Du vs The City of San Diego

Motion to Strike

Cal. Super. - 4th Dist.March 2, 2018

O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Brian K. Stewart, E sq. (State Bar No. 126412) Christie Bodnar Swiss, E sq. (State Bar No. 245151) J ustin D. Witzmann, E sq. (State Bar No. 292019) COLLINSCOLLINSMUIR +STEWART LLP 2011 Palomar Airport Road, Suite 207 Carlsbad, CA 92011 (760) 274-2110 -- FAX (760) 274-2111 Attorneys for Defendant, HARRIS & ASSOCIATES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANDIEGO - CENTRAL DIVISION SHENG DU, an Individual; YUN-HUA CHIANG: an Individual, Plaintiffs, VS. THE CITY OF SAN DIEGO,a public entity; KTA CONSTRUCTION, a corporation; HARRIS & ASSOCIATES, INC. a corporation; and DOES 1 through 50 inclusive, Defendants. CITY OF SAN DIEGO, Cross-Complainant, VS. KTA CONSTRUCTION, a corporation, HARRIS & ASSOCIATES, INC., a corporation, and DOES 1 through 24, inclusive, Cross-D efendants. i 21062 CASE NO. 37-2018-00010639-CU-PO-CTL [Assigned to J udge Ronald L. Styn Dept C-74] NOTICE OF MOTION AND MOTION OF DEFENDANT HARRIS & ASSOCIATES, INC. TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES DATE: )anuary 11, 2019 TIME: 8:30a.m. DEPT.. C-74 [Filed concurrently with Declaration ofJ ustin D. Witzmann and [Proposed] Order.] Complaint Filed: 3/02/2018 Trial Date: 3/1/19 1 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 TO ALL PARTIESAND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on January 11, 2019 at 8:30 a.m. or as soon thereafter as the matter may be heard in Department C-74 of the above-entitled court, located at 330 West Broadway, San Diego, CA 32101, Defendant HARRIS & ASSOCIATES, INC. (“Harris or “Defendant”) will and hereby does move this Court for an Order Striking the following portions of the Third Amended Complaint (“TAC”) of Plaintiffs SHENG DU and YUN HUA-CHIANG, (hereinafter collectively “Plaintiffs”) as follows: 1. Paragraph 59, lines 13-17, on page 22 of the TAC: “[d]efendantsH & A and DOES 1 through 50, inclusive, acted with ‘malice’ in that Defendant, H & A, engaged in conduct either constituting (1) willful and wanton misconduct, or (2) despicable conduct in the conscious disregard of the safety of Plaintiff, SHENG DU and the public, thereby entitling Plaintiff SHENG DU to an award of punitive damages pursuant to California Civil Code § 3294.” 2. Paragraph 60, lines 18-28, on page 22 of the TAC and lines 1-28, on page 23 of the TAC, and lines 1-28, on page 24 of the TAC, and lines 1-4, on page 25 of the TAC: “[s]pecifically, Defendant H&A, through its officers, directors, and/or managing agents, including Lara Jennings, Director of Program and Construction Management; Rockland Anderson; and Anton Handel, authorized, directed, conducted, or ratified each of the following acts and engaged in such willful and wanton misconduct and/or despicable conduct. Such conduct included, but is not limited to, the following: a) Long before December 8, 2017, Defendant H&A knew of the importance of having a Traffic Control Plan prepared by a registered traffic engineer and reviewed, modified, and/or in place before any construction work occurred to ensure the safe movementof traffic, including, bicyclists such as Plaintiff SHENG DU, through construction work zones, and the lack of such proper Plan would constitute a conscious disregard for the safety of any motorist, bicyclist, or pedestrian within or approaching, the construction work zones. Defendant H&A had sufficient time and power before December 8, 2017 to make changes and take corrective and curative measures by getting a proper Traffic Control Plan in place, but failed to do so; b) as the entity providing management, supervisory, and inspection services for the City for multiple construction projects, Defendant H&A knew or should have known that there were bicyclists such as Plaintiff SHENG DU who regularly traveled in 21062 2 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 the area of the subject construction zone and who were accustomed to using the bicycle lane in place. Per the Task Order A uthorization for Professional Services, dated June 6, 2017, which was signed by H&A'’s officer, director and/or managing agent, Joe Webber, Defendant H&A had a duty to provide safety and security at the job site, including specifically a duty to have ‘traffic control set up to protect the public and visitors from hazards.” Defendant H&A had six months to plan for, control, and manage the safety of such bicyclists, but failed to do in