Preview
1 Jessica E. Chong (SBN 317869)
Brian Zimmerman (pro hac pending)
2 Nicholas Reisch (pro hac pending)
SPENCER FANE LLP
3 3040 Post Oak Blvd., Suite 1400
Houston, TX 77056
4 (713) 552-1234 telephone
5 Ernesto F. Aldover (SBN 157625)
RETZ & ALDOVER, LLP
6 2550 Via Tejon, Suite 3A
Palos Verdes Estates, California 90274
7 (310) 540-9800 telephone
8 Attorneys for Defendants
Gregory J. Davis, Kevin Wolfe, Jason Justesen,
9 Paramont Woodside, LLC, Paramont Capital,
LLC, SVRV 385 Moore, LLC, SVRV 387 Moore,
10 LLC, Monks Family Trust, TEH Capital, LLC,
Caproc III, LLC, WZ Partners LLC, McLan
11 Trust, Wild Rose Irrevocable Trust, Black
Horse Holdings, LLC, Phil Stoker, Diane
12 Stoker, Scott O’Neil, and Dale Huish
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SAN MATEO
15
John Ho and Quanyu Huang; Case No. 23-CIV-01099 consolidated
16 with Case No. 22-CIV-01148
Plaintiffs,
17
-vs- MEMORANDUM OF POINTS AND
18 AUTHORITIES IN SUPPORT
David M. Bragg; Silicon Valley Real DEFENDANTS SVRV 385 MOORE,
19 Ventures, LLC; SVRV 385 Moore, LLC; LLC, SVRV 387 MOORE, LLC,
SVRV 387 Moore, LLC; Gregory J. GREGORY J. DAVIS, KEVIN WOLFE,
20 Davis; Paramont Woodside, LLC; JASON JUSTESEN, PARAMONT
Paramont Capital, LLC; Monks Family WOODSIDE, LLC, PARAMONT
21 Trust, TEH Capital, LLC, Caproc III, CAPITAL, LLC, MONKS FAMILY
LLC, WZ Partners LLC, McLan Trust, TRUST, TEH CAPITAL, LLC,
22 Wild Rose Irrevocable Trust, Black CAPROC III, LLC, WZ PARTNERS
Horse Holdings, LLC, Phil Stoker, Diane LLC, MCLAN TRUST, WILD ROSE
23 Stoker, Scott O’Neil, and Dale Huish; IRREVOCABLE TRUST, BLACK
HORSE HOLDINGS, LLC, PHIL
24 Defendants. STOKER, DIANE STOKER, SCOTT
O’NEIL, AND DALE HUISH’S
25
26
27
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MOTION TO STRIKE PAGE 1
1 Robert Arntsen; Mary Lee; Arntsen MOTION TO STRIKE
Family Partnership, LP; and Brian
2 Christopher Dunn Custodianship; [Notice of Motion to Strike,
Declaration of Jessica E. Chong,
3 Plaintiffs, Esq., and Notice of and Demurrer
Plaintiffs’ Second Amended
4 -vs- Complaint filed concurrently
herewith]
5 David M. Bragg; Kurtis Stuart Kludt;
Silicon Valley Real Ventures, LLC;
