Reply To Motion

Reply

Cal. Super. - 4th Dist.July 10, 2018

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTtak Rock LLP ATTORNEYS AT LAW LOS ANGELES Deborah C. Prosser (SBN 109856) Matthew S. O’Brien (SBN 310223) KUTAK ROCK LLP Suite 4550 777 S. Figueroa Street Los Angeles, CA 90017 Telephone: (213) 312-4000 Facsimile: (213) 312-4001 Email: deborah.prosser@kutakrock.com Email: matthew.obrien@kutakrock.com Attorneys for Defendant METREX RESEARCH, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER SONIA MONTES DE OCA, Plaintiff, Vv. CUSTOM ULTRASONICS, INCORPORATED, a Pennsylvania corporation; CANTEL MEDICAL CORP., a Delaware corporation; MEDIVATORS INC., a Delaware corporation; METREX RESEARCH, LLC, a Wisconsin limited liability company; PROUTY & ASSOCIATES, INC., a California corporation; and DOES 1 through 100, inclusive, Defendants. Case No. 30-2018 01009712-CU-TT-CJC Assignedfor all Purposes: Hon. Peter Wilson Dept.: CX-102 DEFENDANT METREX RESEARCH, LL.C’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFE’S COMPLAINT Date: November 1, 2018 Time: 2:00 p.m. Dept.: CX-102 Complaint Filed: July 10, 2018 Trial Date: Not Set TO PLAINTIFF AND HER ATTORNEYS OF RECORD HEREIN: Defendant METREX RESEARCH, LLC (“Metrex”) hereby submits the following Reply in Further Support of Metrex’s Motion to Strike Portions of Plaintiff’s Complaint 1 1 1 4814-0566-6681.1 DEFENDANT METREX RESEARCH, LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTak Rock LLP ATTORNEYS AT LAW LOS ANGELES IL PLAINTIFF HAS FAILED TO PROPERLY PLEAD A CLAIM FOR PUNITIVE DAMAGES AGAINST METREX As set forth below, the Complaint fails to allege facts sufficient to support a claim for punitive damages against Metrex. A. Plaintiff Has Not Supported her Claims for Punitive Damages with Sufficient Factual Allegations As set forth in Metrex’s moving papers, California law is clear regarding the pleading requirements for punitive damages against a corporate entity. In particular, California Civil Code section 3294 provides that “[w]ith respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud or malice must be on the part of the officer, director, or managing agent of the corporation.” (Civ. Code, § 3294(b).) “Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction.” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) 3 LeIn G.D. Searle, a toxic tort case, plaintiffs alleged that defendants’ “products were defective...in that such products could cause...the type of injury which plaintiff in fact sustained.” Plaintiffs further alleged that: defendants knew that the products. ..were defective ... [and] willfully and knowingly placed them on the market ... [and] knew and implicitly represented by the defective products’ presence on the market that they could safely do the jobs for which they were developed; and that defendants...wrongfully, knowingly, and willfully acted in complete disregard of plaintiff’s implicit reliance upon defendants’ implicit representations of safety and for which plaintiff seeks punitive damages ... (G.D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at 26-27.) These allegations were held insufficient to support the plaintiffs’ punitive damages claim. Specifically, the Court found the allegations of “wrongful, knowing, and willful conduct” were conclusory and the complaint “fail[ed] to allege, directly or in equivalent terms, that [defendant] either intended to injure consumers of its product or acted in conscious disregard for their safety.” (Id. at 33.) 1 4814-0566-6681.1 -2- DEFENDANT METREX RESEARCH, LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTtax Rock LLP ATTORNEYS AT LAW LOS ANGELES In the case at bar, the punitive damages allegations in Plaintiff's Complaint are virtually identical to the allegations in G.D. Searle. Plaintiff's Complaint merely contains conclusory allegations of oppression, fraud, or malice purportedly committed or authorized by Metrex, all of which are insufficient to support a punitive damages claim. B. Plaintiff Mischaracterizes Case Law Regarding Punitive Damages and Fail to Demonstrate that Punitive Damages are Properly Alleged in her Complaint Plaintiff's Opposition contains several pages explaining case law purportedly supporting the sufficiency of their punitive damages allegations. However, Plaintiff mischaracterizes nearly all of the cases shecites. For example, Plaintiff relies on Unruh v. Truck Insurance Exchange for the proposition that “a general allegation of malicious intent or wrongful motive, intent, or purpose, is sufficient to support a claim for punitive damages.” (Pltf.’s Opp. 2:19-21.) However, this case actually holds that allegations of malice are “properly assertable in conjunction with [intentional torts], although not with...counts which allege mere negligence.” (Unruh v. Truck Insurance Exchange (1973) Cal.3d 616, 633.) Plaintiff cites to Perkins v. Superior Court for the same reason. (Pltf.’s Opp. 2:22-3:7.) However, in Perkins, the complaint supported a claim for punitive damages because, unlike Plaintiff’s Complaint in this case, the Perkins complaint alleged specific acts committed by the defendant. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) Plaintiff also cites to several cases that purportedly uphold punitive damages claims pleaded using language that is substantially similar to the allegations in Plaintiff’s Complaint. However, the cases cited do not address the sufficiency of the pleadings. Rather, they support the right to recovery of punitive damages. For example, City ofSanger v. Superior Court (1992) 8 Cal.App.4th 444, 446 (Pltf.’s Opp. 4:11-16), involved the narrow issue of whether or not a municipality was entitled to recover punitive damages at all, and did not concern the sufficiency of the allegations in plaintiff's complaint. SKF Farms v. Superior Court, a property damage case involving damage by herbicide to the plaintiff's lettuce crop,is also distinguishable. (Pltf.’s Opp. 4:17-5:15.) Unlike Plaintiff's Complaint in this action, the complaint in SKF Farms alleged specific facts in support of the plaintiff’s punitive damages claim, i.e., the particular pesticide was 4814-0566-6681.1 -3 DEFENDANT METREX RESEARCH, LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKEPORTIONS OF PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTtax Rock LLP ATTORNEYS AT LAW LOS ANGELES known to be restricted for a particular use, and defendants sprayed without warning and withheld pesticide use reports. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The case of Toole v. Richardson-Merrell (PItf.’s Opp. 6:1-5) also did not address the appropriateness of the allegations in the complaint. (See Toole v. Richardson-Merrell, Inc. (1967) 251 Cal.App.2d 689, 711-7117.) Further, Plaintiff cites to several traumatic injury cases they contend have similar pleading language. These cases, however, address the right to recover punitive damages and not pleading requirements for such a claim. Moreover, these cases involve different factual scenarios with only one defective product or otherwise allow recovery of punitive damages based on policy reasons, and the cases were not analyzed at the pleading stage. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 899 [allowing allegations of punitive damages for policy reasons because “[d]runken drivers are extremely dangerous people”]; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374.) Plaintiff’s reliance on Vossler v. Richards Manufacturing Company, a case which addresses recovery of punitive damages rather than the sufficiency of the pleading language, is also misplaced. Vossler involved an appeal from a punitive damages verdict where it was undisputed at trial that the defendant willfully manufactured and sold a product whose defects the defendant concealed from the medical profession,its own sales personnel, and the designer of the device. (Vossler v. Richards Manufacturing Co. (1983) 143 Cal.App.3d 952, 966.) Plaintiff muddles the issues and cites inapplicable and dissimilar case law in an apparent effort to avoid addressing the pleading standards for a punitive damages claim. Simply put, Plaintiff’s Complaint does not set forth any facts “upon which an award of punitive damages may be predicated.” Although Plaintiff is not required to prove their punitive damages claim through the Complaint, Plaintiff is required to plead facts sufficient to show she has a viable claim. Because the Complaint does not contain any specific allegations of particular acts of fraud, oppression, or malice by any specific individuals or any specific manufacturer, this Court must, as a matter of law, strike all references to punitive damages in Plaintiff's Complaint. 11 4814-0566-6681.1 -4- DEFENDANT METREX RESEARCH, LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTtax ROCK LLP ATTORNEYS AT LAW LOS ANGELES II. PLAINTIFF MISCHARACTERIZES BOCKRATH STANDARDS FOR PLEADING As set forth in Metrex’s moving papers, Bockrath requires that Plaintiff alleges that a specific Metrex product was a substantial factor in causing or bringing about Plaintiff’s injury. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 80.) Additionally, Plaintiff is required to identity each product that allegedly caused her injury. “It is insufficient to allege that the toxins in defendants’ products caused it.”(/d. [Emphasis added]). Under these standards, the portions of paragraph 9 regarding “other products to be determined in discovery” must be stricken from the Complaint. A. Bockrath Precludes Plaintiff From Including Language Regarding “Other Products” in Her Complaint Plaintiff contends that Bockrath v. Aldrich Chemical Company does not require her to identify in the Complaint all of the alleged injury-causing products manufactured and supplied by defendants. According to Plaintiff, Bockrath established a “liberal” pleading standard for toxic injury cases. To the contrary, Bockrath explicitly established a five-part pleading requirement for toxic injury cases specifically because of the unique causation issues involved. Under Bockrath, Plaintiff must “identify each product that allegedly caused the injury.” (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at 80, emphasis added.) In Geraldine Oddone v. Superior Court, the Appellate Court agreed, stating: “The aspect of Bockrath that is significant in the case before us is that the plaintiff in that case failed to identify the specific toxic chemicals that caused a specific illness or illnesses...In doing so, the plaintiff ‘must identify each product that allegedly caused the injury. It is insufficient to allege that the toxins in defendants’ products caused it.’...The lesson from the foregoing is that a plaintiff claiming to have been injured by an exposure to chemicals must specify the chemical that caused the injury and in the course of doing so must of course also specify the injury.” (Geraldine Oddone v. Superior Court (2009) 179 Cal.App.4th 813, 820, emphasis added.) Plaintiff’s allegation in the Complaint regarding “other products to be determined in discovery” (Compl. 