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Ian R. Feldman (State Bar No. 200308)
ifeldman@clausen.com
Tami Kay Lee (State Bar No. 224092)
tlee@clausen.com
Hiren S. Bakrania (State Bar No. 333801)
hbakrania@clausen.com
CLAUSEN MILLER P.C.
27285 Las Ramblas, Suite 200 | Mission Viejo, CA 92691
Telephone 949-260-3100 | Facsimile 949-260-3190
Attorneys for Defendant
JERRY GIROUARD dba GIROUARD PROPERTIES
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SAN MATEO
11 KELLY GREEN, BRIAN GREEN, Case No. CIV-22-03762
RAQUELLA PETTIT, and JAKE BURKET,
12 [Assigned to Hon. Jeffrey Finigan, Dept. 24]
13 Plaintiff,
JERRY GIROUARD DBA GIROUARD
14 vs. PROPERTIES’ MOTION TO STRIKE
PUNITIVE DAMAGES CLAIM FROM
15 JERRY GIROUARD, INDIVIDUALLY, and PLAINTIFFS’ THIRD AMENDED
dba GIROUARD PROPERTIES, and DOES 1 COMPLAINT
16
through 50, inclusive,
17 [Proposed Order Filed Concurrently
Defendants. Herewith]
18
19 [INTENT TO APPEAR REMOTELY]
Date: April 19, 2024
20 Time: 9:00 a.m.
Dept: 24
21
22 Complaint Filed: May 11, 2023
Trial: None Set
23
24 TO THIS HONORABLE COURT, TO ALL PARTIES HEREIN, AND TO THEIR
25 RESPECTIVE ATTORNEYS OF RECORD:
26 PLEASE TAKE NOTICE that on April 19, 2024 at 9:00 a.m. in Department 21, of the
27 above-entitled Court, located at 400 County Center, Redwood City, California 94063,
28 Defendant JERRY GIROUARD dba GIROUARD PROPERTIES (“Girouard” or “Defendant”)
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JERRY GIROUARD DBA GIROUARD PROPERTIES’ MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD
AMENDED COMPLAINT
request the Court for an order striking the following portions of Plaintiffs’ Complaint, filed on
or about May 11, 2023, pursuant to Code of Civil Procedure sections 435 and 436:
e Plaintiffs’ request for Punitive Damages
Grounds for striking such matter from the pleading: The request for punitive damages
is improper and not drawn in conformity with California Law. As seen in Moving Party
Defendant’s concurrently filed Demurrer to Plaintiffs’ Second Amended Complaint (“TAC :”),
Plaintiffs have failed to state a cause of action for their “fraud-based” causes of action for
fraudulent concealment, constructive fraud, and negligent infliction of emotional distress (TAC
41-42). Therefore, Plaintiffs are not entitled to their request for Punitive Damages as requested
10 in their Prayer for Relief for these above claims and, therefore, those requests must be stricken.
11 In compliance with Code of Civil Procedure section 435(a), defense counsel attempted
12 to meet and confer with Plaintiffs’ office beginning on July 10, 2023. See Declaration of Hiren
13 S. Bakrania (“Bakrania Decl.”) at 91-19.
14 Therefore, in light of the lack of sufficient facts pled and the failure to demonstrate any
15 viable means to amend the pleading, Girouard respectfully requests that the Court grant this
16 Motion and Strike the above noted portions of Plaintiffs’ TAC , without leave to amend.
17 This Motion to Strike is based upon the attached Demurrer and its Memorandum of
18 Points and Authorities, and Declaration of Hiren S. Bakrania filed herewith, all of the papers
19 on file with the Court, and upon any oral argument that may be presented at the time of the
20 hearing.
21 DATED: February 13, 2024 CLAUSEN MILLER P.C.
22
23 By: Wii
wR. Feldman
24 Tami Kay Lee
25
Attorneys for Defendant
26 JERRY GIROUARD dba GIROUARD
PROPERTIES
27
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JERRY GIROUARD DBA GIROUARD PROPERTIES’ MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD
AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
A The Court Has Authority To Strike Improper Matter From The Complaint
California Code of Civil Procedure section 436 provides as follows:
The court may, upon a motion made pursuant to Section 435, or at any time in its
discretion, and upon terms it deems proper:
(a) Strike out any irrelevant, false, or improper matter inserted in any pleading;
(b) Strike out all or any part of any pleading not drawn or filed in conformity with
the laws of this state, a court rule, or an order of the court.
10 Defendants respectfully request this Court to act in accordance with its vested authority
11 by striking the improper, unsupported punitive damage allegations contained in the Complaint
12 as described further below.
13 IL. MEET AND CONFER EFFORTS
14 On December 26, 2023, Plaintiff filed his TAC pursuant to the Court’s order sustaining
15 Defendants’ demurrer to the Second Amended Complaint.
16 On January 25, 2024, Defendants counsel participated in a lengthy video call with
17 Plaintiffs’ counsels, Brian Newcomb and Richard Pierce. Defendants’ counsel thereafter
18 memorialized via email discussions during the video conference and requested an outline of
19 the additional allegations that Plaintiffs believed satisfied the heightened pleading requirement
20 for fraud-based claims. Plaintiffs complied and on January 29, 2024, Defendants counsel
21 received a highlighted copy of the new allegations which Plaintiffs believed met the required
22 pleading in order to maintain actionable fraud-based claims. See Exs. B and C, attached to Lee
23 Decl. However, Plaintiffs’ new allegations still do not meet the heightened pleading standard
24 to maintain causes of action for fraud-based claims.
25 As of the date of filing this Demurrer, Plaintiffs did not agree to further amend its TAC,
26 which required the filing of the instant Demurrer. (Lee Decl. 45).
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MEMORANDUM OF POINTS AND AUTHORITIES
TL. LEGAL ARGUMENT
A Plaintiffs’ Prayer For Punitive Damages Is Improper_And Should Be
Stricken
Where a complaint includes a request for relief that is not supported by the cause of
action alleged, or is otherwise improper, a motion to strike lies. Commodore Home Systems.
Inc. v. Superior Court (1982) 32 Cal.3d 211, 214-215. Due to the gravity of punitive damages,
California law imposes strict pleading requirements on plaintiffs seeking punitive damages.
Plaintiffs must allege specific facts entitling them to punitive damages; mere conclusions do
not suffice. Here, Plaintiffs do not come close to satisfying the minimum pleading requirements
10 for punitive damages.
11 California law “does not favor punitive damages and they should be granted with the
12 greatest caution.” Dyna-Med, Inc. v. Fair Employment & Housing Comm. (1987) 43 Cal.3d
13 1379, 1392. Under Civil Code section 3294, plaintiffs may recover punitive damages only
14 where the defendant has acted with “oppression, fraud, or malice.” Accordingly, the plaintiff
15 must plead facts showing “oppression,” “fraud” or “malice” to allege a claim for punitive
16 damages. Section 3294 includes the following definitions:
17 “Malice” means conduct which is intended by the defendant to
18 cause injury to the plaintiff or despicable conduct which is carried
19 on by the defendant with a willful and conscious disregard of the
20 rights or safety of others. “Oppression” means despicable conduct
21 that subjects a person to cruel and unjust hardship in conscious
22 disregard of that person’s rights. “Fraud” means an intentional
23 misrepresentation, deceit, or concealment of a material fact known
24 to defendant with the intention on the part of the defendant of
25 thereby depriving a person of property or legal rights or otherwise
26 causing injury.
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MEMORANDUM OF POINTS AND AUTHORITIES
California courts hold that fairness to the defendant requires punitive damage claims to
be stated with specificity. In Lehto, the court discussed the requirements for pleading a claim
of punitive damages, as follows:
Appellant alleges generally those respondents acted maliciously
and fraudulently. However, such allegations are without adequate
specificity. “It is essential that the facts and circumstances which
constitute the fraud should be set out clearly, concisely, and with
sufficient particularity to apprise the opposite party of what he is
called upon to answer, and to enable the court to determine
10 whether, on the facts pleaded, there is any foundation, prima facie
11 at least, for the charge of fraud.”
12 Id. at 944 (citations omitted).
13 See also, G.D. Searle & Co., supra, 49 Cal.App.3d at 22. Accordingly, California courts
14 have repeatedly held that bald allegations such as “malice, 39 «6 conscious disregard,” or “fraud”
15 must be supported by specific facts. See e.g. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864;
16 Smith v. Superior Court (1992) 10 Cal.App.4th 1033 (issuing peremptory writ directing trial
17 court to grant motion to strike punitive damages allegations); Foy v. Greenblott (1983)
18 141 Cal.App.3d 1, 13-14 (allegations of “willful and reckless and wanton disregard” were
19 conclusions unsupported by facts and insufficient for punitive damages); Dawes v. Superio
20 Court (1980) 111 Cal.App.3d 82, 91 n.3 (allegations of reckless or conscious disregard were
21 mere conclusions that had to be supported by facts); Appl v. Lee Swett Livestock Co. (1987)
22 192 Cal.App.3d 466, 470 (allegations of “maliciously, willfully, oppressively, and deliberately”
23 and “fraudulently, with a lack of good faith and fair dealing” were improper conclusions).
