Reply_to_motion_to_strike_

Reply

Cal. Super. - 4th Dist.April 23, 2019

30-2019 © 0 NN O N Ln BA W N N N N N N N N N N E m e m e m e m e m e m e m pe pe co NN O N Un kr W N = O O 0 0 N N N R E W I N D = O Electronically Filed by Superior Court of California, County of Orange, 07/20/2020 01:45:00 PM. 101065801-CU-PA-NJ C - ROA #85 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. Lissa D. Laffey, Esq., Bar No. 147338 Ashley S. Loeb, Esq., Bar No. 272452 FORD, WALKER, HAGGERTY & BEHAR One World Trade Center Twenty-Seventh Floor Long Beach, California 90831-2700 (562) 983-2500 Attorneys for Defendants, MOON SOO JO and KYUNGA SEO SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE — NORTH JUSTICE CENTER KRISTEN HIROU-ZEPEDA, Case No. 30-2019-01065801-CU-PA-NJC Plaintiff, Assigned for All Purposes to: Judge: Hon. Craig Griffin Vs. Dept: 05 MOON SOO JO; KYUNGA SEO; DOES 1 TO 30, DEFENDANT MOON SOO JO’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S Defendants. FIRST AMENDED COMPLAINT [Filed concurrently with Reply for Demurrer] Related to ROA # 67 and 74 Date: July 27, 2020 Time: 2:00 PM Dept.: NOS RES NO: 73243604 N r N r N e N e N e N e N e N N N N N N N N N N TO THE HONORABLE COURT, ALL PARTIES, AND THEIR COUNSEL: PLEASE TAKE NOTICE that Defendant MOON SOO JO (“Defendant”) hereby submits the following Reply to Plaintiff KRISTEN HIROU-ZEPEDA'’S (“Plaintiff”) Opposition to Defendant’s Motion to Strike Portions of Plaintiff’s First Amended Complaint (“FAC”) that seek punitive damages which are not recoverable against Defendant as a matter of law. 1 DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT © 0 NN O N Ln BA W N N N N N N N N N N E m e m e m e m e m e m e m pe pe co NN O N Un kr W N = O O 0 0 N N N R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES I. PLAINTIFF FAILED TO ALLEGE SPECIFIC FACTS IN HER FIRST AMENDED COMPLAINT IN SUPPORT OF PUNITIVE DAMAGES Plaintiff’s claim for punitive damages based on malice, fraud, and oppression fails. While “despicable conduct” requires a level of conduct that is nearly criminal before punitive damages may be awarded, it must also appear (by clear and convincing evidence) that the conduct was so “wanton and willful” that injury to others was a virtual certainty. Taylor v. Sup. Ct. (Stille) (1979) 24 Cal.3d 890, 895-896; Weisman v. Blue Shield of Calif. (1984) 163 Cal.App.3d 61, 64-66. Plaintift’s allegations fail in this regard. Here, while the impact of the automobile accident may have caused injury, it is not a virtual certainty that the act of fleeing the scene itself would cause injury to others. Because Plaintiff alleges that Defendant’s fleeing the scene after the impact supports punitive damages, rather than the impact itself, the Court must only examine the fleeing rather than the impact of the automobile accident. Contrary to what Plaintiff seems to suggest in her Opposition, liability for a hit-and-run is not a given. Flight immediately after an accident is not enough to impose civil liability based on a “hit and run” accident. Karlv. C. A. Reed Lumber Co. (1969) 275 Cal. App.2d 358, 362 (flight after accident and failure to stop and render aid alone is insufficient to establish liability). In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679, the court found that a hit and run cannot give rise to damages unless the fact of the hit and run caused additional damages above and beyond the accident itself. Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run. It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run. For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood, death, etc. There are no such specific allegations in the First Amended Complaint as to the damages the fleeing caused, other than generic, garden-variety emotional distress damages. As such, it cannot be maintained that injury to others as a result of fleeing was a virtual certainty as required for the fleeing to 2 DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT © 0 NN O N Ln BA W N N N N N N N N N N E m e m e m e m e m e m e m pe pe co NN O N Un kr W N = O O 0 0 N N N R E W I N D = O constitute despicable conduct. Plaintiff has not asserted any specific facts that indicate she suffered any additional damage because Defendant fled the scene, other than those damages that anyone would suffer as a result of a hit and run. Furthermore, there are no specific facts stated in Plaintiff’s FAC that fleeing the