Preview
oOo won nun fF won —
Ie SS) IS) RO NSN
oronnauwn FB wns CO HUD DN DU FF WN | SS
20CV373218
Santa Clara — Civil
V. Castan
DANIELA P. STOUTENBURG, BAR NO. 183785 ecu oneal yaled
THOMAS M. GRAY, BAR No, 265212 by Superior Court of CA,
SCHUERING ZIMMERMAN & DOYLE, LLP County of Santa Clara,
400 University Avenue on 11/10/2021 12:33 PM
facamnento California 95825-6502 Reviewed By: V. Castaneda
916) 567-0400
RAS a cesto400 Case #20CV373218
Envelope: 7642464
Attorneys for Defendants STANFORD HEALTH CARE;
UNIVERSITY HEALTH CARE ALLIANCE; PAMELA LEE
SCHREIBER, CNS; EINAR OTTESTAD, M.D.; and
SHANIA SHEPHERD, BSN, RN
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
JANE DOE, } NO. 20CV373218
Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
vs. ) DEFENDANTS’ MOTION TO STRIKE
) IMPROPER DAMAGES FROM
STANFORD HEALTH CARE; UNIVERSITY ) COMPLAINT
HEALTH CARE ALLIANCE; PAMELA LEE )
SCHRIEBER, CNS; EINAR OTTESTAD, MD; ) Date:
SHANIA SHEPHERD, BSN, RN; and Does 1- ) Time: 9:00 a.m.
100, inclusive, } Dept.: 7
)
Complaint Filed: 11/9/20
Defendants STANFORD HEALTH CARE; UNIVERSITY HEALTH CARE ALLIANCE;
PAMELA LEE SCHREIBER, CNS; EINAR OTTESTAD, M.D.; and SHANIA SHEPHERD, BSN,
RN (hereinafter "DEFENDANTS") hereby submit the following Memorandum of Points and
Defendants.
Authorities in Support of their Motion to Strike Improper Damages to Plaintiffs Complaint.
I STATEMENT OF FACTS
JANE DOE is an individual residing in San Mateo County. (Complaint 1.)
Defendants are health care providers. (/d. 111 2-3, 6.) On or about August 1, 2019, Plaintiff
sought medical treatment from Defendants. (/d. 11 7-9.) Plaintiff alleges Defendants were
negligent in their diagnoses, care, and treatment of Plaintiff during her hospital admission.
(id. 11 7-16.) The complaint consists of one claim for negligence against healthcare
providers providing medical care. (See Complaint {1 1-16.)
Mf
01373781.WPD 1
MEMORANDUM OF POINTS AND AUTHORITIES
daoOo won nun fF won —
Ie SS) IS) RO NSN
oronnauwn FB wns CO HUD DN DU FF WN | SS
IL. DEFENDANTS’ MOTION TO STRIKE IS PROPER
Code of Civil Procedure section 435(b)(1) provides that "[a]ny party, within the
time allowed to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof," to "[s]trike out any irrelevant, false, or improper matter," or
"part of any pleading not drawn or filed in conformity with the laws of this state." (Code
Civ. Proc.,§436 (a)&(b).) The court may take judicial notice pursuant to Code of Civil
Procedure section 437(a). Further, a motion to strike is the proper procedural tool to
attack an improper claim of punitive damages. (See Caliber Bodyworks, Inc. v. Superior
Court (2005) 134 Cal.App.4th 365, 385.) A motion to strike may be used to attack claims
for damages which are not supported by the causes of action pled. (The Weil and Brown,
Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group, 2014) §7 7:182-183.)
Ill. | PLAINTIFF’S CLAIM FOR ATTORNEYS’ FEES IS IMPROPER
The Complaint improperly alleges damages for attorney’s fees and costs. (See
Complaint, Prayer for Relief, No. 6.) California generally requires the parties to pay for
their own retained attorney and related fees unless there is some special agreement,
statutory provision, or exceptional circumstances. (See Code Civ. Proc.,§1021; Prentice
v. Northern American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620; Covenant Mutual Ins.
Co. v. Young (1986) 179 Cal.App.3d 318; Soni v. Wellmike Enterprise Co. Ltd. (2014) 224
Cal.App.4th 1477, 1488; Trope v. Katz (1995) 11 Cal. 4th 274.) Here, the Complaint consists
of one cause of action for negligence. Negligence is not a statutory claim and does not
provide for attorney’s fees. There is no special agreement, statutory provision or
exceptional circumstance that would allow for attorney’s fees based upon the state of the
operative pleading. As California law does not allow for attorney’s fees based on the
claims or facts of this case, the claim for attorney’s fees is improper and must be stricken.