24 California courts hold that fairness requires that punitive damage claims be pled with
25 firm and clear allegations of particular supporting facts; conclusory allegations are insufficient.
26 G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 28-29. Given the gravity of
27 punitive damage claims, boilerplate allegations will not suffice — Plaintiffs must state such
28 claims with specificity. See, e.g., Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.
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MEMORANDUM OF POINTS AND AUTHORITIES
In Lehto v. Underground Construction Co. (1977) 69 Cal.App.3d 933, 944, the Court struck
general allegations of malice and fraud and stated that punitive damage allegations “should be
set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what
he is called upon to answer...”
To establish malice, it is not sufficient to show only that the Defendant’s conduct was
negligent, grossly negligent, or even reckless. There must be evidence that the Defendant acted
with knowledge of the probable dangerous consequences to Plaintiffs’ interests and deliberately
failed to avoid these consequences. Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins.
Co. (1986) 185 Cal. App.3d 1149, 1155; see also Searle & Co. v. Sup. Ct. (1975) 49 Cal.App.3d
10 22, 31 [Section 3294 “views evil motive as the central, essential factor in the malice which
11 justifies an exemplary award”; this inquiry addresses a defendant’s actual state of mind and “is
12 not satisfied by characterizing his conduct as unreasonable, negligent, grossly negligent, or
13 reckless”]. Further, in Flyer’s, the Court held that:
14 Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or
15 in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does
16 not justify the imposition of punitive damages . Punitive damages are proper when the
17 tortious conduct rises to levels of extreme indifference to plaintiff's rights, a level which decent
18 citizens should not have to tolerate.
19 Here, Plaintiffs’ requests for punitive damages are grossly unsupported by specific facts.
20 While Plaintiffs allege fraud-based causes of action for fraudulent concealment, constructive
21 fraud, and negligent infliction of emotional distress. Plaintiffs’ facts, as pled in their TAC , do
22 nothing to apprise the Defendant, the parties, or this Court, of any factual specificity to support
23 the supposedly malicious, willful, oppressive, deliberate, or fraudulent activity by the Moving
24 Party Defendant. Plaintiffs’ TAC does nothing more than allege general accusations of fraud,
25 knowledge of fraud, and knowledge that Plaintiffs would be harmed as a result. These
26 allegations are not plead with the specificity required of fraud claims.
27 Thus, if the Court sustains Defendants’ Demurrer to the Plaintiffs’ Causes of Action for
28 Fraudulent Concealment, Constructive Fraud, and Negligent Infliction of Emotional Distress,
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MEMORANDUM OF POINTS AND AUTHORITIES
the Court must also necessarily strike Plaintiffs’ claim for punitive/exemplary damages which
have been requested as relief for those causes of action.
IV. CONCLUSION
For the foregoing reasons, this Court should sustain the Defendant’s Motion to Strike
with prejudice.
DATED: February 13, 2024 CLAUSEN MILLER P.C.
)
By: Wii
an R. Feldman
Tami Kay Lee
10
Attorneys for Defendant
11 JERRY GIROUARD dba GIROUARD
PROPERTIES
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5.
MEMORANDUM OF POINTS AND AUTHORITIES
DECLARATION OF TAMI KAY LEE
I, Tami Kay Lee, declare:
1 I am an attorney at law licensed to practice before all the Courts in the State of
California with the law firm of Clausen Miller P.C., counsel of record for Defendant JERRY
GIROUARD dba GIROUARD PROPERTIES (“Girouard”). The following facts are within
my own personal knowledge, except as to those matters stated to be on information and belief,
which I believe to be true. If called as a witness, I could and would competently testify as to
the facts contained in this declaration.
2. I submit this declaration in support of the Girouard’s Motion to Strike Plaintiffs
10 KELLY GREEN, BRIAN GREEN, RAQUELLA PETTIT, and JAKE BURKET (“Plaintiffs”)
11 punitive damage claims from the 3"! amended complaint and to document the meet and confer
12 process we have engaged in required under Code of Civil Procedure §430.41(a).
13 3 On December 26, 2023, Plaintiff filed his TAC pursuant to the Court’s order
14 sustaining Defendants’ demurrer to the Second Amended Complaint.
15 4 On January 25, 2024, Defendants counsel participated in a lengthy video call with
16 Plaintiffs’ counsels, Brian Newcomb and Richard Pierce. Defendants’ counsel thereafter
17 memorialized via email discussions during the video conference and requested an outline of
18 the additional allegations that Plaintiffs believed satisfied the heightened pleading requirement
19 for fraud-based claims. Attached as Exhibit A is a true and correct copy of the January 25, 2024
20 email memorializing the completed meet and confer with request for further detail on which
21 new allegations Plaintiffs believed satisfied the fraud-based claims.
22 5 Plaintiffs complied with the request to highlight those new allegations that meet
23 the required pleading for fraud-based clams and on January 29, 2024, Defendants counsel
24 received a highlighted copy of the new allegations which Plaintiffs. Attached as Exhibit B is a
25 true and correct copy of the email from Brian Newcomb presenting the third amended
26 complaint in yellow highlights (attached as Exhibit C) to support Plaintiffs’ position that the
27 highlighted portions meet the required pleading for fraud-based claims. However, Plaintiffs’
28
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DECLARATION OF TAMI KAY LEE
new allegations still do not meet the heightened pleading standard to maintain causes of action
for fraud-based claims.
6 As of the date of filing this Demurrer, Plaintiffs did not agree to further amend
its TAC, which required the filing of the instant Demurrer.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this Declaration is executed on February 13, 2024, in Los
Angeles County, California.
f° gas
Tami Kay Lee
10576413.1
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DECLARATION OF TAMI KAY LEE
EXHIBIT “A”
From: Brian Newcomb
To: ami Kay Les
Ce: Ipiercelaw@qmail.com
Subject: Re: MEET & CONFER: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-ClV-03762)
Date: Friday, January 26, 2024 7:20:52 PM
Attachments: imaqe001.jpq
image002.qit
| External Message
Dear Ms. Lee:
My apologies for the late response. Yes, you may have the extension to
respond to the TAC through February 13, 2024. If you require additional
time, please contact Richard or me.
Kind regards,
Brian W. Newcomb
On Fri, Jan 26, 2024 at 6:57 PM Tami Kay Lee wrote:
Brian / Richard,
We need a response to below.
ae aaa eee
Absent hearing back from you as we discussed and agreed, we will proceed with
filing our Demurrer to the fraud-based causes of action (2"4 and 3" causes of
action) on Monday.
Thank you.
Tami Kay Lee | Partner
Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691
949.260.3137 | vCard | bio
EmailSignatureLogo96
a
a
Clausen Miller P.C. Illinois * New York * California + New J ersey * Indiana * Wisconsin * Connecticut «Florida * Texas
Clausen Miller International London «Paris * Rome «Brussels
This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or
attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient,
any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error,
please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you.
From: Tami Kay Lee
Sent: Thursday, January 25, 2024 4:14 PM
To: Brian Newcomb ; rlpiercelaw@gmail.com
Subject: MEET & CONFER: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-
CIV-03762)
Importance: High
Hi Brian and Richard,
Thank you for your time this afternoon in discussing Plaintiffs’ Third amended
complaint (“TAC”) and Defendant's intended Demurrer to the fraud-based claims
presented under the 2"4 and 3™ Causes of Action for Fraudulent Concealment and
Constructive which the Court sustained in our last round demurrer.
We agreed that to assist the Court and streamline what was amended in the TAC
that Brian will forward as soon as he is able, but no later than Monday 12:00 p.m.,
a redlined version of the SAC so new allegations submitted in the TAC regarding the
fraud-based claims can be easily tracked for the Court's reference.
As you know we intend to file a Demurrer to the TAC on the fraud-based claims
under the 2"4 and 3" Causes of Action which will be due Monday. You agreed we
can have a two week extension to file a Demurrer to the fraud-based claims under
the 2"¢ and 3" Causes of Action, or until Tuesday, February 13, 2024.
ee
We'd like to avoid the Demurrer altogether so we hope you will reconsider in
nd rd
dismissing the fraud-based 2 and 3 causes of action in the TAC.
