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SPINELLI, DONALD dk NOTT
A Professional Corporation
ROSS R. NOTT (State Bar No. 172235)
601 University Avenue, Suite 225
Sacramento, CA 95825
Telephone: (916) 448-7888
Facsimile: (916) 448-6888
Attorneys for Defendant
DOE 1
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
10 JANE BWN DOE, an individual, Case No.: 22CV006012
Plaintiffs,
vs. [FEES EXEMPT PURSUANT TO
12 GOVERNMENT CODE SECTION 6103]
DOE 1, a California local public entity; DOE
13 2, an individual; and DOES 3 to 100, DEFENDANT BERKELEY UNIFIED
inclusive, SCHOOL DISTRICT'S REPLY ON
14 MOTION TO STRIKE PORTIONS OF
Defendant. PLAINTIFF'S COMPLAINT AND
15 REQUEST FOR DAMAGES
16 DATE: June 17, 2022
TIME: 2:00 p.m.
17 DEPT: 520
Reservation No.: A-06012-001
19 Complaint Filed: January 25, 2022
Assigned for All Purposes: Hon. Julia Spain
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21 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD:
22 PLEASE TAKE NOTICE that Defendant Berkeley Unified School District hereby and
23 herewith replies to Plaintiff s Opposition to Motion to Strike Portions of Complaint.
24 I. REINTRODUCTION
25 Defendant's Motion to Strike sought to surgically extract superfluous and irrelevant
allegations &om the Complaint. The scalpel is to be applied to limited, unsupported and irrelevant
27 allegations to Plaintiff s ultimate claims of liability.
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SPINELLli DONALD 5 Reply
NOTT
1
Rather than reevaluate the propriety of Plaintiff's baseless, immaterial and inapplicable
allegations given the alleged sexual abuse by Defendant Bissell, Plaintiff doubles down to try to
cling to each and every paragraph and prayer for relief intact. In the process, Plaintiff misapplies
relevant case law, ignores logic and ignores the inappropriate nature of some of her allegations.
The Motion to Strike should be granted as requested in the moving papers.
II. THE MOTION TO STRIKE SHOULD BE GRANTED
A. Paragraphs 17-18 Should be Stricken
Plaintiffs unity of interest allegation is not only illogical, but legally inappropriate.
Berkeley Unified School District is entitled to its own consideration separate and apart from any
10 other Defendant, whether identified as a former teacher or a Doe Defendant. Individuality and
separateness of the Defendants ceasing to exist is not only unnatural, but illogical. The only
12 potential import that a unity of interest might have in a California legal pleading is to establish alter
13 ego between various business or corporate entities. (Zoran Corp. v. Chen (2010) 185 Cal.App.4~
14 799, 815 — unity of interest allegation appropriate to pierce the veil of two interrelated corporate
entities.)
16 Here, a unity of interest does not apply between Defendant Berkeley Unified School District
17 and Defendant Bissell, as they are not co-corporate or business entities, and there is no potential for
18 alter ego liability. By referring to "Defendants" collectively in an inapplicable "alter ego" allegation
19 only injects uncertainty throughout the pleading whether the allegation is made as to one or both
20 defendants, a mix of "Doe" defendants, etc. Uncertainty in pleading is to be avoided. (Code Civ.
21 Proc. $ 425.10.)
22 B. Paragraphs 32, 40, 50, 55, 56, 66, 78, 169, 192, 200, 203 and 204 are Only
23 Potentially Relevant to a Treble Damage Claim Based Upon Alleged
Concealment of Sexual Abuse which is not Recoverable from BUSD.
24
As noted in the Motion to Strike, Plaintiff's prayer for treble damages is inappropriate
25
against BUSD. Treble damages are punitive damages, and punitive damages are not recoverable
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from a public entity such as a school district. (See Motion to Strike, 6:5-7:16.) Because treble
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SPINELLI, DONALD tk Reply
NOTT 2
damages are not recoverable from BUSD, any underlying paragraphs offered to support the prayer
for treble damages are immaterial as to BUSD and should be stricken.