6 SVRV 385 Moore, LLC; SVRV 387 [Hon. Robert D. Foiles]
Moore, LLC; Gregory J. Davis; Kevin
7 Wolfe; Jason Justesen; Paramont
Woodside, LLC; and Paramont Capital, Date: September 29, 2023
8 LLC Time: 9:00 AM
Dept.: 21
9
10
11 Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont
12 Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, SVRV 387 Moore,
13 LLC, Monks Family Trust, TEH Capital, LLC, Caproc III, LLC, WZ Partners LLC,
14 McLan Trust, Wild Rose Irrevocable Trust, Black Horse Holdings, LLC, Phil Stoker,
15 Diane Stoker, Scott O’Neil, and Dale Huish by and through their counsel Spencer
16 Fane LLP hereby file their Motion to Strike as follows.
17 Striking Defendants request that the following portions of the Complaint
18 (“Complaint”) regarding punitive damages be stricken, as follows:
19 Complaint ¶284: Striking Defendants’ (other than the Paramont Investors)
20 “…conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition
21 to compensatory damages, punitive damages are necessary to punish [the striking
22 Defendants] for this conduct and to discourage similar conduct in the future.”
23 Complaint ¶348: Paramont Capital’s, Davis’s, and Wolfe’s, “… conduct was
24 willful, outrageous, malicious, oppressive, and fraudulent. In addition to
25 compensatory damages, punitive damages are necessary to punish [] Paramont
26 Capital, Davis, and Wolfe, for this conduct and to discourage similar conduct in the
27 future.”
28 Complaint ¶357: Striking Defendants’ (other than the Paramont Investors) “…
MOTION TO STRIKE PAGE 2
1 conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to
2 compensatory damages, punitive damages are necessary to punish striking
3 Defendants [] for this conduct and to discourage similar conduct in the future.”
4 Complaint ¶375: Striking Defendants’ (other than the Paramont Investors)
5 “…conduct was willful, outrageous, malicious, oppressive, and fraudulent.”
6 Complaint ¶383: Striking Defendants’ “…conduct was willful, outrageous,
7 malicious, oppressive, and fraudulent.”
8 Complaint ¶391: Striking Defendants’ “…conduct was willful, outrageous,
9 malicious, oppressive, and fraudulent.”
10 Request for Relief, sub para. D: punitive damages.
11 This Motion is based upon this notice, the memorandum of points and
12 authorities, declaration of Jessica E. Chong, Esq. (fulfilling the meet and confer
13 requirements), filed concurrently with this motion, the pleadings and records
14 contained in the file, and any oral documentary evidence presented to the court at the
15 time of the hearing.
16 Dated: August 25, 2023 SPENCER FANE LLP
17
18 By: /s/ Jessica E. Chong
Jessica E. Chong (SBN 317869)
19 Brian Zimmerman (pro hac pending)
Nicholas Reisch (pro hac pending)
20 SPENCER FANE LLP
3040 Post Oak Blvd., Suite 1400
21 Houston, TX 77056
22 and
23 Ernesto F. Aldover, Esq.
RETZ & ALDOVER, LLP
24 2550 Via Tejon, Suite 3A
Palos Verdes Estates, CA 90274
25 Attorneys for Defendants
26
27
28
MOTION TO STRIKE PAGE 3
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 On or about June 30, 2023, Plaintiffs filed a Second Amended Complaint
4 against Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont Capital, LLC,
5 Monks Family Trust, TEH Capital, LLC, Caproc III, LLC, WZ Partners LLC, McLan
6 Trust, Wild Rose Irrevocable Trust, Black Horse Holdings, LLC, Phil Stoker, Diane
7 Stoker, Scott O’Neil, and Dale Huish (collectively “striking Defendants”). Plaintiffs
8 assert causes of action for (1) Fraudulent Concealment; (2) Breach of Fiduciary Duty;
9 (3) Fraudulent Transfer; (4) Violation of Cal. Bus. & Prof. Code § 17200, et seq.; (5)
10 Quasi-Contract/Restitution/Unjust Enrichment; and (6) Money Had and Received.
11 Accompanying each cause of action is a request for punitive damages. Here, Plaintiffs’
12 request for punitive damages fails for three reasons: (1) it is procedurally and
13 substantively deficient and (2) punitive damages are not available under Cal. Bus. &
14 Prof. Code § 17200.
15 As argued in detail below, this Court should strike ¶¶284, 348, 357, 375, 383,
16 391, and prayer for relief of the Second Amended Complaint as Plaintiffs’ request for
17 punitive damages is not supported by law.
18 II. ARGUMENT AND AUTHORITIES
19 The function of a motion to strike is to strike out “any irrelevant, false, or
20 improper matter” inserted in any pleading, and to strike out any part of a pleading
21 “not drawn or filed in conformity with the laws of this state.” Cal. Civ. Proc. Code §436.