Best,
Tami Kay Lee | Partner
Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691
949.260.3137 | vCard | bio
EmailSignatureLogo96
a
@
Clausen Miller P.C. Illinois * New York * California + New J ersey * Indiana * Wisconsin * Connecticut «Florida * Texas
Clausen Miller International London «Paris * Rome «Brussels
This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or
attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient,
any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error,
please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you.
From: Tami Kay Lee
Sent: Wednesday, January 24, 2024 9:23 AM
To: Brian Newcomb
Ce: rlpiercelaw@gmail.com
Subject: RE: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-CIV-03762)
Hi Brian,
We need to meet and confer on Plaintiff's 3™ Amended Complaint regarding the
fraud-based claims because, as amended, the allegations still do not meet required
heightened pleading standard.
Please advise if today at 2:30 p.m. is good for a call, or tomorrow after 1:00 p.m.
anytime.
Thank you
Tami Kay Lee | Partner
Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691
949.260.3137 | vCard | bio
EmailSignatureLogo96
a
a
Clausen Miller P.C. Illinois * New York * California * New J ersey * Indiana * Wisconsin * Connecticut * Florida * Texas
Clausen Miller International London «Paris * Rome «Brussels
This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or
attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient,
any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error,
please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you.
From: Brian Newcomb
Sent: Friday, December 29, 2023 10:19 AM
To: Lucy Ta
Ce: rlpiercelaw@gmail.com; Tami Kay Lee <[Lee@clausen.com>; Hiren S. Bakrania
Subject: Re: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-CIV-03762)
| External Message
Will do so.
Xiomara Santamaria
Legal Assistant to Brian W. Newcomb
On Wed, Dec 27, 2023 at 2:16 PM Lucy Ta wrote:
Good afternoon Mr. Newcomb,
Please update your service list to include me for all future service and communication.
Thank you.
Lucy Ta | Legal Secretary
Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691
949.260.3127
EmailSignatureLogo96
a
Clausen Miller P.C. Illinois * New York * California * New J ersey * Indiana * Wisconsin * Connecticut «Florida * Texas
Clausen Miller International London «Paris *Rome * Brussels
This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or
attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended
recipient, any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic
mail in error, please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you
From: Brian Newcomb
Sent: Tuesday, December 26, 2023 6:50 PM
To: Ian R. Feldman ; Tami Kay Lee ;
Hiren S. Bakrania
Ce: Richard Pierce ; Brian Newcomb
Subject: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-CIV-03762)
[External Message
Dear Counsel:
Attached please find the 3rd Amended Complaint, which has been
submitted to the San Mateo County Superior Court for filing.
Thank you,
Xiomara Santamaria
Legal Assistantto Brian W. Newcomb
--
Brian W. Newcomb
Attorney at Law
800 Menlo Avenue, Suite 209
Menlo Park, CA 94025
TEL: 650-322-7780
FAX: 650-322-7740
PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021
TELEPHONE, FAX AND EMAIL REMAIN THE SAME
CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by
the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is
confidential and may be legally privileged. If you are not the intended recipient,
you are hereby notified that any retention, dissemination, distribution, or copying
of this communication is strictly prohibited. Please reply to sender that you have
received the message in error, and delete this email and attachments from your
system.
--
Brian W. Newcomb
Attorney at Law
800 Menlo Avenue, Suite 209
Menlo Park, CA 94025
TEL: 650-322-7780
FAX: 650-322-7740
PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021
TELEPHONE, FAX AND EMAIL REMAIN THE SAME
CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the
Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential
and may be legally privileged. If you are not the intended recipient, you are hereby
notified that any retention, dissemination, distribution, or copying of this
communication is strictly prohibited. Please reply to sender that you have received
the message in error, and delete this email and attachments from your system.
-
Brian W. Newcomb
Attorney at Law
800 Menlo Avenue, Suite 209
Menlo Park, CA 94025
TEL: 650-322-7780
FAX: 650-322-7740
PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021
TELEPHONE, FAX AND EMAIL REMAIN THE SAME
CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the
Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential and
may be legally privileged. If you are not the intended recipient, you are hereby
notified that any retention, dissemination, distribution, or copying of this
communication is strictly prohibited. Please reply to sender that you have received
the message in error, and delete this email and attachments from your system.
EXHIBIT “B”
From: Brian Newcomb
To: ami Kay Les
Ce: ucy Ta; Richard Pierce
Subject: RE: Green v. Girouard- 3rd Amended Complaint highlighted with the additions made
Date: Monday, January 29, 2024 12:29:21 PM
| External Message
Dear Ms. Lee:
In accord with our prior correspondence attached hereto is an endorsed filed copy of
the Third Amended Complaint, which | compared against the Second Amended
Complaint.
The additions to the Second Amended Complaint, which are contained in the Third
Amended are highlighted in yellow so you can see what new allegations are set/within
the Third Amended Complaint.
Kind regards,
Brian W. Newcomb
| GREEN - 3rd Amended Complaint Highlighted.pdf
-
Brian W. Newcomb
Attorney at Law
800 Menlo Avenue, Suite 209
Menlo Park, CA 94025
TEL: 650-322-7780
FAX: 650-322-7740
PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021
TELEPHONE, FAX AND EMAIL REMAIN THE SAME
CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the
Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential and
may be legally privileged. If you are not the intended recipient, you are hereby
notified that any retention, dissemination, distribution, or copying of this
communication is strictly prohibited. Please reply to sender that you have received
the message in error, and delete this email and attachments from your system.
EXHIBIT “C”
Brian W. Newcomb, Esq. (SBN: 55156)
LAW OFFICE OF BRIAN W. NEWCOMB
800 Menlo Avenue, Ste. 209
Menlo Park, CA 94025-4732
Telephone: (650) 322-7780 Electronically
Facsimile: (650) 322-7740 by Superior
Court of Callfornia, County of San wateo
Email: brianwnewcomb@gmail.com
Richard L. Pierce, Esq. (SBN: 107185)
LAW OFFICE OF RICHARD L. PIERCE
600 Allerton Street, Suite 200
Redwood City, CA 94063
Telephone: (650) 780-7928
Facsimile: (650) 249-0297
Email: rlpiercewlaw@gmail.com
Attorneys for Plaintiffs
10 KELLY GREEN, BRIAN GREEN,
RAQUELLA PETTIT AND JAKE BURKET
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 FOR THE COUNTY OF SAN MATEO
14 [UNLIMITED CIVIL CASE]
15
KELLY GREEN, BRIAN GREEN, CASE NO. CIV-22-03762
16 RAQUELLA PETTIT and JAKE BURKET,
17 THIRD AMENDED COMPLAINT
Plaintiffs, FOR DAMAGES FOR BREACH OF
18 FIDUCIARY DUTY, FRAUDULENT
Vv. CONCEALMENT, CONSTRUCTIVE
19 FRAUD, NEGLIGENCE, BREACH
JERRY GIROUARD, INDIVIDUALLY, and OF CONTRACT, AND BREACH OF
20 dba GIROUARD PROPERTIES, and DOES CONTRACT BY A THIRD-PARTY
BENEFICIARY
21 1-50, inclusive,
22 Defendants.
23
24 PLAINTIFFS Kelly Green, Brian Green, Raquella Pettit and Jake Burket allege
25 as follows:
26
27 It
28 I
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THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY,
FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF
CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY
PARTIES
1 Plaintiffs Kelly Green and Brian Green are natural persons who reside in San
Mateo County, California. Plaintiffs Raquella Pettit and Jake Burket are natural
persons who reside in Del Norte County, California.
2. Defendant, Jerry Girouard (“Defendant”), is and at all times mentioned in this
complaint was and is, a resident of San Mateo County, and that the acts complained
of herein took place in San Mateo County.
3. The true names and capacities, whether individual, corporate, or otherwise, of
defendants named herein as DOES 1 through 50, inclusive, are presently unknown
10 to Plaintiffs, who therefore sues these defendants by such fictitious names. Plaintiffs
11 are informed and believe and thereon allege that each of the defendants designated
12 herein as a Doe is legally responsible in some manner for the acts and omissions
13 herein alleged, and legally and proximately caused injury and damage to Plaintiffs as
14 hereinafter alleged. Plaintiffs will amend this Complaint to allege their true names and
15 capacities when they are ascertained.
16 4. Except as herein otherwise specifically alleged, Plaintiffs are informed and
17 believe and thereon allege that at all times mentioned herein each of the Defendants
18 was the alter-ego, agent, partner, agent, employee, and representative of each of the
19 remaining Defendants, and in doing the acts and omissions herein alleged, was
20 acting with the consent, permission and ratification of each of the other Defendants.