Plaintiff's Opposition ignores the most recent case law that directly considers Civil Code
$ 340.1 and holds that Government Code $ 818 prohibits the recovery of treble damages through the
Code that Plaintiff relies on here. Plaintiff s analysis has been rejected by two appellate courts
directly considering the issue, and also by California Supreme Court considering that treble
damages are punitive damages. (Scholes v. LambirtIi Trucking (2020) 8 Cal.5 1094, 1102-1103.)
Plaintiff's claim that the Los Angeles Unified School District case has been granted review
and, therefore, cannot be cited ignores the application of California Rule of Court 8.115(e)(3) and
10 the California Supreme Court's grant of review noting that the case can be cited for its persuasive
authority. Moreover, XM v. Superior Court reached the same conclusion and is subject to the
12 same persuasive authority under consideration here.
13 The Motion to Strike Paragraphs 32, 40, 50, 55, 56, 66, 78, 169, 192, 200, 203 and 204
14 should granted, Plaintiff s Opposition notwithstanding.
15 C. Plaintiff's Prayer No. 8 for Attorney's Fees Should be Stricken
16 Plaintiff's request for attorney's fees under a myriad of code sections should be stricken for
17 the reasons set forth in the moving papers and Plaintiff's Opposition does not adequately address
18 the legal basis for these claims. Civil Code $ 52.4 did not exist at the time of the conduct that
19 Plaintiff complains of here. Civil Code $ 52 does not apply because an appropriate underlying claim
20 has not been made. Code of Civil Procedure $ 1021.4 does not apply to any defendant as no
21 defendant has been convicted of any felony for the conduct at issue. Last, Title IX offers no solace
22 to the Plaintiff as she has not alleged a Title IX cause of action. Prayer Item 8 for attorney's fees
23 should be stricken.
24 Plaintiff does address Code of Civil Procedure $ 1021.5, but it does not apply because
25 Plaintiff seeks to recovery bodily injury damages which conveys no public benefit. Plaintiffs
citation to "Franciscan Friars" is believed to actually refer to In re The Clergy Cases I (2010) 188
27 Cal.App.4 1224. However, that case did not involve Code of Civil Procedure $ 1021.5 or
28 attorney's fees under the Private Attorney General Act. Instead, it discussed the public interest in
SPINELLI& DONALD & Reply
NOlT 3
having confidential records of individual friars sexually who abused members of their churches
made public following settlement of the claims. It offers no guidance here.
There is no such public benefit presented by Plaintiff's claims for bodily injury damages
here. For this reason, Code of Civil Procedure $ 1021.5 is inapplicable and should be stricken Rom
the prayer.
II. CONCLUSION
Defendant, Berkeley Unified School District, respectfully requests that the Court grant its
Motion to Strike in its entirety. Plaintiffs efforts to hold onto conclusory, immaterial and
inapplicable portions of her Complaint is illogical as overpled as it is. The pleading should be
10 pared down from its current 200-plus paragraph form to those which have any potential relevance
or materiality to legal claims that can be made under the circumstances that Plaintiff has alleged.
12 The paragraphs that are at issue on the Motion to Strike do not serve any legitimate or material
13 effort to bring forth Plaintiffs claims against the District.
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Dated: June 9, 2022 SPINELLI, D NO
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17 By:
ROSS R. NOTT
Attorneys for Defendant
BERKELEY UNIFIED SCHOOL
19 DISTRICT
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SPINELLI, DONALD 5 Reply
NOlT
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PROOF OF SERVICE
COURT: Superior Court of California, County of Alameda
CASE NO.: 22CV006012
CASE NAME: Jane BWWDoe v. Doe 1, etal.
I am a citizen of the United States, employed in the County of Sacramento, State of
California. My business address is 601 University Avenue, Suite 225, Sacramento, CA 95825. I
am over the age of 18 and not a party to the above-entitled action.
I am readily familiar with Spinelli, Donald k Nott's practice for collection and processing
of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each
document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon
and the sealed envelope is placed in the of6ce mail receptacle. Each day's mail is collected and
deposited in a U.S. mailbox at or before the close of each day's business. (Code Civ. Proc., $
1013a(3) or Fed.R.Civ.P.5(a) and 4.1.)