22 “Irrelevant matter” is defined by statute to include demands for damages or relief that
23 are not supported by the allegations. (See id. §431.10(b)).
24 Factual pleading for punitive damages requires specificity, and conclusory
25 allegations are insufficient. (Blegen v. Superior Court, 125 Cal. App.3d 959, 963
26 (1981); Smith v. Superior Court, 10 Cal.App.4th 1033, 1041 (1992)). Cal. Civ. Code
27 §3294(c) requires a showing of fraud, malice or oppression before an award of punitive
28 damages may issue. To justify an award of punitive damages, defendants “must act
MOTION TO STRIKE PAGE 4
1 with an intent to vex, injure or annoy, or with a conscious disregard for plaintiff's
2 rights.” (Beck v. State Farm Mutual Auto Ins. Co., (1976) 54 Cal.App.3d 347, 355
3 (citation omitted)). Further, “[p]roof of a violation of the duty of good faith and fair
4 dealing does not establish that the defendant acted with the requisite intent to injure
5 the plaintiff.” (Id.) “The law does not favor punitive damages and they should be
6 granted with the greatest caution.” (Id.)
7 Here, striking Defendants request that this Court strike the following punitive
8 damages allegations against them: ¶¶284, 348, 357, 375, 383, 391, and prayer for
9 relief.
10 1. Plaintiffs’ punitive damages allegations are procedurally and
11 substantively deficient.
12 A claim for punitive damages must be pled factually and specifically. (Anschutz
13 Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) “Not only must
14 there be circumstances of oppression, fraud or malice, but facts must be alleged in the
15 pleading to support such a claim.” (Grieves v. Super. Ct., supra, 157 Cal.App.3d 159,
16 166.) Thus, to survive a motion to strike, a complaint must allege the “ultimate facts”
17 that, if true, would entitle the claimant to punitive damages. (Clauson v. Superior
18 Court, (1998) 67 Cal.App.4th 1253, 1255; see also Blegen v. Superior Court (1981) 125
19 Cal.App.3d 959, 962-63.) On the other hand, “conclusory characterization of
20 defendant’s conduct as intentional, willful and fraudulent is a patently insufficient
21 statement of oppression, fraud, or malice.” (Brousseau v. Jarrett, (1977) 73 Cal.App.3d
22 864, 872.)
23 Here, the SAC does not contain any factual allegations that would support a
24 finding of fraud, malice or oppression as to the striking Defendants. Rather, the facts
25 alleged in the SAC reveal that Defendants Bragg and/or SVRV made a series of
26 representations to Plaintiffs in order to procure investments from them. The SAC
27 further reveals that Plaintiffs and striking Defendants had no interactions with each
28 other, did not enter into any contracts with each other, and did not owe any duties to
MOTION TO STRIKE PAGE 5
1 each other – striking Defendants and Plaintiffs were essentially strangers to each
2 other. Because of the parties’ lack of association, Plaintiffs cannot and have not
3 asserted any factual allegations against striking Defendants that amount to fraud,
4 malice, or oppression. Plaintiffs attempt to assert a claim for punitive damages
5 against striking Defendants by imputing the actions of the other named Defendants
6 onto them, and this is improper – Plaintiffs cannot lump all named Defendants
7 together. Plaintiffs’ SAC is conclusory and does not factually and specifically allege
8 conduct warranting punitive damages; therefore, this Court should strike ¶¶284, 348,
9 357, 375, 383, 391, and prayer for relief.
10 2. Punitive damages are not allowed under Cal. Bus. & Prof. Code
11 §17200.
12 Monetary remedies under the UCL are limited to restitution and civil penalties.
13 (Korea Supply v. Lockheed Martin, (2003) 29 Cal. 4th. at 1144). Traditional
14 compensatory and punitive damages are not available to a private plaintiff. (Bank of
15 the West v. Superior Court, (1992) 2 Cal. 4th. 1254, 1266; Dean Witter Reynolds v.
