Rebecca Calderon vs. Walmart

Opposition Other

Cal. Super. - 4th Dist.June 19, 2017

B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Daniel D. Geoulla, Esq. (SBN: 255800) Michael B. Geoola, Esq. (SBN: 235365) Mahsa Farid, Esq. (SBN: 288402) B & D LAW GROUP, APLC. 10700 Santa Monica Blvd., Suite 200 Los Angeles, California 90025 Telephone: (310) 424-5252 Facsimile: (310) 492-5855 Attorneys for Plaintiffs, Rebecca Calderon ELECTRONICALLY FILED Superior Court of California, County of San Diego 01/26/2018 at 07:15:00 Pi Clerk of the Superior Court By Katelin O'Keefe, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO HALL OF JUSTICE COURTHOUSE REBECCA CALDERON, Plaintiff, Vs. WALMART, et. al. Defendants. CASE NO. 37-2017-00022248-CU-PO-CTL PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/ STRIKE Hearing: Date: February 9, 2018 Time: 10:30am Dept: C-64 TO ALL INTERESTED PARTIES AND TO THEIR ATTORNEYS OF RECORD, PLAINTIFF HEREBY OPPOSES DEFENDANT'S MOTION TO STRIKE AS FOLLOW: I. SUMMARY OF ARGUMENTS e Defendant cannot move to strike allegations not alleged against them. e Defendant cannot move to dismiss / strike parties based on facts or claims outside the four corners of the complaint. CCP §430.30 & CCP §437. e For the purposes of a demurrer or motion to strike, the Court is require to assume the allegations in the complaint as true regardless of how improbable an allegation is. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App.3d 593, 604. PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 e Defendant failed to give the mandatory 21 days safe harbor notice required in CCP §128.5 and CCP §128.7. e Defendant has not made any faction showing for why sanctions would even be appropriate. II. INTRODUCTION This action results from a slip-and-fall incident that occurred near the check- stand at Defendant’s premises. Defendant's negligently left a puddle of water, resulting in Plaintiff’s injuries. During pretrial discussions, Defendant never identified who would be the proper party or entity, and in fact their claims handler (adjuster) refused to cooperate or provide any information at all that would have enabled Plaintiff to ascertain the names of the parties, their entity structure, etc... Now Defendant Wal-Mart Stores, Inc. moves to dismiss/strike certain allegations in the complaint and to have Defendant Walmart dismissed based on allegations of fact that are completely outside of the four corners of the complaint and would be more properly the subject of a summary judgment motion. Their entire motion is premised on arguments and factual allegations that are outside the four corners of the complaint, and for these reasons their motion fails. Moreover, their request for sanctions is both procedurally and substantively improper and also fails. Their motion should be denied in toto. III. DEFENDANT CANNOT MOVE TO DISMISS OR STRIKE TO ALLEGATIONS NOT ALLEGED AGAINST THEM. Defendant Wal-Mart Stores, Inc., seeks to strike portions of Plaintiff’s complaint. However, what Defendant fails to appreciate is that a party cannot strike allegations not alleged against it. Counts two and three of the first cause of action are not alleged against this moving defendant and therefore this defendant has no standing to seek to strike or dismiss those counts. Moving parties have failed to provide any legal basis for why they would have standing to strike/dismiss these allegations. 2 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Moreover, the two sub-paragraphs (Prem. L-5(a) and Prem.L-5(b)) of Plaintiff’s complaint are not improper because the status of such unknown defendants is undetermined. If and when their status does become determined, it very well may be the case such that those allegations may apply. However, none of that is ripe for the court to decide here. Doe allegations are inchoate until a Doe amendment has been made, and Defendant has no standing to strike or demur to allegations not made against them. Moreover, their motion to dismiss/strike is entirely premised on arguments and factual allegations that are entirely outside the four corners of the complaint. CCP §430.30 & CCP §437. For the purposes of a demurrer or motion to strike, the Court is require to assume the allegations in the complaint as true regardless of how improbable an allegation is. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Aside from the fact that Defendants lack standing to strike allegations not against them, their basis of striking these allegations are factual arguments that do not appear on the fact of the pleadings. For these reasons, Defendant’s Motion to Dismiss/Strike must be denied. IV. WHETHER OR NOT “WAL-MART” IS A PROPER ENTITY IS OUTSIDE OF THE FOUR CORNERS OF THE COMPLAINT AND NOT THE PROPER SUBJECT OF A MOTION TO DISMISS/STRIKE Again, Defendant attempts to make arguments and factual allegations that are outside the four corners of the complaint to support their motion to dismiss/strike. This is clearly not proper for a motion to dismiss (ie., demurrer) or a motion to strike. Demurrers and Motions to Strike tests the pleadings alone, and not the evidence or facts alleged. Although a demurrer/motion to strike makes no binding judicial admissions, it provisionally admits all material facts properly pleaded. Cal. Code Civ. Proc. § 430.10(e); Friedland v. Citv of Long Beach (1998) 62 Cal.App.4th 835, 841-42. In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court must accept as true all material facts pleaded in the 3 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 complaint and those arising by reasonable implication therefrom. Moore v. Conliffe (1994) 7 Cal.4th 634,638; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal. App.4th 784, 790. For the purposes of a demurrer or motion to strike, the Court is require to assume the allegations in the complaint as true regardless of how improbable an allegation is. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Pursuant to CCP §430.30, A demurrer tests the pleading alone and not the evidence or other extrinsic matters and for this reason will lie only where the defects appear on the face of the pleading. Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 375. “[It] is wholly beyond the scope of the inquiry to ascertain whether the facts stated are true or untrue. That is always the ultimate question to be determined by the evidence upon a trial of the questions of fact.” Id. at 375 (quoting Colm v. Francis (1916) 30 Cal. App. 742, 752-753). Objection on grounds not appearing on the face of the pleadings and those not judicially noticeable should be made by answer. CCP §430.30(b). Similarly with motions to strike, “the grounds for a motion to strike shall appear on the fact of the challanged pleadings or from any matter of which the court is require to take judicial notice.” CCP §437(a). Defendant’s arguments that “Walmart” is not the owner/manager of the premises is entirely outside the four courners of the compliant, making their motion completely improper. Their entire argument relies (cites to) on defense counsel’s declaration and representation of fact, but even when you read the actual declaration there is not factual basis in the declaration that would support their motion. Not that it would be proper to convert this into an impromptu summar judgment motion, but even if that was the case that have no admissible facts to support any of their arguments. For these reasons their motion to Dismiss/Strike should be denied. 1" I" 4 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 V. THERE IS NO BASIS FOR DEFENDANT’S REQUEST FOR SANCTIONS, AND EVEN HAD THERE BEEN THEIR MOTION IS PROCEDURALLY DEFECTIVE Both CCP § 128.5 and CCP §128.7 have a mandatory 21-day “safe harbor” provision’. Every single appellate case that has ever dealt with the 21-day safe harbor provision has unequivocally held that the 21 days is “mandatory” and that there are no exceptions. There is no “substantial compliance” equivalence. In every case that the procedure has not been satisfied, the sanctions have been overturned on appeal. Even the most creative arguments for substantial compliance have all been completely rejected. The statute clearly mandates that notice of the motion shall be served to the opposing counsel, allowing opposing counsel 21 days to reconsider the merits of the motion and determine whether to withdraw the motion. Martorana v. Marlin & Saltzman (2009) Cal.Rptr.3d 172, 175 [strict compliance with safe harbor provision required; when safe harbor period shortened absent order of the court, sanctions not available irrespective of meritless nature of offending document]. “Nothing in the section [C.C.P. § 128.7] would allow for silent running of a safe harbor statute; it’s not a safe harbor if there are enemy submarines in it. Indeed, this court rejected a similar argument (the idea counsel's adequate warning was enough to excuse the safe harbor provision) in Hart v. Avetoom (2002) 95 Cal. App.4th 410, 414 [* ‘Close’ is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute.”].)” Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708. Furthermore, the Legislature intended to foster compliance with its provisions and to conserve judicial resources otherwise spent adjudicating a sanctions motion by affording a prescribed period of time during which a party may correct or withdraw a "CCP §128.5 was amended beginning in 2015 to also require the 21 day safe harbor. 5 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 frivolous or improper pleading or motion without any penalty. Martorana v. Marlin & Saltzman (2009) Cal.Rptr.3d 172, 175. “ “The purpose of the safe harbor provisions is to permit an offending party to avoid sanctions by withdrawing the improper pleading during the safe harbor period. [Citation.] This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleadings as well as the sanctions request.” ” (Ibid.; see Malovec v. Hamrell (1999) 70 Cal. App.4th 434, 440, 82 Cal.Rptr.2d 712.) Li v. Majestic Industry Hills, LLC. (2009) 177 Cal.App.4th 585 The safe harbor period was never provided here. Defense counsel filed this motion simultaneously with filing it, and therefore Defendants have not and cannot ever seek sanctions pursuant to either CCP §128.5 or CCP §128.7. Moreover, even if the notice was properly given there is no basis to award sanctions under any statute, including CCP §128.5 and CCP §128.7. Both those statutes require that the complaint be frivolous and in bad faith, and there is obviously no evidence of any of that here. While defendant takes issue with the purported failure to respond to their meet and confer letter, there is no provision that would authorize monetary sanctions anywhere in any of those code sections either. See for example CCP §435.5 (no provision for sanctions for failing to meet and confer). For these reasons, Defendant’s request for sanctions must be denied. VI. CONCLUSION Defendant’s motion should be denied, as they lack standing to strike allegations not alleged against them. Moreover, their basis of striking those allegations are all outside of the four corners of the complaint and not properly the subject of a motion to strike. Defendant’s request for sanctions should be similarly denied because their motion fails both procedurally and substantively. Not only is there no basis for 6 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 sanctions, but they have failed to give the 21 days safe harbor notice which is without exception absolutely mandatory. For these reasons, Defendant’s motion should be denied in its entirety. DATED: January 26, 2018 B & D LAW GROUP, APLC Daniel D. Geoulla, Esq. Attorneys for Plaintiffs, Rebecca Calderon 7 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE B & D L A W G R O U P , AP LC . 1 0 7 0 0 S A N T A M O N I C A B O U L E V A R D , SU IT E 20 0 Lo s A N G E L E S , C A L I F O R N I A 9 0 0 2 5 (3 10 ) 42 4- 52 52 AN Un BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I am employed 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 10700 Santa Monica Blvd., Suite 200, Los Angeles, CA 90025. On January 26, 2018, I served the foregoing documents described: Plaintiff’s Opposition to Defendant’s Motion to Dismiss/Strike on the interested parties in this action by placing a true and correct copy thereof in a sealed envelope addressed as follows: Andrew Kohn, Esq. Pettit Kohn Ingrassia Lutz & Dolin 11622 El Camino Real, Suite 300 San Diego, CA 92130-2051 (858)755-8504 __X__ (BY MAIL) I caused such envelope to be deposited in the mail at Los Angeles, California. The envelope was mailed with postage thereon fully prepaid. __X__ (BY FIRM PRACTICE) 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 the same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing in the affidavit. (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the office of the addressee. (BY FACSIMILE) I caused all of the pages of the above entitled documents to be sent to recipients noted above via electronic transfer (FAX) at the respective telephone numbers indicated above. _ X__ (STATE) I declare under penalty of perjury under the laws of the State of California that the above 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 this service was made. Executed on the 26th day of January 2018 at Los Angeles, California. 96 Daniel D. Geoulla, Esq. 8 PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS/STRIKE