On June 9, 2022, I caused the Reply to Opposition to Motion to Strike, the original of which
10 was produced on recycled paper, to be served via
MAIL—
Placed in the United States Mail at Sacramento, California in an envelope with postage
12 thereon fully prepaid addressed as follows:
13 Morgan Stewart
Saul Wolf
14 Cristina Nolan
Manly Stewart Finaldi
15 19100 Von Karman Avenue, Suite 800
Irvine, CA 92612
16 (949) 252-9990 Attorney for Plaintiff
(949) 252-9991
17
cnolan mani stewart. corn
18 mstewart mani stewart.com
swolf mani stewart.com
19 cthom anl stewart.com
bmendoza anl stewart.com
20
Alison M. Crane
21 C. Brian Wagner
Bledsoe, Diestel,
Trope
4 Crane LLP
180 Sansome Street, 5 Floor
San Francisco, CA 94104-3713 Attorney for Matthew Bissell
23 acrane c bledsoelaw.com
bwa oner bledsoelaw.com
24 calendar bledso claw.com
25
ZI BY ELECTRONIC SERVICE/ELECTRONIC MAIL
26 I caused such document to be electronically served by filing said document electronically in
accordance with rules of electronically filing documents.
27
FAX AND MAIL—
I personally sent to the addressee's telecopier number indicated below a true copy of the
SPINELLI, DONALD BE
NOTT
above-described document(s) before 5:00 p.m. I verified transmission without error by a
transmission report issued by the facsimile machine upon which said transmission was made
immediately following the transmission. Thereafter, I placed a true copy in a sealed
envelope with the first class postage affixed and mailed as follows:
PERSONAL SERVICE-
By causing delivery by hand to the addressee addressed as follows:
FEDERAL EXPRESS-
By causing delivery by Federal Express of the document(s) listed above to the person(s) at
the address(es) set forth below:
I declare under penalty of perjury under the law o the State of lifornia that the foregoing
is true and correct. Executed on June 9, 2022, at Sacr toCal'.
$ elley L. eda
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SPIN ELLI, DONALD 8
NOTT
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SPINELLI, DONALD dk NOTT A Professional Corporation ROSS R. NOTT (State Bar No. 172235) 601 University Avenue, Suite 225 Sacramento, CA 95825 Telephone: (916) 448-7888 Facsimile: (916) 448-6888 Attorneys for Defendant DOE 1 IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA 10 JANE BWN DOE, an individual, Case No.: 22CV006012 Plaintiffs, vs. [FEES EXEMPT PURSUANT TO 12 GOVERNMENT CODE SECTION 6103] DOE 1, a California local public entity; DOE 13 2, an individual; and DOES 3 to 100, DEFENDANT BERKELEY UNIFIED inclusive, SCHOOL DISTRICT'S REPLY ON 14 MOTION TO STRIKE PORTIONS OF Defendant. PLAINTIFF'S COMPLAINT AND 15 REQUEST FOR DAMAGES 16 DATE: June 17, 2022 TIME: 2:00 p.m. 17 DEPT: 520 Reservation No.: A-06012-001 19 Complaint Filed: January 25, 2022 Assigned for All Purposes: Hon. Julia Spain 20 21 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD: 22 PLEASE TAKE NOTICE that Defendant Berkeley Unified School District hereby and 23 herewith replies to Plaintiff s Opposition to Motion to Strike Portions of Complaint. 24 I. REINTRODUCTION 25 Defendant's Motion to Strike sought to surgically extract superfluous and irrelevant allegations &om the Complaint. The scalpel is to be applied to limited, unsupported and irrelevant 27 allegations to Plaintiff s ultimate claims of liability. 28 SPINELLli DONALD 5 Reply NOTT 1 Rather than reevaluate the propriety of Plaintiff's baseless, immaterial and inapplicable allegations given the alleged sexual abuse by Defendant Bissell, Plaintiff doubles down to try to cling to each and every paragraph and prayer for relief intact. In the process, Plaintiff misapplies relevant case law, ignores logic and ignores the inappropriate nature of some of her allegations. The Motion to Strike should be granted as requested in the moving papers. II. THE MOTION TO STRIKE SHOULD BE GRANTED A. Paragraphs 17-18 Should be Stricken Plaintiffs unity of interest allegation is not only illogical, but legally inappropriate. Berkeley Unified School District is entitled to its own consideration separate and apart from any 10 other Defendant, whether identified as a former teacher or a Doe Defendant. Individuality and separateness of the Defendants ceasing to exist is not only unnatural, but illogical. The only 12 potential import that a unity of interest might have in a California legal pleading is to establish alter 13 ego between various business or corporate entities. (Zoran Corp. v. Chen (2010) 185 Cal.App.4~ 14 799, 815 — unity of interest allegation appropriate to pierce the veil of two interrelated corporate entities.) 16 Here, a unity of interest does not apply between Defendant Berkeley Unified School District 17 and Defendant Bissell, as they are not co-corporate or business entities, and there is no potential for 18 alter ego liability. By referring to "Defendants" collectively in an inapplicable "alter ego" allegation 19 only injects uncertainty throughout the pleading whether the allegation is made as to one or both 20 defendants, a mix of "Doe" defendants, etc. Uncertainty in pleading is to be avoided. (Code Civ. 21 Proc. $ 425.10.) 22 B. Paragraphs 32, 40, 50, 55, 56, 66, 78, 169, 192, 200, 203 and 204 are Only 23 Potentially Relevant to a Treble Damage Claim Based Upon Alleged Concealment of Sexual Abuse which is not Recoverable from BUSD. 24 As noted in the Motion to Strike, Plaintiff's prayer for treble damages is inappropriate 25 against BUSD. Treble damages are punitive damages, and punitive damages are not recoverable 26 from a public entity such as a school district. (See Motion to Strike, 6:5-7:16.) Because treble 27 SPINELLI, DONALD tk Reply NOTT 2 damages are not recoverable from BUSD, any underlying paragraphs offered to support the prayer for treble damages are immaterial as to BUSD and should be stricken. Plaintiff's Opposition ignores the most recent case law that directly considers Civil Code $ 340.1 and holds that Government Code $ 818 prohibits the recovery of treble damages through the Code that Plaintiff relies on here. Plaintiff s analysis has been rejected by two appellate courts directly considering the issue, and also by California Supreme Court considering that treble damages are punitive damages. (Scholes v. LambirtIi Trucking (2020) 8 Cal.5 1094, 1102-1103.) Plaintiff's claim that the Los Angeles Unified School District case has been granted review and, therefore, cannot be cited ignores the application of California Rule of Court 8.115(e)(3) and 10 the California Supreme Court's grant of review noting that the case can be cited for its persuasive authority. Moreover, XM v. Superior Court reached the same conclusion and is subject to the 12 same persuasive authority under consideration here. 13 The Motion to Strike Paragraphs 32, 40, 50, 55, 56, 66, 78, 169, 192, 200, 203 and 204 14 should granted, Plaintiff s Opposition notwithstanding. 15 C. Plaintiff's Prayer No. 8 for Attorney's Fees Should be Stricken 16 Plaintiff's request for attorney's fees under a myriad of code sections should be stricken for 17 the reasons set forth in the moving papers and Plaintiff's Opposition does not adequately address 18 the legal basis for these claims. Civil Code $ 52.4 did not exist at the time of the conduct that 19 Plaintiff complains of here. Civil Code $ 52 does not apply because an appropriate underlying claim 20 has not been made. Code of Civil Procedure $ 1021.4 does not apply to any defendant as no 21 defendant has been convicted of any felony for the conduct at issue. Last, Title IX offers no solace 22 to the Plaintiff as she has not alleged a Title IX cause of action. Prayer Item 8 for attorney's fees 23 should be stricken. 