16 Superior Court, (1989) 211 Cal. App. 3d. 758). Although punitive damages are not
17 available for violations of the Cal. Bus. & Prof. Code §17200, Plaintiffs have requested
18 them through their Twentieth Cause of Action. As this is improper, this Court should
19 strike ¶375 of the Complaint.
20 III. CONCLUSION
21 Based on the foregoing analysis, Plaintiffs have failed to plead any valid claim
22 against striking Defendants. Further, a pleadings amendment cannot cure the defects
23 in Plaintiffs’ Second Complaint. Therefore, Gregory J. Davis, Keving Wolfe, Jason
24 Justesen, Paramont Capital, LLC, Monks Family Trust, TEH Capital, LLC, Caproc
25 III, LLC, WZ Partners LLC, McLan Trust, Wild Rose Irrevocable Trust, Black Horse
26 Holdings, LLC, Phil Stoker, Diane Stoker, Scott O’Neil, and Dale Huish respectfully
27 request that the Court strike Plaintiffs’ request for punitive damages.
28
MOTION TO STRIKE PAGE 6
1 Dated: August 25, 2023 SPENCER FANE LLP
2
3 By: /s/ Jessica E. Chong
Brian Zimmerman
4 (admitted pro hac vice)
Nicholas Reisch
5 (admitted pro hac vice)
Jessica E. Chong (SBN 317869)
6 SPENCER FANE LLP
3040 Post Oak Blvd., Suite 1400
7 Houston, TX 77056
8 and
9 Ernesto F. Aldover, Esq.
RETZ & ALDOVER, LLP
10 2550 Via Tejon, Suite 3A
Palos Verdes Estates, CA 90274
11 Attorneys for Defendants SVRV 385
Moore LLC, SVRV 387 LLC Moore
12 LLC Gregory J. Davis; Kevin Wolfe;
Jason Justesen; Paramont Woodside,
13 LLC; and Paramont Capital, LLC
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MOTION TO STRIKE PAGE 7
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 August 25, 2023, I served the foregoing document(s) described as as follows:
7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
DEFENDANTS SVRV 385 MOORE, LLC, SVRV 387 MOORE, LLC, GREGORY
8 J. DAVIS, KEVIN WOLFE, JASON JUSTESEN, PARAMONT WOODSIDE,
LLC, PARAMONT CAPITAL, LLC, MONKS FAMILY TRUST, TEH CAPITAL,
9 LLC, CAPROC III, LLC, WZ PARTNERS LLC, MCLAN TRUST, WILD ROSE
IRREVOCABLE TRUST, BLACK HORSE HOLDINGS, LLC, PHIL STOKER,
10 DIANE STOKER, SCOTT O’NEIL, AND DALE HUISH’S
11 Collin J. Vierra (State Bar No. 322720) Ryan van Steenis (S.B. #254542)
EIMER STAHL LLP 1601 S Shepherd Dr., #276
12 99 Almaden Blvd., Suite 641 Houston, Texas 77019
rjvansteenis@gmail.com
San Jose, CA 95113-1605 ATTORNEY FOR DEFENDANTS
13
Email: cvierra@eimerstahl.com DAVID M. BRAGG AND SILICON
14 Attorney for Plaintiffs VALLEY REAL VENTURES, LLC
15
16 _X_ (BY US MAIL) As follows: I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. Under that practice it would be
17 deposited with the U.S. Postal Service on that same day with postage thereon fully
prepaid at Palos Verdes Estate, CA in the ordinary cause of business. I am aware
18 that on motion of the party served, service is presumed invalid of postal cancellation
19 date or postage meter is more than one day after date of deposit for mailing an
affidavit.
20
_X_ (BY ELECTRONIC SERVICE) I electronically served the foregoing document(s)
21 on opposing counsel via electronic mail.