9 9) does not conform to this bright-line standard and, thus, must be stricken from the Complaint. 1 4814-0566-6681.1 -5- DEFENDANT METREX RESEARCH, LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT I N N Y D n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTak ROCK LLP ATTORNEYS AT LAW LOS ANGELES Plaintiff claims that Metrex’s Motion to Strike is merely an attempt to use Bockrath “as a device to later argue to the Court that Plaintiff is limited for this entire action to those products listed in her Complaint, even if further discovery establishes that Defendant supplied other products which were substantial factors in causing Plaintiff’s disease. (PItf.’s Opp. 9:21-24.) Moving to strike this language is not an attempt by Metrex to prevent Plaintiff from conducting discovery. Instead, it is intended to limit Plaintiff to allegations she can support with factual information. As set forth in Bockrath, “the law cannot tolerate lawsuits by prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who therefore try to learn through discovery whether their speculation is well-founded.” (Bockrath v. Aldrich Chemical Co., supra, 21 Cal.4th at 81.) If the Court permitted the type of liberal pleading urged by Plaintiff, Plaintiff would be allowed to identify a single product for a defendant and then on the eve of trial, after motions for summary judgment have been filed, identify additional products for that defendant. This is exactly the type of “prospecting” the Court in Bockrath sought to avoid and is prejudicial to Metrex. III. CONCLUSION For the foregoing reasons and for those set forth in its moving papers, Metrex respectfully requests this Court grant its Motion to Strike Portions of Plaintiff's Complaint. Dated: October 25,2018 KUTAK ROCK LLP By WAN Deborah C. Prosser Matthew S. O’Brien Attorneys for Defendant METREX RESEARCH, LLC 4814-0566-6681.1 -6- DEFENDANT METREX RESEARCH, LLC’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKEPORTIONS OF PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KUuTAK ROCK LLP ATTORNEYS AT LAW Los ANGELES PROOF OF SERVICE SONIA MONTESDE OCA V. CUSTOM ULTRASONICS, INC., ETAL. CASE NO.: 30-2018-01009712-CU-TT-CJC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the City of Los Angeles in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Suite 4550, 777 South Figueroa Street, Los Angeles, California 90017-5800. On October 25, 2018, I served on all interested parties as identified on the below mailing list the following document(s) described as: DEFENDANT METREX RESEARCH, LLL.C’S REPLY IN FURTHER SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT Ll (BY FACSIMILE) The fax machine I used complied with CRC Rule 2.301(3).Pursuant to CRC Rule 2.306, I transmitted the foregoing document(s) by facsimile to the party(ies) identified on the attached service list by using the fax number(s) indicated. Said transmission(s) was (were) verified as complete and without error. I printed a copy of the transmission report that was properly issued by the sending fax machine and attached it to the proof of service. (BY MAIL, 1013a, 2015.5 C.C.P.) I deposited such envelope in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice for collection and processing correspondence for mailing. Under that practice, this(these) document(s) will be deposited with the U.S. Postal Service on this date with postage thereon fully prepaid at Los Angeles, 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. (BY NOTICE OF ELECTRONIC FILING) Counsel who have consented to electronic service have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document(s) was(were) filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). (BY OVERNIGHT DELIVERY/COURIER) I delivered an envelope or package to a courier or driver authorized by the express service carrier; or deposited such envelope or package to a regularly maintained drop box or facility to receive documents by the express service carrier with delivery fees provided for. PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 KuTAK ROCK LLP ATTORNEYS AT LAW Los ANGELES [] (BY MESSENGER) I served the document(s) to the person(s) at the address(es) listed below by providing the document(s) to a messenger for personal service. (A proof of service executed by the messenger will be filed in compliance with the Code ofCivil Procedure). [] (BY PERSONAL SERVICE) I delivered the foregoing document(s) by hand to the office(s) ofthe addressee(s). Raphael Metzger, Esq. Attorneys for Plaintiff Scott P. Brust, Esq. Sonia Montes de Oca METZGER LAW GROUP, APLC 401 E. Ocean Blvd., Suite 800 Long Beach, CA 90802-4966 Phone: (562) 437-4499 Fax: (562) 436-1561 Email: rmetzger@toxictorts.com Email: sbrust@toxictorts.com Carolyn Taylor Attorneys for Custom CLARK HILL LLP Ultrasonics, Inc. One America Plaza, 600 West Broadway, Suite 500 | San Diego, California 92101 Phone: (619) 819-2411 Fax: (619) 557-0460 CTaylor@ClarkHill.com Esther P. Holm, Esq. Attorneys for Cantel Medical Andrew A. Higgs, Esq. Corp., Mediators Inc. LEWIS BRISBOIS BISGAARD & SMITH LLP 650 Town Center Drive, Suite 1400 Costa Mesa, CA 92626 PROUTY & ASSOCIATES 2622 Charford Street Glendora, CA 91740 Phone: (626) 513-0700 (STATE) I declare under penalty ofperjury under the laws of the State of California that the aboveis true and correct. Executed on October 25, 2018, at Los Angeles, California. 2; Olivia Banke 2. PROOF OF SERVICE