Preview
H Richard E. Eichenbaum, Esq. SBN 157065
Dan C. Schaar, Esq. SBN 257737
Eva D. Silva, Esq. SBN 238826
CAPUTO & VAN DER WALDE LLP
51 E. Campbell Avenue, Suite 120
‘AC
a
Campbell, CA 95008 >
(408) 733-0100
(408) 733-0123 fax
F E gm E
‘
Attorneys for Plaintiff, / 9 '7
20??)
LALANI NAILAU
/ 0M H. vwsm
SUPERIOR COURT 0F CALIF
COUNTY 0F SANTA CLARA
MA
Supedorc
v ofCA 009$:er Clara
0mm
8
" '
LALANI NAILAU, Case No.: 16CV299824
Plaintiff, PLAINTIFF’S MEMORANDUM 0F
POINTS AND AUTHORITIES IN
vs.
OPPOSITION T0 DEFENDANTS’
MOTION T0 STRIKE PUNITIVE
SUSAN M. CLARKE and ALBERT K. DAMAGES FROM COMPLAINT
CLARKE, et a1.
Date: January 10, 2017
Defendants_ Tlme: 9:00 a.m.
Dept: 9
I. INTRODUCTION
Plaintiff LALANI NAILAU (hereafter, Ms. NAILAU) respectfully requests an order
1
denying Defendant SUSAN M. CLARKE and ALBERT K. CLARKE’S Motion to Strike. Ms.
'
NAILAU’s Complaint adequately addresses the issue of punitive damages according to the law
1
3
stated in the seminal drunk driving case 0f Taylor v. Superior Court (I979) 24 Cal.3d 890, 895,
and its progeny. Should the Court disagree, Ms. NAILAU respectfully requests 15 days leave to
amend to cure any error the Court and parties perceive in the pleading.
II. ARGUMENT
a. MOTIONS TO STRIKE ARE DISFAVORED REMEDIES.
Motions t0 strike are disfavored. The pleadings must be construed liberally, with a view
toward substantial justice. CCP § 452. [n order to survive a motion t0 strike punitive damages,
t
“ultimate facts showing an entitlement to such relief must be pled.” Clauson v. Superior Court
‘
PLAINTIFF'S MEMORANDUM OF POINTS & AUTHORITIES CAPUTO & VAN DER WALDE LLP
1N SUPPORT OF OPPOSITION TO DEFENDANTS CAMPBELL AVENUE. SUITE 120
51 E.
CAMPBELL! CA 95008 (408) 7330100
MOTION TO STRIKE PUNITIVE DAMAGES PAGE |
(1998) 67 Cal.App.4th 1253, 1255. “In passing on the correctness of a ruling on a motion to strike,
Judges read allegations of a pleading subject t0 a motion to strike as a whole, all parts in their
context, and assume their truth. In ruling on a motion to strike, courts d0 not read allegations in
isolation.” Id. (internal citations omitted).
\OOO\]O’\UILU)Nv—t
b. THE PUNITIVE DAMAGES ALLEGATIONS IN MS. NAILAU’S
COMPLAINT ARE SUFFICIENT.
Defendants cite to cases such as Bartlett v. Jackson (1936) l3 Cal.App.2d 435, Brousseau
v. Jarretl(1977) 73 Cal.App.3d 864, Lazar v. Superior Court ( 1996) 12 Cal.4"‘ 631, and Ebaugh v.
Rabkin (1972) 22 Cal.App.3d 891 in their moving papers t0 support the proposition that specific
facts need t0 be pled t0 support the punitive damages allegations made. They complain that Ms.
NAILAU’S complaint does not contain any specific facts about when Defendant SUSAN M.
65:5
CLARKE drank, how much she drank, where, whether she was legally intoxicated, her blood
alcohol content, and provides n0 details about a police investigation.