22
X (STATE) I declare under penalty of perjury under the laws of the State of
23 Nevada that the foregoing is true and correct.
24 Executed on August 25, 2023 at Las Vegas, Nevada.
25
/s/ Adam Miller
26
27
28
MOTION TO STRIKE PAGE 8
Preview
1 Jessica E. Chong (SBN 317869) Brian Zimmerman (pro hac pending) 2 Nicholas Reisch (pro hac pending) SPENCER FANE LLP 3 3040 Post Oak Blvd., Suite 1400 Houston, TX 77056 4 (713) 552-1234 telephone 5 Ernesto F. Aldover (SBN 157625) RETZ & ALDOVER, LLP 6 2550 Via Tejon, Suite 3A Palos Verdes Estates, California 90274 7 (310) 540-9800 telephone 8 Attorneys for Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, 9 Paramont Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, SVRV 387 Moore, 10 LLC, Monks Family Trust, TEH Capital, LLC, Caproc III, LLC, WZ Partners LLC, McLan 11 Trust, Wild Rose Irrevocable Trust, Black Horse Holdings, LLC, Phil Stoker, Diane 12 Stoker, Scott O’Neil, and Dale Huish 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SAN MATEO 15 John Ho and Quanyu Huang; Case No. 23-CIV-01099 consolidated 16 with Case No. 22-CIV-01148 Plaintiffs, 17 -vs- MEMORANDUM OF POINTS AND 18 AUTHORITIES IN SUPPORT David M. Bragg; Silicon Valley Real DEFENDANTS SVRV 385 MOORE, 19 Ventures, LLC; SVRV 385 Moore, LLC; LLC, SVRV 387 MOORE, LLC, SVRV 387 Moore, LLC; Gregory J. GREGORY J. DAVIS, KEVIN WOLFE, 20 Davis; Paramont Woodside, LLC; JASON JUSTESEN, PARAMONT Paramont Capital, LLC; Monks Family WOODSIDE, LLC, PARAMONT 21 Trust, TEH Capital, LLC, Caproc III, CAPITAL, LLC, MONKS FAMILY LLC, WZ Partners LLC, McLan Trust, TRUST, TEH CAPITAL, LLC, 22 Wild Rose Irrevocable Trust, Black CAPROC III, LLC, WZ PARTNERS Horse Holdings, LLC, Phil Stoker, Diane LLC, MCLAN TRUST, WILD ROSE 23 Stoker, Scott O’Neil, and Dale Huish; IRREVOCABLE TRUST, BLACK HORSE HOLDINGS, LLC, PHIL 24 Defendants. STOKER, DIANE STOKER, SCOTT O’NEIL, AND DALE HUISH’S 25 26 27 28 MOTION TO STRIKE PAGE 1 1 Robert Arntsen; Mary Lee; Arntsen MOTION TO STRIKE Family Partnership, LP; and Brian 2 Christopher Dunn Custodianship; [Notice of Motion to Strike, Declaration of Jessica E. Chong, 3 Plaintiffs, Esq., and Notice of and Demurrer Plaintiffs’ Second Amended 4 -vs- Complaint filed concurrently herewith] 5 David M. Bragg; Kurtis Stuart Kludt; Silicon Valley Real Ventures, LLC; 6 SVRV 385 Moore, LLC; SVRV 387 [Hon. Robert D. Foiles] Moore, LLC; Gregory J. Davis; Kevin 7 Wolfe; Jason Justesen; Paramont Woodside, LLC; and Paramont Capital, Date: September 29, 2023 8 LLC Time: 9:00 AM Dept.: 21 9 10 11 Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont 12 Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, SVRV 387 Moore, 13 LLC, Monks Family Trust, TEH Capital, LLC, Caproc III, LLC, WZ Partners LLC, 14 McLan Trust, Wild Rose Irrevocable Trust, Black Horse Holdings, LLC, Phil Stoker, 15 Diane Stoker, Scott O’Neil, and Dale Huish by and through their counsel Spencer 16 Fane LLP hereby file their Motion to Strike as follows. 17 Striking Defendants request that the following portions of the Complaint 18 (“Complaint”) regarding punitive damages be stricken, as follows: 19 Complaint ¶284: Striking Defendants’ (other than the Paramont Investors) 20 “…conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition 21 to compensatory damages, punitive damages are necessary to punish [the striking 22 Defendants] for this conduct and to discourage similar conduct in the future.” 