Preview
1
Brian Zimmerman (admitted pro hac vice)
2 Nicholas Reisch (admitted pro hac vice)
Jessica E. Chong (SBN 317869)
3 SPENCER FANE LLP
3040 Post Oak Blvd., Suite 1400
4 Houston, TX 77056
(713) 552-1234 telephone
5
Ernesto F. Aldover (SBN 157625)
6 RETZ & ALDOVER, LLP
2550 Via Tejon, Suite 3A
7 Palos Verdes Estates, California 90274
(310) 540-9800 telephone
8
Attorneys for Defendants
9 Gregory J. Davis, Kevin Wolfe, Jason Justesen,
Paramont Woodside, LLC, Paramont Capital, LLC,
10 SVRV 385 Moore, LLC, and SVRV 387 Moore, LLC
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SAN MATEO
13
14 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148
Partnership, LP; and Brian Christopher Dunn
15 Custodianship; NOTICE OF MOTION TO STRIKE AND
DEFENDANTS SVRV 385 MOORE, LLC,
16 Plaintiffs, SVRV 387 MOORE, LLC, GREGORY J.
DAVIS, KEVIN WOLFE, JASON
17 -vs- JUSTESEN, PARAMONT WOODSIDE,
LLC, PARAMONT CAPITAL, LLC’S
18 David M. Bragg; Kurtis Stuart Kludt; Silicon MOTION TO STRIKE
Valley Real Ventures, LLC; SVRV 385 Moore,
19 LLC; SVRV 387 Moore, LLC; Gregory J. [Declaration of Jessica E. Chong, Esq., and
Davis; Paramont Woodside, LLC; and Notice of Demurrer and Defendants SVRV
20 Paramont Capital, LLC; 385 Moore, LLC, SVRV 387 Moore, LLC,
Gregory J. Davis, Kevin Wolfe, Jason
21 Defendants. Justesen, Paramont Woodside, LLC,
Paramont Capital, LLC’s Demurrer to
22 Plaintiffs’ First Amended Complaint filed
concurrently herewith]
23
24 [Hon. Robert D. Foiles]
25
Date: May 26, 2023
26 Time: 9:00 AM
Dept.: 21
27
28
MOTION TO STRIKE PAGE I
1 TO THE COURT, PLAINTIFFS, AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on May 26, 2023 at 9:00 a.m. or as soon thereafter as the
3 matter may be heard in Department 21 of the above-entitled court, located at 800 North Humboldt
4 Street, San Mateo, California 94401, Defendants SVRV 385 Moore, LLC, SVRV 387 Moore, LLC,
5 Gregory J. Davis, Keving Wolfe, Jason Justesen, Paramont Woodside, LLC, and Paramont Capital,
6 LLC (collectively “striking Defendants”), hereby move this Court for an order granting their
7 Motion to Strike Plaintiffs’ punitive damages allegations pursuant to California Rules of Court Rule
8 3.1322 and Code of Civil Procedure sections 435 and 436.
9 Striking Defendants request that the following portions of the First Amended Complaint
10 (“FAC”) regarding punitive damages be stricken, as follows:
11 FAC ¶174: “… the Moore Road LLC’s conduct was willful, outrageous, malicious,
12 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary
13 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.”
14 FAC ¶193: “… the Moore Road LLC’s conduct was willful, outrageous, malicious,
15 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary
16 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.”
17 FAC ¶209: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and
18 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish
19 Defendants for this conduct and to discourage similar conduct in the future.”
20 FAC ¶220: “… the Moore Road LLC’s conduct was willful, outrageous, malicious,
21 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary
22 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.”
23 FAC ¶230: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and
24 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish
25 Defendants for this conduct and to discourage similar conduct in the future.”
26
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Motion to Strike PAGE II
HOU 4849754.1
1 FAC ¶236: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and
2 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish
3 Defendants for this conduct and to discourage similar conduct in the future.”
4 FAC ¶245: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and
5 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish
6 Defendants for this conduct and to discourage similar conduct in the future.”
7 FAC ¶259: “… the Moore Road LLC’s conduct was willful, outrageous, malicious,
8 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary
9 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.”
