Opposition_to_defendants_motion_to_strike

Motion

Cal. Super. - 2nd Dist.August 21, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 03/18/2019 11:09 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Alarcon,Deputy Clerk 1 | GEORGIY B. LYUDYNO (SBN 268380) 66183 15T St. 2 | Desert Hot Springs, CA 92240 Telephone: (760) 537 - 0380 3 | Facsimile: (619) 655-4335 E-Mail: georgiy@hillcrestlawyer.com 4 5 Attorney for Plaintiffs ELIZABETH SZKIBA and JAMES DOWDY 6 7 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES — GLENDALE COURTHOUSE 10 | Dowdy, et al., Case No.: EC069179 11 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 12 Plaintiffs, 13 Date: March 29, 2019 Ve Time: 8:30 a.m. 14 Ortega, et al., Dep: E 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. ARGUMENT a. Request for attorney fees is proper. “Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30, in addition to compensatory damages and all other remedies otherwise provided by law, the court shall award to the plaintiff reasonable attorney’s fees and costs.” (Welf. & Inst. Code, § 15657.5, subd. (a) (emphasis added).) Defendants are incorrect in asserting that custodial relationship is necessary for award of attorney fees for financial elder abuse. (Defs.” Mem., 9:16-28, 10:1-28.) All authorities cited refer to physical and not financial elder abuse and as such bear no weight in the instant case.’ Here, attorney fees are requested upon the basis of the financial elder abuse (the eighth cause of action) and as such are proper. b. Request for punitive damages is proper. Punitive damages require a defendant to act with malice, fraud or oppression. (Civ. Code, § 3294, subd. (a).) Defendants acted with malice, that is, engaged in conduct intended to cause injury to the Plaintiffs or in despicable conduct which was carried out by the defendants with a willful and conscious disregard of Plaintiffs rights in operating their bait and switch scheme in which they stole Plaintiffs’ monies. (Comp., 992, 10, 14, 34, 36, 38, 4, 45, 46,47, 48, 77, 78, 79.) Further, Defendants engaged in oppression, that is despicable conduct that subjected Palintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights. (Id.) Lastly, Defendants engaged in fraud, as specifically alleged in the first and second causes of action in Plaintiffs’ complaint. c. Request for treble damages is proper. Treble damages are specifically authorized for financial elder abuse. (Civ. Code, § 3345, subds. (a), (b).) As such, Plaintiffs’ request for treble damages is statutorily authorized. d. Request for restitution is proper. ! The same issue is addressed more thoroughly in Plaintiff’s opposition to Defendants’ demurrer. 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Restitution is squarely authorized — indeed, it is the main remedy — under California unfair competition law. (Bus. & Prof. Code, § 17200, et seq.; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4 1134, 1148.) Interestingly, Defendants state the same in their Memorandum. (Defs.” Mem., 6:13-14) Yet they offer no reason whatsoever in support of their desire to strike Plaintiffs’ request for restitution. The answer is clear: they don’t have any. Therefore, Plaintiff’s request for restitution is wholly appropriate as a remedy under unfair competition law. II. CONCLUSION For the foregoing reasons, Defendants’ motion to strike should be overruled in its entirety or granted with leave to amend. Alternatively, if any part of the motion is granted, Plaintiffs ask that it be done without prejudice to Plaintiffs bringing a later motion for leave to amend their complaint to add a punitive damages claim, if facts are unearthed in discovery that would support such a motion. Further, Plaintiffs ask that granting of any part of the motion be without prejudice because if evidence is adduced at trial that might permit a punitive damages award, Plaintiffs will move the Court to conform the pleadings to proof. (Code Civ. Proc., § 469.) Dated: March 18, 2019 J_— Aptorney for Plaintiffs LIZABETH SZKIBA and JAMES DY 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE — EMAIL ONLY I am over the age of 18 and not a party to the within action. My business address is 66183 1% St., Desert Hot Springs, CA 92240. On March 18, 2019, I served the foregoing documents described as: PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE I served the documents by emailing them to the e-mail address below, pursuant to California Rules of Court, Rule 2.251, subdivision (c)(3). The e-mail was addressed as follows: tdaley@pratadaley.com rhayne@pratadaley.com Todd A. Daley, Esq. 515 South Figueroa Street, Ste. 1515 Los Angeles, CA 90071 Attorney for Defendants STEPHANIE ANN ORTEGA and ANTIQUITY SALES & LIQUIDATION I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: March 18, 2019 J — ry B. Lyudyno 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE