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  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
  • EUGENE BARNES VS. EDWARD MILLER ET AL QUIET TITLE - REAL PROPERTY document preview
						
                                

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1 PATRICIA J. PETERSON (SBN 230080) LAW OFFICES OF JOHN A. BIARD 2 P.O. Box 64093 ELECTRONICALLY 3 St. Paul. Minnesota 55164-0093 F I L E D Telephone: 925-944-3225 Superior Court of California, County of San Francisco 4 Facsimile: 855-668-5559 Email: ppeters4@travelers.com 12/10/2019 5 Clerk of the Court BY: ANGELICA SUNGA 6 Attorneys for Defendants VINH CAO and MAI CAO Deputy Clerk 7 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 EUGENE BARNES, Case No.: CGC-19-578269 13 Plaintiff, MEMORANDUM OF POINTS AND vs. AUTHORITIES IN SUPPORT OF CAO 14 DEFENDANTS’ MOTION TO STRIKE EDWARD MILLER; ANGELA JIMENEZ; PORTIONS OF FIRST AMENDED 15 COMPLAINT PMC, INC.; VINH CAO; MAI CAO; and 16 DOES 1 - 25, inclusive, DATE: January 27, 2020 TIME: 9:30 a.m. 17 Defendants. DEPT.: 501 18 Complaint filed: August 8, 2019 19 20 I. INTRODUCTION 21 Plaintiff’s first amended complaint seeks both punitive damages and attorney’s fees without 22 factual allegations capable of supporting either. The punitive damages are premised entirely on a 23 fraudulent concealment claim which is the subject of Vinh Cao and Mai Cao’s accompanying 24 demurrer; even if this cause of action survives, the facts pleaded do not add up to fraud within the 25 specific, statutory definition in Civil Code section 3924. As to attorney’s fees, no contractual or 26 statutory basis for fees is alleged, leaving the case subject to the “American Rule” on attorney’s fees: 27 each side must bear their own. These two prayers, bereft of support from the factual allegations of the 28 first amended complaint, constitute improper matter which should be stricken. 1 Points And Authorities - Cao Defendants’ Motion To Strike Portions Of First Amended Complaint 1 II. STATEMENT OF FACTS 2 Plaintiff rented commercial space from the Vinh and Mai Cao at 777 Divisadero Street in San 3 Francisco beginning February 11, 2015 for the purpose of selling men’s and women’s clothing and 4 accessories. (First Amended Complaint at 3:11-16.) Plaintiff’s property and improvements were 5 damaged by water on September 6, 2017. (First Amended Complaint at 4:6-11.) In 2018, plaintiff 6 learned that the prior tenant “had been a victim of water damage to the leased property caused by other 7 tenants and/or the HOA.” (First Amended Complaint at 4:17-19.) The first amended complaint 8 alleges that this “information was known to defendants Vinh and Mai Cao, and intentionally concealed 9 from the plaintiff, both before and after February 2015.” (First Amended Complaint at 4:19-20.) 10 As pertinent here, the third cause of action in the first amended complaint alleges fraudulent 11 concealment against the Cao defendants. (First Amended Complaint at 6:13-41.) In addition to the 12 allegations above, this cause of action alleges that the Cao defendants “were aware of a history of 13 water damage to the leased property, and damage to the property of a prior tenant, caused by neighbors 14 and/or PMC, Inc. Defendants knew this was a recurring problem and foreseeable risk.” (First 15 Amended Complaint at (6:15-17.) Plaintiff further alleges that he would not have entered into the 16 lease had he known of this condition. (First Amended Complaint at 6:18-20.) 17 The only other cause of action alleged against the Cao defendants is negligence. (First 18 Amended Complaint at 6:25-28 and 7:1-4) The first amended complaint prays for both punitive 19 damages and attorney’s fees. (First Amended Complaint at 6:11-12 [punitive damages], 6:13 20 [attorney’s fees].) 21 The parties’ meet and confer efforts are set forth in the accompanying Declaration of Patricia J. 22 Peterson. 23 III. ARGUMENT 24 Code of Civil Procedure section 436 provides that the Court may “[s]trike out any irrelevant, 25 false, or improper matter inserted in any pleading” and may “[s]trike out all or any part of any pleading 26 not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” 27 /// 28 /// 2 Points And Authorities - Cao Defendants’ Motion To Strike Portions Of First Amended Complaint 1 Code Civ. Proc. § 436(a), (b). A prayer for relief not supported by the allegations of the first amended 2 complaint is within the scope of section 436 and should be stricken. See Code Civ. Proc. § 3 431.10(b)(3), (c). Here, plaintiff has prayed for both punitive damages and attorney’s fees without any 4 basis in the allegations of the complaint. These prayers should be stricken. 