14 Interestingly, the cases above d0 not involve drunk driving. While the above cases are good
law 0n punitive damages, other cases exist that are specific to this issue — and explain the choice of
16 words used in Ms. NAILAU’S Complaint. We must turn to Taylor v. Superior Court (1979) 24
17 Cal.3d 890, to understand the state of the law, and the pleading at issue in this case. Taylor
18 actually decided the issue of whether punitive damages were recoverable, at all, “in a personal
19 injury action brought against an intoxicated driver.” Taylor, supra, at 892. The court concluded
that “the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under
section 3294 if performed under circumstances which disclosed a conscious disregard of the
probable dangerous consequences.” Taylor, at 893. This was an important decision at the time,
given that cases before it, such as Gombos v. Ashe ( 1958) 158 Cal.App.2d 517, 527, and Ebaugh v.
Rabkin ( 1972) 22 Cal.App.3d 891, had held that malice required evil intent.
sas_abzfiosss
The Taylor court held, specifically, that drunk driving can satisfy the “conscious disregard
of safety requirement” set out in the G.D. Searle & C0. v. Superior Court ( 1975) 49 Cal.App.3d 22,
at 32. “In order to justify an award of punitive damages on this basis, the plaintiff must establish
that the defendant was aware of the probable dangerous consequences of his conduct, and that he
PLAINTIFFS
IN
MEMORANDUM C 15 POINTS & AUTHORITIES
SUPP?RT OF OPPOSTTYIONka DEFENDAN S I
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MOTION TO STRIKE PLNITIV E DAMAGES PAGE 2
Y
willfully and deliberately failed t0 avoid those consequences.” Taylor, supra, at 896, citing Searle,
at 32.
The Taylor decision is further interesting in that it gives good guidance 0n what is required
in terms 0f pleading a punitive damages claim when drunk driving is at issue. In the Taylor case,
\oooquAAmN...
the Plaintiff included the defendant’s history 0f alcoholism, prior arrests and convictions for DUI,
prior accidents attributable to intoxication, and acceptance of employment involving the
transportation 0f alcoholic beverages. Taylor, supra, at 896. The court noted these to possibly
“heighten the probability and foreseeability 0f an accident,” but stated that they did not “deem
these aggravating factors essential prerequisites to the assessment of punitive damages in drunk
dn'ving cases.” Taylor, id.
“There is a very commonly understood risk which attends every motor vehicle diiver who
$535
is intoxicated. One who willfully consumes alcoholic beverages to the point of intoxication,
knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired
14 physical and mental faculties With a vehicle capable of great force and speed, reasonably may be
held to exhibit a conscious disregard of the safety 0f others. The effect may be lethal whether 0r
16 not the driver had a prior history 0f drunk driving incidents.” Taylor, at 896—897.
17 This is exactly what Ms. NAILAU has pled in her Complaint — that Defendant SUSAN M.
CLARKE willfully consumed alcoholic beverages t0 the point of intoxication, knowing that she
19 thereafter must operate a motor vehicle, thereby combining her sharply impaired physical and
mental faculties with a vehicle capable of great force and speed. As a result of these acts, she
exhibited a conscious disregard of the rights and safety of Plaintiff, Lalani Nailau. (See Exemplary
Damages Attachment to Plaintiff’s Complaint, attached as Exhibit A t0 Declaration 0f Daniel
Balich, with Defendant’s moving papers). Nothing more is required under Taylor.
c. DEFENDANT SUSAN M. CLARKE HAS SUPERIOR KNOWLEDGE OF
SPECIFIC FACTUAL INFORMATION REGARDING HER DECISION TO
$888‘RBB
DRIVE WHILE INTOXICATED, AND THUS NO MORE IS REQUIRED.