conscious disregard for the safety of such bicyclists and public, including Plaintiff SHENG DU. ¢) Long before December 8, 2017, Defendant H&A knew of the dangers that having a wide open trench would pose to bicyclists approaching the subject construction zone in the morning while facing the glare from the sun and without appropriate warnings, flagmen, and/or protection devices in place. Defendant H&A had sufficient time and power before December 7, 2017 to make changes and take corrective and curative measures by planning ahead for such bicyclists and open trenches, but failed to do so, in conscious disregard for the safety of such bicyclists and the public, including Plaintiff SHENG DU; d) Defendant H&A also knew or should have known that leaving a wide open trench abandoned and unattended without any protection and/or protective devices and without insufficient warnings would pose a particularly hazardous and dangerous condition to bicyclists and the public. On December 8, 2017, Defendant H&A had sufficient time and power to make changes and take corrective and curative measures before the time of the incident, but failed to do in conscious disregard for the safety of bicyclists and the public, including Plaintiff SHENG DU; e) Long before December 8, 2017 Defendant H&A knew the importance of having a manager, supervisor, and/or inspector in the place at the construction site in order to ensure that wide open trenches were not left abandoned or unattended and that sufficient traffic control devices, warnings, and/or protection and protective devices were in place for the safety of bicyclists and the public. The “Scope of Services” portion of the contract between the City and Defendant H&A expressly provided that Defendant H&A was required to and had ‘responsibility to monitor and enforce safety and promote a safe overall environment for all workers and visitors” and to check ‘job site security and measures taken to protect the public from hazards’. Defendant H&A had sufficient time and power before December 7, 2017 to get a manager, supervisor, and/or inspector in place when Rockland Anderson had jury duty, but failed to do so in violation of its contractual 21062 3 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 duties and in a conscious disregard for the safety of such bicyclists and the public, including Plaintiff SHENG DU; f) Defendant H&A knowingly, intentionally, and with a conscious disregard for the safety of others performed dangerous work without a site plan, i.e., the job safety blue print, despite the high probability of injury or death that would result without such a plan; g) Defendant H&A knowingly, intentionally, and with a conscious and reckless disregard for the safety of others failed to follow California law and industry standards designed and intended to protect the public, including Plaintiff SHENG DU; h) Defendant H&A knowingly, intentionally and with a conscious and reckless disregard for the safety of others, engaged in a dangerous pattern of conduct failing to have an adequate number of personnel present on scene at all times while a trench was left uncovered, as they were required to do, and instead, left the subject trench uncovered and unattended and failed to advise, supervise, and/or train KTA employees of the safety requirements relating to the open trench, as was required by its contract and California law. Because Defendant H&As management had knowledge of the scope of its duties under the contract, as it was signed by the officers, directors, and/or managing agents of Defendant H&A, including Rockland A nderson, Defendant H&A is liable for its punitive conduct; i) having prior knowledge of the dangers and risks of serious injury or death that such misconduct would and did create to members of the public, and despite such knowledge, Defendant H&A continued to engage in such misconduct that knowingly or recklessly created said substantial risk and high probability of injury or death to members of the public, and was oppressive, despicable, highly reprehensible, and done in a conscious disregard for the rights and safety of the public, including Plaintiff SHENG Du.” 3. Paragraph 61, lines 5-21 on page 25 of the TAC: “[t]he corporate policymaking leading to this misconduct occurred on all levels and these acts and omissions are not unique to the instance case; they were instead part of a continual pattern and practice with respect to the conduct of Defendant H&A of inadequate supervision and guidance regarding