IV. | CONCLUSION
The Complaint improperly asserts a claim for attorneys’ fees and costs. California
law provides that each party bear their own costs and fees for their own retained
attorney, unless there is some special circumstance or statutory basis. The Complaint
01373781.WPD 2
MEMORANDUM OF POINTS AND AUTHORITIESCo wonnan fF wn —
NN NY NSN NY NY NY NY DN Se Se Be eB Be ewe Se Se He
orwonnauwn FB won CHU WN DU FF WN | SS
alleges only a claim for negligence, which is not a special circumstance and does not
provide a statutory basis for attorney’s fees. The Complaint’s claims and the facts of this
case do not show any basis for a claim of attorney’s fees. Under California law, the claim
for attorney’s fees is improper and the remedy for improper damages is to strike the
improper damages.
WHEREFORE, Defendants respectfully request the Court grant the motion to strike
without leave to amend.
Dated: August 6, 2021
SCHUERING ZIMMERMAN & DOYLE, LLP
— | 7
THOMAS M. GRAY ee
Attorneys for Defendants STANFORD
HEALTH CARE; UNIVERSITY HEALTH
CARE ALLIANCE; PAMELA LEE
SCHREIBER, CNS; EINAR OTTESTAD,
M.D.; SHANIA SHEPHERD, BSN, RN
By
01373781.WPD 3
MEMORANDUM OF POINTS AND AUTHORITIESCo wonnan fF wn —
NN NY NSN NY NY NY NY DN Se Se Be eB Be ewe Se Se He
orwonnauwn FB won CHU WN DU FF WN | SS
Proof of Service by Electronic Transmission - Civil
[Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
10.503, 2.100-2.119, 2.251]
I, Concha M. Leon, declare:
At the time of service, I was over 18 years of age and not a party to this action. My
business address is: 400 University Avenue, Sacramento, California 95825.
On August 9, 2021, I served the following documents:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
MOTION TO STRIKE IMPROPER DAMAGES FROM COMPLAINT
By e-mail or electronic transmission: Based on a court order or an agreement of
the parties to accept service by e-mail or electronic transmission, I caused the documents
to be sent to the persons at the e-mail addresses listed below. I did not receive, within
areasonable time after the transmission, any electronic message or other indication that
the transmission was unsuccessful.
Attorney Representing Phone/Fax/E-Mail
Laura M. Furniss, Esq. Plaintiff
Furniss Family Law Group, Inc. (65) 549-8190
499 Seaport Court, Ste. 200
Redwood City, CA 94063 (20) 542-8432
Email:
laura@furnissFLG.com
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 was executed on August 9, 2021,
at Sacramento, California. ° of)
Die
Cult e~
Concha M. Leon
2127-12399
Preview
oOo won nun fF won — Ie SS) IS) RO NSN oronnauwn FB wns CO HUD DN DU FF WN | SS 20CV373218 Santa Clara — Civil V. Castan DANIELA P. STOUTENBURG, BAR NO. 183785 ecu oneal yaled THOMAS M. GRAY, BAR No, 265212 by Superior Court of CA, SCHUERING ZIMMERMAN & DOYLE, LLP County of Santa Clara, 400 University Avenue on 11/10/2021 12:33 PM facamnento California 95825-6502 Reviewed By: V. Castaneda 916) 567-0400 RAS a cesto400 Case #20CV373218 Envelope: 7642464 Attorneys for Defendants STANFORD HEALTH CARE; UNIVERSITY HEALTH CARE ALLIANCE; PAMELA LEE SCHREIBER, CNS; EINAR OTTESTAD, M.D.; and SHANIA SHEPHERD, BSN, RN SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA JANE DOE, } NO. 20CV373218 Plaintiff, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF vs. ) DEFENDANTS’ MOTION TO STRIKE ) IMPROPER DAMAGES FROM STANFORD HEALTH CARE; UNIVERSITY ) COMPLAINT HEALTH CARE ALLIANCE; PAMELA LEE ) SCHRIEBER, CNS; EINAR OTTESTAD, MD; ) Date: SHANIA SHEPHERD, BSN, RN; and Does 1- ) Time: 9:00 a.m. 100, inclusive, } Dept.: 7 ) Complaint Filed: 11/9/20 Defendants STANFORD HEALTH CARE; UNIVERSITY HEALTH CARE ALLIANCE; PAMELA LEE SCHREIBER, CNS; EINAR OTTESTAD, M.D.; and SHANIA SHEPHERD, BSN, RN (hereinafter "DEFENDANTS") hereby submit the following Memorandum of Points and Defendants. Authorities in Support of their Motion to Strike Improper Damages to Plaintiffs Complaint. I STATEMENT OF FACTS JANE DOE is an individual residing in San Mateo County. (Complaint 1.) Defendants are health care providers. (/d. 111 2-3, 6.) On or about August 1, 2019, Plaintiff sought medical treatment from Defendants. (/d. 11 7-9.) Plaintiff alleges Defendants were negligent in their diagnoses, care, and treatment of Plaintiff during her hospital admission. (id. 11 7-16.) The complaint consists of one claim for negligence against healthcare providers providing