plaintiff generically alleges that Defendant consumed alcohol and drugs and drove her vehicle. There are no facts concerning when the alcohol and drugs were consumed or Defendant's blood alcohol content. Certainly, there are no allegations of aggravating factors as the Exemplary 6 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] LawOffices of 10 1.4. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92 (949) 454-2500 633 Damages Attachment makes no mention of any facts surrounding the accident itself, other than to identify the date, time and location of the accident. As such, Plaintiff has failed to plead any specific factual allegations of aggravating, independent despicable conduct other than to conclude that Defendant was intoxicated. As such, Plaintiff cannot make a claim for punitive damages as a matter of law. VI. THE LAW REQUIRES STRICTER PLEADINGS In Clauson v. Superior Court, (1998) 67 Cal.4th 1253, 1255, the Court held: “In orderto survive a motion to strike an allegation of punitive damages,the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” “Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Emphasis added)(Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167.) “The use of the words wrongfully, wilfully (sic) and maliciously adds nothing to the pleadings except to convey a sense of outrage on the part of the [Plaintiffl.” (Emphasis added)(Marin v. Jacuzzi (1964) 224 Cal.2d 549, 552.) Moreover, “[w]lhere a plaintiff relies upon willful misconduct there are sound reasons why he should be required to state the facts more fully than in ordinary negligence cases so that it may be determined whether they do constitute willful misconduct rather than negligence or gross negligence.” (Emphasis added)(Snider v. Whitson (1960) 184 Cal.App.2d 211, 214.) In Berkeley v. Dowds, (2007) 152 Cal.App.4th 518, 526-28, “willful misconduct” was described as “an aggravated form of negligence” whose “pleading requirements are similar to negligence but stricter [ . . . ] The act or omission must be even more specifically 7 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] Law Offices of 10 11 12 1.3 14 15 16 17 18 19 20 21. 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92 (949) 454-2500 653 described in order to raise it to the level of willful misconduct.” (Emphasis added.) Finally, as with fraud causes of action, allegations of drunk driving and punitive damages constitute serious charges on an individual's character “and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense.” (Emphasis added.)(Committee on Children's Television v. General Foods (1983) 35 Cal.3d 197, 216)(Bold added). Here, Plaintiff concludes that Defendant “acted willfully and with malice and oppression,” that she became “willfully intoxicated” and this intoxication “was done with an intentional, willful and reckless disregard for the safety of plaintiff and others.” (Exhibit “A,” p. 7.) There are no other allegations aside from these conclusions. VII. CONCLUSION Plaintiff has failed to plead factual details necessary to support a punitive damages claim as a matter of law. Defendant respectfully requests this Court grant this Motion to Strike with prejudice and without leave to amend. In the alternative, Defendant requests the Court to grant this Motion without leave but without prejudice for Plaintiff to seek leave to amend when sufficient facts are established. Respectfully submitted. DATED: June 15, 2017 LAW OFFICES OF CULLINS & GRANDY LLP By: "JANES L. GRANDY ALLISON L. GRANDY MICHAEL J. LOWELL Attorneys for Defendants, JANESSA CLARK and EDWARD MERDKHANIAN 8 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] LawOffices of 10 11 12 13 14 19 16 17 18 19 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills. CA 92653 (949) 454-2500 DECLARATION OF MICHAEL J. LOWELL I, MICHAEL J. LOWELL, declare as follows: q. | am an attorney at law licensed to practice in all the courts in the State of California. | am an associate with the Law Offices of Cullins & Grandy LLP, attorneys of record for Defendants. This declaration is intended to support Defendant's Motion to Strike Punitive Damages. The facts set forth herein are personally known to declarant and if called as a witness | could and would competently testify thereto. 