Opposition To Motion To Strike Portions of First Amended Complaint

Opposition

Cal. Super. - 4th Dist.December 6, 2019

30- © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O Electronically Filed by Superior Court of California, County of Orange, 06/15/2020 03:23:00 PM. Edward W. Choi, Esq. SBN 211334 Paul M. Yi, Esq. SBN 207867 PI019-01116669-CU-OE-C)J C - ROA #62 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. LAW OFFICES OF CHOI & ASSOCIATES, APLC 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 Telephone: (213) 381-1515 Facsimile: (213) 465-4885 Email: edward.choi @choiandassociates.com Paul.yi @choiandassociates.com Attorneys for Plaintiff YAYA ALI SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE YAYA ALI an individual, Plaintiff, VS. SKY TOUCH IMPORTS, INC., a Corporation; LEASE REMARKETING SERVICES, INC., a Corporation; MOHAMMAD AMIN ZAVERI, an individual; SHAHIN ZAVERI, an individual; JUNAID ZAVERI, an individual; SHEHZAD ZAVERI, an individual; JAVVAD ZAVERI, an individual; and DOES 1 through 30, inclusive, Defendants. Case No. 30-2019-01116669-CU-OE-CJC Assigned for All Purposes to Honorable Judge Walter Schwarm in Dept C19 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT DATE: June 30, 2020 TIME: 1:30 p.m. Dept: C19 1 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O TO ALL PARTIES, THE HONORABLE COURT AND ALL COUNSEL OF RECORD: Plaintiff YAYA ALI (“Plaintiff”) submits this Opposition to Defendants SKY TOUCH IMPORTS, INC. (“SKY TOUCH”), LEASE REMARKETING SERVICES, INC. (“LEASE REMARKETING”) MOHAMMAD AMIN ZAVERI, SHAHIN ZAVERI, JUNAID ZAVERI, SHEHZAD ZAVERI, JAVVAD ZAVERI’s ("Defendants" or “Moving Parties”) Motion to Strike Portions of Plaintiff’s First Amended Complaint (“Motion”). MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s First Amended Complaint (“FAC”) includes paragraphs that provide context and foundation for the causes of action that are being alleged and therefore, need not be stricken at the current time. Indeed, the time for making determinations of whether certain allegations are “relevant” would be in the form of a motion for summary judgment and not at the initial pleadings stages before the facts are discovered through interrogatories and depositions. Further, Plaintiff has pled sufficient facts to justify an award of punitive damages. Finally, Plaintiff’s prayer for attorney’s fees for the Sixth Cause of Action should not be ruled upon at the current time, but after judgment is entered. Based on the foregoing, Plaintiff requests that the Court deny Defendants’ Motion to Strike. II. DISCUSSION A. STANDARD ON MOTION TO STRIKE While California is a code-pleading state, California courts have become increasingly liberal in their attitude toward pleadings and have diminished the distinctions between ultimate facts, evidentiary matters and legal conclusions. Weil & Brown, “California Practice Guide: Civil Procedure Before Trial”, §6:128. In Perkins v. Superior Ct., the Court of Appeal stated “The distinction is not at all clear and involves at most a matter of degree... What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief...” Perkins v. Superior Ct. (1981) 117 Cal. App. 3d 1, 6 [emphasis added]. When determining whether sufficient facts are pleaded, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the 2 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O defendant’s wrongful conduct. (See Perkins v. Superior Ct, supra, 117 Cal. App. 3d at pp. 6-7; Monge v. Superior Court, (1986) 176 Cal. App. 3d 503, 510.) B. PLAINTIFF'S ALLEGATIONS REGARDING DEFENDANT'S FAILURE TO POST NOTICES ARE FOUNDATIONAL AND SHOULD NOT BE STRICKEN Plaintiff’s allegation that Defendants violated CA law by “...and failing to post requisite notices at the Defendants’ and each of their places of business - all of these violations of the Labor Code and regulations are criminal misdemeanors pursuant to Labor Code, sections 215, 216, 225, 226.6, 353, 553, 1199, and 1199.5, as well as other felonies pursuant to relevant sections of the Government Code, Penal Code, and Revenue & Taxation Code.” is a foundational allegation. Indeed, Plaintiff’s Ninth Cause of Action for Violation of Business & Professions Code §17200, et seq. requires that Plaintiff prove that Defendants “have engaged and continue to engage in unfair, unlawful, and misleading business practices in California”. Defendants’ obligation to pay overtime wages, provide meal and rest breaks, are set forth in the IWC Wage Order No. 4. Further, the IWC Wage Order No. 4, sets forth on page 1, that “This Order Must be Posted Where Employees Can Read it Easily”. Defendants’ failure to post the IWC Wage Order gives rise to Plaintiff’s ability to collect an additional 1 year of restitution for his unpaid overtime, meal and rest break premium wages. Thus, Plaintiff’s allegations that Defendants failed to post notices is relevant and should not be stricken. C. PLAINTIFF'S ALLEGATIONS TO SUPPORT HIS PLEA FOR PUNITIVE DAMAGES SHOULD NOT BE STRICKEN It is well settled that an employer is liable for punitive damages under California law if it acts with fraud, oppression, or malice and the acts are committed by a managing agent. Cal. Civ. Code § 3294(b), (c¢); see Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App 397, 419. Plaintiff alleges that: “On or about June 2017, Plaintiff suffered a heart attack. After he returned from his surgery, Plaintiff became a target of harassment and was forced to work longer hours. Defendants’ constant yelling and harassment increased based on his now evident medical condition and age. When Plaintiff began complaining about the lack of meal and break times and the longer hours he had to endure, Defendants refused to accommodate his demands and, instead, retaliated against him by exposing him to a hostile environment and emotional distress to the point where he was forced to quit” (FAC q18). 