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Electronically Filed
1 EDWARD P. GARSON (SBN 95768) Superior Court of California
edward.garson@wilsonelser.com County of San Joaquin
2 JIMMY S. LY (SBN 240930)
2020-10-15 18:02:37
jimmy.ly@wilsonelser.com
3 WILSON, ELSER, MOSKOWITZ Clerk: Rita Gomez
EDELMAN & DICKER LLP
4 525 Market Street, 17th Floor Motion to Strike Complaint
San Francisco, CA 94105 11/20/2020 09:00 AM in 10D
5 Telephone: (415) 433-0990
Facsimile: (415) 434-1370
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Attorneys For Defendants
7 GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES
REAL ESTATE SALES AND MANAGEMENT SERVICES
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN JOAQUIN
11 RAUL SOTO, Case No. STK-CV-VRP-2020-0004481
Plaintiff,
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MEMORANDUM OF POINTS AND
vs.
13 AUTHORITIES IN SUPPORT OF
KARI ANN HYATT, and individual; DAVID DEFENDANT GLENN T.
14 RHYNE, an individual; SELECT PROPERTIES KASHIWAMURA d/b/a SELECT
REAL ESTATE SALES & MANAGEMENT PROPERTIES REAL ESTATE SALES
15 SERVICES, a sole proprietorship; GLENN T. AND MANAGEMENT SERVICES’
KASHIWAMURA, an individual, and DOES 1 to MOTION TO STRIKE PLAINTIFF’S
16 10, inclusive, COMPLAINT
17 Defendants.
Date: _________________, 2020
18 Time: 9:00 a.m.
Dept.: 10D
19 Judge: Hon. Barbara Kronlund
Complaint: June 03, 2020
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff Raul Soto’s (“Plaintiff”) Complaint against Defendant Glenn T. Kashiwamura
4 d/b/a Select Properties Real Estate Sales and Management Services (“Defendant”) is premised
5 upon alleged violations of duties expressly and categorically disclaimed by their applicable
6 transaction documents. As discussed in further detail in Defendant’s concurrently filed Demurrer,
7 a cursory review of the agreement creating the agency relationship establishes Defendant breached
8 no duties and hence Plaintiff has failed to state any cause of action. Therefore, Plaintiff’s
9 Complaint also fails to plead facts showing that Defendant acted with malice, fraud or oppression
10 such as is required to support a claim for punitive damages. (Civ. Code § 3294, subd. (a).) Without
11 any actionable duty, there can be no punitive damages or attorneys’ fees. Moreover, Plaintiff’s
12 ipse dixit regurgitation of contentions, deductions, or conclusions of fact or law do not, and cannot,
13 establish a claim for punitive damages. 2 Similarly, Plaintiff nebulously prays for attorneys’ fees,
14 but has failed to allege any facts supporting said recovery. Plaintiff’s claim for punitive damages
15 and attorneys’ fees do not conform with laws or pleading requirements and should be stricken from
16 the Complaint. (Code of Civ. Proc. § 436, subd. (b).)
17 II. RELEVANT FACTS
18 Plaintiff’s Complaint alleges and attaches true and correct copies of the Disclosures
19 Regarding Real Estate Agency Relationship, Residential Purchase Agreement and Joint Escrow
20 Instructions, Real Estate Disclosure Statement, and Addendum are attached as exhibits to the
21 Complaint. (Ly. Dec. at ¶ 2, Ex. 1; see also Request for Judicial Notice.) The Complaint alleges
22 causes of action against Defendant for: (1) Breach of Fiduciary Duty; (2) Intentional and Negligent
23 Misrepresentation; (3) Negligence; and (4) Violation of B&P Code. 17200. (Ly. Dec. at ¶ 3, Ex.
24 1.) The property at issue is located at 1518 Madison Avenue, City of Tracy, State of California
25 (“Property”). (Ly. Dec. at ¶ 4, Ex. 1 at ¶ 12.) Defendant was Plaintiff’s broker for the purchase of
26 the Property. (Ly. Dec. at ¶ 5, Ex. 1 at ¶ 16.)