5 A. No Basis for Punitive Damages is Alleged 6 The first item of the prayer at issue here seeks punitive damages. (First Amended Complaint at 7 7:11-12 [item 5 of the prayer].) Such damages are only available on a showing of malice, oppression, 8 or fraud, as required by Civil Code section 3294. 9 The obvious starting point for the analysis here is fraud, as the first amended complaint seeks to 10 plead a fraudulent concealment cause of action against the Cao defendants. (First Amended Complaint 11 at 6:12 – 6:24.) Initially, this cause of action is the subject of the Cao defendants’ accompanying 12 demurrer to portions of the first amended complaint; if that demurrer is sustained, then it necessarily 13 follows that nothing would be left in the first amended complaint to support punitive damages on a 14 fraud theory. 15 Even if the Court were to overrule the demurrer, however, the prayer for punitive damages 16 should nonetheless be stricken. As defined in Civil Code section 3294, fraud specifically requires the 17 “intention on the part of the defendant of thereby depriving a person of property or legal rights or 18 otherwise causing injury.” Civil Code § 3294(c)(3). That is not alleged here—the first amended 19 complaint does not even assert, let alone plead facts, suggesting that the Cao defendants intended to 20 harm plaintiff. 21 The only alternative theory for punitive damages would be some sort of malice or oppression, 22 both of which require “despicable conduct” carried out with “conscious disregard” of plaintiff’s rights 23 and safety. Civil Code § 3294(c)(1), (2). The first amended complaint pleads no facts supporting such 24 a theory. Instead, it simply contains a paragraph that labels every defendants’ conduct (not just the 25 Cao defendants’) as “willful, wanton, reckless, malicious, oppressive and/or done with a conscious or 26 reckless disregard for the rights of plaintiff.” (First Amended Complaint at 5:4-7). This conclusory 27 /// 28 /// 3 Points And Authorities - Cao Defendants’ Motion To Strike Portions Of First Amended Complaint 1 allegation accomplishes nothing: the mere “characterization of defendants’ conduct as intentional, 2 willful and fraudulent is a patently insufficient statement of oppression, fraud or malice”. Brousseau v. 3 Jarrett (1977) 73 Cal.App.3d 864, 872 [internal quotation marks omitted]. 4 With that, nothing is left in the first amended complaint which even purports to support the 5 prayer for punitive damages. Left unsupported, the prayer constitutes improper matter which should 6 be stricken under sections 431.10 and 436. 7 B. The Prayer for Attorney’s Fees is Likewise Unsupported 8 In addition to the request for punitive damages, the first amended complaint also seeks to 9 recover attorney’s fees. This is, however, a tort complaint—i.e., the causes of action against the Cao 10 defendants are fraudulent concealment and negligence. (Complaint at 5:22-6:15.) There is no 11 allegation of any contract or statute which would support an award of attorney’s fees in such an action. 12 That leaves the case subject to the American Rule, as codified in Code of Civil Procedure section 13 1021, under which each side bears its own attorney’s fees. See Code Civ. Proc. § 1021 [allowing an 14 award of attorney’s fees only where expressly authorized by statute or the agreement of the parties]. 15 The prayer for attorney’s fees is left entirely unsupported by the allegations of the first 16 amended complaint and should be stricken as irrelevant and improper matter under Code of Civil 17 Procedure sections 431.10 and 436. 18 IV. CONCLUSION 19 The first amended complaint states no facts which support an award of punitive damages or 20 recovery of attorney’s fees. These unsupported items in the prayer should be stricken from the 21 complaint as improper matter. 22 Respectfully submitted, 23 Dated: December 10, 2019 LAW OFFICES OF JOHN A. BIARD 24 25 _____________________________________________ PATRICIA J. PETERSON, Attorneys for Defendants 26 VINH CAO and MAI CAO 27 28 4 Points And Authorities - Cao Defendants’ Motion To Strike Portions Of First Amended Complaint