10 FAC ¶265: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and
11 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish
12 Defendants for this conduct and to discourage similar conduct in the future.”
13 Request for Relief, sub para. C: punitive damages.
14 This Motion is based upon this notice, the memorandum of points and authorities,
15 declaration of Jessica E. Chong, Esq. (fulfilling the meet and confer requirements), filed
16 concurrently with this motion, the pleadings and records contained in the file, and any oral
17 documentary evidence presented to the court at the time of the hearing.
18 Dated: March 21, 2023 SPENCER FANE LLP
19
20 By: /s/ Jessica E. Chong
Brian Zimmerman (admitted pro hac vice)
21 Nicholas Reisch (admitted pro hac vice)
Jessica E. Chong (SBN 317869)
22 SPENCER FANE LLP
3040 Post Oak Blvd., Suite 1400
23 Houston, TX 77056
24 and
25 Ernesto F. Aldover, Esq.
RETZ & ALDOVER, LLP
26 2550 Via Tejon, Suite 3A
Palos Verdes Estates, CA 90274
27 Attorneys for Defendants
28
Motion to Strike PAGE III
HOU 4849754.1
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 On or about August 22, 2022, Plaintiffs filed a First Amended Complaint (“FAC”) against
4 Defendants SVRV 385 Moore, LLC, SVRV 387 Moore, LLC, Gregory J. Davis, Kevin Wolfe,
5 Jason Justesen, Paramont Woodside, LLC, and Paramont Capital, LLC (“striking Defendants”).
6 Plaintiffs assert causes of action for (1) Fraud/Intentional Misrepresentation/False Promise, (2)
7 Violation of Cal. Bus. & Prof. Code §17200, et seq., (3) Fraudulent Concealment, (4) Breach of
8 Fiduciary Duty, (5) Breach of Contract, (6) Breach of Oral Contract, and (7) Quasi-
9 Contract/Restitution/Unjust Enrichment. Accompanying each cause of action is a request for
10 punitive damages. Here, Plaintiffs’ request for punitive damages fails for two reasons: (1) it is
11 procedurally and substantively deficient, (2) punitive damages are not available under Cal. Bus. &
12 Prof. Code § 17200, and (3) punitive damages are not available for claims arising out of contracts.
13 As argued in detail below, this Court should strike ¶¶174, 193, 209, 220, 230, 236, 245,
14 259, 265, and prayer for relief of the FAC as Plaintiffs’ request for punitive damages is not
15 supported by law.
16 II. ARGUMENT AND AUTHORITIES
17 The function of a motion to strike is to strike out “any irrelevant, false, or improper matter”
18 inserted in any pleading, and to strike out any part of a pleading “not drawn or filed in conformity
19 with the laws of this state.” Cal. Civ. Proc. Code §436. “Irrelevant matter” is defined by statute to
20 include demands for damages or relief that are not supported by the allegations. See id. §431.10(b).
21 Factual pleading for punitive damages requires specificity, and conclusory allegations are
22 insufficient. Blegen v. Superior Court, 125 Cal. App.3d 959, 963 (1981); Smith v. Superior Court,
23 10 Cal.App.4th 1033, 1041 (1992). Cal. Civ. Code §3294(c) requires a showing of fraud, malice or
24 oppression before an award of punitive damages may issue. To justify an award of punitive
25 damages, defendants “must act with an intent to vex, injure or annoy, or with a conscious disregard
26 for plaintiff's rights.” (Beck v. State Farm Mutual Auto Ins. Co., (1976) 54 Cal.App.3d 347, 355
27 (citation omitted).) Further, “[p]roof of a violation of the duty of good faith and fair dealing does
28
Motion to Strike PAGE 1
HOU 4849754.1
1 not establish that the defendant acted with the requisite intent to injure the plaintiff.” (Id.) “The law
2 does not favor punitive damages and they should be granted with the greatest caution.” (Id.)
3 Here, Defendants request that this Court strike the following punitive damages allegations
4 against them: ¶¶174, 193, 209, 220, 230, 236, 245, 259, 265, and prayer for relief.
5 1. Plaintiffs’ punitive damages allegations are procedurally and substantively
6 deficient.
7 A claim for punitive damages must be pled factually and specifically. (Anschutz
8 Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) “Not only must there be
9 circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support
10 such a claim.” (Grieves v. Super. Ct., supra, 157 Cal.App.3d 159, 166.) Thus, to survive a motion
11 to strike, a complaint must allege the “ultimate facts” that, if true, would entitle the claimant to
12 punitive damages. (Clauson v. Superior Court, (1998) 67 Cal.App.4th 1253, 1255; see also Blegen
13 v. Superior Court (1981) 125 Cal.App.3d 959, 962-63.) On the other hand, “conclusory
14 characterization of defendant’s conduct as intentional, willful and fraudulent is a patently
15 insufficient statement of oppression, fraud, or malice.” (Brousseau v. Jarrett, (1977) 73 Cal.App.3d
16 864, 872.)
17 Here, the FAC does not contain any factual allegations that would support a finding of fraud,
18 malice or oppression. Rather, the facts alleged in the FAC reveal that Defendants Bragg, Kludt,
19 and/or SVRV made a series of representations to Plaintiffs in order to procure investments from
20 them. The FAC further reveals that Plaintiffs and striking Defendants had no interactions with each
21 other, did not enter into any contracts with each other, and did not owe any duties to each other –
22 striking Defendants and Plaintiffs were essentially strangers to each other. Because of the parties’
23 lack of association, Plaintiffs cannot and have not asserted any factual allegations against striking
24 Defendants that amount to fraud, malice, or oppression. Plaintiffs attempt to assert a claim for
25 punitive damages against striking Defendants by imputing the actions of the other named
26 Defendants onto them, and this is improper – Plaintiffs cannot lump all named Defendants together.
27 Plaintiffs’ FAC is conclusory and does not factually and specifically allege conduct warranting
28
Motion to Strike PAGE 2
HOU 4849754.1
1 punitive damages; therefore, this Court should strike ¶¶174, 193, 209, 220, 230, 236, 245, 259, 265,
2 and prayer for relief.
3 2. Punitive damages are not allowed under Cal. Bus. & Prof. Code §17200.
4 Monetary remedies under the UCL are limited to restitution and civil penalties. Korea
5 Supply v. Lockheed Martin, (2003) 29 Cal. 4th. at 1144. Traditional compensatory and punitive
6 damages are not available to a private plaintiff. Bank of the West v. Superior Court, (1992) 2 Cal.
7 4th. 1254, 1266; Dean Witter Reynolds v. Superior Court, (1989) 211 Cal. App. 3d. 758. Although
8 punitive damages are not available for violations of the Cal. Bus. & Prof. Code §17200, Plaintiffs
9 have requested them through their Third and Fifth causes of action. As this is improper, this Court
10 should strike ¶¶193 and 209 of the FAC.
11 3. Punitive damages are not allowed for claims arising out of contracts.
12 Punitive damages are not recoverable in an action based on a breach of contract, even if the
13 defendant's breach was willful or fraudulent. See Cal. Code Civ. Proc. §3294(a); Contractor's
14 Safety Ass'n v. California Compensation Ins. Co., (1957) 48 Cal 2d 71, 77. Yet, Plaintiffs sought
15 punitive damages are their Ninth and Eleventh causes of action that assert breaches of contract.
16 Therefore, this Court should strike ¶¶245 and 259 of the FAC.
17 III. CONCLUSION
18 Based on the foregoing analysis, Plaintiffs have failed to plead any valid claim against
19 Paramont Capital, Paramont Woodside, Davis, Wolfe, Justesen, or the Moore Road LLCs. Further,
20 a pleadings amendment cannot cure the defects in Plaintiffs’ Complaint. Therefore, Paramont
21 Capital, Paramont Woodside, Davis, Wolfe, Justesen, or the Moore Road LLCs respectfully request
22 that the Court strike Plaintiffs’ request for punitive damages.
23
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Motion to Strike PAGE 3
HOU 4849754.1
1 Dated: March 21, 2023 SPENCER FANE LLP
2
3 By: /s/ Jessica E. Chong
Brian Zimmerman (admitted pro hac vice)
4 Nicholas Reisch (admitted pro hac vice)
Jessica E. Chong (SBN 317869)
5 SPENCER FANE LLP
3040 Post Oak Blvd., Suite 1400
6 Houston, TX 77056
7 and
8 Ernesto F. Aldover, Esq.
RETZ & ALDOVER, LLP
9 2550 Via Tejon, Suite 3A
Palos Verdes Estates, CA 90274
10 Attorneys for Defendants SVRV 385 Moore
LLC, SVRV 387 LLC Moore LLC Gregory
11 J. Davis; Kevin Wolfe; Jason Justesen;
Paramont Woodside, LLC; and Paramont
12 Capital, LLC
13
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15
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18
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Motion to Strike PAGE 4
HOU 4849754.1
1 PROOF OF SERVICE
2
STATE OF NEVADA, COUNTY OF CLARK
3
I am employed in the county of Las Vegas State of Nevada. I am over the age of 18
4 and not a party to the action; my business address is 300 S. Fourth Street, Suite 950
Las Vegas, NV 89101.
5
6 On March 21, 2023, I served the foregoing document(s) described as NOTICE OF
MOTION TO STRIKE AND DEFENDANTS SVRV 385 MOORE, LLC, SVRV 387
7 MOORE, LLC, GREGORY J. DAVIS, KEVIN WOLFE, JASON JUSTESEN,
PARAMONT WOODSIDE, LLC, PARAMONT CAPITAL, LLC’S MOTION TO STRIKE
8 as follows:
9 Collin J. Vierra (State Bar No. 322720) Ryan van Steenis (S.B. #254542)
EIMER STAHL LLP 1601 S Shepherd Dr., #276
10 99 Almaden Blvd., Suite 641 Houston, Texas 77019
rjvansteenis@gmail.com
San Jose, CA 95113-1605
11 ATTORNEY FOR DEFENDANTS
Telephone: (408) 889-1668 DAVID M. BRAGG AND SILICON
12 Email: cvierra@eimerstahl.com VALLEY REAL VENTURES, LLC
13 Attorney for Plaintiffs
14
_X_ (BY US MAIL) As follows: I am “readily familiar” with the firm’s practice of
15 collection and processing correspondence for mailing. Under that practice it would be
deposited with the U.S. Postal Service on that same day with postage thereon fully
16 prepaid at Palos Verdes Estate, CA in the ordinary cause of business. I am aware
17 that on motion of the party served, service is presumed invalid of postal cancellation
date or postage meter is more than one day after date of deposit for mailing an
18 affidavit.
19 _X_ (BY ELECTRONIC SERVICE) I electronically served the foregoing document(s)
20 on opposing counsel via electronic mail.
21 ___ (BY OVERNIGHT MAIL) By depositing copies of the above documents in a box
or other facility regularly maintained by General Logistics Systems US with delivery
22 fees paid or provided for, addressed to the individual listed above, at the address
23 listed above. [C.C.P. §§ 1013(c), 2015.5]
24 X (STATE) I declare under penalty of perjury under the laws of the State of
Nevada that the foregoing is true and correct.
