Preview
Electronically Filed
Superior Court of California
1 PAMELA TAHIM THAKUR (Bar No. 239717) County of San Joaquin
pamela@thakurlawfirm.com
2 WILLIAM R. SCHUBERT (Bar No. 323458)
2020-11-06 16:51:41
Clerk: Kristy Kobus
william@thakurlawfirm.com
3 THAKUR LAW FIRM, APC
1400 N. Harbor Blvd., Suite 410
4 Fullerton, CA 92835
Telephone: (714) 772-7400
5 Facsimile: (714) 333-4943
6 Attorneys for Plaintiff RAUL SOTO
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN JOAQUIN
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11 RAUL SOTO, an individual, Case No. STK-CV-URP-2020-0004481
1400 N. Harbor Blvd., Suite 410
THAKUR LAW FIRM, APC
12 Plaintiff,
Fullerton, California 92835
PLAINTIFF’S OPPOSITION TO
(714) 772-7400
13 vs. MOTION TO STRIKE OF DEFENDANT
14 GLENN T. KASHIWAMURA d/b/a
KARI ANN HYATT, an individual; DAVID SELECT PROPERTIES REAL ESTATE
15 RHYNE, an individual; SELECT SALES AND MANAGEMENT SERVICES
PROPERTIES REAL ESTATE SALES &
16 MANAGEMENT SERVICES, a sole
proprietorship; GLENN T. KASHIWAMURA, DATE: November 20, 2020
17 an individual; and DOES 1 through 10, TIME: 9:00 a.m.
18 inclusive, DEPT: 10D
JUDGE: Hon. Barbara Kronlund
19 Defendants.
20 Action Filed: 06/03/2020
21
22 [UNLIMITED CIVIL]
23
24 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD:
25 PLAINTIFF RAUL SOTO (“Plaintiff”) hereby submits this Opposition to the “Motion to
26 Strike Plaintiff’s Complaint” filed by Defendant GLENN T. KASHIWAMURA d/b/a SELECT
27 PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES (“Defendant”).
28 1
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendant GLENN T. KASHIWAMURA seeks an order from the Court striking the
4 prayer “for punitive damages and attorneys’ fees and costs” from the Complaint. (See Notice of
5 Motion of Defendant’s Motion to Strike.) Defendant’s fails to show how the allegations it purports
6 to challenge are irrelevant, false, improper or not in conformity with the law of this state.
7 Therefore, the Motion to Strike must be denied.
8 Plaintiff Raul Soto (“Plaintiff”) filed his Complaint against Defendant Glenn T.
9 Kashiwamura (“Defendant”) on or about June 3, 2020. The Complaint alleges causes of action for
10 breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, negligence,
11 and violation of the California Unfair Competition Law (“UCL”) against Defendant, based on
1400 N. Harbor Blvd., Suite 410
THAKUR LAW FIRM, APC
12 Defendant’s conduct while acting as Plaintiff’s real estate broker in Plaintiff’s purchase of a home
Fullerton, California 92835
(714) 772-7400
13 in Tracy, California (“the Subject Property”). These causes of action all stem from allegations that
14 in response to concerns that Plaintiff raised during the pre-closing period about facts material to
15 Plaintiff’s decision to purchase the Subject Property, Defendant made false representations to
16 Plaintiff regarding the square footage and the Subject Property’s compliance with permitting
17 requirements and building codes. These misrepresentations allegedly occurred in March 2018,
18 prior to closing, and Defendant allegedly made them to induce Plaintiff to proceed to closing. The
19 Complaint alleges that Plaintiff relied on the misrepresentations and proceeded to closing, only to
20 learn shortly thereafter that the square footage had been misstated and that the Subject Property
21 was in violation of permitting and building requirements (violations that were so serious that the
22 City of Tracy prohibited Plaintiff from making planned improvements to without undertaking
23 major construction to bring the building into compliance).
24 On or about October 14, 2020, Defendant filed a Motion to Strike the Complaint. The
25 Motion purports to ask this Court to strike the parts of the prayer in the Complaint seeking
26 attorney’s fees and punitive damages. In support of the Motion to Strike, Defendant contends that
27 Plaintiff has not pleaded facts showing an intentional tort that would entitle it to punitive damages.
28 1
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 II. STATEMENT OF FACTS
2 Plaintiff entered into an agreement to purchase the Subject Property on or about February
3 2, 2018, in which Defendant was Plaintiff’s real estate broker. (See Complaint ¶¶ 16-17 and Ex. B
4 thereto.) Defendant provided the standard Disclosures Regarding Real Estate Agency Relationship
5 to Plaintiff in February 2018. (See Ex. B to Complaint.)