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Contentions, deductions, or conclusions of fact or law are not accepted as true and not given credit in testing the
28 -2- Fenner & Smith, Inc. (1999) 68 Cal.App.4th 445, 460.)
sufficiency of a pleading. (See Atascadero v. Merrill Lynch,
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 Exhibit B to the Complaint contains the transaction documents, signed by Plaintiff,
2 including the “Disclosure Regarding Real Estate Agency Relationship,” showing Defendant only
3 served as the “Buyer’s Agent” in the subject transaction, and among the disclosures, refers to Civil
4 Code section 2079.23, which prescribes, “[a] contract between the principal and agent may be
5 modified or altered to change the agency relationship … with the written consent to the parties to
6 the agency relationship. (Ly. Dec. at ¶ 6, Disclosure Regarding Real Estate Agency Relationship
7 attached as Ex. B to Complaint at pp. 1-2.) Also included in the transaction documents, was a 1-
8 page “Buyers Inspection Advisory” stating, “Brokers do not have expertise in all areas and
9 therefore cannot advise you on many items, such as those listed below[,]” and listed square footage,
10 building permits, requirements affecting future use, the property’s size, and government
11 requirements. (Ly. Dec. at ¶ 7, Buyers Inspection Advisory attached as Ex. B to Complaint.)
12 Immediately after the Buyers Inspection Advisory is another disclosure entitled “Statewide
13 Buyer and Seller Advisory,” a 12-page document setting forth the broker’s rights and duties, which
14 states on the first page, the written agreement between broker and buyer “establishes the rights and
15 responsibilities of those parties.” (Ly. Dec. at ¶ 8, Buyers Inspection Advisory attached as Ex. B
16 to Complaint at p. 1.) It warns the “physical condition of the land and improvements being
17 purchased are not guaranteed by the Sellers or Brokers,” and imposed a duty on Plaintiff to conduct
18 thorough investigations with appropriate professionals. (Ly. Dec. at ¶ 9, Buyers Inspection
19 Advisory attached as Ex. B to Complaint at p. 1.)
20 Critically, Para. 2 “Square Footage, Lot Size, Boundaries and Surveys,” advised to
21 Plaintiff, “[u]nless otherwise specified by Broker in writing, Brokers have not verified … any
22 representations made by Seller or others,” that square footage are often approximates or based on
23 inaccurate or incomplete records, and brokers have no expertise in this area. (Ly. Dec. at ¶ 10,
24 Buyers Inspection Advisory attached as Ex. B to Complaint at p. 2.) Para. 18 “Building Permits,
25 Zoning and Code Compliance,” advised Plaintiff, “any structure on the Property, including the
26 original structure and any addition, modification, remodel or improvement may have been built
27 without permits, not according to building codes, or in violation of zoning laws,” to check with
28 appropriate government agencies or third party-3- professionals to verify permits, and brokers have
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 no expertise in this area.” (Ly. Dec. at ¶ 11, Buyers Inspection Advisory attached as Ex. B to
2 Complaint at p. 5.) Significantly, Plaintiff was advised to verify these details during the inspection
3 contingency period. (Ly. Dec. at ¶ 12, Buyers Inspection Advisory attached as Ex. B to Complaint
4 at pp. 2, 5.) The document confirmed Defendant, “shall not be responsible for inspecting public
5 records or permits,” and “shall not be responsible for verifying square footage, representations of
6 others or information contained in investigation reports.” (Ly. Dec. at ¶ 13, Buyers Inspection
7 Advisory attached as Ex. B to Complaint at p. 12.)
8 In contrast, the alleged “wrongs” by Defendant, as alleged in the Complaint are as follows:
9 (1) “failed to insist that the Sellers answer the mandatory, executed disclosures in writing regarding
10 whether permits had been issued as legally necessary for all modifications to the Subject Property;”
11 (2) “verbally repeated to Plaintiff that Sellers’ claim that the Subject Property comprised 2,497
12 square feet was correct;” (3) “represented orally multiple times to Plaintiff that everything with
13 the property was fine with the city regarding all relevant records, permits and housing codes;” (4)
14 “[failed to] independently verify the Subject Property’s square footage or inform Plaintiff that he
15 did not do so;” (5) “made no effort to check city permits or other records beyond the tax
16 department;” and (6) “bound by fiduciary duty to specifically inspect all public records and
17 permits relevant to the Subject Property.” (Ly. Dec. at ¶ 14, Ex. 1 at ¶¶ 18, 20, 22-23, 39, and 42.)