scene after the accident was done with malice or with a conscious disregard for Plaintiff’s safety, other than mere generic characterizations as argued in the motion to strike portions of the FAC. California judicial precedent has long held that punitive damages are disfavored and they should only be allowed in the clearest cases. Rosener v. Sears, Roebuck Co. (1980) 110 Cal.App.3d 740, 750. The generic and conclusory allegations of the FAC do not present a clear case that satisfies the requirements of Civil Code § 3294. Plaintiff is not entitled to punitive damages as a matter of law. The Court should grant Defendant’s motion to strike punitive damages from Plaintiff’s FAC because the allegations do not rise to the requisite level under Civil Code § 3294. II. THE COURT SHOULD DENY LEAVE TO AMEND Plaintiff argues that she should be given leave to amend her FAC if the Motion to Strike Portions of the FAC is well-taken. Plaintiff should not be granted such leave. The burden is on Plaintiff to show in what manner she can amend and how that amendment will change the legal effect of the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Heritage Pac. Fin’l, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994 — court did not abuse discretion in denying leave to amend where, despite opportunity, plaintiff failed to demonstrate it could cure defect. Here, Plaintiff has not demonstrated how she can amend her FAC; instead, she argued that no amendment is necessary. The Court therefore should deny Plaintiff’s request for leave to amend, as it is not up to the Court to figure out how the FAC can be amended to sufficiently allege punitive damages, especially after granting leave to amend her original complaint after granting Defendant’s Motion to Strike Portions of Plaintiff’s Complaint. III. CONCLUSION For the reasons set forth in the motion and this reply, Defendant’s Motion to Strike Portions of the FAC should be granted as to all of the identified requests/references to punitive damages contained in the FAC, as set forth in the Notice portion of the motion. 3 DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT OO 0 9 O N Un BA W N N N N N N N N N N E m e m e m e m e m e m e m pe pe co NN O N Un kr W N = O O 0 0 N N N R E W I N D = O Dated: July 20, 2020 002\19\488\pleadings\PL. (MTS FAC) - REPLY .docx BY: FORD, WALKER, HAGGERTY & BEHAR LISSA D. LAFFEY ASHLEY S. LOEB Attorneys for Defendants, MOON SOO JO and KYUNGA SEO 4 DEFENDANT’S REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT © 0 NN O N Un BA W N = N N N N N N N N N E e m e m e m e m e m e m e m p m pe 0 NN O N nn pk W N = O 0 X N N R W N = Oo PROOF OF SERVICE HIROU-ZEPEDA vs. JO, SEO 00219-488 STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the aforesaid county; I am over the age of eighteen years and not a party to the within entitled action; my business address is: One World Trade Center, Twenty-Seventh Floor, Long Beach, California 90831-2700 On July 20, 2020, I served the within: DEFENDANT MOON SOO JO’S REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT on the interested parties in said action, SEE ATTACHED SERVICE LIST _ (BY MAIL) I am readily familiar with the firm's practice of collecting and processing of documents and correspondence for mailing with the United States Postal Service. Under that practice, on the above date the envelope was sealed and placed for collection and mailing following the ordinary business practices of our office. This results in the envelope being delivered to the United States Postal Service in Long Beach, California, that same day, with postage thereon fully prepaid. X (ONLY BY ELECTRONIC TRANSMISSION) Only by e-mailing the document(s) to the persons at the e-mail address(es). Pursuant to California Rule of Court, Emergency Rule 12, effective April 17, 2020, during the Coronavirus (COVID-19) pandemic, this office will use electronic mail for service purposes. Executed on July 20, 2020, at Long Beach, California. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. ‘J Melissa Razo A 1 PROOF OF SERVICE © 0 9 A N Un BA W N = N N N N N N N N N m m e m e m e m e m e m e m e m 0 NN O N nn pk W N = O 0 X N N R W N = Oo Geoff Morris, Esq. THE MORRIS LAW GROUP 2900 Bristol Street, Suite G-108 Costa Mesa, California 92626 geoff @themorrislawgroup.com Tel: (714) 975-8054 Fax: (714) 557-1177 MAILING SERVICE LIST HIROU-ZEPEDA vs. JO, SEO 00219-488 2 PROOF OF SERVICE