safety protocols and procedures. This pattern of failing to instruct, train, and/or manage its employees working on the job sites regarding safety protocols set forth in the Traffic Control Plan, and the failure to have supervisors present to make sure that the safety precautions mandated by the governing Traffic Control Plan are implemented, was at all times well known to Defendant H&A and DOES 1 through 50, including 21062 4 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Defendant H&A’s managing agents, including but not limited to Lara Jennings, Rockland Anderson, and Anton Handel. The pattern began long before Plaintiff SHENG DU sustained severe and permanent injuries. Despite Defendant H&A’s knowledge of these dangerous conditions and practices, they did not take appropriate and adequate steps to prevent and correct them. These acts and omissions by Defendant H&A constituted a despicable pattern and practice of conscious disregard of rights and safety of the public by said defendant, which included, among other conduct, failure to provide enough staff, and failure to adequately train and supervise its staff, relating to issues of ensuring all trenches are properly covered, as well as erecting proper barriers and warning signs and/or additional safeguards as set forth herein.” 4. Paragraph 67, lines 4-11 on page 28 of the TAC: “[b]ecause the acts and/or omissions of Defendants KTA, H & A and DOES 1 through 50, inclusive, and each of them were committed in a malicious, despicable, highly reprehensible, and/or unlawful manner, as fully set forth above, causing injury and damage to Plaintiff SHENG DU and done with a conscious disregard of the rights and safety of Plaintiff SHENG DU, punitive damages are warranted against Defendants KTA, H & A and DOES 1through 50, inclusive, and each of them, in an amount appropriate to punish or set an example of Defendants, and each of them in an amount appropriate to punish or set an example pursuant to California Code of Civil Procedure §3294.” 5. Paragraph 4, Prayer for Damages,lines 3-6 on page 30 ofthe TAC: “[f]or punitive damages, as to Defendants H&A and KTA with respect to Plaintiffs’ Second Cause of Action for Negligence, based on the willful misconduct and conscious disregard for lives and safety described above in an amount necessary to punish and/or set an example of said defendants, according to proof;” Prior to filing this Motion to Strike, Harris filed an earlier Motion to Strike punitive damages from Plaintiffs’ SAC, which was granted with leave to amend because the SA C failed to allege facts sufficient to support an award of punitive damages pursuant to Code of Civil Procedure 3294. This Motion is made pursuant to Code of Civil Procedure sections 435, 436, 437, Civil Code section 3294, et seq., and case law interpreting those statutes, on the grounds that Plaintiffs once again improperly request an award of punitive damages in this ordinary negligence lawsuit against Harris and fail to cure pleadings deficiencies which were previously stricken by this Court. This Motion is further 21062 5 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC made and based on this Notice of Motion, supporting Memorandum of Points and Authorities, Declaration of Justin D. Witzmann, Esq., Proposed Order thereon and all the pleadings, records and documents involved in this action, and such other oral argument and/or evidence that may be presented at the time of hearing on this Motion. DATED: November 19, 2018 COLLINS COLLINSMUIR +STEWART LLP © 0 0 N o o u u A W N N B = BRIAN K. STEWART CHRISTIE BODNAR SWISS Attorneys for Defendant, HARRIS & ASSOCIATES, INC. N NN N N N N N N RH R RB RB [B B [B b Eb RE RE R E N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS 21062 MUIR + STEWART. 2011 Palomar Airport Rd., 0 Ste 207 arisbad, CA 92011 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TACPhone (760) 274-2110 Fax (760) 274-2111 O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 MEMORANDUM OF POINTSAND AUTHORITIES l. INTRODUCTION Defendant, Harris & Associates, Inc. (“Harris”) moves to strike Plaintiffs’ claims for punitive damages because Plaintiffs once again fail to plead any legal or factual basis to support these awards. Plaintiffs Sheng Du and Yun Hua-Chiang (collectively “Plaintiffs”) filed their initial Complaint on March 2, 2018 and First Amended Complaint (“FAC”) on March 6, 2018 against Defendants the City of San Diego (“City”), KTA Construction, Inc. and Harris. Plaintiffs’ lawsuit