2. Attached hereto as Exhibit “A” and incorporated herein by reference is a true and correct copy of Plaintiffs Complaint filed in subject action. 3. Pursuant to Code of Civil Procedure section 435.5, Defendant has met and conferred with Plaintiff regarding this Motion and a draft copy of this Motion was sent to counsel for Plaintiff by my office on May 17, 2018. An agreement could not be reached that would resolves the objections to be raised in the Motion to Strike. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXECUTEDthis / 5 day of June, 2018, in Laguna Hills, California. AICHAEL J. LOWELL, Declarant 1 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES[CCP 435 and 436] EXHIBIT A PLD-PI-001 ATTORNEYOR PARTYWITHOUTATTORNEY (Namo, Stale Baraumber, ond address): MATTHEW C, STOLL SBN: 255835 STOLL NUSSBAUM & POLAKOV 11601 Wilshire Blvd,, Suite 200 LOS ANGELES, CA 90023 TELEPHONE NO:310-096-7500 FAX NO.(Option: 310-575-4353 E-MAIL ADORESS (Optienap:matt@stolllaw,com ATTORNEY FOR (NemoPLAINTIFF, JOHNNY LUCERO SUPERIOR COURT OF CALIFORNIA, COUNTY OFORANGE STREET ANDRESS:700 Civic Center Drive West MAILINGADDRESS:700 Civic Center Drive West CIFY AND 2IP CODE:Santa Ana, 92701 srancH Nams:Central Justice Center PLAINTIFF: JOHNNY LUCERO DEFENDANT: JANESSA CLARK, EDWARD MERDKHANIAN [X] coes1To 10 COMPLAINT—Personal Injury, Property Damage, Wrongfu! Death [] AMENDED (Number): Tyne {check al that apply): MOTOR VEHICLE [[%_] OTHER (speoify):NEGLIGENCE PER SE Property Damage [| Wrongful Death Personal Injury [X'] Other Damages (specify):EXEMPLARY FOR COURT USE ONLY ELECTROHICALLY FILED Superlor Court of Califomia, Caurty of Orange 0&M6/2018 at 02:20:01 Prd Clerlr of the Superior Gant By Dollie Campos, Deputy Clerk Jurlsdiction (checkall thatapply): [7] ACTION iS'A LIMITED CIVIL CASE Amount demanded [_] does not excaed $10,000 [J exceeds $10,000, but does not exceed $25,000 ACTION IS AN UNLIMITED CIVIL CASE (axcoods $25,000) = ACTION IS RECLASSIFIED by this amended complaint [.—] from limited to unlimited [__] from unlimited to limited CASE NUMBER:30-2013-N0QEBIB0- CULPACICJudge Thomas & Delansy 1. Plaintiff (name ar names):Johnny Lucero alleges causes of action against defendant (name or names): Janessa Clark, Edward Merdkhanian 2. This pleading, Including ettachments and exhibits, consists of the following number of pages: 7 3. Eachplaintiff named aboveis a competent adult a. [_] except plaintiif (name): (1) [ZZ] a comoration quallfied to do business In California (2) [1] an unincorporated entity (describe): (3) [C1 a publicentity (describe): (4) [_Jaminor [_] an adult {a) [C_] forwhom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [J other(specify): (6) [__] other (spagify): b. [[_] excapt plaintiff (name): {1) [1 a comoration qualified to do businessIn California {2) C1 an unincorporated entity (describe): (3) [1 a public entity (describe): 8) [_] aminor [__] an adult (a) [J for whom a guardian or conservator of the estate or a guardian ad litem has been appolnted (b) [J other (specify): (5) [_] ather(specify): CJ tnformation about additional plaintiffs who are not competent adults Is shown In Attachment 3. Pago 1 of 3Fi rovad for Qptlone! UsameAso(orOptics COMPLAINT—PersonalInjury, Property Codo otpamPLO-PLO0Y [Rev. January 1, 2007] Damage, Wrongful Death Westlaw Qox& Form Buller PLD-PI-001 SHORT TITLE: LUCERO v CLARK CASE NUMBER: d. [7 Plaintiff (name): is doing business under the fletitlous name (specify): and has complied with the fictitious business name laws. 5, Each defendant named above is a nalural person a. [__] except defendant (name): ‘ ¢. [7] except defendant (name): (1) [_] a business arganization, form unknown (1) C7 a business organization, form unknown (2) [___] a corporation (2) [__1 a corporation (3) [_] an unincorporated entity (describe): (3) LJ an unincorporated entlty (describe): {4) [1 a public entity (describe): (4) [1 a public entity (describe); (8) [_] other(specify): (6) [J other (spacify): b. ["] except defendant (name): d. [7] except defendant (name): (1) [_] a business organization, form unknown (1) [7] a business organization, form unknown (2) [} acomaration (2) [J a carporation (3) [J] an unincorporated entity (desoribs): (3) [1 an unincorporated entity (describe): (4) 7) a public entity (describe): (4) [J a public enlity {dascribe): (5) [1 other (specify): (6) [2] other(specify): [7] Information about additional defendants who are not natural persons is contained in Attachment 5. 