25
26 Executed on March 21, 2023 at Las Vegas, Nevada.
27 /s/ Adam Miller
Adam Miller
28
Motion to Strike PAGE 5
HOU 4849754.1
Preview
1 Brian Zimmerman (admitted pro hac vice) 2 Nicholas Reisch (admitted pro hac vice) Jessica E. Chong (SBN 317869) 3 SPENCER FANE LLP 3040 Post Oak Blvd., Suite 1400 4 Houston, TX 77056 (713) 552-1234 telephone 5 Ernesto F. Aldover (SBN 157625) 6 RETZ & ALDOVER, LLP 2550 Via Tejon, Suite 3A 7 Palos Verdes Estates, California 90274 (310) 540-9800 telephone 8 Attorneys for Defendants 9 Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont Woodside, LLC, Paramont Capital, LLC, 10 SVRV 385 Moore, LLC, and SVRV 387 Moore, LLC 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SAN MATEO 13 14 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148 Partnership, LP; and Brian Christopher Dunn 15 Custodianship; NOTICE OF MOTION TO STRIKE AND DEFENDANTS SVRV 385 MOORE, LLC, 16 Plaintiffs, SVRV 387 MOORE, LLC, GREGORY J. DAVIS, KEVIN WOLFE, JASON 17 -vs- JUSTESEN, PARAMONT WOODSIDE, LLC, PARAMONT CAPITAL, LLC’S 18 David M. Bragg; Kurtis Stuart Kludt; Silicon MOTION TO STRIKE Valley Real Ventures, LLC; SVRV 385 Moore, 19 LLC; SVRV 387 Moore, LLC; Gregory J. [Declaration of Jessica E. Chong, Esq., and Davis; Paramont Woodside, LLC; and Notice of Demurrer and Defendants SVRV 20 Paramont Capital, LLC; 385 Moore, LLC, SVRV 387 Moore, LLC, Gregory J. Davis, Kevin Wolfe, Jason 21 Defendants. Justesen, Paramont Woodside, LLC, Paramont Capital, LLC’s Demurrer to 22 Plaintiffs’ First Amended Complaint filed concurrently herewith] 23 24 [Hon. Robert D. Foiles] 25 Date: May 26, 2023 26 Time: 9:00 AM Dept.: 21 27 28 MOTION TO STRIKE PAGE I 1 TO THE COURT, PLAINTIFFS, AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on May 26, 2023 at 9:00 a.m. or as soon thereafter as the 3 matter may be heard in Department 21 of the above-entitled court, located at 800 North Humboldt 4 Street, San Mateo, California 94401, Defendants SVRV 385 Moore, LLC, SVRV 387 Moore, LLC, 5 Gregory J. Davis, Keving Wolfe, Jason Justesen, Paramont Woodside, LLC, and Paramont Capital, 6 LLC (collectively “striking Defendants”), hereby move this Court for an order granting their 7 Motion to Strike Plaintiffs’ punitive damages allegations pursuant to California Rules of Court Rule 8 3.1322 and Code of Civil Procedure sections 435 and 436. 9 Striking Defendants request that the following portions of the First Amended Complaint 10 (“FAC”) regarding punitive damages be stricken, as follows: 11 FAC ¶174: “… the Moore Road LLC’s conduct was willful, outrageous, malicious, 12 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary 13 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.” 14 FAC ¶193: “… the Moore Road LLC’s conduct was willful, outrageous, malicious, 15 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary 16 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.” 17 FAC ¶209: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and 18 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish 19 Defendants for this conduct and to discourage similar conduct in the future.” 20 FAC ¶220: “… the Moore Road LLC’s conduct was willful, outrageous, malicious, 21 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary 22 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.” 23 FAC ¶230: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and 24 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish 25 Defendants for this conduct and to discourage similar conduct in the future.” 26 27 28 Motion to Strike PAGE II HOU 4849754.1 1 FAC ¶236: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and 2 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish 3 Defendants for this conduct and to discourage similar conduct in the future.” 