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1 William P. Schneider (SBN 96104)
Steven R. Myers (SBN 203694)
2 LAW OFFICES OF JOHN A. BIARD 2/18/2021
P.O. Box 64093
3 St. Paul, Minnesota 55164-0093
Physical Address:
4 401 Lennon Lane, Suite 125
Walnut Creek, California 94598
5 Telephone: (925) 945-4491
Facsimile: (855) 668-5559
6 E-Mail: wschneid@travelers.com
7 Attorneys for Cross-Defendants
JOHN OEHLERT and ELIZABETH OEHLERT
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SAN MATEO
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12 JOHN OEHLERT and ELIZABETH Case No.: 18CIV04922
OEHLERT, TRUSTEES of the TRUST OF
13 JOHN AND ELIZABETH OEHLERT, dated JOHN OEHLERT AND ELIZABETH
September 6, 2003 and amended April 8, 2008 OEHLERT, TRUSTEES, NOTICE OF
14 MOTION AND MOTION TO STRIKE
Plaintiffs, PUNITIVE DAMAGES ALLEGATIONS
15 FROM FIRST AMENDED CROSS-
v. COMPLAINT OF OLENA
16 CHEREDNYCHENKO
DON M. HEINSOHN and OLEANA
17 CHEREDNYCHENKO, and DOES 1 through Date: APRIL 28, 2021
20, inclusive, Time; 2:00 PM
18 Dept: 02 Law & Motion
Defendants.
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20 OLEANA CHEREDNYCHENKO,
21 Cross-Complainant,
22 v.
23 JOHN OEHLERT and ELIZABETH
OEHLERT, TRUSTEES of the TRUST OF
24 JOHN AND ELIZABETH OEHLERT, dated
September 6, 2003 and amended April 8, 2008,
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Cross-Defendants.
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OEHLERT’S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER MATTER FROM
THE FIRST AMENDED CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on __________________ at _________, or as soon thereafter
3 as the matter may be heard, in the Law & Motion Department of the San Mateo Superior Court, located
4 at 400 County Center, Redwood City, California 94063, cross-defendants John Oehlert and Elizabeth
5 Oehlert (“Oehlert”) will, and hereby do move for an order striking portions of the First Amended
6 Cross-Complaint (“FAC”) on the grounds that the personal attacks on Elizabeth Oehlert contained in
7 the third cause of action constitute irrelevant and improper matter; that the punitive damages
8 allegations constitute improper matter in that no prayer for punitive damages is supported by the
9 allegations in the FAC; and that these allegations each should be stricken pursuant to Code of Civil
10 Procedure sections 431.10 and 436. The specific portions of the FAC which Oehlert seeks stricken are:
11 1. FAC, p. 12 consisting of the portion of the Third Cause of Action with the heading “Slander
12 and Libel” as follows: “Elizabeth Oehlert has an extensive history of violently attacking
13 other people in our town, as on or about August 25, 2020, Elizabeth Oehlert came into Posh
14 Moon, a store located in Half Moon Bay, and according to a witness, ‘...went on a psychotic
15 trade [sic], ranting and raving about her ignorant and racist views....” until the owner of the
16 store experienced a severe panic attack. Print screens of the posts on Nextdoor platform
17 describing the incident are attached (Exhibit E).”
18 2. FAC, pp.23-24, consisting of Exhibit E in its entirety, consisting of the Nextdoor printouts
19 referenced on page 12 of the FAC as set out above.
20 3. FAC, p. 25, ¶ EX-1, consisting of the checkboxes for malice, fraud, and oppression.
21 4. FAC, p. 25, ¶ EX-3, alleging that the amount of punitive damages “will be provided after
22 discovery process.”
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24 This motion is based on this notice of motion, the accompanying memorandum of points and
25 authorities, the accompanying meet-and-confer declaration of William P. Schneider, and on the First
26 Amended Cross-Complaint of Olena Cherednychenko on file herein and attached to the Declaration of
27 William P. Schneider.
28 ///
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OEHLERT’S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER MATTER FROM
THE FIRST AMENDED CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO
1 PLEASE TAKE FURTHER NOTICE THAT, pursuant to Local Rule 3.10, the San Mateo
2 Superior Court has adopted a tentative ruling system as follows in pertinent part:
3 3.10 Tentative Rulings
4 (a) Reference California Rules of Court, rule 3.1308
5 (b) Availability. A tentative ruling on any law and motion matter may be obtained by
telephoning (650) 261-5019, after 3:00 p.m. on the first court day immediately preceding
6 the hearing on the motion or by accessing the court’s website at
http://www.sanmateocourt.org/director.php?filename=./lawmotion/alltentrules.php
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(c) Notice of Intent to Appear. Reference California Rules of Court, rule 3.1308(a)(1).
8 Parties intending to appear on the matter shall notify the Law and Motion Department or
the department hearing the case and state their intent to appear. Parties shall follow the
9 instructions as directed on the telephone Tentative Ruling notification message or on the
Court’s website.