6 On or about March 2018, Plaintiff became concerned after receiving a document from
7 Sellers stating that the Subject Property would be sold “as is” and asked Defendant whether the
8 Subject Property was compliant with all city permits, housing codes, and all other relevant
9 regulations. (Complaint ¶¶ 22, 37). “After reassuring Plaintiff that he was familiar with staff of the
10 City of Tracy, Defendant Mr. Kashiwamura represented orally multiple times to Plaintiff that
11 everything with the property [the Subject Property] was fine with the city regarding all relevant
12 records, permits and housing codes.” (Id. ¶¶ 22, 37.)
13 Defendant also specifically and falsely represented in the same March 2018 conversation
14 “that he had checked with the City of Tracy’s tax department, and that its records showed 2,497
15 square feet” as the area of the Subject Property. (Id. ¶23.)
16 Defendant made these false statements of fact in March 2018 about square footing and
17 permitting compliance in response to specific inquiries by Plaintiff, to induce Plaintiff’s reliance
18 and ensure the transaction would close. (See Id. ¶¶ 22-23 and ¶¶ 37-39; ¶¶ 46 and 52.)
19 Plaintiff reasonably relied on these misrepresentations to his detriment by proceeding to
20 closing, only to find out in the months thereafter that: (i) the square footage was smaller than
21 Defendant had represented it to be; and (ii) that the Subject Property was out of compliance with
22 permitting and building requirements. (Id. ¶ 27). The compliance problems were so grave that the
23 City of Tracy inspector declared the Subject Property “so unsafe as to be uninhabitable” due to
24 “safety risks and housing code violations including general construction, plumbing, and electric
25 wiring.” (Ibid.) The City of Tracy inspector gave the Subject Property a red tag, and prevented
26 Plaintiff from making the minor improvements he had planned to make without first
27 reconstructing the building to bring it into compliance with the housing code and permitting
28 requirements. (Ibid.) 2
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 The work required of Plaintiff to correct these problems has been substantial, and
2 Plaintiff’s damages are in excess of $600,000.00. (Id. ¶¶ 28-32.)
3 III. STANDARD WHEN RULING ON A MOTION TO STRIKE PLEADINGS:
4 A court may strike, on motion, a challenged pleading or a part of the pleading when it
5 contains irrelevant, false, or improper matter, or when all or part of a pleading is not drafted or
6 filed in conformity with state law, a local rule, or a court order. (Code Civ. Proc., § 436.)
7 IV. ARGUMENT
8 A. The Motion To Strike Is Unclear And Inconsistent With Form Requirements
9 The moving papers submitted by Defendant in support of the Motion to Strike do not
10 clearly identify which parts of the Complaint Defendant is requesting the Court to strike.
11 In the Notice, Defendant states that it “moves to strike Plaintiff’s prayer for relief regarding
12 punitive damages and for attorneys’ fees and costs.”
13 This statement still fails to comply with the requirements for California Rules of Court, rule
14 31322, which state as follows:
15 (a) Contents of notice
16 A notice of motion to strike a portion of a pleading must quote in
17 full the portions sought to be stricken except where the motion is to
18 strike an entire paragraph, cause of action, count, or defense.
19 Specifications in a notice must be numbered consecutively.
20 The Motion to Strike would appear to refer to the portion of the Prayer at the end of
21 Plaintiff’s Complaint, which reads:
22 WHEREFORE, Plaintiff prays for judgment against Defendants, and
23 each of them, as follows:
24 ***
25 3. For exemplary and punitive damages as pleaded herein;
26 4. For costs of suit and attorneys’ fees, if appropriate[.]
27 The Motion to Strike does not take into consideration the qualifying language “as pleaded
28 herein” and “if appropriate” and does not specify paragraphs3 that it wishes to be stricken.
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 Nor does the Motion to Strike clearly identify the causes of action containing the allegations that
2 plaintiff is entitled to punitive damages. These would be the First Cause of Action (breach of
3 fiduciary duty) and the Second Cause of Action (intentional misrepresentation)
4 B. The Motion To Strike The Request For Attorneys’ Fees “if appropriate” Should Be
5 Denied.
6 Plaintiff did not allege entitlement to attorneys’ fees under any cause of action, and the one
7 sub-part of the prayer requesting attorneys’ fees is qualified by the words “if appropriate.”