arises from personal injuries Plaintiff Du allegedly sustained when he rode his bicycle past and ignored numerous traffic control devices directly into an open trench in broad daylight on a straight and fairly level roadway. This is clearly not a case where punitive damages are warranted. Notwithstanding, on June 11, 2018, Plaintiffs inexplicably filed their Second A mended Complaint (“SAC”) which for the first time included a prayer for punitive damages against Harris. Harris subsequently filed a M otion to Strike the prayer for punitive damages on the grounds that the facts alleged against Harris did notrise to the level of malicious, oppressive, or fraudulent conduct required to support an award of such damages (See Civ. Code § 3294; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166), which this Court granted with leave to amend. On October 15, 2018, Plaintiffs filed the operative Third Amended Complaint (“TAC”), which again contains a prayer for punitive damages. D espite a second bite at the apple Plaintiffs failed to cure the pleading deficiencies present in the prior pleading and even include allegations contrary to the evidence presented thus far in this case. Accordingly, this Court should grant Harris” Motion to Strike Punitive Damages from the TAC without leave to amend. (See Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465.) I I I I I 21062 7 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 I. BRIEF SUMMARY OF THE ALLEGATIONS IN THE THIRD AMENDED COMPLAINT On October 15, 2018, Plaintiffs Sheng Du and Y un-Hua Chiang filed the operative TAC alleging causes of action for: (1) Dangerous Condition of Public Property!, (2) Professional Negligence? and (3) Loss of Consortium? against defendants, City, KTA and Harris. These claims arise out of personal injuries Plaintiff Sheng Du allegedly sustained when he rode his bicycle into an open trench on a public works construction project in San Diego on or about December 8, 2017. (TAC 991, 11-12.) In the TAC, Plaintiffs once again improperly lump their factual allegations regarding respective scopes of work and/or project responsibilities against all defendants alleging that the City, KTA and Harris “owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired and possessed the portion of the public roadway at the 11400 block of Sorrento V alley Road in the City and County of San Diego, including approximately 15 feet south of SCL driveway to 11436 Sorrento V alley Road, where the construction project that was being undertaken on that road was being performed and where the incident occurred (hereinafter ‘SUBJECT ROADWAY”).” (see e.g. TAC 197, 40-41.) Plaintiffs claim general damages, special damages, loss of consortium damages and punitive damages, despite no intentional tort causes of action charged against Harris in the TAC. The list below comprises each of the alleged acts and/or omissions on the part of Harris that Plaintiffs contend support their claim for punitive damages: e Failing to have a traffic control plan prepared by a registered traffic engineer. e Failing to have a traffic control plan on site on the date of the incident. e Failing to follow the allegedly impropertraffic control plan. e Failing to have sufficient traffic control devices and/or warnings set up to protect the public and visitors from hazards. 1 The Dangerous Condition cause of action is only charged against the City. 2 Plaintiffs also filed a certificate of merit against Harris pursuant to Code of Civil Procedure section 411.35, required in a professional negligence lawsuit. 3The Loss of Consortium cause of action is asserted by Plaintiff Chiang only, as she is the wife of the injured Plaintiff Sheng Du. 21062 8 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 e Leaving an open trench abandoned and unattended without warnings, flagmen, and/or protection devices. e Failing to have a manager, inspector, and/or supervisor in place at the construction site. e Having inadequate and/or unqualified personnel identified by name on the scene. (See TAC 160.) Plaintiffs’ allegations that Harris failed to have an adequate number of personnel at the construction site, and failed to ensure that sufficient traffic devices and/or warnings were in place at the construction project clearly does not constitute wanton, malicious, oppressive or fraudulent conduct as required to support a claim for punitive damages. (See Civ. Code § 3294.) These allegations at most rise to the level of ordinary negligence. Plaintiffs’ attempt to label such ordinary conduct as “malicious, oppressive or fraudulent” does not in and of itself satisfy the heightened pleading standard necessary to support an award for punitive damages (See Civ. Code § 3294(a).) Accordingly, this M otion should be granted without leave to amend. Il. STATUTORY AUTHORITY FOR MOTION TO STRIKE Code of Civil Procedure (“CCP”) section 436 states, in pertinent part: “[t]he court may, upon a motion made pursuant to Section 435, or any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter, inserted in any pleading.” Subdivision (b) of section 436 also authorizes this Court to “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” If the ground for an objection to a complaint appears on the face thereof, the objection on that ground may be taken by a motion to strike the pleading or portions of the pleading. (See Code Civ. Proc. § 437(a).) Here, it is clear that Plaintiffs’ allegations against Harris at most rise to the level of ordinary negligence which is not a basis to support an award of punitive damages. As such, Harris’ Motion to Strike should be granted without leave to amend. I I I I 21062 9 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 IV. PLAINTIFFS CANNOT RECOVER PUNITIVE DAMAGES AGAINST HARRISIN THIS PROFESSIONAL NEGLIGENCE LAWSUIT A. Plaintiffs Fail to Plead Facts Sufficient to Constitute Clear and Convincing E vidence of Malicious, O ppressive or Fraudulent Conduct. A motion to strike punitive damages is proper where the facts alleged in the operative pleading do not rise to the level of clear and convincing evidence of “malice, fraud or oppression” required to support a punitive damage award. (See Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63-64.) The facts alleged herein clearly do not rise to that level. The recovery of exemplary or punitive damages is governed by Civil Code section 3294, which specifically sets forth the type of conduct which justifies their award. Section 3294 provides in pertinent part; (a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. The words “oppression,” “fraud,” and “malice” are specifically defined in Section 3294 as follows: (c) As used in this section, the following definitions shall apply: (1) “Malice” means conduct whichis intended by the defendantto 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. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard ofthat person’s rights. (3) “Fraud” means 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. Section 3294 was revised effective January 1, 1988, to clarify that fraudulent, oppressive or despicable conduct must be proven by clear and convincing evidence in order for a plaintiff to recover exemplary or punitive damages. In pleading exemplary or punitive damages, a party must plead facts from which it can reasonably be inferred that the defendant acted with malice, oppression, or fraud within the meaning of Civil Code section 3294. “The mere allegation an intentional tort was 21062 10 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 committed is not sufficient to warrant an award of punitive damages... Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court, supra, 157 Cal.App.3d at 166.) As discussed above, the crux of Plaintiffs’ lawsuit against Harris is that it allegedly fell below the applicable professional standard of care in its performance of professional services by failing to have a sufficient number of personnel at the construction site on the date of the incident at issue and failing to ensure that proper traffic safety control devices and/or warnings were in place at the time Plaintiff rode his bicycle into a trench, which allegedly contributed to his injuries. (See e.g. TAC 11 38-54 60.) Though Plaintiffs again attempt to label Harris conduct as “malicious,” “willful” and/or “oppressive” (See TAC 1959-61, Prayer for Damages, 14) these labels are not determinative. Rather, Plaintiffs are required to allege specific facts that Harris” alleged conduct rose to the requisite level of malice, oppression or fraud as opposed to just labeling itin accordance with the statutory language. (See Smith v. Superior Court (1992) 10 Cal.A pp.4™ 1033, 1041-1042; Brosseau v. J arrett (1977) 73 Cal App.3d 864, 872; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22.) Plaintiffs contend that Harris’ conduct was malicious, which is defined as “conduct which is intended to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard ofthe rights or safety of others.” (Civ. Code § 3294(c)(1).) By its very language, malice can only be established by intentional conduct, or conduct that establishes “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Grimshaw v. Ford (1980) 119 Cal.App.3d 757, 809, 813 (citing Taylor v. superior Court (1979) 24 Cal.3d 890, 895-896) (holding that a car manufacturer acted with malice when it crashed tested several vehicles and found them to explode upon impact, causing severe injuries to its passengers, and still chose to place them on the market for consumers to purchase.)) W hen relying on unintentional conduct to support an award of punitive damages, which is the case here, plaintiffs need to demonstrate that “defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences. (Penner v. Falk (1984) 153 Cal.App.3d 858, 866 (holding that defendants acted with 21062 11 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 malice when they were aware of longstanding dangerous physical conditions on their premises by means of complaints and reports, and then willfully and deliberately chose not to act.) Based on the case law cited above,it is clear that Plaintiffs’ allegations that Harris acted with malice when it allegedly failed to have proper traffic controls in place as well as an inadequate number of personnel on at the site is not even remotely close to being considered malicious. As provided in Grimshaw, the defendant knew that the cars he was putting on the market for consumers to purchase would explode upon impact and could cause fatal injuries. (Grimshaw, supra, 119 Cal.App.3d at 813.) The defendant knew this because he crash tested the cars before placing them on the market, which explicitly showed such explosions that could cause serious and fatal injuries. (/d.) Further, in Penner, the defendants in that case were landlords of an apartment complex who were explicitly informed by means of reports and complaints, that dangerous activity was occurring on the premises, such as burglaries, and attacks. (Penner, supra, 153 Cal.App.3d at 662-664.) Despite this knowledge, defendants chose not to remedy the unsafe conditions. (/d.) As such, the Penner court found defendants acted willfully and deliberately in their failure to ensure the premises was safe, thus supporting a finding of malicious conduct. (/d. at 666.) The facts herein are starkly different. Here, there are insufficient allegations that Harris was ever made aware, whether implicitly, or explicitly of the construction site being dangerous. For instance, and in contrast to Penner and Grimshaw, there are no allegations that Harris was ever made aware of any complaints or injuries prior to Plaintiffs” accident so as to put Harris on the slightest bit of notice that construction site was dangerous - let alone facts to establish the clear convincing evidence of malice or wanton conduct. (See Civ. Code § 3294; Grieves v. Superior Court , supra, 157 Cal.App.3d at 166.) In fact, the facts pleaded implicitly demonstrate that Harris took several safety precautions to ensure the safety of the site, such as having warning signs and cones leading up to and surrounding the construction site so as to warn the public that construction was ongoing. (see e.g. TAC 942.) Plaintiffs’ can phrase it as many different ways as they would like - the fact of the matter is that allegations of insufficient/deficient traffic control design and implementation at most rises to the level of ordinary negligence. Although, the accident and the severe injuries sustained by Plaintiff are 21062 12 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 undoubtedly unfortunate, the severity of those injuries cannot in and of itself transform allegations of ordinary negligence into intentional misconduct. Absent malicious conduct on behalf of Harris, an award of punitive damages is unwarranted and any references thereto must be stricken from the operative TAC. (See Turman, supra, 191 Cal.A pp.4th at 63-64.) Further, the facts alleged in the TAC are essentially the same facts that Plaintiffs alleged in the SAC. Although the TAC mentions certain Harris personnel by name who may or may not have been involved in the Project and attempts to parse out a few factual allegations against KTA and Harris into separate paragraphs (See TAC 9959-61 (Harris), 19 62-67 (KTA)) the alleged actions and/or omissions committed by Harris including allegedly failing to staff the project with qualified personnel, failing to ensure more traffic control and safety measures were taken to