8. The true names of defendants sued as Does are unknown to plaintiff. a, Doe defendants (specify Doe numbers): 1 to 10 were the agents or employees of othernameddefendants and acted within the scopa ofthat agency or employmant, h. Doe defendants (specify Doe numbers): | to 10 are persons whose capacilies are unknawn toplaintiff, ; 7. [J Defendants who are joined under Code of Civil Procedure section 382 are (names); 8 This courtis the proper court because a. [_] atleast ona defendant now residesin its jurisdictional area. b. [J the principal place of business of a defendant corporation or unincomorated association is in its jurisdictional area, ¢. [CX] injury to person or damage to personal property occurred in its Jurisdiclional area. d. [7] other (specify): 9. []Plaintiff is required to comply with a claimsstatute, and a, [7] has complied with applicable claimsstatutes, or b. [J is excused from complying because (specify): PLO-PLO01 [Rov. January 1, 2007) COMPLAINT—Personal injury, Property Puga2 of 3 Damage, Wrongful Death PLD-PL001 SHORT TITLE: LUCERQ v CLARK CASE NUMBER: 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes ofaotlon attached): a. ["X] MotorVehidle b. General Negligence ¢. [1 Intentional Tart d. [1 Products Liability e. [1 Premises Liability. f. [ZX] Other (specify): Negligence Per Se 11. Plaintiff has suffered a, wage loss b, loss of use of property ; haspital and medical expenses [XT] general damage property damage [X] loss of warning capacity other damage (specify): Plaintiff has sustained personal injuries as a direct and proximate rasult ofthe negligence and carelessness of defendants, and each of them, all of whichinjuries have caused and continue to cause plaintiffgreat mental, physical and nervous pain and suffering. Plaintiffis informed and believes and thereon alleges that his injuries will result in some permanent disability to him,all to his general damages. em p a s 12. [7] The damages claimed for wrongful death and the relationships of plaintiff to tha deceased are a, [J listed In Attachment12. b. [_) asfollows: 13. The relief soughtIn this complaint Is within the jurisdiction ofthis court, 14, Plaintiff prays for Judgmentfor costs of suit; for such relief as 1s fal, just, and equitable; and for a. (1) compensatory damages (2) [1 punitive damages The amount of damages Is (in cases forpersonal Injury or wrongful death, you must check (1)): (1) according to proof (2) [J in the amount of: § 15, [1 The paragraphs of this complaint alleged on Information and belief are as follows (specifyparagraph numbers): Date:April 12, 2018 Mi oH MATTHEW C. STOLL b (TYPE OR PRINT NAME) ’ {SIGNATURE OF PLAINTIFF oR ATTORNEY} PLD-PO0 Rov, January 1, 2007) COMPLAINT—Parsonal Injury, Property Pago of 3 Damage, Wrongful Death PLD-PI-001(1) SHORT TITLE: LUCERO v CLARK CASE NUMBER: FIRST CAUSE OF ACTION—Motor Vehicle (numbar) ATTACHMENT TO Complaint [__] Cross - Complaint (Use a separale cause ofaction form for each cause ofaciion,) Plaintiff (name):JOHNNY LUCERO MV- 1. Plaintiif alleges the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff; the acts noturred on (date)January 18,2017 at (place): et or near the IntersectionofState College Boulevard and Orange Avenue, In the city of Anaheim, California 92805, MV- 2, DEFENDANTS a. The defandants who operated a motor vehicle arg (names): JANESSA CLARK, EDWARD MERDKHANIAN Does 1 to 10 b. The defendants who employed the persons who operated a mator vehicle in the coursa of their employment ara {names); JANESSA CLARK, EDWARD MERDKHANIAN