In cases Where the Defendant has superior knowledge of the facts at issue, heightened
pleading standards can be relaxed. Doe v. City ofLos Angeles (2007) 42 Cal.4“‘ 53 1, 549-550;
Committee 0n Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217; Miles
CAPUFO & VAN DER WALDE LLP
IN
MEMORANDUM 0F POINTS & AUTHORITIES
PLAINTIFF’S
SUPPORT 0F OPPOSITION To DEFENDANTS‘
MOTION To STRIKE PL’NmVE DAMAGES PAGE 3
Sé
E-
“I fl n
gffi :mgggigg
’
v. Deutsche Bank Nat’l Trust C0. (2015) 236 Cal.App.4‘h 394, 403-404. “[E]ven under the strict
rules of common law pleading, one 0f the canons was that less particularity is required when the
facts lie more in the knowledge 0f the opposite party. Committee 0n Children’s Television, Inc.,
Id. (superseded by statute on other grounds in Branick v. Downey Savings & Loan Assn. (2006) 39
OWQQMAWNv—t
Ca1.4”‘ 235, 242). While the above cases do not touch 0n drunk driving cases with punitive
damages allegations, Defendant SUSAN M. CLARKE is essentially arguing that Ms. NAILAU
include specific facts that allege the circumstances surrounding Defendant SUSAN M. CLARKE’S
knowledge in regard t0 operating a motor vehicle after allegedly consuming alcohol. This would
essentially require Ms. NAILAU to climb inside Defendant SUSAN M. CLARKE’S mind, and
allege facts that Ms. NAILAU simply does not have access to. Such factual information is within
Defendants’ possession — not Plaintiff’s. Plaintiff should not be required to plead it here.
III. CONCLUSION
Based on the foregoing, Ms. NAILAU respectfully requests an order denying Defendants’
motion in its entirety. Should the court believe that more facts are required to support the punitive
damages allegations, Plaintiff NAILAU respectfully requests 15 days leave to amend.
BBEE’SEGEwBEE
Respectfully submitted.
Dated: December 27, 2016 CAPgIQfl/t VAN DER WABPE LLP
C. Sch , Esq.
Attorneys fo Plaintiff
"
'
i
LALANI ILAU
» 1—”
/
/
//
wt’nafi‘fiwB
PLAINTIFF's MEMORANDUM 0F POINTS & AUTHORn‘iEs CAPUTO & VAN DER WALDE 111’
IN SUPPORT OF OPPOSITION TO DEFENDANTS
51 E. CAWBEL AVENUE, SUITE 120
C BELL, CA 95008 (408) 7330100
MOTION TO STRIKE PUNITIVE DAMAGES PAGE 4
Case Name: Nailau v. Clarke, et al.
Case No.: 16CV299824
PROOF OF SERVICE
I am over the age of eighteen years and not a party F; “gthiktiE
address is 51 East Campbell Avenue, Suite 120, Campbell, CA 956w» i atitriiifiploein the
DAV!
wfqmmWAM m
\oooqoxulhmmp.
county 0f Santa Clara where this sen icc occurs. I am readily Sler’ s normal
anhCIQJ-QPUTY
business practice for collection and processing of correspondence f0
'
'ng with U.S. Postal
r
Service, and that practice is that the correspondence is deposited ”Service the
same day as the day of collection in the ordinary course of business.
On the date set forth below, following ordinary business practice, I served a true copy 0f the
ESEE foregoing document(s) described as:
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM COMPLAINT
14
0n the parties listed below.
(BY MAIL) I caused such envelopc(s) with postage thereon fully prepaid to be placed in the United States mail
at Campbell, California.
16 (BY FAX) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below,
or as stated on the attached service list, on this date before 5:00 pm.
17 (BY HAND-DELIVERY BY COURIER SERVICE) I caused such envelope(s) to be delivered to a same-day
courier service with delivery fees provided for, addressed to the person(s) on whom it is to be served.
18 (BY OVERNIGHT DELIVERY) I caused such envelope(s) lo be delivered to an overnight delivery carrier
X with delivery fees provided for, addressed t0 the person(s) on whom it is to be served.
19 (BY PERSONAL SERVICE) I caused such envelope(s) t0 be delivered by hand this date t0 the offices
of the addressee(s).
Other. REGISTERED MAIL; RETURN RECEIPT REQUES'I‘ED-I caused such envelopes to be delivered by
BB registered mail to the offices of the addresses listed belowt
Thomas J. Murray, Esq. Attorneyfor Defendants,
Kern, Noda, Devine & Sega] Susan M. Clarke and Albert K. Clarke
1388 Sutter Street, Suite 600
San Francisco, CA 94109
Telephone: (415) 474-1900
Facsimile: (415) 474-0302
wflabfi‘RBB
I certify and declare under penalty of peijury under the laws of California that the foregoing
is true and correct.
Executed on: December 27, 2016 MM m .mian Sullivan
/\ A /\
PROOF OF SERV ICE
Preview
H Richard E. Eichenbaum, Esq. SBN 157065 Dan C. Schaar, Esq. SBN 257737 Eva D. Silva, Esq. SBN 238826 CAPUTO & VAN DER WALDE LLP 51 E. Campbell Avenue, Suite 120 ‘AC a Campbell, CA 95008 > (408) 733-0100 (408) 733-0123 fax F E gm E ‘ Attorneys for Plaintiff, / 9 '7 20??) LALANI NAILAU / 0M H. vwsm SUPERIOR COURT 0F CALIF COUNTY 0F SANTA CLARA MA Supedorc v ofCA 009$:er Clara 0mm 8 " ' LALANI NAILAU, Case No.: 16CV299824 Plaintiff, PLAINTIFF’S MEMORANDUM 0F POINTS AND AUTHORITIES IN vs. OPPOSITION T0 DEFENDANTS’ MOTION T0 STRIKE PUNITIVE SUSAN M. CLARKE and ALBERT K. DAMAGES FROM COMPLAINT CLARKE, et a1. Date: January 10, 2017 Defendants_ Tlme: 9:00 a.m. Dept: 9 I. INTRODUCTION Plaintiff LALANI NAILAU (hereafter, Ms. NAILAU) respectfully requests an order 1 denying Defendant SUSAN M. CLARKE and ALBERT K. CLARKE’S Motion to Strike. Ms. ' NAILAU’s Complaint adequately addresses the issue of punitive damages according to the law 1 3 stated in the seminal drunk driving case 0f Taylor v. Superior Court (I979) 24 Cal.3d 890, 895, and its progeny. Should the Court disagree, Ms. NAILAU respectfully requests 15 days leave to amend to cure any error the Court and parties perceive in the pleading. II. ARGUMENT a. MOTIONS TO STRIKE ARE DISFAVORED REMEDIES. Motions t0 strike are disfavored. The pleadings must be construed liberally, with a view toward substantial justice. CCP § 452. [n order to survive a motion t0 strike punitive damages, t “ultimate facts showing an entitlement to such relief must be pled.” Clauson v. Superior Court ‘ PLAINTIFF'S MEMORANDUM OF POINTS & AUTHORITIES CAPUTO & VAN DER WALDE LLP 1N SUPPORT OF OPPOSITION TO DEFENDANTS CAMPBELL AVENUE. SUITE 120 51 E. CAMPBELL! CA 95008 (408) 7330100 MOTION TO STRIKE PUNITIVE DAMAGES PAGE | (1998) 67 Cal.App.4th 1253, 1255. “In passing on the correctness of a ruling on a motion to strike, Judges read allegations of a pleading subject t0 a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts d0 not read allegations in isolation.” Id. (internal citations omitted). \OOO\]O’\UILU)Nv—t b. THE PUNITIVE DAMAGES ALLEGATIONS IN MS. NAILAU’S COMPLAINT ARE SUFFICIENT. Defendants cite to cases such as Bartlett v. Jackson (1936) l3 Cal.App.2d 435, Brousseau v. Jarretl(1977) 73 Cal.App.3d 864, Lazar v. Superior Court ( 1996) 12 Cal.4"‘ 631, and Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891 in their moving papers t0 support the proposition that specific facts need t0 be pled t0 support the punitive damages allegations made. They complain that Ms. NAILAU’S complaint does not contain any specific facts about when Defendant SUSAN M. 65:5 CLARKE drank, how much she drank, where, whether she was legally intoxicated, her blood alcohol content, and provides n0 details about a police investigation. 14 Interestingly, the cases above d0 not involve drunk driving. While the above cases are good law 0n punitive damages, other cases exist that are specific to this issue — and explain the choice of 16 words used in Ms. NAILAU’S Complaint. We must turn to Taylor v. Superior Court (1979) 24 17 Cal.3d 890, to understand the state of the law, and the pleading at issue in this case. Taylor 18 actually decided the issue of whether punitive damages were recoverable, at all, “in a personal 19 injury action brought against an intoxicated driver.” Taylor, supra, at 892. The court concluded that “the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclosed a conscious disregard of the probable dangerous