18 In sum, the Complaint failed to identify any contracts or statutes supporting attorneys’ fees
19 claims against Defendant, is devoid of any facts supporting the allegation of “malice” and
20 appurtenant exemplary damages prayer, and nothing alleged by Plaintiff rises to the level of
21 conduct necessary to support a claim for punitive damages. (Ly. Dec. at ¶ 15, Ex. 1.) Finally,
22 Defendant has complied with all statutory meet and confer requirements to bring the instant
23 motion, and the motion is timely. (Ly. Dec. at ¶¶ 16-18.)
24 III. LEGAL ARGUMENT
25 1. Legal Standards for Granting Motions to Strike
26 A motion to strike is the appropriate means by which to challenge Plaintiff’s causes of
27 action and prayer for attorneys’ fees and costs, and the Court may strike “any irrelevant, false, or
28 improper matter inserting in any pleading” or “all -4- or any part of any pleading not drawn or filed
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civ. Proc.
2 § 436, subd. (a)-(b).) Likewise, the Court may strike any demand for relief not supported by the
3 allegations of a complaint. (Code of Civ. Proc. § 431.10, subd. (b)(3).) To survive a motion to
4 strike punitive damages, specific factual allegations demonstrating oppression, fraud or malice are
5 required. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511; Brousseau v. Jarrett
6 (1977) 73 Cal.App.3d 864, 872.
7 2. In the Absence of a Duty, Not Claim for Punitive Damages or Attorneys’ Fees
can be Maintained
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9 As discussed in further detail in Defendant’s concurrently filed demurrer, incorporated
10 herein as though fully set forth, Judicial Council of California Civil Jury Instruction No, 4107,
11 “Duty of Disclosure by Real Estate Broker to Client,” states in its Directions for Use, “[w]hile a
12 broker’s fiduciary duty to the client arises from the relationship and not from contract (citation),
13 the scope of the duty may be limited by contract. (See Carleton v. Tortosa (1993) 14 Cal.App.4th
14 745, 750−751 [17 Cal.Rptr.2d 734] [broker-client agreement may relieve broker of any duty to
15 provide tax advice].)[,] [a]ny contractual limitations may be added to the second paragraph
16 regarding what facts a broker must learn.” The agency agreement applicable here, clearly disclaims
17 any duty on the part of Defendant to learn, convey, verify or investigate the square footage or
18 permit status of the Property.
19 The holding Carleton is dispositive because it established the simple rule that a broker
20 cannot he held liable to his or her buyer client, for failing to perform a duty with requisite skill and
21 due care, where the duty itself was disclaimed in the parties agency agreement. (Carleton, supra,
22 14 Cal.App.4th at p. 751.) The Court cogently observed, “aside from obligations imposed by
23 statute and implementing regulations, a real estate broker’s duty is derived from the agreement
24 between the broker and client[,] [i]n this case, the parties’ agreement in effect specified that
25 defendant had no duty to recognize and advise plaintiff regarding the potential tax consequences
26 of his transactions.” (Id. at pp. 750-751.)
27 Here, the facts confirm Defendant disclaimed any and all duties to investigate, verify, or
28 guarantee the square footage and permit status-5-
of the Property. The agency agreement at issue
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 further required written consent to any alteration or modification to the parties’ duties and
2 obligations. Functionally, there is no distinction between a disclaimer for tax matters and
3 disclaimers for investigating, verifying or guaranteeing square footage and permit status, and
4 hence the holding of Carleton is both controlling and dispositive. Indeed, absent any duties, as
5 shown by the parties’ agency agreement, common law claims for negligence, misrepresentation
6 and breach of fiduciary duty cannot be maintained. (Padgett v. Phariss (1997) 54 Cal.App.4th
7 1270, 1285.) Therefore, there is no basis for which to assert punitive damages or attorneys’ fees
8 against Defendant.
9 3. Plaintiff’s Prayer for Exemplary/Punitive Damages and Attorneys’ Fees and
Costs are Appropriately Stricken
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11 Merely pleading the statutory terms “oppression, fraud or malice” is insufficient to
12 adequately allege punitive damages, and specific factual allegations demonstrating oppression,
13 fraud or malice are required. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511;
14 Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Critically, there must be an allegation of an
15 intentional tort, because even reckless conduct is insufficient to sustain an award of punitive
16 damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211; see also Taylor v. Superior Court
17 (1979) 24 Cal.3d 890, 899-900 [ordinarily, routine negligent or even reckless disobedience of
18 traffic laws does not justify an award of punitive damages].) Here, Plaintiff fails to allege any
19 actions by Defendant that would suffice as an intentional tort, let alone rise to the level required
20 for punitive damages. Finally, the Complaint prays for attorneys’ fees but fails to allege any
21 grounds for such relief against Defendant, and is generally unclear as to who it is sought against.
22 In the absence of any allegation of the existence of a contract or statute supporting attorneys’ fees
23 claims against Defendant, the prayer for relief is inapplicable and invalid. Therefore, Defendant
24 request any prayer for attorneys’ fees be stricken as to Defendant.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 IV. CONCLUSION
2 For the above stated reasons, Defendant’s motion to strike Plaintiff’s Complaint,
3 specifically the claim for punitive damages and attorneys’ fees should be stricken.
4 Dated: October 14, 2020 WILSON ELSER MOSKOWITZ
5 EDELMAN & DICKER, LLP
6
7 By:
EDWARD P. GARSON
8 JIMMY S. LY
9 Attorney for Defendants
GLENN T. KASHIWAMURA d/b/a SELECT
10 PROPERTIES REAL ESTATE SALES AND
MANAGEMENT SERVICE
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE
PLAINTIFF’S COMPLAINT
2489584v.1
1 PROOF OF SERVICE
2 RAUL SOTO v. KARI ANN HYATT
San Joaquin Superior Court No. STK-CV-URP-2020-0004481
3
I am employed in the County of San Francisco, State of California. My business address is
4 Wilson, Elser, Moskowitz, Edleman & Dicker, LLP, 525 Market Street, 17 th Floor, San Francisco, CA
94105. I am over eighteen years old and not a party to this action.
5
On the date set forth below, I served the following document(s) described as:
6
DEFENDANTS GLENN T. KASHIWAMURA AND SELECT PROPERTIES REAL
7 ESTATE SALES & MANAGEMENT SERVICES’ DECLARATION OF JIMMY LY IN
SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT;
8 DEFENDANTS’ NOTICE OF MOTION TO STRIKE PLAINTIFF’S COMPLAINT;
DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFEDANTS’
9 MOTION TO STRIKE PLAINTIFF’S COMPLAINT;
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
10 DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT;
DEFENDANTS’ PROPOSED ORDER SUSTAINING AND GRANTING DEFENDANTS’
11 MOTION TO STRIKE PLAINTIFF’S COMPLAINT
12 : BY EMAIL TRANSMISSION. The above-referenced document(s) are only being served by email
due to the ongoing shelter-in-place and travel restrictions relating to the coronavirus (COVID-19).
13 We will of course extend the same courtesy to your office. Please immediately advise of any
objections, and we will serve hard copies upon request. Our attorneys and staff are reachable
14 through their regular phone numbers and email addresses, and the office remains open on a remote
basis during regular business hours.
15
: BY U.S. MAIL: In the ordinary course of business, the foregoing documents were placed in a sealed
16
envelope, postage pre-paid, and deposited with the United States Postal Service in the City and