24 Plaintiff does address Code of Civil Procedure $ 1021.5, but it does not apply because 25 Plaintiff seeks to recovery bodily injury damages which conveys no public benefit. Plaintiffs citation to "Franciscan Friars" is believed to actually refer to In re The Clergy Cases I (2010) 188 27 Cal.App.4 1224. However, that case did not involve Code of Civil Procedure $ 1021.5 or 28 attorney's fees under the Private Attorney General Act. Instead, it discussed the public interest in SPINELLI& DONALD & Reply NOlT 3 having confidential records of individual friars sexually who abused members of their churches made public following settlement of the claims. It offers no guidance here. There is no such public benefit presented by Plaintiff's claims for bodily injury damages here. For this reason, Code of Civil Procedure $ 1021.5 is inapplicable and should be stricken Rom the prayer. II. CONCLUSION Defendant, Berkeley Unified School District, respectfully requests that the Court grant its Motion to Strike in its entirety. Plaintiffs efforts to hold onto conclusory, immaterial and inapplicable portions of her Complaint is illogical as overpled as it is. The pleading should be 10 pared down from its current 200-plus paragraph form to those which have any potential relevance or materiality to legal claims that can be made under the circumstances that Plaintiff has alleged. 12 The paragraphs that are at issue on the Motion to Strike do not serve any legitimate or material 13 effort to bring forth Plaintiffs claims against the District. 14 15 Dated: June 9, 2022 SPINELLI, D NO 16 17 By: ROSS R. NOTT Attorneys for Defendant BERKELEY UNIFIED SCHOOL 19 DISTRICT 20 21 22 23 24 25 26 27 SPINELLI, DONALD 5 Reply NOlT 4 PROOF OF SERVICE COURT: Superior Court of California, County of Alameda CASE NO.: 22CV006012 CASE NAME: Jane BWWDoe v. Doe 1, etal. I am a citizen of the United States, employed in the County of Sacramento, State of California. My business address is 601 University Avenue, Suite 225, Sacramento, CA 95825. I am over the age of 18 and not a party to the above-entitled action. I am readily familiar with Spinelli, Donald k Nott's practice for collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the of6ce mail receptacle. Each day's mail is collected and deposited in a U.S. mailbox at or before the close of each day's business. (Code Civ. Proc., $ 1013a(3) or Fed.R.Civ.P.5(a) and 4.1.) On June 9, 2022, I caused the Reply to Opposition to Motion to Strike, the original of which 10 was produced on recycled paper, to be served via MAIL— Placed in the United States Mail at Sacramento, California in an envelope with postage 12 thereon fully prepaid addressed as follows: 13 Morgan Stewart Saul Wolf 14 Cristina Nolan Manly Stewart Finaldi 15 19100 Von Karman Avenue, Suite 800 Irvine, CA 92612 16 (949) 252-9990 Attorney for Plaintiff (949) 252-9991 17 cnolan mani stewart. corn 18 mstewart mani stewart.com swolf mani stewart.com 19 cthom anl stewart.com bmendoza anl stewart.com 20 Alison M. Crane 21 C. Brian Wagner Bledsoe, Diestel, Trope 4 Crane LLP 180 Sansome Street, 5 Floor San Francisco, CA 94104-3713 Attorney for Matthew Bissell 23 acrane c bledsoelaw.com bwa oner bledsoelaw.com 24 calendar bledso claw.com 25 ZI BY ELECTRONIC SERVICE/ELECTRONIC MAIL 26 I caused such document to be electronically served by filing said document electronically in accordance with rules of electronically filing documents. 27 FAX AND MAIL— I personally sent to the addressee's telecopier number indicated below a true copy of the SPINELLI, DONALD BE NOTT above-described document(s) before 5:00 p.m. I verified transmission without error by a transmission report issued by the facsimile machine upon which said transmission was made immediately following the transmission. Thereafter, I placed a true copy in a sealed envelope with the first class postage affixed and mailed as follows: PERSONAL SERVICE- By causing delivery by hand to the addressee addressed as follows: FEDERAL EXPRESS- By causing delivery by Federal Express of the document(s) listed above to the person(s) at the address(es) set forth below: I declare under penalty of perjury under the law o the State of lifornia that the foregoing is true and correct. Executed on June 9, 2022, at Sacr toCal'. $ elley L. eda 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 SPIN ELLI, DONALD 8 NOTT