4 FAC ¶245: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and 5 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish 6 Defendants for this conduct and to discourage similar conduct in the future.” 7 FAC ¶259: “… the Moore Road LLC’s conduct was willful, outrageous, malicious, 8 oppressive, and fraudulent. In addition to compensatory damages, punitive damages are necessary 9 to punish…the Moore Road LLCs for this conduct and to discourage similar conduct in the future.” 10 FAC ¶265: “Defendants’ conduct was willful, outrageous, malicious, oppressive, and 11 fraudulent. In addition to compensatory damages, punitive damages are necessary to punish 12 Defendants for this conduct and to discourage similar conduct in the future.” 13 Request for Relief, sub para. C: punitive damages. 14 This Motion is based upon this notice, the memorandum of points and authorities, 15 declaration of Jessica E. Chong, Esq. (fulfilling the meet and confer requirements), filed 16 concurrently with this motion, the pleadings and records contained in the file, and any oral 17 documentary evidence presented to the court at the time of the hearing. 18 Dated: March 21, 2023 SPENCER FANE LLP 19 20 By: /s/ Jessica E. Chong Brian Zimmerman (admitted pro hac vice) 21 Nicholas Reisch (admitted pro hac vice) Jessica E. Chong (SBN 317869) 22 SPENCER FANE LLP 3040 Post Oak Blvd., Suite 1400 23 Houston, TX 77056 24 and 25 Ernesto F. Aldover, Esq. RETZ & ALDOVER, LLP 26 2550 Via Tejon, Suite 3A Palos Verdes Estates, CA 90274 27 Attorneys for Defendants 28 Motion to Strike PAGE III HOU 4849754.1 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 On or about August 22, 2022, Plaintiffs filed a First Amended Complaint (“FAC”) against 4 Defendants SVRV 385 Moore, LLC, SVRV 387 Moore, LLC, Gregory J. Davis, Kevin Wolfe, 5 Jason Justesen, Paramont Woodside, LLC, and Paramont Capital, LLC (“striking Defendants”). 6 Plaintiffs assert causes of action for (1) Fraud/Intentional Misrepresentation/False Promise, (2) 7 Violation of Cal. Bus. & Prof. Code §17200, et seq., (3) Fraudulent Concealment, (4) Breach of 8 Fiduciary Duty, (5) Breach of Contract, (6) Breach of Oral Contract, and (7) Quasi- 9 Contract/Restitution/Unjust Enrichment. Accompanying each cause of action is a request for 10 punitive damages. Here, Plaintiffs’ request for punitive damages fails for two reasons: (1) it is 11 procedurally and substantively deficient, (2) punitive damages are not available under Cal. Bus. & 12 Prof. Code § 17200, and (3) punitive damages are not available for claims arising out of contracts. 13 As argued in detail below, this Court should strike ¶¶174, 193, 209, 220, 230, 236, 245, 14 259, 265, and prayer for relief of the FAC as Plaintiffs’ request for punitive damages is not 15 supported by law. 16 II. ARGUMENT AND AUTHORITIES 17 The function of a motion to strike is to strike out “any irrelevant, false, or improper matter” 18 inserted in any pleading, and to strike out any part of a pleading “not drawn or filed in conformity 19 with the laws of this state.” Cal. Civ. Proc. Code §436. “Irrelevant matter” is defined by statute to 20 include demands for damages or relief that are not supported by the allegations. See id. §431.10(b). 