17 County of San Francisco, State of California, for delivery to the following address:
18 Pamela Tahim Thakur
THAKUR LAW FIRM, APC
19 1400 N. Harbor Blvd., Suite 410
Fullerton, CA 92835
20 Tel.: 714-772-7400
Fax: 714-333-4943
21 pamela@thakurlawfirm.com
22 Attorneys for Plaintiff Raul Soto
23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
24 Executed October 15, 2020, at San Francisco, California.
25
26
Myume Zirulnik
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Preview
Electronically Filed 1 EDWARD P. GARSON (SBN 95768) Superior Court of California edward.garson@wilsonelser.com County of San Joaquin 2 JIMMY S. LY (SBN 240930) 2020-10-15 18:02:37 jimmy.ly@wilsonelser.com 3 WILSON, ELSER, MOSKOWITZ Clerk: Rita Gomez EDELMAN & DICKER LLP 4 525 Market Street, 17th Floor Motion to Strike Complaint San Francisco, CA 94105 11/20/2020 09:00 AM in 10D 5 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 6 Attorneys For Defendants 7 GLENN T. KASHIWAMURA d/b/a SELECT PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICES 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SAN JOAQUIN 11 RAUL SOTO, Case No. STK-CV-VRP-2020-0004481 Plaintiff, 12 MEMORANDUM OF POINTS AND vs. 13 AUTHORITIES IN SUPPORT OF KARI ANN HYATT, and individual; DAVID DEFENDANT GLENN T. 14 RHYNE, an individual; SELECT PROPERTIES KASHIWAMURA d/b/a SELECT REAL ESTATE SALES & MANAGEMENT PROPERTIES REAL ESTATE SALES 15 SERVICES, a sole proprietorship; GLENN T. AND MANAGEMENT SERVICES’ KASHIWAMURA, an individual, and DOES 1 to MOTION TO STRIKE PLAINTIFF’S 16 10, inclusive, COMPLAINT 17 Defendants. Date: _________________, 2020 18 Time: 9:00 a.m. Dept.: 10D 19 Judge: Hon. Barbara Kronlund Complaint: June 03, 2020 20 21 22 23 24 25 26 27 28 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Raul Soto’s (“Plaintiff”) Complaint against Defendant Glenn T. Kashiwamura 4 d/b/a Select Properties Real Estate Sales and Management Services (“Defendant”) is premised 5 upon alleged violations of duties expressly and categorically disclaimed by their applicable 6 transaction documents. As discussed in further detail in Defendant’s concurrently filed Demurrer, 7 a cursory review of the agreement creating the agency relationship establishes Defendant breached 8 no duties and hence Plaintiff has failed to state any cause of action. Therefore, Plaintiff’s 9 Complaint also fails to plead facts showing that Defendant acted with malice, fraud or oppression 10 such as is required to support a claim for punitive damages. (Civ. Code § 3294, subd. (a).) Without 11 any actionable duty, there can be no punitive damages or attorneys’ fees. Moreover, Plaintiff’s 12 ipse dixit regurgitation of contentions, deductions, or conclusions of fact or law do not, and cannot, 13 establish a claim for punitive damages. 2 Similarly, Plaintiff nebulously prays for attorneys’ fees, 14 but has failed to allege any facts supporting said recovery. Plaintiff’s claim for punitive damages 15 and attorneys’ fees do not conform with laws or pleading requirements and should be stricken from 16 the Complaint. (Code of Civ. Proc. § 436, subd. (b).) 17 II. RELEVANT FACTS 18 Plaintiff’s Complaint alleges and attaches true and correct copies of the Disclosures 19 Regarding Real Estate Agency Relationship, Residential Purchase Agreement and Joint Escrow 20 Instructions, Real Estate Disclosure Statement, and Addendum are attached as exhibits to the 21 Complaint. (Ly. Dec. at ¶ 2, Ex. 1; see also Request for Judicial Notice.) The Complaint alleges 22 causes of action against Defendant for: (1) Breach of Fiduciary Duty; (2) Intentional and Negligent 23 Misrepresentation; (3) Negligence; and (4) Violation of B&P Code. 17200. (Ly. Dec. at ¶ 3, Ex. 24 1.) The property at issue is located at 1518 Madison Avenue, City of Tracy, State of California 25 (“Property”). (Ly. Dec. at ¶ 4, Ex. 1 at ¶ 12.) Defendant was Plaintiff’s broker for the purchase of 26 the Property. (Ly. Dec. at ¶ 5, Ex. 1 at ¶ 16.) 