3 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O Based on the foregoing, Plaintiff has alleged sufficient facts to show that Defendant’s conduct in refusing to provide him with a reasonable accommodation, but instead making him a “target of harassment” and exposing him to a “hostile environment and emotional distress to the point where he was forced to quit” is sufficient to rise to the level of the award of punitive damages. D. THE COURT SHOULD NOT STRIKE THE PRAYER FOR ATTORNEY'S FEES WITH RESPECT TO HIS SIXTH CAUSE OF ACTION It has been the law for over 100 years that a demurrer cannot be used to challenge a prayer for relief. Rollins v. Forbes, 10 Cal. 299, 300 (1858) (noting that challenge to relief sought was “frivolous”; “[o]bjections to the prayer of a complaint cannot be taken by demurrer”); Caldera Pharm., Inc. v. Regents of Univ. of California, 205 Cal. App. 4th 338, 368 (2012) (“defendants are in effect making an attempt to demur to the prayer of Caldera's complaint, something disallowed by ancient rule”) (emphasis added); Grishinger v. Schaeffer, 25 Cal. App. 2d 5, 9 (1938) (same). Further, whether Plaintiff is entitled to an award of attorney’s fees should not be determined at the initial pleadings stage through a Motion to Strike. Instead, such a determination should be made post-judgment when Plaintiff’s motion for attorney’s fees is ruled upon. E. IF THE COURT IS INCLINED TO GRANT DEFENDANTS’ MOTION TO STRIKE, PLAINTIFF SHOULD BE GRANTED LEAVE TO FILE A SECOND AMENDED COMPLAINT When a demurrer is granted, the court may order that an amendment or amended pleading be filed on terms it deems proper. (Code Cov. Proc., §472a (d).) In Calif. Cas. Gen. Ins. Co. v. Sup. Ct. (1985) 173 Cal. App. 3d. 274, 278, the court stated as follows (emphasis added): “While a motion to permit a pleading to be filed is one addressed to the discretion of the court . . . it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case . . . and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error, but an abuse of discretion.” 4 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT © 0 9 O N Un BA W N = N N N N N N N N N N e m e m e m e m e m e m p m e m c o NN O N Wn RA W D = O O 0 N N N R E W I N D = O The present case is in the initial stages and discovery is ongoing. Defendants will not be prejudiced if the court grants Plaintiff leave to file a second amended complaint. Therefore, although Defendants” motion should be denied, if the court is inclined to grant defendants’ Motion to Strike, the court should grant plaintiff leave to file a second amended complaint. III. CONCLUSION For the foregoing reasons, the Demurrer should be overruled in its entirety. In the event the Motion to Strike is granted, Plaintiff should be granted leave to file a second amended complaint. Dated: June 15, 2020 LAW OFFICES OF CHOI & ASSOCIATES By: ye Edward W. Choi Attorneys for Plaintiff YAYA ALI 5 PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT PROOF OF SERVICE I am employed in the County of Los Angeles; I am over the age of 18 years and not a party to the within action; my business address is 515 S. Figueroa St. Suite 1250, Los Angeles, California 90071. On June 15, 2020, I served the foregoing document(s) described as: PLAINTIFF'S OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT, on the interested parties in this action by placing a true copy thereof, in a sealed envelope(s) addressed as follows: Daniel Josephson Siddiqui Law 695 Town Center Drive, Suite 700 Costa Mesa, CA 92626 djosephson @sidlawpc.com BY MAIL As follows: Tam “readily familiar” with the practice of Choi & Associates, Attorneys at Law for collection and processing of correspondence for mailing with the United States Postal Service and that correspondence placed in the outgoing mail tray in my office for collection would be deposited in the United States Mail that same day in the ordinary course of business. BY PERSONAL SERVICE I caused such envelope to be delivered by hand to the offices of the addressee. X BY ELECTRONIC SERVICE I caused such document to be uploaded to One Legal to be served on the offices of the addressees. X___ (State) I declare under penalty of perjury that the foregoing is true and correct. (Federal) Ideclare under penalty of perjury that the foregoing is true and correct, and that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on June 15, 2020, at Los Angeles, California. Michelle Lee PROOF OF SERVICE