8 Including these words was not improper and the Motion to Strike this part of the prayer should be
9 denied accordingly.
10 C. The Motion To Strike Should Be Denied With Respect To The Prayer For Punitive
11 Damages Because The Complaint Alleges Multiple Causes Of Action That Support
12 This Request.
13 The Motion to Strike must be denied. Plaintiff’s Complaint alleges facts showing
14 entitlement to punitive damages in the First Cause of Action (breach of fiduciary duty) and the
15 Second Cause of Action (intentional misrepresentation) As explained in the Opposition to the
16 Demurrer, these causes of action against Defendant are well-pleaded, so there is no basis for
17 striking the prayer for punitive damages.
18 All that is required at the pleading state is the allegation of the “ultimate facts” upon which
19 a claim for punitive damages is based. Burke v. Superior Court of Sacramento County (1969) 71
20 Cal.2d 276, 279, fn. 4. A lesser degree of specificity is required in pleading “when the facts lie
21 more in the knowledge of the opposite party” Committee on Children's Television, Inc. v. General
22 Foods Corp. (1983) 35 Cal.3d 197, 216-217. When the allegations of the complaint are considered
23 as a whole, even language that is dubbed “conclusory” may be sufficient to support a claim for
24 punitive damages. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.
25 In attempt to support the Motion to Strike the punitive damages allegations, Defendant
26 asserts that “Plaintiff fails to allege any actions by Defendant that would suffice as an intentional
27 tort, let alone rise to the level required for punitive damages.” (Defendant’s MPA at pg. 6.) That
28 assertion is made without further support or attempt 4 to qualify it. Civil Code section 3294 allows
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 punitive damages to be recovered on a showing of fraud, oppression or malice. “Fraud” is defined
2 in Civil Code section 3294(c)(3) as “an intentional misrepresentation, deceit, or concealment of a
3 material fact known to the defendant with the intention on the part of the defendant of thereby
4 depriving a person of property or legal rights or otherwise causing injury.” Surely, the allegation
5 that Defendant falsely represented to Plaintiff in March 2018 that he was familiar with the staff at
6 the City of Tracy and that “everything is fine” in terms of permit and building code compliance in
7 order to induce the transaction, if true, meets this definition. Defendant has not seriously
8 contended otherwise.
9 The remaining argument in the Motion to Strike overlaps with the contentions that
10 Defendant made in support of the Demurrer. Specifically, Defendant argues that the Complaint
11 fails to allege that Defendant owed Plaintiff a legal duty. (See Memorandum of Points and
12 Authorities in Support of Plaintiff’s Motion to Strike, at pg. 5) That argument is unclear and
13 without merit.
14 First, this argument does not even purport to negate the cause of action for intentional
15 misrepresentation, as a “legal duty” is not an element of this cause of action. Therefore, the
16 Motion to Strike must be denied with respect to the Second Cause of Action for intentional
17 misrepresentation.
18 Second, with respect to punitive damages allegation under the First Cause of Action
19 (breach of fiduciary duty), the Defendant’s argument is without merit for reasons discussed in the
20 Opposition to the Demurrer. The Defendant’s argument is that the disclaimer language in the
21 February 2018 disclosures insulated Defendant from any liability arising from his allegedly false
22 statements in March 2018 about facts material to Plaintiff’s decision to purchase the Subject
23 Property.
24 As stated in the Plaintiff’s Opposition to the Demurrer (at pg. 9) and the cases cited
25 therein, a real estate broker assumes a legal duty when the broker decides to make statements of
26 material fact upon when the buyer is relying – even if the statements are about things that a broker
27 would otherwise have no duty to speak about. Further, no person can limit their liability for future
28 acts of fraud or intentional torts through a contractual 5 disclaimer. That is what Defendant is
PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 positing, and that position fails as a matter of law. (See Opposition to Demurrer at p. 7.)
2 Because the Plaintiff’s causes of action against Defendant include intentional tort claims
3 that allege conduct meeting the threshold set forth in Civil Code section 3294, the Motion to Strike
4 must be denied.
5 V. CONCLUSION
6 For the reasons stated herein, Plaintiff respectfully requests that this Court deny in its
7 entirety Defendant’s Motion to Strike.