21 5. Defendant Jerry Girouard individually and doing business as Girouard
22 Properties is, and at all times mentioned in this complaint was, a real estate broker
23 duly licensed by the State of California doing business under the name Girouard
24 Properties, with his principal place of business in the City of San Mateo, County of
25 San Mateo, California. As used herein “Defendant”, or “Defendant Girouard or
26 Defendant Jerry Girouard” means Jerry Girouard individually doing business as
27 Girouard Properties.
28 6. On or about August 14, 2020, Plaintiffs Kelly Green and Brian Green signed a
2
THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY,
FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF
CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY
California Association of Realtors ("CAR") contract entitled “California Residential
Purchase Agreement and Joint Escrow Instructions (“Agreement,” EXHIBIT 1
attached hereto) for the purchase of an 18-acre property that included a 400 square
foot home located in Shasta County at 19600 Statton Acres Road, Lakehead, CA
(the “Property”). The sellers (“SELLERS”) were Lynn Hunt and Ricardo De Monet,
residents of San Carlos, CA. The parcel included what Seller Lynn Hunt described
and showed Plaintiffs as a 400 square foot single-family home. The Greens were
purchasing the Property for the daughter of Kelly Green (and Brian Green’s
stepdaughter), Raquella Pettit, her partner Jake Burket and their daughter Willow, to
10 live on permanenily.
11 7. Defendant Jerry Girouard acted as the Broker for both Plaintiff Buyers and the
12 Sellers pursuant to a document both parties signed entitled “Possible Representation
13 of More Than One Buyer or Seller- Disclosure and Consent.” A copy of that
14 document signed on August 14, 2020 by Brian and Kelly Green is attached as
15 (EXHIBIT 2) and shall be referred to hereafter as the “Dual Representation
16 Agreement” and Defendant Girouard as the “Dual Agent.” Seller Lynn Hunt, who had
17 recommended to Plaintiffs using Defendant as the Dual Agent, never disclosed to
18 Plaintiffs that Defendant had previously acted on behalf of the Sellers during an
19 earlier effort to sell the Property. Defendant Girouard likewise never disclosed his
20 prior relationship with the Sellers and that he had previously spoken with a realtor
21 while she had an active listing agreement to sell the Property.
22 8. Defendant Girouard described the services he would render as “handling the
23 escrow paperwork," or words to that effect. Plaintiffs believed Defendant Girouard to
24 be knowledgeable and ethical broker who would satisfy his fiduciary duties, and
25 therefore agreed he could serve as a Dual Agent. Nowhere in (EXHIBIT 2, or
26 anywhere else, or verbally) was there any staternent that the services Defendant
27 would provide would limit in any way Defendant's duties under California law as a
28 licensed realtor to perform necessary inspections and to make full disclosures of any
3
THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY,
FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF
CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY
and all material facts and attributes he knew about the property at issue, from any
source, that Defendant either becomes aware of or already knows.
9. As the Realtor for both sides, Defendant owed both Buyers and Sellers a
fiduciary duty of utmost care, integrity, honesty and loyalty and the duty to protect the
interest of both Parties to the best of Defendant's ability, even if that could be
disadvantageous to Defendant. In that regard the obligations of Defendant were
analogous to those of the trustee of a trust, that being the duty to act in the best
interest of both Parties to the transaction- Defendant was obligated to ensure the
issue or transaction at hand was fair to both. That duty included making both a full
10 disclosure of all material information and facts that were known to Defendant
11 Girouard and to be certain the Plaintiffs are aware of the Seller’s mandatory, non
12 waivable disclosure obligations to the Plaintiff Buyers. At a minimum, that should
13 have been done here, but was not. Nowhere in the Dual Agency Agreement
14 (EXHIBIT 2), or anywhere else, does it state, imply or infer that Defendant was not
15 obligated to act in his fiduciary capacity of looking out for the best interests of either
16 Buyers or Sellers if an issue presented itself that did not pertain to escrow related
7 paperwork.
18 10. At no time before or after the sale of the Property closed were any written
19 disclosures made or provided to Plaintiffs by Defendants of all issues and information
20 about the Property, from any source, nor were Plaintiff Buyers informed that the
21 disclosure duties of a seller were non waivable under California law. Defendant did
22 not disclose any information or material facts affecting the value or desirability of the
23 property as the dual agent. Defendants Jerry Girouard, individuall y
and doing
24 business as Girouard Properties, was statutorily obligated to deliver to each Plaintiff
25 that each PI aintiff was supposed to reciv certain statutory notices requid by Civil
26 Code Sections 1102 through 1102.19 from the Seller prior to the close of escrow.
1 i fthe P
27 . ovide
28 Buyers with his written disclose, pursuant to Civil Code Section 2019 et seq
4
THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY,
FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF
CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY
[The Plaintiffs did not receive any of the written notices required by Civil Code
Cee ee oe toe lliiaiainliiiniatiantielainnaned,by
)Pefendants at any time prior to the, close of ascrow,that they. were to have. recsived
eer
11. The purchase of the Property from the Sellers closed on September 8, 2020,
and Raquella, Jake, and their daughter Willow moved onto the Property. In the next
year, they spent thousands of dollars and most of their free time improving and
enhancing the Property.
10 12. In late September of 2021, Plaintiffs Kelly and Brian Green were notified by
11 the Shasta County Building Department of Resource Management- Building
12 Department (Building Department”) there were multiple building and other code
13 violations on and about the Property, none of which had been disclosed to Plaintiffs
14 prior to the time they) purchased it. Those defects are contained in a document
15 entitled “Warning Notice” dated September 27, 2021, attached hereto as (EXHIBIT
16
7 Property included the following: the 400 square foot home was unpermitted and
18 would have to be demolished and a new, permitted dwelling had to be built before
19 the Property could be occupied permanently; the septic/waste system was
20 unpermitted; the electrical system had been connected illegally to PG& E power
21 poles and had to be re-connected properly; the plumbing system had to re-installed
22 because the existing system was illegally installed; and the dirt road from the public
23 roadway had been graded without a permit, rendering it illegal.
24 13 to
25 Propel owl
nen on he opert h M Ro de bed wa “run-dow
26
ha d no be pe
27
28
5
THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY,
FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF
CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY
jearby cam ‘After purchasing i eC int
{mprevements. fo. It, none ef wullich were, permmiltad)...2. [a ERGE, Suh WER
improper, and the Property was subject to having the power cut off at any time. 3.
The pole the power line was connected to was illegally in U.S. Forest Service land.
The top of EXHIBIT Three states the following:
“PLEASE TAKE NOTICE THAT A VIOLATION OF LAW EXISTS AS SET
FORTH BELOW. YOUR FAILURE TO CORRECT THE VIOLATION(S),
MAY RESULT IN A CITATION THAT COULD RESULT IN A
MANDATORY COURT APPEARANCE AND A FINE. A PENALTY
ASSESSMENT MAY BE ADDED TO THE FINE BY THE COURT. IN
ADDITION, A NOTICE TO ABATE MAY BE ISSUED AND MAY LEAD
TO AN ADMINISTRATIVE HEARING AND ADDITIONAL FINES AT THE
RATE OF UP TO $1,000 PER DAY, PER VIOLATION.”
10
11 That was distressing to the Greens but particularly for Raquella and Jake.
12 Besides lacking the funds to even attempt to remedy some of the defects, nearly all
13 of which neither they nor the Greens were responsible for, Raquella and Jake knew
14 they would have to leave the Property. Pursuant to an agreement with the Shasta.
16 County Counsel's Office, Jake and Raquella were allowed to remain a total of two
16 months on the condition they “show progress” in cleaning up the Property and |
17 addressing certain of the issues raised in the Warming Notice, which they did. Jake | —
18 thus quit his job as a carpenter, which created an immediate money shortage.
19 Performing any tasks was also difficult because PG&E, on the order of the Building
20 Department, had cut off all power, necessitating the purchase of a $1,000.00 gas-
21 powered generator, Jake and Raquella (who was then three months pregnant) were
22 simultaneously also searching for a new place to live and were also trying to sell
23 and/or otherwise dispose of much of the personal property they had accumulated
24 and/or purchased in the last year. Raquella in particular suffered during those two
25 months, and afterwards; she worried about her family leaving the Property and where
26 they would go, especially if they hadto leave the Redding area for an unknown place
27 paid an adequate salary; and the need to find another OB-GYN. These and other
28 factors collectively created a growing concern for the future welfare of her family and
6
THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY,
FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF
CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY
caused Raquella great anxiety and mental distress.