23 Complaint ¶348: Paramont Capital’s, Davis’s, and Wolfe’s, “… conduct was 24 willful, outrageous, malicious, oppressive, and fraudulent. In addition to 25 compensatory damages, punitive damages are necessary to punish [] Paramont 26 Capital, Davis, and Wolfe, for this conduct and to discourage similar conduct in the 27 future.” 28 Complaint ¶357: Striking Defendants’ (other than the Paramont Investors) “… MOTION TO STRIKE PAGE 2 1 conduct was willful, outrageous, malicious, oppressive, and fraudulent. In addition to 2 compensatory damages, punitive damages are necessary to punish striking 3 Defendants [] for this conduct and to discourage similar conduct in the future.” 4 Complaint ¶375: Striking Defendants’ (other than the Paramont Investors) 5 “…conduct was willful, outrageous, malicious, oppressive, and fraudulent.” 6 Complaint ¶383: Striking Defendants’ “…conduct was willful, outrageous, 7 malicious, oppressive, and fraudulent.” 8 Complaint ¶391: Striking Defendants’ “…conduct was willful, outrageous, 9 malicious, oppressive, and fraudulent.” 10 Request for Relief, sub para. D: punitive damages. 11 This Motion is based upon this notice, the memorandum of points and 12 authorities, declaration of Jessica E. Chong, Esq. (fulfilling the meet and confer 13 requirements), filed concurrently with this motion, the pleadings and records 14 contained in the file, and any oral documentary evidence presented to the court at the 15 time of the hearing. 16 Dated: August 25, 2023 SPENCER FANE LLP 17 18 By: /s/ Jessica E. Chong Jessica E. Chong (SBN 317869) 19 Brian Zimmerman (pro hac pending) Nicholas Reisch (pro hac pending) 20 SPENCER FANE LLP 3040 Post Oak Blvd., Suite 1400 21 Houston, TX 77056 22 and 23 Ernesto F. Aldover, Esq. RETZ & ALDOVER, LLP 24 2550 Via Tejon, Suite 3A Palos Verdes Estates, CA 90274 25 Attorneys for Defendants 26 27 28 MOTION TO STRIKE PAGE 3 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 On or about June 30, 2023, Plaintiffs filed a Second Amended Complaint 4 against Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont Capital, LLC, 5 Monks Family Trust, TEH Capital, LLC, Caproc III, LLC, WZ Partners LLC, McLan 6 Trust, Wild Rose Irrevocable Trust, Black Horse Holdings, LLC, Phil Stoker, Diane 7 Stoker, Scott O’Neil, and Dale Huish (collectively “striking Defendants”). Plaintiffs 8 assert causes of action for (1) Fraudulent Concealment; (2) Breach of Fiduciary Duty; 9 (3) Fraudulent Transfer; (4) Violation of Cal. Bus. & Prof. Code § 17200, et seq.; (5) 10 Quasi-Contract/Restitution/Unjust Enrichment; and (6) Money Had and Received. 11 Accompanying each cause of action is a request for punitive damages. Here, Plaintiffs’ 12 request for punitive damages fails for three reasons: (1) it is procedurally and 13 substantively deficient and (2) punitive damages are not available under Cal. Bus. & 14 Prof. Code § 17200. 15 As argued in detail below, this Court should strike ¶¶284, 348, 357, 375, 383, 16 391, and prayer for relief of the Second Amended Complaint as Plaintiffs’ request for 17 punitive damages is not supported by law. 18 II. ARGUMENT AND AUTHORITIES 19 The function of a motion to strike is to strike out “any irrelevant, false, or 20 improper matter” inserted in any pleading, and to strike out any part of a pleading 21 “not drawn or filed in conformity with the laws of this state.” Cal. Civ. Proc. Code §436. 22 “Irrelevant matter” is defined by statute to include demands for damages or relief that 23 are not supported by the allegations. (See id. §431.10(b)). 