8
9 THAKUR LAW FIRM, APC
DATED: November 6, 2020
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11
By:
12 PAMELA TAHIM THAKUR
WILLIAM R. SCHUBERT
13
Attorneys for Plaintiff RAUL SOTO
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 PROOF OF SERVICE
2 I am over the age of 18 and not a party to this action. I am a resident of or employed in
Orange County. My business address is: 1400 N. Harbor Blvd. Suite 410, Fullerton, CA 92835.
3 My email address is: lisa@thakurlawfirm.com
4 On November 6, 2020, I served the forgoing document(s) described as:
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T.
6 KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND
MANAGEMENT SERVICES
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to the following parties:
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9 [SEE ATTACHED SERVICE LIST]
10 [X] BY U.S. MAIL: I deposited such envelope in the mail in Fullerton, California with
postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed
11 invalid if postal cancellation date or postage meter date is more than one day after date of deposit
for mailing in affidavit.
12
13 [X] BY OVERNIGHT DELIVERY: I enclosed the document(s) in an envelope provided
by an overnight delivery carrier and addressed as above. I placed the envelope for collection and
14 overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier.
15 [ ] BY FACSIMILE: I served a true and correct copy of facsimile to the person at the fax
number above. The sending fax machine issued a transmission report confirming the transmission
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was complete and without error.
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[X] BY EMAIL: I served a true and correct copy thereof in an electronic mail using the
18 email address(es) above.
19 I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21
22 DATED: November 6, 2020
Lisa Tam
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
1 SERVICE LIST
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Attorney for Defendant GLENN T. KASHIWAMURA dba
3 SELECT PROPERTIES REAL ESTATE SALES & MANAGEMENT SERVICES
Edward Garson
4 Jimmy S. Ly
5 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
525 Market Street - 17th Floor
6 San Francisco, CA 94105-2725
Telephone: (415) 433-0990
7 Facsimile: (415) 434-1370
Edward.Garson@wilsonelser.com
8 Jimmy.Ly@wilsonelser.com
9 By Email and Overnight Mail
10 Defendant Kari Ann Hyatt
13181 Four Hills Way
11 Victorville, CA 92392-7991
By U.S. Mail
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PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a
SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES
Preview
Electronically Filed Superior Court of California 1 PAMELA TAHIM THAKUR (Bar No. 239717) County of San Joaquin pamela@thakurlawfirm.com 2 WILLIAM R. SCHUBERT (Bar No. 323458) 2020-11-06 16:51:41 Clerk: Kristy Kobus william@thakurlawfirm.com 3 THAKUR LAW FIRM, APC 1400 N. Harbor Blvd., Suite 410 4 Fullerton, CA 92835 Telephone: (714) 772-7400 5 Facsimile: (714) 333-4943 6 Attorneys for Plaintiff RAUL SOTO 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN JOAQUIN 10 11 RAUL SOTO, an individual, Case No. STK-CV-URP-2020-0004481 1400 N. Harbor Blvd., Suite 410 THAKUR LAW FIRM, APC 12 Plaintiff, Fullerton, California 92835 PLAINTIFF’S OPPOSITION TO (714) 772-7400 13 vs. MOTION TO STRIKE OF DEFENDANT 14 GLENN T. KASHIWAMURA d/b/a KARI ANN HYATT, an individual; DAVID SELECT PROPERTIES REAL ESTATE 15 RHYNE, an individual; SELECT SALES AND MANAGEMENT SERVICES PROPERTIES REAL ESTATE SALES & 16 MANAGEMENT SERVICES, a sole proprietorship; GLENN T. KASHIWAMURA, DATE: November 20, 2020 17 an individual; and DOES 1 through 10, TIME: 9:00 a.m. 18 inclusive, DEPT: 10D JUDGE: Hon. Barbara Kronlund 19 Defendants. 20 Action Filed: 06/03/2020 21 22 [UNLIMITED CIVIL] 23 24 TO THE PARTIES AND THEIR ATTORNEYS OF RECORD: 25 PLAINTIFF RAUL SOTO (“Plaintiff”) hereby submits this Opposition to the “Motion to 26 Strike Plaintiff’s Complaint” filed by Defendant GLENN T. KASHIWAMURA d/b/a SELECT 27 PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES (“Defendant”). 28 1 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendant GLENN T. KASHIWAMURA seeks an order from the Court striking the 4 prayer “for punitive damages and attorneys’ fees and costs” from the Complaint. (See Notice of 5 Motion of Defendant’s Motion to Strike.) Defendant’s fails to show how the allegations it purports 6 to challenge are irrelevant, false, improper or not in conformity with the law of this state. 7 Therefore, the Motion to Strike must be denied. 