Does | to 10 o, The defendants who owned the motor vehicle which was operated with their permission are (names): JANESS A CLARK, EDWARDMERDKHANIAN Does | to 10 d. The defendants who entrusted the motor vehicle are (names): JANESSA CLARK, EDWARD MERDKHANIAN [1 poes ] to 10 €. The defendants who were the agents and employees. of the other defendants and actad within the scope of the agenay were (names); JANESSA CLARK, EDWARD MERDKHANIAN Does ! to 10 f. [7] The defendants wha are liable to plaingifs for other reasons ard he reasons for the liability are [CT] listed In Attachment MV-2f 7] asfollows: [7 Does to Page 4 Page of 1FoamApprfrOplonalUsg CAUSE OF ACTION—Motor Vehicle Coda of Civil Procedurn 426.12 DPGOTSyW200 Wk:coutinfo.ca.govWestlaw Doc & Form Buifdar PLD-PI-001(2) SHORT TITLE: LUCERO v CLARK CASE NUMBER: SECOND CAUSE OF ACTION—General Negligence page s number) —— ATTACHMENT TO [XT] Complaint [__] Cross - Complaint (Use a separate cause of action farm for each cause of action.) GN-1, Plalntiff fname): JOHNNY LUCERO alleges that defendant (rams); JANESSA CLARK, EDWARD MERDKHANIAN [XJ Does ] to 10 was the legal (proximate) cause of damages to plaintiff, By the following acts or omisslons to act, defendant negligently caused the damage to plaintiff on (date)January 18, 2017 at (piace). ator near the intersection of State College Boulevard and Orange Avenue,in the city ofAnaheim, Californian 92805, {description of reasons for lability); At said time and place, the defendants, and each ofthem, so negligently and carelessly entrusted, managed, maintained, drove or caused to be driven their certain 2015 BMW 6401 series, license number 7NTHO75, so as to proximately cause their vehicle to collide with theHonda Accord, owned and operated by plaintiff, thereby causing the hereinabove described injuries and damages to plaintiff, In daing so, defendant violated variousstatues, codes, ordinances, safety orders and other regulations. Said rules were designed to protectpersons such as plaintiff, By violating said rules, defendants negligently and proximately caused plaintiff's injories and damages. Pago {of 1 PomNmoeadfoCi(hed CAUSE OF ACTION—General Negligence TARPLD-FI-001(2) (Rov. Jamsry 1, 2007) WestlawDoc 8 Form EHuflder SHORT TITLE: LUCERO v CLARK CASE NUMBER: 10 | 12 13 14 16 16 17 18 19 20 21 22 23 24 25 26 27 CAUSE OF ACTION ---- NEGLIGENCE PER SE THIRD CAUSE OF ACTION (STATUTORY VIOLATION) Defendant JANESSA CLARK,Is, and all times mentioned inthis complaint was a resident of California. On or about January 18, 2017, plaintiffJOHNNY LUCERO was driving his Honda Accord on a public street in a negligentfree manner and, as such, plaintiffwas a member ofa class ofpersons to whom defendant owed a duty. Al this time and place thers wasin effect varlous ordinances, statutes, and regulations, which were designed to protect plaintiff, and prohibit defendants’ misconduct. At this time and place, defendants, and each of them, were in violation of the aforesaid statutes, ordinances, and regulations As-a direct result of the above, Plaintiffhas suffered wage loss,loss of use of property, hospital and medical expenses, general damages, property damage, and loss of earning capacity, Plaintiff has sustained personal injuries as a direct and proximatp result of the negligence and carelessness of defendants, and each ofthem,as well as the violations set forth herein, all of which injuries have caused and continue to cause plaintiff great mental, physical and nervous pain and suffering. Plaintiff is informed arjd believes and thercon alleges that his injuries will result in some permanent disability, all to his general damages, (Required for verifiedpleading) The Items on this pagestated on information and bsllaf are (specify item numbers, not line numbers): This page may be used with any Judicial Council form or any ather paper filed with the court. ) Pagefi Form Approved by lia ADDITIONAL PAGE WestlawBo&Roan Bidder Judklal Council of Catifomla: ofNE050owSs reer) Attach to Judliclal Councll Form or Other Court Paper GRC 201, 501 PLD-P1-001(6 SHORT TITLE! LUCERO