medical care. (See Complaint {1 1-16.) Mf 01373781.WPD 1 MEMORANDUM OF POINTS AND AUTHORITIES daoOo won nun fF won — Ie SS) IS) RO NSN oronnauwn FB wns CO HUD DN DU FF WN | SS IL. DEFENDANTS’ MOTION TO STRIKE IS PROPER Code of Civil Procedure section 435(b)(1) provides that "[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof," to "[s]trike out any irrelevant, false, or improper matter," or "part of any pleading not drawn or filed in conformity with the laws of this state." (Code Civ. Proc.,§436 (a)&(b).) The court may take judicial notice pursuant to Code of Civil Procedure section 437(a). Further, a motion to strike is the proper procedural tool to attack an improper claim of punitive damages. (See Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 385.) A motion to strike may be used to attack claims for damages which are not supported by the causes of action pled. (The Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group, 2014) §7 7:182-183.) Ill. | PLAINTIFF’S CLAIM FOR ATTORNEYS’ FEES IS IMPROPER The Complaint improperly alleges damages for attorney’s fees and costs. (See Complaint, Prayer for Relief, No. 6.) California generally requires the parties to pay for their own retained attorney and related fees unless there is some special agreement, statutory provision, or exceptional circumstances. (See Code Civ. Proc.,§1021; Prentice v. Northern American Title Guaranty Corp. (1963) 59 Cal.2d 618, 620; Covenant Mutual Ins. Co. v. Young (1986) 179 Cal.App.3d 318; Soni v. Wellmike Enterprise Co. Ltd. (2014) 224 Cal.App.4th 1477, 1488; Trope v. Katz (1995) 11 Cal. 4th 274.) Here, the Complaint consists of one cause of action for negligence. Negligence is not a statutory claim and does not provide for attorney’s fees. There is no special agreement, statutory provision or exceptional circumstance that would allow for attorney’s fees based upon the state of the operative pleading. As California law does not allow for attorney’s fees based on the claims or facts of this case, the claim for attorney’s fees is improper and must be stricken. IV. | CONCLUSION The Complaint improperly asserts a claim for attorneys’ fees and costs. California law provides that each party bear their own costs and fees for their own retained attorney, unless there is some special circumstance or statutory basis. The Complaint 01373781.WPD 2 MEMORANDUM OF POINTS AND AUTHORITIESCo wonnan fF wn — NN NY NSN NY NY NY NY DN Se Se Be eB Be ewe Se Se He orwonnauwn FB won CHU WN DU FF WN | SS alleges only a claim for negligence, which is not a special circumstance and does not provide a statutory basis for attorney’s fees. The Complaint’s claims and the facts of this case do not show any basis for a claim of attorney’s fees. Under California law, the claim for attorney’s fees is improper and the remedy for improper damages is to strike the improper damages. WHEREFORE, Defendants respectfully request the Court grant the motion to strike without leave to amend. Dated: August 6, 2021 SCHUERING ZIMMERMAN & DOYLE, LLP — | 7 THOMAS M. GRAY ee Attorneys for Defendants STANFORD HEALTH CARE; UNIVERSITY HEALTH CARE ALLIANCE; PAMELA LEE SCHREIBER, CNS; EINAR OTTESTAD, M.D.; SHANIA SHEPHERD, BSN, RN By 01373781.WPD 3 MEMORANDUM OF POINTS AND AUTHORITIESCo wonnan fF wn — NN NY NSN NY NY NY NY DN Se Se Be eB Be ewe Se Se He orwonnauwn FB won CHU WN DU FF WN | SS Proof of Service by Electronic Transmission - Civil [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 10.503, 2.100-2.119, 2.251] I, Concha M. Leon, declare: At the time of service, I was over 18 years of age and not a party to this action. My business address is: 400 University Avenue, Sacramento, California 95825. On August 9, 2021, I served the following documents: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE IMPROPER DAMAGES FROM COMPLAINT By e-mail or electronic transmission: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses listed below. I did not receive, within areasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Attorney Representing Phone/Fax/E-Mail Laura M. Furniss, Esq. Plaintiff Furniss Family Law Group, Inc. (65) 549-8190 499 Seaport Court, Ste. 200 Redwood City, CA 94063 (20) 542-8432 Email: laura@furnissFLG.com 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 was executed on August 9, 2021, at Sacramento, California. ° of) Die Cult e~ Concha M. Leon 2127-12399