8 Plaintiff Raul Soto (“Plaintiff”) filed his Complaint against Defendant Glenn T. 9 Kashiwamura (“Defendant”) on or about June 3, 2020. The Complaint alleges causes of action for 10 breach of fiduciary duty, intentional misrepresentation, negligent misrepresentation, negligence, 11 and violation of the California Unfair Competition Law (“UCL”) against Defendant, based on 1400 N. Harbor Blvd., Suite 410 THAKUR LAW FIRM, APC 12 Defendant’s conduct while acting as Plaintiff’s real estate broker in Plaintiff’s purchase of a home Fullerton, California 92835 (714) 772-7400 13 in Tracy, California (“the Subject Property”). These causes of action all stem from allegations that 14 in response to concerns that Plaintiff raised during the pre-closing period about facts material to 15 Plaintiff’s decision to purchase the Subject Property, Defendant made false representations to 16 Plaintiff regarding the square footage and the Subject Property’s compliance with permitting 17 requirements and building codes. These misrepresentations allegedly occurred in March 2018, 18 prior to closing, and Defendant allegedly made them to induce Plaintiff to proceed to closing. The 19 Complaint alleges that Plaintiff relied on the misrepresentations and proceeded to closing, only to 20 learn shortly thereafter that the square footage had been misstated and that the Subject Property 21 was in violation of permitting and building requirements (violations that were so serious that the 22 City of Tracy prohibited Plaintiff from making planned improvements to without undertaking 23 major construction to bring the building into compliance). 24 On or about October 14, 2020, Defendant filed a Motion to Strike the Complaint. The 25 Motion purports to ask this Court to strike the parts of the prayer in the Complaint seeking 26 attorney’s fees and punitive damages. In support of the Motion to Strike, Defendant contends that 27 Plaintiff has not pleaded facts showing an intentional tort that would entitle it to punitive damages. 28 1 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 II. STATEMENT OF FACTS 2 Plaintiff entered into an agreement to purchase the Subject Property on or about February 3 2, 2018, in which Defendant was Plaintiff’s real estate broker. (See Complaint ¶¶ 16-17 and Ex. B 4 thereto.) Defendant provided the standard Disclosures Regarding Real Estate Agency Relationship 5 to Plaintiff in February 2018. (See Ex. B to Complaint.) 6 On or about March 2018, Plaintiff became concerned after receiving a document from 7 Sellers stating that the Subject Property would be sold “as is” and asked Defendant whether the 8 Subject Property was compliant with all city permits, housing codes, and all other relevant 9 regulations. (Complaint ¶¶ 22, 37). “After reassuring Plaintiff that he was familiar with staff of the 10 City of Tracy, Defendant Mr. Kashiwamura represented orally multiple times to Plaintiff that 11 everything with the property [the Subject Property] was fine with the city regarding all relevant 12 records, permits and housing codes.” (Id. ¶¶ 22, 37.) 13 Defendant also specifically and falsely represented in the same March 2018 conversation 14 “that he had checked with the City of Tracy’s tax department, and that its records showed 2,497 15 square feet” as the area of the Subject Property. (Id. ¶23.) 16 Defendant made these false statements of fact in March 2018 about square footing and 17 permitting compliance in response to specific inquiries by Plaintiff, to induce Plaintiff’s reliance 18 and ensure the transaction would close. (See Id. ¶¶ 22-23 and ¶¶ 37-39; ¶¶ 46 and 52.) 19 Plaintiff reasonably relied on these misrepresentations to his detriment by proceeding to 20 closing, only to find out in the months thereafter that: (i) the square footage was smaller than 21 Defendant had represented it to be; and (ii) that the Subject Property was out of compliance with 22 permitting and building requirements. (Id. ¶ 27). The compliance problems were so grave that the 23 City of Tracy inspector declared the Subject Property “so unsafe as to be uninhabitable” due to 24 “safety risks and housing code violations including general construction, plumbing, and electric 25 wiring.” (Ibid.) The City of Tracy inspector gave the Subject Property a red tag, and prevented 26 Plaintiff from making the minor improvements he had planned to make without first 27 reconstructing the building to bring it into compliance with the housing code and permitting 28 requirements. (Ibid.) 2 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 The work required of Plaintiff to correct these problems has been substantial, and 2 Plaintiff’s damages are in excess of $600,000.00. (Id. ¶¶ 28-32.) 