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(1) A party intending to appear in order to contest the tentative ruling on a matter
11 calendared for hearing in the Law & Motion Department must notify the Law & Motion
Department by 4:00 p.m. on the court day before the hearing either by (i) telephoning
12 (650) 261- 5019, or copied to all parties or their counsel of record. If by email, it must
include the name of the case, the case number, and the name of the party contesting the
13 tentative ruling.
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15 Dated: February 18, 2021 LAW OFFICES OF JOHN A. BIARD
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17 William P. Schneider
Attorneys for Cross-Defendants
18 JOHN OEHLERT and ELIZABETH OEHLERT
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OEHLERT’S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER MATTER FROM
THE FIRST AMENDED CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO
1 PROOF OF SERVICE
2 John Oehlert v. Don M. Heinsohn, et al.
San Mateo County Superior Court Case No.: 184CIV04922
3
I declare that I am over the age of eighteen (18) years, and not a party to the within entitled action.
4 I am employed at the LAW OFFICES OF JOHN A. BIARD, 401 Lennon Lane, Suite 125, Walnut Creek,
CA 94598. On the date listed below, I caused to be served true and accurate copies of the following
5 document(s):
6 JOHN OEHLERT AND ELIZABETH OEHLERT, TRUSTEES, NOTICE OF MOTION AND
MOTION TO STRIKE PUNITIVE DAMAGES ALLEGATIONS FROM FIRST AMENDED
7 CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO
8 JOHN OEHLERT AND ELIZABETH OEHLERT, TRUSTEES, MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION TO STRIKE PUNITIVE DAMAGES AND
9 IMPROPER MATTER FROM FIRST AMENDED CROSS-COMPLAINT OF OLENA
CHEREDNYCHENKO
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MEET AND CONFER DECLARATION OF WILLIAM P. SCHNEIDER IN SUPPORT OF
11 DEMURRER BY JOHN OEHLERT AND ELIZABETH OEHLERT, TRUSTEES, TO FIRST
AMENDED CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO AND MOTION TO
12 STRIKE
13 addressed as follows:
14 Olena Cherednychenko In Pro Per
1170 Main Street
15 Montara, CA 94037 Tel (650) 505-7185
Fax (650) 563-4331
16 olenachered@gmail.com
17 by:
18 By U.S. Mail: I enclosed the documents in a sealed envelope or package addressed to the person(s) set
forth herein.
19 placed the envelope for collection and mailing following our ordinary business practices. I am
readily familiar with this business’s practice for collecting and processing correspondence for mailing.
20 On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service in a sealed envelope with postage fully prepaid.
21 deposited the sealed envelope with the United State Postal Service with the postage fully prepaid.
Electronic Service: I transmitted a true copy of the document(s) by an electronic mail account maintained
22 at the Law Offices of John A. Biard to the e-mail address(es) set forth herein.
Pursuant to California Rules of Court, Emergency Rule 12 (Electronic Service) related to COVID-19,
23 I caused the document to be sent to the persons at the electronic service/mail addresses listed above.
The electronic service/mail address from which I served the document is kamable@travelers.com. No
24 message was received within a reasonable time after service indicating transmission was unsuccessful.
25 and
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OEHLERT’S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER MATTER FROM
THE FIRST AMENDED CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO
1 Simon O. Offord Attorneys for Plaintiffs
Ashlee Gonzales
2 Brewer Offord & Pederson, LLP Tel (650) 327-2900
2501 Park Boulevard, 2nd Floor Fax (650) 327-5959
3 Palo Alto, CA 94306 simon@brewerfirm.com
ashlee@brewerfirm.com
4 Amy Carlson Attorneys for Don Heinsohn
Carbone, Smith & Koyama
5 1735 Technology Drive, Suite 500 Tel (408) 392-8654
San Jose, CA 95110-1390 Fax (408) 983-0780
6 amy.carlson@csaa.com
7 Kathryn Carroll Klaus Attorney for Olena Cherednychenko
Coddington Hicks & Danforth APC
8 555 Twin Dolphin Drive, Suite 300 Tel (650) 592-5400
Redwood City, CA 94065-2133 Fax (650) 592-5027
9 kklaus@chdlawyers.com
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by:
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Electronic Service: I transmitted a true copy of the document(s) by an electronic mail account maintained
12 at the Law Offices of John A. Biard to the e-mail address(es) set forth herein.
Pursuant to California Rules of Court, Emergency Rule 12 (Electronic Service) related to COVID-19,
13 I caused the document to be sent to the persons at the electronic service/mail addresses listed above.
The electronic service/mail address from which I served the document is kamable@travelers.com. No
14 message was received within a reasonable time after service indicating transmission was unsuccessful.
15 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed on February 18, 2021 at Walnut Creek, California.
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Kari Amable
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OEHLERT’S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER MATTER FROM
THE FIRST AMENDED CROSS-COMPLAINT OF OLENA CHEREDNYCHENKO