consequences.” Taylor, at 893. This was an important decision at the time, given that cases before it, such as Gombos v. Ashe ( 1958) 158 Cal.App.2d 517, 527, and Ebaugh v. Rabkin ( 1972) 22 Cal.App.3d 891, had held that malice required evil intent. sas_abzfiosss The Taylor court held, specifically, that drunk driving can satisfy the “conscious disregard of safety requirement” set out in the G.D. Searle & C0. v. Superior Court ( 1975) 49 Cal.App.3d 22, at 32. “In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he PLAINTIFFS IN MEMORANDUM C 15 POINTS & AUTHORITIES SUPP?RT OF OPPOSTTYIONka DEFENDAN S I . si C ECrgPUTO . AMPBEIJ A B CA 9 m & VAiDPR WALDF. 11151sz[1153 8 (408) 733-0100 MOTION TO STRIKE PLNITIV E DAMAGES PAGE 2 Y willfully and deliberately failed t0 avoid those consequences.” Taylor, supra, at 896, citing Searle, at 32. The Taylor decision is further interesting in that it gives good guidance 0n what is required in terms 0f pleading a punitive damages claim when drunk driving is at issue. In the Taylor case, \oooquAAmN... the Plaintiff included the defendant’s history 0f alcoholism, prior arrests and convictions for DUI, prior accidents attributable to intoxication, and acceptance of employment involving the transportation 0f alcoholic beverages. Taylor, supra, at 896. The court noted these to possibly “heighten the probability and foreseeability 0f an accident,” but stated that they did not “deem these aggravating factors essential prerequisites to the assessment of punitive damages in drunk dn'ving cases.” Taylor, id. “There is a very commonly understood risk which attends every motor vehicle diiver who $535 is intoxicated. One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired 14 physical and mental faculties With a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety 0f others. The effect may be lethal whether 0r 16 not the driver had a prior history 0f drunk driving incidents.” Taylor, at 896—897. 17 This is exactly what Ms. NAILAU has pled in her Complaint — that Defendant SUSAN M. CLARKE willfully consumed alcoholic beverages t0 the point of intoxication, knowing that she 19 thereafter must operate a motor vehicle, thereby combining her sharply impaired physical and mental faculties with a vehicle capable of great force and speed. As a result of these acts, she exhibited a conscious disregard of the rights and safety of Plaintiff, Lalani Nailau. (See Exemplary Damages Attachment to Plaintiff’s Complaint, attached as Exhibit A t0 Declaration 0f Daniel Balich, with Defendant’s moving papers). Nothing more is required under Taylor. c. DEFENDANT SUSAN M. CLARKE HAS SUPERIOR KNOWLEDGE OF SPECIFIC FACTUAL INFORMATION REGARDING HER DECISION TO $888‘RBB DRIVE WHILE INTOXICATED, AND THUS NO MORE IS REQUIRED. In cases Where the Defendant has superior knowledge of the facts at issue, heightened pleading standards can be relaxed. Doe v. City ofLos Angeles (2007) 42 Cal.4“‘ 53 1, 549-550; Committee 0n Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217; Miles CAPUFO & VAN DER WALDE LLP IN MEMORANDUM 0F POINTS & AUTHORITIES PLAINTIFF’S SUPPORT 0F OPPOSITION To DEFENDANTS‘ MOTION To STRIKE PL’NmVE DAMAGES PAGE 3 Sé E- “I fl n gffi :mgggigg ’ v. Deutsche Bank Nat’l Trust C0. (2015) 236 Cal.App.4‘h 394, 403-404. “[E]ven under the strict rules of common law pleading, one 0f the canons was that less particularity is required when the facts lie more in the knowledge 0f the opposite party. Committee 0n Children’s Television, Inc., Id. (superseded by statute on other grounds in Branick v. Downey Savings & Loan