21 Factual pleading for punitive damages requires specificity, and conclusory allegations are 22 insufficient. Blegen v. Superior Court, 125 Cal. App.3d 959, 963 (1981); Smith v. Superior Court, 23 10 Cal.App.4th 1033, 1041 (1992). Cal. Civ. Code §3294(c) requires a showing of fraud, malice or 24 oppression before an award of punitive damages may issue. To justify an award of punitive 25 damages, defendants “must act with an intent to vex, injure or annoy, or with a conscious disregard 26 for plaintiff's rights.” (Beck v. State Farm Mutual Auto Ins. Co., (1976) 54 Cal.App.3d 347, 355 27 (citation omitted).) Further, “[p]roof of a violation of the duty of good faith and fair dealing does 28 Motion to Strike PAGE 1 HOU 4849754.1 1 not establish that the defendant acted with the requisite intent to injure the plaintiff.” (Id.) “The law 2 does not favor punitive damages and they should be granted with the greatest caution.” (Id.) 3 Here, Defendants request that this Court strike the following punitive damages allegations 4 against them: ¶¶174, 193, 209, 220, 230, 236, 245, 259, 265, and prayer for relief. 5 1. Plaintiffs’ punitive damages allegations are procedurally and substantively 6 deficient. 7 A claim for punitive damages must be pled factually and specifically. (Anschutz 8 Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) “Not only must there be 9 circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support 10 such a claim.” (Grieves v. Super. Ct., supra, 157 Cal.App.3d 159, 166.) Thus, to survive a motion 11 to strike, a complaint must allege the “ultimate facts” that, if true, would entitle the claimant to 12 punitive damages. (Clauson v. Superior Court, (1998) 67 Cal.App.4th 1253, 1255; see also Blegen 13 v. Superior Court (1981) 125 Cal.App.3d 959, 962-63.) On the other hand, “conclusory 14 characterization of defendant’s conduct as intentional, willful and fraudulent is a patently 15 insufficient statement of oppression, fraud, or malice.” (Brousseau v. Jarrett, (1977) 73 Cal.App.3d 16 864, 872.) 17 Here, the FAC does not contain any factual allegations that would support a finding of fraud, 18 malice or oppression. Rather, the facts alleged in the FAC reveal that Defendants Bragg, Kludt, 19 and/or SVRV made a series of representations to Plaintiffs in order to procure investments from 20 them. The FAC further reveals that Plaintiffs and striking Defendants had no interactions with each 21 other, did not enter into any contracts with each other, and did not owe any duties to each other – 22 striking Defendants and Plaintiffs were essentially strangers to each other. Because of the parties’ 23 lack of association, Plaintiffs cannot and have not asserted any factual allegations against striking 24 Defendants that amount to fraud, malice, or oppression. Plaintiffs attempt to assert a claim for 25 punitive damages against striking Defendants by imputing the actions of the other named 26 Defendants onto them, and this is improper – Plaintiffs cannot lump all named Defendants together. 27 Plaintiffs’ FAC is conclusory and does not factually and specifically allege conduct warranting 28 Motion to Strike PAGE 2 HOU 4849754.1 1 punitive damages; therefore, this Court should strike ¶¶174, 193, 209, 220, 230, 236, 245, 259, 265, 2 and prayer for relief. 3 2. Punitive damages are not allowed under Cal. Bus. & Prof. Code §17200. 4 Monetary remedies under the UCL are limited to restitution and civil penalties. Korea 5 Supply v. Lockheed Martin, (2003) 29 Cal. 4th. at 1144. Traditional compensatory and punitive 6 damages are not available to a private plaintiff. Bank of the West v. Superior Court, (1992) 2 Cal. 7 4th. 1254, 1266; Dean Witter Reynolds v. Superior Court, (1989) 211 Cal. App. 3d. 758. Although 8 punitive damages are not available for violations of the Cal. Bus. & Prof. Code §17200, Plaintiffs 9 have requested them through their Third and Fifth causes of action. As this is improper, this Court 10 should strike ¶¶193 and 209 of the FAC. 11 3. Punitive damages are not allowed for claims arising out of contracts. 12 Punitive damages are not recoverable in an action based on a breach of contract, even if the 13 defendant's breach was willful or fraudulent. See Cal. Code Civ. Proc. §3294(a); Contractor's 14 Safety Ass'n v. California Compensation Ins. Co., (1957) 48 Cal 2d 71, 77. Yet, Plaintiffs sought 15 punitive damages are their Ninth and Eleventh causes of action that assert breaches of contract. 16 Therefore, this Court should strike ¶¶245 and 259 of the FAC. 17 III. CONCLUSION 18 Based on the foregoing analysis, Plaintiffs have failed to plead any valid claim against 19 Paramont Capital, Paramont Woodside, Davis, Wolfe, Justesen, or the Moore Road LLCs. Further, 20 a pleadings amendment cannot cure the defects in Plaintiffs’ Complaint. Therefore, Paramont 21 Capital, Paramont Woodside, Davis, Wolfe, Justesen, or the Moore Road LLCs respectfully request 22 that the Court strike Plaintiffs’ request for punitive damages. 23 24 25 26 27 28 Motion to Strike PAGE 3 HOU 4849754.1 1 Dated: March 21, 2023 SPENCER FANE LLP 2 3 By: /s/ Jessica E. Chong Brian Zimmerman (admitted pro hac vice) 4 Nicholas Reisch (admitted pro hac vice) Jessica E. Chong (SBN 317869) 5 SPENCER FANE LLP 3040 Post Oak Blvd., Suite 1400 6 Houston, TX 77056 7 and 8 Ernesto F. Aldover, Esq. RETZ & ALDOVER, LLP 9 2550 Via Tejon, Suite 3A Palos Verdes Estates, CA 90274 10 Attorneys for Defendants SVRV 385 Moore LLC, SVRV 387 LLC Moore LLC Gregory 11 J. Davis; Kevin Wolfe; Jason Justesen; Paramont Woodside, LLC; and Paramont 12 Capital, LLC 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion to Strike PAGE 4 HOU 4849754.1 1 PROOF OF SERVICE 2 STATE OF NEVADA, COUNTY OF CLARK 3 I am employed in the county of Las Vegas State of Nevada. I am over the age of 18 4 and not a party to the action; my business address is 300 S. Fourth Street, Suite 950 Las Vegas, NV 89101. 5 6 On March 21, 2023, I served the foregoing document(s) described as NOTICE OF MOTION TO STRIKE AND DEFENDANTS SVRV 385 MOORE, LLC, SVRV 387 7 MOORE, LLC, GREGORY J. DAVIS, KEVIN WOLFE, JASON JUSTESEN, PARAMONT WOODSIDE, LLC, PARAMONT CAPITAL, LLC’S MOTION TO STRIKE 8 as follows: 9 Collin J. Vierra (State Bar No. 322720) Ryan van Steenis (S.B. #254542) EIMER STAHL LLP 1601 S Shepherd Dr., #276 10 99 Almaden Blvd., Suite 641 Houston, Texas 77019 rjvansteenis@gmail.com San Jose, CA 95113-1605 11 ATTORNEY FOR DEFENDANTS Telephone: (408) 889-1668 DAVID M. BRAGG AND SILICON 12 Email: cvierra@eimerstahl.com VALLEY REAL VENTURES, LLC 13 Attorney for Plaintiffs 14 _X_ (BY US MAIL) As follows: I am “readily familiar” with the firm’s practice of 15 collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully 16 prepaid at Palos Verdes Estate, CA in the ordinary cause of business. I am aware 17 that on motion of the party served, service is presumed invalid of postal cancellation date or postage meter is more than one day after date of deposit for mailing an 18 affidavit. 19 _X_ (BY ELECTRONIC SERVICE) I electronically served the foregoing document(s) 20 on opposing counsel via electronic mail. 21 ___ (BY OVERNIGHT MAIL) By depositing copies of the above documents in a box or other facility regularly maintained by General Logistics Systems US with delivery 22 fees paid or provided for, addressed to the individual listed above, at the address 23 listed above. [C.C.P. §§ 1013(c), 2015.5] 24 X (STATE) I declare under penalty of perjury under the laws of the State of Nevada that the foregoing is true and correct. 25 26 Executed on March 21, 2023 at Las Vegas, Nevada. 27 /s/ Adam Miller Adam Miller 28 Motion to Strike PAGE 5 HOU 4849754.1