protect Plaintiff from his injuries and failing to have a traffic control plan prepared by a registered engineer and/or on the site at the time of the incident mirror the SAC. (See e.g. SAC 161.) Additionally, several of these allegations are contrary to the evidence submitted thus far in this lawsuit. (See TAC 160.) Because the alleged acts and/or omissions by Harris and/or its identified employees clearly do not constitute clear and convincing evidence of malicious, fraudulent or oppressive conduct, such allegations are insufficient to support a punitive damages award for the same reasons as the SAC. B. Plaintiffs Failure to Cure Pleading Deficiencies Warrants Granting the M otion without L eave to Amend. Although phrased somewhat differently, the facts alleged in the TA C as forming the alleged basis of Harris’ culpability in this lawsuit are the same as those alleged in the SAC, neither of which rise to the level of being willful, malicious, or oppressive as required to support an award of punitive damages. In the TAC, Plaintiffs make several changes, but none of which change the basis of their allegations as to support an award of punitive damages. First, Plaintiffs name several Harris employees who they believe to be involved in this matter. (See TAC 160.) Second, Plaintiffs allege Harris’ misconduct was a continuous pattern as opposed to a one-time unique incident which created a conscious disregard for the rights and safety of the public. (See TAC 960.) Lastly, Plaintiffs merely insert before each alleged incident of misconduct on behalf of Harris that said conduct was performed “knowingly, intentionally and with a conscious disregard for the safety of others.” (See TAC 960.) 21062 13 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC O O 0 N o o u u A W N B = N NN N N N N N N RR RB [R B [H B b E Rm mb E b N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 The above referenced changes are merely descriptors and Plaintiffs did not allege any additional facts to show that Harris’ conduct was malicious, oppressive or fraudulent. Merely adding names of Harris employees or alleging without any basis that the conduct of Harris was ongoing as opposed to a one time incident does not make the basis of the facts any more supportive of punitive damages. Further, by adding in the requisite language, such as knowingly or with a conscious disregard for the safety of others, it does not automatically make the alleged conduct malicious, oppressive or fraudulent as required to support an award of punitive damages. Thus, Plaintiffs have failed to allege specific facts to support an award for punitive damages, and instead have only alleged conduct that, at most, gives rise to negligence, which is not a basis for punitive damages. (See Smith v. Superior Court, supra, 10 Cal.A pp.4™ at 1041-1042; Brosseau v. J arrett, supra, 73 Cal App.3d at 872; G. D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at 22.) Further, Plaintiffs should not be granted leave to amend because this is the second time Plaintiffs have attempted to put forth facts sufficient to demonstrate that Harris’ conduct was malicious, oppressive, or fraudulent, and failed to do so. Thus, further leave to amend would be futile because such facts do not exist and no amendment would change the facts as to create the requisite conduct. (See Schonfeldt, supra, 61 Cal.A pp.4th at 1465 (the liberal policy in favor of granting leave to amend does not apply where the complaint’s defects could not be cured by amendment).) Therefore, Harris asks this Court to see this lawsuit for what is really is - a negligence lawsuit - and grant Harris’ Motion to Strike in its entirety without leave to amend. V. HARRIS MET AND CONFERRED WITH PLAINTIFF AS REQUIRED BY CCP SECTION 435.5 Priorto filing this Motion to Strike, Harris’ counsel met and conferred with Plaintiffs’ counsel as required by CCP section 435.5. The parties were unable to resolve the pleading issues in dispute herein, which left Harris with no choice but to file this Motion. (See Declaration of Justin D. Witzmann, § 3.) VI. CONCLUSION 21062 14 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC © 0 0 N o o u u A W N N B = N NN N N N N N N RH R RB RB [B B [B b Eb RE RE R E N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 For the foregoing reasons, Plaintiffs’ request for an award of punitive damages is improper, unsubstantiated, and lacks legal authority. Plaintiff rode his bicycle in broad daylight past numerous traffic control devices