27 2 Contentions, deductions, or conclusions of fact or law are not accepted as true and not given credit in testing the 28 -2- Fenner & Smith, Inc. (1999) 68 Cal.App.4th 445, 460.) sufficiency of a pleading. (See Atascadero v. Merrill Lynch, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 Exhibit B to the Complaint contains the transaction documents, signed by Plaintiff, 2 including the “Disclosure Regarding Real Estate Agency Relationship,” showing Defendant only 3 served as the “Buyer’s Agent” in the subject transaction, and among the disclosures, refers to Civil 4 Code section 2079.23, which prescribes, “[a] contract between the principal and agent may be 5 modified or altered to change the agency relationship … with the written consent to the parties to 6 the agency relationship. (Ly. Dec. at ¶ 6, Disclosure Regarding Real Estate Agency Relationship 7 attached as Ex. B to Complaint at pp. 1-2.) Also included in the transaction documents, was a 1- 8 page “Buyers Inspection Advisory” stating, “Brokers do not have expertise in all areas and 9 therefore cannot advise you on many items, such as those listed below[,]” and listed square footage, 10 building permits, requirements affecting future use, the property’s size, and government 11 requirements. (Ly. Dec. at ¶ 7, Buyers Inspection Advisory attached as Ex. B to Complaint.) 12 Immediately after the Buyers Inspection Advisory is another disclosure entitled “Statewide 13 Buyer and Seller Advisory,” a 12-page document setting forth the broker’s rights and duties, which 14 states on the first page, the written agreement between broker and buyer “establishes the rights and 15 responsibilities of those parties.” (Ly. Dec. at ¶ 8, Buyers Inspection Advisory attached as Ex. B 16 to Complaint at p. 1.) It warns the “physical condition of the land and improvements being 17 purchased are not guaranteed by the Sellers or Brokers,” and imposed a duty on Plaintiff to conduct 18 thorough investigations with appropriate professionals. (Ly. Dec. at ¶ 9, Buyers Inspection 19 Advisory attached as Ex. B to Complaint at p. 1.) 20 Critically, Para. 2 “Square Footage, Lot Size, Boundaries and Surveys,” advised to 21 Plaintiff, “[u]nless otherwise specified by Broker in writing, Brokers have not verified … any 22 representations made by Seller or others,” that square footage are often approximates or based on 23 inaccurate or incomplete records, and brokers have no expertise in this area. (Ly. Dec. at ¶ 10, 24 Buyers Inspection Advisory attached as Ex. B to Complaint at p. 2.) Para. 18 “Building Permits, 25 Zoning and Code Compliance,” advised Plaintiff, “any structure on the Property, including the 26 original structure and any addition, modification, remodel or improvement may have been built 27 without permits, not according to building codes, or in violation of zoning laws,” to check with 28 appropriate government agencies or third party-3- professionals to verify permits, and brokers have MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 no expertise in this area.” (Ly. Dec. at ¶ 11, Buyers Inspection Advisory attached as Ex. B to 2 Complaint at p. 5.) Significantly, Plaintiff was advised to verify these details during the inspection 3 contingency period. (Ly. Dec. at ¶ 12, Buyers Inspection Advisory attached as Ex. B to Complaint 4 at pp. 2, 5.) The document confirmed Defendant, “shall not be responsible for inspecting public 5 records or permits,” and “shall not be responsible for verifying square footage, representations of 6 others or information contained in investigation reports.” (Ly. Dec. at ¶ 13, Buyers Inspection 7 Advisory attached as Ex. B to Complaint at p. 12.) 8 In contrast, the alleged “wrongs” by Defendant, as alleged in the Complaint are as follows: 9 (1) “failed to insist that the Sellers answer the mandatory, executed disclosures in writing regarding 10 whether permits had been issued as legally necessary for all modifications to the Subject Property;” 11 (2) “verbally repeated to Plaintiff that Sellers’ claim that the Subject Property comprised 2,497 12 square feet was correct;” (3) “represented orally multiple times to Plaintiff that everything with 13 the property was fine with the city regarding all relevant records, permits and housing codes;” (4) 14 “[failed to] independently verify the Subject Property’s square footage or inform Plaintiff that he 15 did not do so;” (5) “made no effort to check city permits or other records beyond the tax 16 department;” and (6) “bound by fiduciary duty to specifically inspect all public records and 17 permits relevant to the Subject Property.” (Ly. Dec. at ¶ 14, Ex. 1 at ¶¶ 18, 20, 22-23, 39, and 42.) 