Assn. (2006) 39 OWQQMAWNv—t Ca1.4”‘ 235, 242). While the above cases do not touch 0n drunk driving cases with punitive damages allegations, Defendant SUSAN M. CLARKE is essentially arguing that Ms. NAILAU include specific facts that allege the circumstances surrounding Defendant SUSAN M. CLARKE’S knowledge in regard t0 operating a motor vehicle after allegedly consuming alcohol. This would essentially require Ms. NAILAU to climb inside Defendant SUSAN M. CLARKE’S mind, and allege facts that Ms. NAILAU simply does not have access to. Such factual information is within Defendants’ possession — not Plaintiff’s. Plaintiff should not be required to plead it here. III. CONCLUSION Based on the foregoing, Ms. NAILAU respectfully requests an order denying Defendants’ motion in its entirety. Should the court believe that more facts are required to support the punitive damages allegations, Plaintiff NAILAU respectfully requests 15 days leave to amend. BBEE’SEGEwBEE Respectfully submitted. Dated: December 27, 2016 CAPgIQfl/t VAN DER WABPE LLP C. Sch , Esq. Attorneys fo Plaintiff " ' i LALANI ILAU » 1—” / / // wt’nafi‘fiwB PLAINTIFF's MEMORANDUM 0F POINTS & AUTHORn‘iEs CAPUTO & VAN DER WALDE 111’ IN SUPPORT OF OPPOSITION TO DEFENDANTS 51 E. CAWBEL AVENUE, SUITE 120 C BELL, CA 95008 (408) 7330100 MOTION TO STRIKE PUNITIVE DAMAGES PAGE 4 Case Name: Nailau v. Clarke, et al. Case No.: 16CV299824 PROOF OF SERVICE I am over the age of eighteen years and not a party F; “gthiktiE address is 51 East Campbell Avenue, Suite 120, Campbell, CA 956w» i atitriiifiploein the DAV! wfqmmWAM m \oooqoxulhmmp. county 0f Santa Clara where this sen icc occurs. I am readily Sler’ s normal anhCIQJ-QPUTY business practice for collection and processing of correspondence f0 ' 'ng with U.S. Postal r Service, and that practice is that the correspondence is deposited ”Service the same day as the day of collection in the ordinary course of business. On the date set forth below, following ordinary business practice, I served a true copy 0f the ESEE foregoing document(s) described as: PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS’ MOTION TO STRIKE PUNITIVE DAMAGES FROM COMPLAINT 14 0n the parties listed below. (BY MAIL) I caused such envelopc(s) with postage thereon fully prepaid to be placed in the United States mail at Campbell, California. 16 (BY FAX) by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as stated on the attached service list, on this date before 5:00 pm. 17 (BY HAND-DELIVERY BY COURIER SERVICE) I caused such envelope(s) to be delivered to a same-day courier service with delivery fees provided for, addressed to the person(s) on whom it is to be served. 18 (BY OVERNIGHT DELIVERY) I caused such envelope(s) lo be delivered to an overnight delivery carrier X with delivery fees provided for, addressed t0 the person(s) on whom it is to be served. 19 (BY PERSONAL SERVICE) I caused such envelope(s) t0 be delivered by hand this date t0 the offices of the addressee(s). Other. REGISTERED MAIL; RETURN RECEIPT REQUES'I‘ED-I caused such envelopes to be delivered by BB registered mail to the offices of the addresses listed belowt Thomas J. Murray, Esq. Attorneyfor Defendants, Kern, Noda, Devine & Sega] Susan M. Clarke and Albert K. Clarke 1388 Sutter Street, Suite 600 San Francisco, CA 94109 Telephone: (415) 474-1900 Facsimile: (415) 474-0302 wflabfi‘RBB I certify and declare under penalty of peijury under the laws of California that the foregoing is true and correct. Executed on: December 27, 2016 MM m .mian Sullivan /\ A /\ PROOF OF SERV ICE