24 Factual pleading for punitive damages requires specificity, and conclusory 25 allegations are insufficient. (Blegen v. Superior Court, 125 Cal. App.3d 959, 963 26 (1981); Smith v. Superior Court, 10 Cal.App.4th 1033, 1041 (1992)). Cal. Civ. Code 27 §3294(c) requires a showing of fraud, malice or oppression before an award of punitive 28 damages may issue. To justify an award of punitive damages, defendants “must act MOTION TO STRIKE PAGE 4 1 with an intent to vex, injure or annoy, or with a conscious disregard for plaintiff's 2 rights.” (Beck v. State Farm Mutual Auto Ins. Co., (1976) 54 Cal.App.3d 347, 355 3 (citation omitted)). Further, “[p]roof of a violation of the duty of good faith and fair 4 dealing does not establish that the defendant acted with the requisite intent to injure 5 the plaintiff.” (Id.) “The law does not favor punitive damages and they should be 6 granted with the greatest caution.” (Id.) 7 Here, striking Defendants request that this Court strike the following punitive 8 damages allegations against them: ¶¶284, 348, 357, 375, 383, 391, and prayer for 9 relief. 10 1. Plaintiffs’ punitive damages allegations are procedurally and 11 substantively deficient. 12 A claim for punitive damages must be pled factually and specifically. (Anschutz 13 Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) “Not only must 14 there be circumstances of oppression, fraud or malice, but facts must be alleged in the 15 pleading to support such a claim.” (Grieves v. Super. Ct., supra, 157 Cal.App.3d 159, 16 166.) Thus, to survive a motion to strike, a complaint must allege the “ultimate facts” 17 that, if true, would entitle the claimant to punitive damages. (Clauson v. Superior 18 Court, (1998) 67 Cal.App.4th 1253, 1255; see also Blegen v. Superior Court (1981) 125 19 Cal.App.3d 959, 962-63.) On the other hand, “conclusory characterization of 20 defendant’s conduct as intentional, willful and fraudulent is a patently insufficient 21 statement of oppression, fraud, or malice.” (Brousseau v. Jarrett, (1977) 73 Cal.App.3d 22 864, 872.) 23 Here, the SAC does not contain any factual allegations that would support a 24 finding of fraud, malice or oppression as to the striking Defendants. Rather, the facts 25 alleged in the SAC reveal that Defendants Bragg and/or SVRV made a series of 26 representations to Plaintiffs in order to procure investments from them. The SAC 27 further reveals that Plaintiffs and striking Defendants had no interactions with each 28 other, did not enter into any contracts with each other, and did not owe any duties to MOTION TO STRIKE PAGE 5 1 each other – striking Defendants and Plaintiffs were essentially strangers to each 2 other. Because of the parties’ lack of association, Plaintiffs cannot and have not 3 asserted any factual allegations against striking Defendants that amount to fraud, 4 malice, or oppression. Plaintiffs attempt to assert a claim for punitive damages 5 against striking Defendants by imputing the actions of the other named Defendants 6 onto them, and this is improper – Plaintiffs cannot lump all named Defendants 7 together. Plaintiffs’ SAC is conclusory and does not factually and specifically allege 8 conduct warranting punitive damages; therefore, this Court should strike ¶¶284, 348, 9 357, 375, 383, 391, and prayer for relief. 10 2. Punitive damages are not allowed under Cal. Bus. & Prof. Code 11 §17200. 