18 In sum, the Complaint failed to identify any contracts or statutes supporting attorneys’ fees 19 claims against Defendant, is devoid of any facts supporting the allegation of “malice” and 20 appurtenant exemplary damages prayer, and nothing alleged by Plaintiff rises to the level of 21 conduct necessary to support a claim for punitive damages. (Ly. Dec. at ¶ 15, Ex. 1.) Finally, 22 Defendant has complied with all statutory meet and confer requirements to bring the instant 23 motion, and the motion is timely. (Ly. Dec. at ¶¶ 16-18.) 24 III. LEGAL ARGUMENT 25 1. Legal Standards for Granting Motions to Strike 26 A motion to strike is the appropriate means by which to challenge Plaintiff’s causes of 27 action and prayer for attorneys’ fees and costs, and the Court may strike “any irrelevant, false, or 28 improper matter inserting in any pleading” or “all -4- or any part of any pleading not drawn or filed MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civ. Proc. 2 § 436, subd. (a)-(b).) Likewise, the Court may strike any demand for relief not supported by the 3 allegations of a complaint. (Code of Civ. Proc. § 431.10, subd. (b)(3).) To survive a motion to 4 strike punitive damages, specific factual allegations demonstrating oppression, fraud or malice are 5 required. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511; Brousseau v. Jarrett 6 (1977) 73 Cal.App.3d 864, 872. 7 2. In the Absence of a Duty, Not Claim for Punitive Damages or Attorneys’ Fees can be Maintained 8 9 As discussed in further detail in Defendant’s concurrently filed demurrer, incorporated 10 herein as though fully set forth, Judicial Council of California Civil Jury Instruction No, 4107, 11 “Duty of Disclosure by Real Estate Broker to Client,” states in its Directions for Use, “[w]hile a 12 broker’s fiduciary duty to the client arises from the relationship and not from contract (citation), 13 the scope of the duty may be limited by contract. (See Carleton v. Tortosa (1993) 14 Cal.App.4th 14 745, 750−751 [17 Cal.Rptr.2d 734] [broker-client agreement may relieve broker of any duty to 15 provide tax advice].)[,] [a]ny contractual limitations may be added to the second paragraph 16 regarding what facts a broker must learn.” The agency agreement applicable here, clearly disclaims 17 any duty on the part of Defendant to learn, convey, verify or investigate the square footage or 18 permit status of the Property. 19 The holding Carleton is dispositive because it established the simple rule that a broker 20 cannot he held liable to his or her buyer client, for failing to perform a duty with requisite skill and 21 due care, where the duty itself was disclaimed in the parties agency agreement. (Carleton, supra, 22 14 Cal.App.4th at p. 751.) The Court cogently observed, “aside from obligations imposed by 23 statute and implementing regulations, a real estate broker’s duty is derived from the agreement 24 between the broker and client[,] [i]n this case, the parties’ agreement in effect specified that 25 defendant had no duty to recognize and advise plaintiff regarding the potential tax consequences 26 of his transactions.” (Id. at pp. 750-751.) 27 Here, the facts confirm Defendant disclaimed any and all duties to investigate, verify, or 28 guarantee the square footage and permit status-5- of the Property. The agency agreement at issue MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 further required written consent to any alteration or modification to the parties’ duties and 2 obligations. Functionally, there is no distinction between a disclaimer for tax matters and 3 disclaimers for investigating, verifying or guaranteeing square footage and permit status, and 4 hence the holding of Carleton is both controlling and dispositive. Indeed, absent any duties, as 5 shown by the parties’ agency agreement, common law claims for negligence, misrepresentation 6 and breach of fiduciary duty cannot be maintained. (Padgett v. Phariss (1997) 54 Cal.App.4th 7 1270, 1285.) Therefore, there is no basis for which to assert punitive damages or attorneys’ fees 8 against Defendant. 