14. None of the information that Plaintiffs contend Defendant failed. to disclose, or
caused to not be disclosed, was of such type that would justify Defendant not
disclosing it. Plaintiffs do not allege they were wrongly seeking information about the
Sellers motivations for selling the Property.
15, On December 4, 2021, Jake and Raquella moved to Crescent City, California,
a four-hour drive away. After initially living in a small travel trailer, they rented a home
they could afford only because Jake would perform re-modeling work to that property
in exchange for reduced rent. They have since found a new home to live in.
10 FIRST CAUSE OF ACTION BY PLAINTIFFS KELLY
Preview
Ian R. Feldman (State Bar No. 200308) ifeldman@clausen.com Tami Kay Lee (State Bar No. 224092) tlee@clausen.com Hiren S. Bakrania (State Bar No. 333801) hbakrania@clausen.com CLAUSEN MILLER P.C. 27285 Las Ramblas, Suite 200 | Mission Viejo, CA 92691 Telephone 949-260-3100 | Facsimile 949-260-3190 Attorneys for Defendant JERRY GIROUARD dba GIROUARD PROPERTIES SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN MATEO 11 KELLY GREEN, BRIAN GREEN, Case No. CIV-22-03762 RAQUELLA PETTIT, and JAKE BURKET, 12 [Assigned to Hon. Jeffrey Finigan, Dept. 24] 13 Plaintiff, JERRY GIROUARD DBA GIROUARD 14 vs. PROPERTIES’ MOTION TO STRIKE PUNITIVE DAMAGES CLAIM FROM 15 JERRY GIROUARD, INDIVIDUALLY, and PLAINTIFFS’ THIRD AMENDED dba GIROUARD PROPERTIES, and DOES 1 COMPLAINT 16 through 50, inclusive, 17 [Proposed Order Filed Concurrently Defendants. Herewith] 18 19 [INTENT TO APPEAR REMOTELY] Date: April 19, 2024 20 Time: 9:00 a.m. Dept: 24 21 22 Complaint Filed: May 11, 2023 Trial: None Set 23 24 TO THIS HONORABLE COURT, TO ALL PARTIES HEREIN, AND TO THEIR 25 RESPECTIVE ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE that on April 19, 2024 at 9:00 a.m. in Department 21, of the 27 above-entitled Court, located at 400 County Center, Redwood City, California 94063, 28 Defendant JERRY GIROUARD dba GIROUARD PROPERTIES (“Girouard” or “Defendant”) -l- JERRY GIROUARD DBA GIROUARD PROPERTIES’ MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT request the Court for an order striking the following portions of Plaintiffs’ Complaint, filed on or about May 11, 2023, pursuant to Code of Civil Procedure sections 435 and 436: e Plaintiffs’ request for Punitive Damages Grounds for striking such matter from the pleading: The request for punitive damages is improper and not drawn in conformity with California Law. As seen in Moving Party Defendant’s concurrently filed Demurrer to Plaintiffs’ Second Amended Complaint (“TAC :”), Plaintiffs have failed to state a cause of action for their “fraud-based” causes of action for fraudulent concealment, constructive fraud, and negligent infliction of emotional distress (TAC 41-42). Therefore, Plaintiffs are not entitled to their request for Punitive Damages as requested 10 in their Prayer for Relief for these above claims and, therefore, those requests must be stricken. 11 In compliance with Code of Civil Procedure section 435(a), defense counsel attempted 12 to meet and confer with Plaintiffs’ office beginning on July 10, 2023. See Declaration of Hiren 13 S. Bakrania (“Bakrania Decl.”) at 91-19. 14 Therefore, in light of the lack of sufficient facts pled and the failure to demonstrate any 15 viable means to amend the pleading, Girouard respectfully requests that the Court grant this 16 Motion and Strike the above noted portions of Plaintiffs’ TAC , without leave to amend. 17 This Motion to Strike is based upon the attached Demurrer and its Memorandum of 18 Points and Authorities, and Declaration of Hiren S. Bakrania filed herewith, all of the papers 19 on file with the Court, and upon any oral argument that may be presented at the time of the 20 hearing. 21 DATED: February 13, 2024 CLAUSEN MILLER P.C. 22 23 By: Wii wR. Feldman 24 Tami Kay Lee 25 Attorneys for Defendant 26 JERRY GIROUARD dba GIROUARD PROPERTIES 27 28 -2- JERRY GIROUARD DBA GIROUARD PROPERTIES’ MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ THIRD AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION A The Court Has Authority To Strike Improper Matter From The Complaint California Code of Civil Procedure section 436 provides as follows: The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. 10 Defendants respectfully request this Court to act in accordance with its vested authority 11 by striking the improper, unsupported punitive damage allegations contained in the Complaint 12 as described further below. 13 IL. MEET AND CONFER EFFORTS 14 On December 26, 2023, Plaintiff filed his TAC pursuant to the Court’s order sustaining 15 Defendants’ demurrer to the Second Amended Complaint. 16 On January 25, 2024, Defendants counsel participated in a lengthy video call with 17 Plaintiffs’ counsels, Brian Newcomb and Richard Pierce. Defendants’ counsel thereafter 18 memorialized via email discussions during the video conference and requested an outline of 19 the additional allegations that Plaintiffs believed satisfied the heightened pleading requirement 20 for fraud-based claims. Plaintiffs complied and on January 29, 2024, Defendants counsel 21 received a highlighted copy of the new allegations which Plaintiffs believed met the required 22 pleading in order to maintain actionable fraud-based claims. See Exs. B and C, attached to Lee 23 Decl. However, Plaintiffs’ new allegations still do not meet the heightened pleading standard 24 to maintain causes of action for fraud-based claims. 25 As of the date of filing this Demurrer, Plaintiffs did not agree to further amend its TAC, 26 which required the filing of the instant Demurrer. (Lee Decl. 45). 27 28 -l- MEMORANDUM OF POINTS AND AUTHORITIES TL. LEGAL ARGUMENT A Plaintiffs’ Prayer For Punitive Damages Is Improper_And Should Be Stricken Where a complaint includes a request for relief that is not supported by the cause of action alleged, or is otherwise improper, a motion to strike lies. Commodore Home Systems. Inc. v. Superior Court (1982) 32 Cal.3d 211, 214-215. Due to the gravity of punitive damages, California law imposes strict pleading requirements on plaintiffs seeking punitive damages. Plaintiffs must allege specific facts entitling them to punitive damages; mere conclusions do not suffice. Here, Plaintiffs do not come close to satisfying the minimum pleading requirements 10 for punitive damages. 11 California law “does not favor punitive damages and they should be granted with the 12 greatest caution.” Dyna-Med, Inc. v. Fair Employment & Housing Comm. (1987) 43 Cal.3d 13 1379, 1392. Under Civil Code section 3294, plaintiffs may recover punitive damages only 14 where the defendant has acted with “oppression, fraud, or malice.” Accordingly, the plaintiff 15 must plead facts showing “oppression,” “fraud” or “malice” to allege a claim for punitive 16 damages. Section 3294 includes the following definitions: 17 “Malice” means conduct which is intended by the defendant to 18 cause injury to the plaintiff or despicable conduct which is carried 19 on by the defendant with a willful and conscious disregard of the 20 rights or safety of others. “Oppression” means despicable conduct 21 that subjects a person to cruel and unjust hardship in conscious 22 disregard of that person’s rights. “Fraud” means an intentional 23 misrepresentation, deceit, or concealment of a material fact known 24 to defendant with the intention on the part of the defendant of 25 thereby depriving a person of property or legal rights or otherwise 26 causing injury. 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES California courts hold that fairness to the defendant requires punitive damage claims to be stated with specificity. In Lehto, the court discussed the requirements for pleading a claim of punitive damages, as follows: Appellant alleges generally those respondents acted maliciously and fraudulently. However, such allegations are without adequate specificity. “It is essential that the facts and circumstances which constitute the fraud should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer, and to enable the court to determine 10 whether, on the facts pleaded, there is any foundation, prima facie 11 at least, for the charge of fraud.” 12 Id. at 944 (citations omitted). 13 See also, G.D. Searle & Co., supra, 49 Cal.App.3d at 22. Accordingly, California courts 14 have repeatedly held that bald allegations such as “malice, 39 «6 conscious disregard,” or “fraud” 15 must be supported by specific facts. See e.g. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864; 16 Smith v. Superior Court (1992) 10 Cal.App.4th 1033 (issuing peremptory writ directing trial 17 court to grant motion to strike punitive damages allegations); Foy v. Greenblott (1983) 18 141 Cal.App.3d 1, 13-14 (allegations of “willful and reckless and wanton disregard” were 19 conclusions unsupported by facts and insufficient for punitive damages); Dawes v. Superio 20 Court (1980) 111 Cal.App.3d 82, 91 n.3 (allegations of reckless or conscious disregard were 21 mere conclusions that had to be supported by facts); Appl v. Lee Swett Livestock Co. (1987) 22 192 Cal.App.3d 466, 470 (allegations of “maliciously, willfully, oppressively, and deliberately” 23 and “fraudulently, with a lack of good faith and fair dealing” were improper conclusions). 