v CLARK OASE NUMBER; Exemplary Damages Attachment Pago 7 ATTACHMENT TQ Complaint [J Cross - Complaint EX-1. As additional damages agalnst defendant (name); JANESSA CLARK Plaintiff alleges defendantwas gullty of mallee CX] fraud oppression asdefined In Civil Code section 3204, and plaintiff should recover, In addition to actual damages, damages to make an example of and to punish defendant, EX-2. The facts supporting plaintiff's claim ars as follows: On-January 18, 2017 ot approximately 3:00 a.m., Plaintiff JOHNNY LUCERO was driving a Honda Accord. Defendant was driving a 2015 BMW, License tumber 7NTH97S. Said accident occurred in the City of Anaheim, County of Orange, State of California. At all times herein mentioned defendant JANESSA CLARK drove her aforesaid vehicle while intoxicated by drugs and alcohol. From said defendant's consumption of alcohol and drugs, defendant became intoxicated with the full knowledge that said intoxication could leadto serious injury and damage to persons and/or property; and said defendant's willful intoxication was done with an intentional, willful and reckless disregard for the safety ofplaintiff and others, Defendants becameintoxicated by drugs and alcoho! and thereafter drove n car while in that condition, despitetheir knowledge ofthe safety hazard they created thereby. That in doing the acts and things herein above alleged, defendants and each of them,acted willfully and with malice and oppression and plaintiff requests that punitive and exemplary damages be asserted in an amount to be proven at tine oftrial, EX-3. The amount of exemplary damages sought Is a. LX] notshown, pursuantto Code of Givl) Procedure section 425.10, b C2] 8 Pago 1311— FcCancofCatan Exemplary Damages Attachment Coda ofGl Procadura, § 425,12PLD-PI-001(5)(Rov, Jandary 1, 2007] SinPoca Law Offices of 10 11 12 13 14 1.5 16 17 18 4:9 20 21 22 23 24 25 26 27 28 CULLINS & GRANDY 23141 Verdugo Dr. #204 LagunaHills, CA 92653 (949) 454-2500 PROOF OF SERVICE 1013a(3) C.C.P. STATE OF CALIFORNIA 1) ) ss. COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. | am over the age of 18 and not a party to the within action; my business address is: 23141 Verdugo Drive, Suite 204, Laguna Hills, California 92653. I, Ryan Cullins, on the date below, served the foregoing document described NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S COMPLAINT; REQUEST FOR JUDICIAL NOTICE; DECLARATION OF MICHAEL J. LOWELL; PROPOSED ORDER on all interested parties in this action addressed as follows: PLEASE SEE SERVICE LIST IX] BY MAIL: As follows: | am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid at Laguna Hills, California in the ordinary course of business. | 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. [_] BY FACSIMILE: By facsimile machine telephone (949)454-14009, | served a copy of the above document(s) to the facsimile telephone number(s) on the attached service list by transmitting via facsimile machine. The facsimile machine | used complied with California Rules of Court, Rule 2004 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), | caused the machine to print a transmission record of the transmission. [] BY PERSONAL SERVICE: | delivered such envelope by hand to the offices of the addressee. [1 BY OVERNIGHT COURIER SERVICE: | caused such envelope(s) to be personally delivered via [Federal Express], to the addressee(s) designated on the attached service list. IX] STATE: | declare under penalty of perjury under the laws of the State of California that the above is true and correct. [_] FEDERAL: | declare that | am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on June 5 , 2018, at Laguna Hills, California. RYAN CULLINS / ( 10 1.1. 12 1.3 14 15 1.6 1.7 18 1.9 20 21 22 23 24 25 26 257 28 LawOffices of CULLINS & GRANDY 23141 Verdugo Dr. #204 Laguna Hills, CA 92653 (949) 454-2500 LUCERO V. CLARK, ETAL. Orange County Superior Court — Central Case No.: 30-2018-00986360 MATTHEW C. STOLL STOLL NUSSBAUM & POLAKOV 11601 Wilshire Blvd., Suite 200 Los Angeles, CA 90025 310-996-7500 310-575-4353 fax Attorneys for Plaintiff, JOHNNY LUCERO