9 3. Plaintiff’s Prayer for Exemplary/Punitive Damages and Attorneys’ Fees and Costs are Appropriately Stricken 10 11 Merely pleading the statutory terms “oppression, fraud or malice” is insufficient to 12 adequately allege punitive damages, and specific factual allegations demonstrating oppression, 13 fraud or malice are required. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511; 14 Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Critically, there must be an allegation of an 15 intentional tort, because even reckless conduct is insufficient to sustain an award of punitive 16 damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211; see also Taylor v. Superior Court 17 (1979) 24 Cal.3d 890, 899-900 [ordinarily, routine negligent or even reckless disobedience of 18 traffic laws does not justify an award of punitive damages].) Here, Plaintiff fails to allege any 19 actions by Defendant that would suffice as an intentional tort, let alone rise to the level required 20 for punitive damages. Finally, the Complaint prays for attorneys’ fees but fails to allege any 21 grounds for such relief against Defendant, and is generally unclear as to who it is sought against. 22 In the absence of any allegation of the existence of a contract or statute supporting attorneys’ fees 23 claims against Defendant, the prayer for relief is inapplicable and invalid. Therefore, Defendant 24 request any prayer for attorneys’ fees be stricken as to Defendant. 25 /// 26 /// 27 /// 28 /// -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 IV. CONCLUSION 2 For the above stated reasons, Defendant’s motion to strike Plaintiff’s Complaint, 3 specifically the claim for punitive damages and attorneys’ fees should be stricken. 4 Dated: October 14, 2020 WILSON ELSER MOSKOWITZ 5 EDELMAN & DICKER, LLP 6 7 By: EDWARD P. GARSON 8 JIMMY S. LY 9 Attorney for Defendants GLENN T. KASHIWAMURA d/b/a SELECT 10 PROPERTIES REAL ESTATE SALES AND MANAGEMENT SERVICE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S COMPLAINT 2489584v.1 1 PROOF OF SERVICE 2 RAUL SOTO v. KARI ANN HYATT San Joaquin Superior Court No. STK-CV-URP-2020-0004481 3 I am employed in the County of San Francisco, State of California. My business address is 4 Wilson, Elser, Moskowitz, Edleman & Dicker, LLP, 525 Market Street, 17 th Floor, San Francisco, CA 94105. I am over eighteen years old and not a party to this action. 5 On the date set forth below, I served the following document(s) described as: 6 DEFENDANTS GLENN T. KASHIWAMURA AND SELECT PROPERTIES REAL 7 ESTATE SALES & MANAGEMENT SERVICES’ DECLARATION OF JIMMY LY IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT; 8 DEFENDANTS’ NOTICE OF MOTION TO STRIKE PLAINTIFF’S COMPLAINT; DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFEDANTS’ 9 MOTION TO STRIKE PLAINTIFF’S COMPLAINT; DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 10 DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S COMPLAINT; DEFENDANTS’ PROPOSED ORDER SUSTAINING AND GRANTING DEFENDANTS’ 11 MOTION TO STRIKE PLAINTIFF’S COMPLAINT 12 : BY EMAIL TRANSMISSION. The above-referenced document(s) are only being served by email due to the ongoing shelter-in-place and travel restrictions relating to the coronavirus (COVID-19). 13 We will of course extend the same courtesy to your office. Please immediately advise of any objections, and we will serve hard copies upon request. Our attorneys and staff are reachable 14 through their regular phone numbers and email addresses, and the office remains open on a remote basis during regular business hours. 15 : BY U.S. MAIL: In the ordinary course of business, the foregoing documents were placed in a sealed 16 envelope, postage pre-paid, and deposited with the United States Postal Service in the City and 17 County of San Francisco, State of California, for delivery to the following address: 18 Pamela Tahim Thakur THAKUR LAW FIRM, APC 19 1400 N. Harbor Blvd., Suite 410 Fullerton, CA 92835 20 Tel.: 714-772-7400 Fax: 714-333-4943 21 pamela@thakurlawfirm.com 22 Attorneys for Plaintiff Raul Soto 23 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 24 Executed October 15, 2020, at San Francisco, California. 25 26 Myume Zirulnik 27 28 1 2464179v.1