24 California courts hold that fairness requires that punitive damage claims be pled with 25 firm and clear allegations of particular supporting facts; conclusory allegations are insufficient. 26 G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 28-29. Given the gravity of 27 punitive damage claims, boilerplate allegations will not suffice — Plaintiffs must state such 28 claims with specificity. See, e.g., Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042. 3- MEMORANDUM OF POINTS AND AUTHORITIES In Lehto v. Underground Construction Co. (1977) 69 Cal.App.3d 933, 944, the Court struck general allegations of malice and fraud and stated that punitive damage allegations “should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called upon to answer...” To establish malice, it is not sufficient to show only that the Defendant’s conduct was negligent, grossly negligent, or even reckless. There must be evidence that the Defendant acted with knowledge of the probable dangerous consequences to Plaintiffs’ interests and deliberately failed to avoid these consequences. Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal. App.3d 1149, 1155; see also Searle & Co. v. Sup. Ct. (1975) 49 Cal.App.3d 10 22, 31 [Section 3294 “views evil motive as the central, essential factor in the malice which 11 justifies an exemplary award”; this inquiry addresses a defendant’s actual state of mind and “is 12 not satisfied by characterizing his conduct as unreasonable, negligent, grossly negligent, or 13 reckless”]. Further, in Flyer’s, the Court held that: 14 Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or 15 in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does 16 not justify the imposition of punitive damages . Punitive damages are proper when the 17 tortious conduct rises to levels of extreme indifference to plaintiff's rights, a level which decent 18 citizens should not have to tolerate. 19 Here, Plaintiffs’ requests for punitive damages are grossly unsupported by specific facts. 20 While Plaintiffs allege fraud-based causes of action for fraudulent concealment, constructive 21 fraud, and negligent infliction of emotional distress. Plaintiffs’ facts, as pled in their TAC , do 22 nothing to apprise the Defendant, the parties, or this Court, of any factual specificity to support 23 the supposedly malicious, willful, oppressive, deliberate, or fraudulent activity by the Moving 24 Party Defendant. Plaintiffs’ TAC does nothing more than allege general accusations of fraud, 25 knowledge of fraud, and knowledge that Plaintiffs would be harmed as a result. These 26 allegations are not plead with the specificity required of fraud claims. 27 Thus, if the Court sustains Defendants’ Demurrer to the Plaintiffs’ Causes of Action for 28 Fraudulent Concealment, Constructive Fraud, and Negligent Infliction of Emotional Distress, -4- MEMORANDUM OF POINTS AND AUTHORITIES the Court must also necessarily strike Plaintiffs’ claim for punitive/exemplary damages which have been requested as relief for those causes of action. IV. CONCLUSION For the foregoing reasons, this Court should sustain the Defendant’s Motion to Strike with prejudice. DATED: February 13, 2024 CLAUSEN MILLER P.C. ) By: Wii an R. Feldman Tami Kay Lee 10 Attorneys for Defendant 11 JERRY GIROUARD dba GIROUARD PROPERTIES 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. MEMORANDUM OF POINTS AND AUTHORITIES DECLARATION OF TAMI KAY LEE I, Tami Kay Lee, declare: 1 I am an attorney at law licensed to practice before all the Courts in the State of California with the law firm of Clausen Miller P.C., counsel of record for Defendant JERRY GIROUARD dba GIROUARD PROPERTIES (“Girouard”). The following facts are within my own personal knowledge, except as to those matters stated to be on information and belief, which I believe to be true. If called as a witness, I could and would competently testify as to the facts contained in this declaration. 2. I submit this declaration in support of the Girouard’s Motion to Strike Plaintiffs 10 KELLY GREEN, BRIAN GREEN, RAQUELLA PETTIT, and JAKE BURKET (“Plaintiffs”) 11 punitive damage claims from the 3"! amended complaint and to document the meet and confer 12 process we have engaged in required under Code of Civil Procedure §430.41(a). 13 3 On December 26, 2023, Plaintiff filed his TAC pursuant to the Court’s order 14 sustaining Defendants’ demurrer to the Second Amended Complaint. 15 4 On January 25, 2024, Defendants counsel participated in a lengthy video call with 16 Plaintiffs’ counsels, Brian Newcomb and Richard Pierce. Defendants’ counsel thereafter 17 memorialized via email discussions during the video conference and requested an outline of 18 the additional allegations that Plaintiffs believed satisfied the heightened pleading requirement 19 for fraud-based claims. Attached as Exhibit A is a true and correct copy of the January 25, 2024 20 email memorializing the completed meet and confer with request for further detail on which 21 new allegations Plaintiffs believed satisfied the fraud-based claims. 22 5 Plaintiffs complied with the request to highlight those new allegations that meet 23 the required pleading for fraud-based clams and on January 29, 2024, Defendants counsel 24 received a highlighted copy of the new allegations which Plaintiffs. Attached as Exhibit B is a 25 true and correct copy of the email from Brian Newcomb presenting the third amended 26 complaint in yellow highlights (attached as Exhibit C) to support Plaintiffs’ position that the 27 highlighted portions meet the required pleading for fraud-based claims. However, Plaintiffs’ 28 -l- DECLARATION OF TAMI KAY LEE new allegations still do not meet the heightened pleading standard to maintain causes of action for fraud-based claims. 6 As of the date of filing this Demurrer, Plaintiffs did not agree to further amend its TAC, which required the filing of the instant Demurrer. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration is executed on February 13, 2024, in Los Angeles County, California. f° gas Tami Kay Lee 10576413.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DECLARATION OF TAMI KAY LEE EXHIBIT “A” From: Brian Newcomb To: ami Kay Les Ce: Ipiercelaw@qmail.com Subject: Re: MEET & CONFER: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-ClV-03762) Date: Friday, January 26, 2024 7:20:52 PM Attachments: imaqe001.jpq image002.qit | External Message Dear Ms. Lee: My apologies for the late response. Yes, you may have the extension to respond to the TAC through February 13, 2024. If you require additional time, please contact Richard or me. Kind regards, Brian W. Newcomb On Fri, Jan 26, 2024 at 6:57 PM Tami Kay Lee wrote: Brian / Richard, We need a response to below. ae aaa eee Absent hearing back from you as we discussed and agreed, we will proceed with filing our Demurrer to the fraud-based causes of action (2"4 and 3" causes of action) on Monday. Thank you. Tami Kay Lee | Partner Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691 949.260.3137 | vCard | bio EmailSignatureLogo96 a a Clausen Miller P.C. Illinois * New York * California + New J ersey * Indiana * Wisconsin * Connecticut «Florida * Texas Clausen Miller International London «Paris * Rome «Brussels This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient, any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error, please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you. From: Tami Kay Lee Sent: Thursday, January 25, 2024 4:14 PM To: Brian Newcomb ; rlpiercelaw@gmail.com Subject: MEET & CONFER: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22- CIV-03762) Importance: High Hi Brian and Richard, Thank you for your time this afternoon in discussing Plaintiffs’ Third amended complaint (“TAC”) and Defendant's intended Demurrer to the fraud-based claims presented under the 2"4 and 3™ Causes of Action for Fraudulent Concealment and Constructive which the Court sustained in our last round demurrer. We agreed that to assist the Court and streamline what was amended in the TAC that Brian will forward as soon as he is able, but no later than Monday 12:00 p.m., a redlined version of the SAC so new allegations submitted in the TAC regarding the fraud-based claims can be easily tracked for the Court's reference. As you know we intend to file a Demurrer to the TAC on the fraud-based claims under the 2"4 and 3" Causes of Action which will be due Monday. You agreed we can have a two week extension to file a Demurrer to the fraud-based claims under the 2"¢ and 3" Causes of Action, or until Tuesday, February 13, 2024. ee We'd like to avoid the Demurrer altogether so we hope you will reconsider in nd rd dismissing the fraud-based 2 and 3 causes of action in the TAC. Best, Tami Kay Lee | Partner Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691 949.260.3137 | vCard | bio EmailSignatureLogo96 a @ Clausen Miller P.C. Illinois * New York * California + New J ersey * Indiana * Wisconsin * Connecticut «Florida * Texas Clausen Miller International London «Paris * Rome «Brussels This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient, any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error, please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you. From: Tami Kay Lee Sent: Wednesday, January 24, 2024 9:23 AM To: Brian Newcomb Ce: rlpiercelaw@gmail.com Subject: RE: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-CIV-03762) Hi Brian, We need to meet and confer on Plaintiff's 3™ Amended Complaint regarding the fraud-based claims because, as amended, the allegations still do not meet required heightened pleading standard. Please advise if today at 2:30 p.m. is good for a call, or tomorrow after 1:00 p.m. anytime. Thank you Tami Kay Lee | Partner Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691 949.260.3137 | vCard | bio EmailSignatureLogo96 a a Clausen Miller P.C. Illinois * New York * California * New J ersey * Indiana * Wisconsin * Connecticut * Florida * Texas Clausen Miller International London «Paris * Rome «Brussels This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient, any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error, please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you. From: Brian Newcomb Sent: Friday, December 29, 2023 10:19 AM To: Lucy Ta Ce: rlpiercelaw@gmail.com; Tami Kay Lee <[Lee@clausen.com>; Hiren S. Bakrania Subject: Re: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-CIV-03762) | External Message Will do so. Xiomara Santamaria Legal Assistant to Brian W. Newcomb On Wed, Dec 27, 2023 at 2:16 PM Lucy Ta wrote: Good afternoon Mr. Newcomb, Please update your service list to include me for all future service and communication. Thank you. Lucy Ta | Legal Secretary Clausen Miller P.C. | 27285 Las Ramblas, Suite 200 | Mission Viejo, California 92691 949.260.3127 EmailSignatureLogo96 a Clausen Miller P.C. Illinois * New York * California * New J ersey * Indiana * Wisconsin * Connecticut «Florida * Texas Clausen Miller International London «Paris *Rome * Brussels This electronic mail and any attachments are privileged and confidential and may be protected by the attorney-client privilege or attorney work product doctrine. Itis intended solely for the use of the addressee identified above. If you are not the intended recipient, any use, disclosure, copying, or distribution of this electronic mail is unauthorized. If you have received this electronic mail in error, please notify the sender immediately by calling 949.260.3100 and delete it from your computer. Thank you From: Brian Newcomb Sent: Tuesday, December 26, 2023 6:50 PM To: Ian R. Feldman ; Tami Kay Lee ; Hiren S. Bakrania Ce: Richard Pierce ; Brian Newcomb Subject: Green v. Girouard - 3rd Amended Complaint (CASE NO. 22-CIV-03762) [External Message Dear Counsel: Attached please find the 3rd Amended Complaint, which has been submitted to the San Mateo County Superior Court for filing. Thank you, Xiomara Santamaria Legal Assistantto Brian W. Newcomb -- Brian W. Newcomb Attorney at Law 800 Menlo Avenue, Suite 209 Menlo Park, CA 94025 TEL: 650-322-7780 FAX: 650-322-7740 PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021 TELEPHONE, FAX AND EMAIL REMAIN THE SAME CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to sender that you have received the message in error, and delete this email and attachments from your system. -- Brian W. Newcomb Attorney at Law 800 Menlo Avenue, Suite 209 Menlo Park, CA 94025 TEL: 650-322-7780 FAX: 650-322-7740 PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021 TELEPHONE, FAX AND EMAIL REMAIN THE SAME CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to sender that you have received the message in error, and delete this email and attachments from your system. - Brian W. Newcomb Attorney at Law 800 Menlo Avenue, Suite 209 Menlo Park, CA 94025 TEL: 650-322-7780 FAX: 650-322-7740 PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021 TELEPHONE, FAX AND EMAIL REMAIN THE SAME CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to sender that you have received the message in error, and delete this email and attachments from your system. EXHIBIT “B” From: Brian Newcomb To: ami Kay Les Ce: ucy Ta; Richard Pierce Subject: RE: Green v. Girouard- 3rd Amended Complaint highlighted with the additions made Date: Monday, January 29, 2024 12:29:21 PM | External Message Dear Ms. Lee: In accord with our prior correspondence attached hereto is an endorsed filed copy of the Third Amended Complaint, which | compared against the Second Amended Complaint. The additions to the Second Amended Complaint, which are contained in the Third Amended are highlighted in yellow so you can see what new allegations are set/within the Third Amended Complaint. Kind regards, Brian W. Newcomb | GREEN - 3rd Amended Complaint Highlighted.pdf - Brian W. Newcomb Attorney at Law 800 Menlo Avenue, Suite 209 Menlo Park, CA 94025 TEL: 650-322-7780 FAX: 650-322-7740 PLEASE NOTE OUR CHANGE OF ADDRESS AS OF J ULY 1, 2021 TELEPHONE, FAX AND EMAIL REMAIN THE SAME CONFIDENTIALITY NOTICE: This e-mail (including attachments) is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521, and is confidential and may be legally privileged. If you are not the intended recipient, you are hereby notified that any retention, dissemination, distribution, or copying of this communication is strictly prohibited. Please reply to sender that you have received the message in error, and delete this email and attachments from your system. EXHIBIT “C” Brian W. Newcomb, Esq. (SBN: 55156) LAW OFFICE OF BRIAN W. NEWCOMB 800 Menlo Avenue, Ste. 209 Menlo Park, CA 94025-4732 Telephone: (650) 322-7780 Electronically Facsimile: (650) 322-7740 by Superior Court of Callfornia, County of San wateo Email: brianwnewcomb@gmail.com Richard L. Pierce, Esq. (SBN: 107185) LAW OFFICE OF RICHARD L. PIERCE 600 Allerton Street, Suite 200 Redwood City, CA 94063 Telephone: (650) 780-7928 Facsimile: (650) 249-0297 Email: rlpiercewlaw@gmail.com Attorneys for Plaintiffs 10 KELLY GREEN, BRIAN GREEN, RAQUELLA PETTIT AND JAKE BURKET 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 FOR THE COUNTY OF SAN MATEO 14 [UNLIMITED CIVIL CASE] 15 KELLY GREEN, BRIAN GREEN, CASE NO. CIV-22-03762 16 RAQUELLA PETTIT and JAKE BURKET, 17 THIRD AMENDED COMPLAINT Plaintiffs, FOR DAMAGES FOR BREACH OF 18 FIDUCIARY DUTY, FRAUDULENT Vv. CONCEALMENT, CONSTRUCTIVE 19 FRAUD, NEGLIGENCE, BREACH JERRY GIROUARD, INDIVIDUALLY, and OF CONTRACT, AND BREACH OF 20 dba GIROUARD PROPERTIES, and DOES CONTRACT BY A THIRD-PARTY BENEFICIARY 21 1-50, inclusive, 22 Defendants. 23 24 PLAINTIFFS Kelly Green, Brian Green, Raquella Pettit and Jake Burket allege 25 as follows: 26 27 It 28 I 1 THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY, FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY PARTIES 1 Plaintiffs Kelly Green and Brian Green are natural persons who reside in San Mateo County, California. Plaintiffs Raquella Pettit and Jake Burket are natural persons who reside in Del Norte County, California. 2. Defendant, Jerry Girouard (“Defendant”), is and at all times mentioned in this complaint was and is, a resident of San Mateo County, and that the acts complained of herein took place in San Mateo County. 3. The true names and capacities, whether individual, corporate, or otherwise, of defendants named herein as DOES 1 through 50, inclusive, are presently unknown 10 to Plaintiffs, who therefore sues these defendants by such fictitious names. Plaintiffs 11 are informed and believe and thereon allege that each of the defendants designated 12 herein as a Doe is legally responsible in some manner for the acts and omissions 13 herein alleged, and legally and proximately caused injury and damage to Plaintiffs as 14 hereinafter alleged. Plaintiffs will amend this Complaint to allege their true names and 15 capacities when they are ascertained. 16 4. Except as herein otherwise specifically alleged, Plaintiffs are informed and 17 believe and thereon allege that at all times mentioned herein each of the Defendants 18 was the alter-ego, agent, partner, agent, employee, and representative of each of the 19 remaining Defendants, and in doing the acts and omissions herein alleged, was 20 acting with the consent, permission and ratification of each of the other Defendants. 21 5. Defendant Jerry Girouard individually and doing business as Girouard 22 Properties is, and at all times mentioned in this complaint was, a real estate broker 23 duly licensed by the State of California doing business under the name Girouard 24 Properties, with his principal place of business in the City of San Mateo, County of 25 San Mateo, California. As used herein “Defendant”, or “Defendant Girouard or 26 Defendant Jerry Girouard” means Jerry Girouard individually doing business as 27 Girouard Properties. 28 6. On or about August 14, 2020, Plaintiffs Kelly Green and Brian Green signed a 2 THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY, FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY California Association of Realtors ("CAR") contract entitled “California Residential Purchase Agreement and Joint Escrow Instructions (“Agreement,” EXHIBIT 1 attached hereto) for the purchase of an 18-acre property that included a 400 square foot home located in Shasta County at 19600 Statton Acres Road, Lakehead, CA (the “Property”). The sellers (“SELLERS”) were Lynn Hunt and Ricardo De Monet, residents of San Carlos, CA. The parcel included what Seller Lynn Hunt described and showed Plaintiffs as a 400 square foot single-family home. The Greens were purchasing the Property for the daughter of Kelly Green (and Brian Green’s stepdaughter), Raquella Pettit, her partner Jake Burket and their daughter Willow, to 10 live on permanenily. 