on a flat and fairly straight roadway into an open and obvious trench causing his own injuries. The facts alleged by the Plaintiffs amount to nothing more than mere negligence, which is not a basis for punitive damages. Harris, therefore, respectfully requests that this Court grant this Motion without leave to amend and issue an Order striking portions of Plaintiffs” TAC identified in the above notice. Harris also requests any other relief that this Court deems just and proper. DATED: November 19, 2018 COLLINS COLLINSMUIR +STEWART LLP D. WITZKIAN BRIAN K.STEWART CHRISTIE BODNAR SWISS Attorneys for Defendant, HARRIS & ASSOCIATES, INC. 21062 15 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC © 0 0 N o o u u A W N N B = N NN N N N N N N RH R RB RB [B B [B b Eb RE RE R E N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 PROOF OF SERVICE (CCP g§ 1013(a) and 2015.5; FRCP 5) State of California, ) ss. County of Orange. ) | 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 750 The City Drive South, Suite 400, Orange, California 92868. On this date, | served the foregoing document described as NOTICE OF MOTION AND MOTION OF DEFENDANT] HARRIS & ASSOCIATES, INC. TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JUSTIN D. WITZMANN IN SUPPORT OH DEFENDANT HARRIS & ASSOCIATES, INC.’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT; PROPOSED] ORDER GRANTING DEFENDANT HARRIS & ASSOCIATES, INC.’S MOTION TO STRIKH PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST XI (BY MAIL)- I caused such envelope(s) with postage thereon fully prepaid to be placed in the U nited States mail in Orange, California td be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice ofcollection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereor] fully prepaid at Orange, 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 dayafter date of deposit for mailing in affidavit. [J] (BY CERTIFIED MAIL) caused such envelope(s) with postage thereon fully prepaid via Certified M ail Return Receipt R equesteq to be placed in the United States M ail in Orange, California. BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY 0 Od (BY ELECTRONIC FILING AND/OR SERVICE) I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: (Date) at (Time) [J FEDERAL EXPRESS - | caused the envelope to be delivered to an authorized courier or driver authorized to receive documents with delivery fees provided for. [J] (BY FACSIMILE) - | caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (760) 274-2111 indicated al pages weretransmitted. [J] (BY PERSONAL SERVICE) - | caused such envelopes) to be delivered by hand to the office(s) of the addressee(s). Executed on November 19, 2018 at Orange, California. XI (STATE)- | declare under penalty of perjury under the laws of the State of California that the above is true and correct. [] (FEDERAL)- | declarethat| am employed in the office of a member of the bar of this court at whose direction the service was made. hlafete Patrice Porter [/ 21062 16 NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC © 0 0 N o o u u A W N N B = N NN N N N N N N RH R RB RB [B B [B b Eb RE RE R E N o o o n A W N H H O O O U 0 0 N N O O U U A W N = O 28 COLLINS COLLINS MUIR + STEWART. 2011 Palomar Airport Rd., Ste 207 Carlsbad, CA 92011 Phone (760) 274-2110 Fax (760) 274-2111 Sheng Du v. T he City of San Diego San Diego Superior Court Case Number: 37-2018-00010639-C U-PO-CTL OUR FILE NO.: 21062 SERVICE Brian J. Panish, Esq. Deborah S. Chang, Esq. Thomas A. Schultz, Esq. PANISH SHEA & BOYLE LLP 11111 Santa Monica Blvd., Suite 700 Los Angeles, CA 90025 (310) 477-1700 - Fax: (310) 477-1699 panish@ psblaw.com chang@ psblaw.com schultz@ psblaw.com ATTORNEYS FOR PLAINTIFFS, SHENG DU AND YUN-HUA CHIANG Michael C. Rogers Robin H. Smith BALESTRERI POTOCKI & HOLMES 401 “B”Street, Suite 14700 San Diego, CA 92101 (619) 686-1930 - Fax: 619/497-1052 ATTORNEYS FOR DEFENDANT THE CITY OF SAN DIEGO mrogers@ bph-law.com rsmith@ bph-law.com 21062 17 Richard L. Duquette, Esq. LAW FIRM OF R.L.DUQUETTE P.0.Box 5119 Oceanside, CA 92052-5119 (760) 730-0500 - Fax: (760) 730-0120 RLDuquette@911law.com ATTORNEYS FOR PLAINTIFFS, SHENG DU AND YUN- HUA CHIANG Dana Alden Fox, Esq. Craig T. Mann, Esq. LEWIS BRISBOIS BISGAARD & SMITH LLP 701 B Street, Suite 190 San Diego, CA 92101 (619) 233-1006 - Fax: (619) 233-8627 Dana.Fox@lewisbrisbois.com Craig.M ann@ lewisbrisbois.com ATTORNEYS FOR DEFENDANT KTA CONSTRUCTION NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES FROM TAC