3 III. STANDARD WHEN RULING ON A MOTION TO STRIKE PLEADINGS: 4 A court may strike, on motion, a challenged pleading or a part of the pleading when it 5 contains irrelevant, false, or improper matter, or when all or part of a pleading is not drafted or 6 filed in conformity with state law, a local rule, or a court order. (Code Civ. Proc., § 436.) 7 IV. ARGUMENT 8 A. The Motion To Strike Is Unclear And Inconsistent With Form Requirements 9 The moving papers submitted by Defendant in support of the Motion to Strike do not 10 clearly identify which parts of the Complaint Defendant is requesting the Court to strike. 11 In the Notice, Defendant states that it “moves to strike Plaintiff’s prayer for relief regarding 12 punitive damages and for attorneys’ fees and costs.” 13 This statement still fails to comply with the requirements for California Rules of Court, rule 14 31322, which state as follows: 15 (a) Contents of notice 16 A notice of motion to strike a portion of a pleading must quote in 17 full the portions sought to be stricken except where the motion is to 18 strike an entire paragraph, cause of action, count, or defense. 19 Specifications in a notice must be numbered consecutively. 20 The Motion to Strike would appear to refer to the portion of the Prayer at the end of 21 Plaintiff’s Complaint, which reads: 22 WHEREFORE, Plaintiff prays for judgment against Defendants, and 23 each of them, as follows: 24 *** 25 3. For exemplary and punitive damages as pleaded herein; 26 4. For costs of suit and attorneys’ fees, if appropriate[.] 27 The Motion to Strike does not take into consideration the qualifying language “as pleaded 28 herein” and “if appropriate” and does not specify paragraphs3 that it wishes to be stricken. PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 Nor does the Motion to Strike clearly identify the causes of action containing the allegations that 2 plaintiff is entitled to punitive damages. These would be the First Cause of Action (breach of 3 fiduciary duty) and the Second Cause of Action (intentional misrepresentation) 4 B. The Motion To Strike The Request For Attorneys’ Fees “if appropriate” Should Be 5 Denied. 6 Plaintiff did not allege entitlement to attorneys’ fees under any cause of action, and the one 7 sub-part of the prayer requesting attorneys’ fees is qualified by the words “if appropriate.” 8 Including these words was not improper and the Motion to Strike this part of the prayer should be 9 denied accordingly. 10 C. The Motion To Strike Should Be Denied With Respect To The Prayer For Punitive 11 Damages Because The Complaint Alleges Multiple Causes Of Action That Support 12 This Request. 13 The Motion to Strike must be denied. Plaintiff’s Complaint alleges facts showing 14 entitlement to punitive damages in the First Cause of Action (breach of fiduciary duty) and the 15 Second Cause of Action (intentional misrepresentation) As explained in the Opposition to the 16 Demurrer, these causes of action against Defendant are well-pleaded, so there is no basis for 17 striking the prayer for punitive damages. 18 All that is required at the pleading state is the allegation of the “ultimate facts” upon which 19 a claim for punitive damages is based. Burke v. Superior Court of Sacramento County (1969) 71 20 Cal.2d 276, 279, fn. 4. A lesser degree of specificity is required in pleading “when the facts lie 21 more in the knowledge of the opposite party” Committee on Children's Television, Inc. v. General 22 Foods Corp. (1983) 35 Cal.3d 197, 216-217. When the allegations of the complaint are considered 23 as a whole, even language that is dubbed “conclusory” may be sufficient to support a claim for 24 punitive damages. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6. 25 In attempt to support the Motion to Strike the punitive damages allegations, Defendant 26 asserts that “Plaintiff fails to allege any actions by Defendant that would suffice as an intentional 27 tort, let alone rise to the level required for punitive damages.” (Defendant’s MPA at pg. 6.) That 28 assertion is made without further support or attempt 4 to qualify it. Civil Code section 3294 allows PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 punitive damages to be recovered on a showing of fraud, oppression or malice. “Fraud” is defined 2 in Civil Code section 3294(c)(3) as “an intentional misrepresentation, deceit, or concealment of a 3 material fact known to the defendant with the intention on the part of the defendant of thereby 4 depriving a person of property or legal rights or otherwise causing injury.” Surely, the allegation 5 that Defendant falsely represented to Plaintiff in March 2018 that he was familiar with the staff at 6 the City of Tracy and that “everything is fine” in terms of permit and building code compliance in 7 order to induce the transaction, if true, meets this definition. Defendant has not seriously 8 contended otherwise. 