11 7. Defendant Jerry Girouard acted as the Broker for both Plaintiff Buyers and the 12 Sellers pursuant to a document both parties signed entitled “Possible Representation 13 of More Than One Buyer or Seller- Disclosure and Consent.” A copy of that 14 document signed on August 14, 2020 by Brian and Kelly Green is attached as 15 (EXHIBIT 2) and shall be referred to hereafter as the “Dual Representation 16 Agreement” and Defendant Girouard as the “Dual Agent.” Seller Lynn Hunt, who had 17 recommended to Plaintiffs using Defendant as the Dual Agent, never disclosed to 18 Plaintiffs that Defendant had previously acted on behalf of the Sellers during an 19 earlier effort to sell the Property. Defendant Girouard likewise never disclosed his 20 prior relationship with the Sellers and that he had previously spoken with a realtor 21 while she had an active listing agreement to sell the Property. 22 8. Defendant Girouard described the services he would render as “handling the 23 escrow paperwork," or words to that effect. Plaintiffs believed Defendant Girouard to 24 be knowledgeable and ethical broker who would satisfy his fiduciary duties, and 25 therefore agreed he could serve as a Dual Agent. Nowhere in (EXHIBIT 2, or 26 anywhere else, or verbally) was there any staternent that the services Defendant 27 would provide would limit in any way Defendant's duties under California law as a 28 licensed realtor to perform necessary inspections and to make full disclosures of any 3 THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY, FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY and all material facts and attributes he knew about the property at issue, from any source, that Defendant either becomes aware of or already knows. 9. As the Realtor for both sides, Defendant owed both Buyers and Sellers a fiduciary duty of utmost care, integrity, honesty and loyalty and the duty to protect the interest of both Parties to the best of Defendant's ability, even if that could be disadvantageous to Defendant. In that regard the obligations of Defendant were analogous to those of the trustee of a trust, that being the duty to act in the best interest of both Parties to the transaction- Defendant was obligated to ensure the issue or transaction at hand was fair to both. That duty included making both a full 10 disclosure of all material information and facts that were known to Defendant 11 Girouard and to be certain the Plaintiffs are aware of the Seller’s mandatory, non 12 waivable disclosure obligations to the Plaintiff Buyers. At a minimum, that should 13 have been done here, but was not. Nowhere in the Dual Agency Agreement 14 (EXHIBIT 2), or anywhere else, does it state, imply or infer that Defendant was not 15 obligated to act in his fiduciary capacity of looking out for the best interests of either 16 Buyers or Sellers if an issue presented itself that did not pertain to escrow related 7 paperwork. 18 10. At no time before or after the sale of the Property closed were any written 19 disclosures made or provided to Plaintiffs by Defendants of all issues and information 20 about the Property, from any source, nor were Plaintiff Buyers informed that the 21 disclosure duties of a seller were non waivable under California law. Defendant did 22 not disclose any information or material facts affecting the value or desirability of the 23 property as the dual agent. Defendants Jerry Girouard, individuall y and doing 24 business as Girouard Properties, was statutorily obligated to deliver to each Plaintiff 25 that each PI aintiff was supposed to reciv certain statutory notices requid by Civil 26 Code Sections 1102 through 1102.19 from the Seller prior to the close of escrow. 1 i fthe P 27 . ovide 28 Buyers with his written disclose, pursuant to Civil Code Section 2019 et seq 4 THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY, FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY [The Plaintiffs did not receive any of the written notices required by Civil Code Cee ee oe toe lliiaiainliiiniatiantielainnaned,by )Pefendants at any time prior to the, close of ascrow,that they. were to have. recsived eer 11. The purchase of the Property from the Sellers closed on September 8, 2020, and Raquella, Jake, and their daughter Willow moved onto the Property. In the next year, they spent thousands of dollars and most of their free time improving and enhancing the Property. 10 12. In late September of 2021, Plaintiffs Kelly and Brian Green were notified by 11 the Shasta County Building Department of Resource Management- Building 12 Department (Building Department”) there were multiple building and other code 13 violations on and about the Property, none of which had been disclosed to Plaintiffs 14 prior to the time they) purchased it. Those defects are contained in a document 15 entitled “Warning Notice” dated September 27, 2021, attached hereto as (EXHIBIT 16 7 Property included the following: the 400 square foot home was unpermitted and 18 would have to be demolished and a new, permitted dwelling had to be built before 19 the Property could be occupied permanently; the septic/waste system was 20 unpermitted; the electrical system had been connected illegally to PG& E power 21 poles and had to be re-connected properly; the plumbing system had to re-installed 22 because the existing system was illegally installed; and the dirt road from the public 23 roadway had been graded without a permit, rendering it illegal. 24 13 to 25 Propel owl nen on he opert h M Ro de bed wa “run-dow 26 ha d no be pe 27 28 5 THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY, FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY jearby cam ‘After purchasing i eC int {mprevements. fo. It, none ef wullich were, permmiltad)...2. [a ERGE, Suh WER improper, and the Property was subject to having the power cut off at any time. 3. The pole the power line was connected to was illegally in U.S. Forest Service land. The top of EXHIBIT Three states the following: “PLEASE TAKE NOTICE THAT A VIOLATION OF LAW EXISTS AS SET FORTH BELOW. YOUR FAILURE TO CORRECT THE VIOLATION(S), MAY RESULT IN A CITATION THAT COULD RESULT IN A MANDATORY COURT APPEARANCE AND A FINE. A PENALTY ASSESSMENT MAY BE ADDED TO THE FINE BY THE COURT. IN ADDITION, A NOTICE TO ABATE MAY BE ISSUED AND MAY LEAD TO AN ADMINISTRATIVE HEARING AND ADDITIONAL FINES AT THE RATE OF UP TO $1,000 PER DAY, PER VIOLATION.” 10 11 That was distressing to the Greens but particularly for Raquella and Jake. 12 Besides lacking the funds to even attempt to remedy some of the defects, nearly all 13 of which neither they nor the Greens were responsible for, Raquella and Jake knew 14 they would have to leave the Property. Pursuant to an agreement with the Shasta. 16 County Counsel's Office, Jake and Raquella were allowed to remain a total of two 16 months on the condition they “show progress” in cleaning up the Property and | 17 addressing certain of the issues raised in the Warming Notice, which they did. Jake | — 18 thus quit his job as a carpenter, which created an immediate money shortage. 19 Performing any tasks was also difficult because PG&E, on the order of the Building 20 Department, had cut off all power, necessitating the purchase of a $1,000.00 gas- 21 powered generator, Jake and Raquella (who was then three months pregnant) were 22 simultaneously also searching for a new place to live and were also trying to sell 23 and/or otherwise dispose of much of the personal property they had accumulated 24 and/or purchased in the last year. Raquella in particular suffered during those two 25 months, and afterwards; she worried about her family leaving the Property and where 26 they would go, especially if they hadto leave the Redding area for an unknown place 27 paid an adequate salary; and the need to find another OB-GYN. These and other 28 factors collectively created a growing concern for the future welfare of her family and 6 THIRD AMENDED COMPLAINT FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY, FRAUDULENT CONCEALMENT, CONSTRUCTIVE FRAUD, NEGLIGENCE, BREACH OF CONTRACT, AND BREACH OF CONTRACT BY A THIRD-PARTY BENEFICIARY caused Raquella great anxiety and mental distress. 14. None of the information that Plaintiffs contend Defendant failed. to disclose, or caused to not be disclosed, was of such type that would justify Defendant not disclosing it. Plaintiffs do not allege they were wrongly seeking information about the Sellers motivations for selling the Property. 15, On December 4, 2021, Jake and Raquella moved to Crescent City, California, a four-hour drive away. After initially living in a small travel trailer, they rented a home they could afford only because Jake would perform re-modeling work to that property in exchange for reduced rent. They have since found a new home to live in. 10 FIRST CAUSE OF ACTION BY PLAINTIFFS KELLY