12 Monetary remedies under the UCL are limited to restitution and civil penalties. 13 (Korea Supply v. Lockheed Martin, (2003) 29 Cal. 4th. at 1144). Traditional 14 compensatory and punitive damages are not available to a private plaintiff. (Bank of 15 the West v. Superior Court, (1992) 2 Cal. 4th. 1254, 1266; Dean Witter Reynolds v. 16 Superior Court, (1989) 211 Cal. App. 3d. 758). Although punitive damages are not 17 available for violations of the Cal. Bus. & Prof. Code §17200, Plaintiffs have requested 18 them through their Twentieth Cause of Action. As this is improper, this Court should 19 strike ¶375 of the Complaint. 20 III. CONCLUSION 21 Based on the foregoing analysis, Plaintiffs have failed to plead any valid claim 22 against striking Defendants. Further, a pleadings amendment cannot cure the defects 23 in Plaintiffs’ Second Complaint. Therefore, Gregory J. Davis, Keving Wolfe, Jason 24 Justesen, Paramont Capital, LLC, Monks Family Trust, TEH Capital, LLC, Caproc 25 III, LLC, WZ Partners LLC, McLan Trust, Wild Rose Irrevocable Trust, Black Horse 26 Holdings, LLC, Phil Stoker, Diane Stoker, Scott O’Neil, and Dale Huish respectfully 27 request that the Court strike Plaintiffs’ request for punitive damages. 28 MOTION TO STRIKE PAGE 6 1 Dated: August 25, 2023 SPENCER FANE LLP 2 3 By: /s/ Jessica E. Chong Brian Zimmerman 4 (admitted pro hac vice) Nicholas Reisch 5 (admitted pro hac vice) Jessica E. Chong (SBN 317869) 6 SPENCER FANE LLP 3040 Post Oak Blvd., Suite 1400 7 Houston, TX 77056 8 and 9 Ernesto F. Aldover, Esq. RETZ & ALDOVER, LLP 10 2550 Via Tejon, Suite 3A Palos Verdes Estates, CA 90274 11 Attorneys for Defendants SVRV 385 Moore LLC, SVRV 387 LLC Moore 12 LLC Gregory J. Davis; Kevin Wolfe; Jason Justesen; Paramont Woodside, 13 LLC; and Paramont Capital, LLC 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO STRIKE PAGE 7 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 August 25, 2023, I served the foregoing document(s) described as as follows: 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DEFENDANTS SVRV 385 MOORE, LLC, SVRV 387 MOORE, LLC, GREGORY 8 J. DAVIS, KEVIN WOLFE, JASON JUSTESEN, PARAMONT WOODSIDE, LLC, PARAMONT CAPITAL, LLC, MONKS FAMILY TRUST, TEH CAPITAL, 9 LLC, CAPROC III, LLC, WZ PARTNERS LLC, MCLAN TRUST, WILD ROSE IRREVOCABLE TRUST, BLACK HORSE HOLDINGS, LLC, PHIL STOKER, 10 DIANE STOKER, SCOTT O’NEIL, AND DALE HUISH’S 11 Collin J. Vierra (State Bar No. 322720) Ryan van Steenis (S.B. #254542) EIMER STAHL LLP 1601 S Shepherd Dr., #276 12 99 Almaden Blvd., Suite 641 Houston, Texas 77019 rjvansteenis@gmail.com San Jose, CA 95113-1605 ATTORNEY FOR DEFENDANTS 13 Email: cvierra@eimerstahl.com DAVID M. BRAGG AND SILICON 14 Attorney for Plaintiffs VALLEY REAL VENTURES, LLC 15 16 _X_ (BY US MAIL) As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be 17 deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Palos Verdes Estate, CA in the ordinary cause of business. I am aware 18 that on motion of the party served, service is presumed invalid of postal cancellation 19 date or postage meter is more than one day after date of deposit for mailing an affidavit. 20 _X_ (BY ELECTRONIC SERVICE) I electronically served the foregoing document(s) 21 on opposing counsel via electronic mail. 22 X (STATE) I declare under penalty of perjury under the laws of the State of 23 Nevada that the foregoing is true and correct. 24 Executed on August 25, 2023 at Las Vegas, Nevada. 25 /s/ Adam Miller 26 27 28 MOTION TO STRIKE PAGE 8