9 The remaining argument in the Motion to Strike overlaps with the contentions that 10 Defendant made in support of the Demurrer. Specifically, Defendant argues that the Complaint 11 fails to allege that Defendant owed Plaintiff a legal duty. (See Memorandum of Points and 12 Authorities in Support of Plaintiff’s Motion to Strike, at pg. 5) That argument is unclear and 13 without merit. 14 First, this argument does not even purport to negate the cause of action for intentional 15 misrepresentation, as a “legal duty” is not an element of this cause of action. Therefore, the 16 Motion to Strike must be denied with respect to the Second Cause of Action for intentional 17 misrepresentation. 18 Second, with respect to punitive damages allegation under the First Cause of Action 19 (breach of fiduciary duty), the Defendant’s argument is without merit for reasons discussed in the 20 Opposition to the Demurrer. The Defendant’s argument is that the disclaimer language in the 21 February 2018 disclosures insulated Defendant from any liability arising from his allegedly false 22 statements in March 2018 about facts material to Plaintiff’s decision to purchase the Subject 23 Property. 24 As stated in the Plaintiff’s Opposition to the Demurrer (at pg. 9) and the cases cited 25 therein, a real estate broker assumes a legal duty when the broker decides to make statements of 26 material fact upon when the buyer is relying – even if the statements are about things that a broker 27 would otherwise have no duty to speak about. Further, no person can limit their liability for future 28 acts of fraud or intentional torts through a contractual 5 disclaimer. That is what Defendant is PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 positing, and that position fails as a matter of law. (See Opposition to Demurrer at p. 7.) 2 Because the Plaintiff’s causes of action against Defendant include intentional tort claims 3 that allege conduct meeting the threshold set forth in Civil Code section 3294, the Motion to Strike 4 must be denied. 5 V. CONCLUSION 6 For the reasons stated herein, Plaintiff respectfully requests that this Court deny in its 7 entirety Defendant’s Motion to Strike. 8 9 THAKUR LAW FIRM, APC DATED: November 6, 2020 10 11 By: 12 PAMELA TAHIM THAKUR WILLIAM R. SCHUBERT 13 Attorneys for Plaintiff RAUL SOTO 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 PROOF OF SERVICE 2 I am over the age of 18 and not a party to this action. I am a resident of or employed in Orange County. My business address is: 1400 N. Harbor Blvd. Suite 410, Fullerton, CA 92835. 3 My email address is: lisa@thakurlawfirm.com 4 On November 6, 2020, I served the forgoing document(s) described as: 5 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. 6 KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 7 to the following parties: 8 9 [SEE ATTACHED SERVICE LIST] 10 [X] BY U.S. MAIL: I deposited such envelope in the mail in Fullerton, California with postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed 11 invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 12 13 [X] BY OVERNIGHT DELIVERY: I enclosed the document(s) in an envelope provided by an overnight delivery carrier and addressed as above. I placed the envelope for collection and 14 overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 15 [ ] BY FACSIMILE: I served a true and correct copy of facsimile to the person at the fax number above. The sending fax machine issued a transmission report confirming the transmission 16 was complete and without error. 17 [X] BY EMAIL: I served a true and correct copy thereof in an electronic mail using the 18 email address(es) above. 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 22 DATED: November 6, 2020 Lisa Tam 23 24 25 26 27 28 7 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 1 SERVICE LIST 2 Attorney for Defendant GLENN T. KASHIWAMURA dba 3 SELECT PROPERTIES REAL ESTATE SALES & MANAGEMENT SERVICES Edward Garson 4 Jimmy S. Ly 5 WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP 525 Market Street - 17th Floor 6 San Francisco, CA 94105-2725 Telephone: (415) 433-0990 7 Facsimile: (415) 434-1370 Edward.Garson@wilsonelser.com 8 Jimmy.Ly@wilsonelser.com 9 By Email and Overnight Mail 10 Defendant Kari Ann Hyatt 13181 Four Hills Way 11 Victorville, CA 92392-7991 By U.S. Mail 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF’S OPPOSITION TO MOTION TO STRIKE OF DEFENDANT GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES