Preview
Electronically Filed
Christopher E. Brumfiel (SBN 214866)
by Superior Court of CA,
cebrumfiel@ww.law County of Santa Clara,
Michelle A. Perez (SBN 317746)
on 10/8/2020 7:48 PM
maperez@ww.law Reviewed By: R. Tien
WOLFE & WYMAN LLP Case #20CV368213
2175 N. California Blvd., Suite 645 Envelope: 5079051
Walnut Creek, California 94596-3502
Telephone: (925) 708-7000
Facsimile: (925) 280-0005
Attorneys for Defendant
GS ALMADEN, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SANTA CLARA
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11 KATHERINE GILSON, Case No.: 20CV368213
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<5 12 Plaintiff,
=i NOTICE OF MOTION AND MOTION
22 13 Vv. OF DEFENDANT GS ALMADEN, LLC
TO STRIKE PORTIONS OF THE
w. 14 GS ALMADEN, LLC., GREYSTAR COMPLAINT; MEMORANDUM OF
le WORLDWIDE, LLC., AVANA ALMADEN, and POINTS AND AUTHORITIES IN
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16 Defendants. [Filed Concurrently with the Declaration
of Michelle A. Perez in Support Thereof,
17 the Request for Judicial Notice, and the
[Proposed] Order]
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Date:
19 Time:
Dept.:
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Trial Date: None.
21 Action Filed: July 09, 2020
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23 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
24 PLEASE TAKE NOTICE that on at ., or as soon thereafter as
25 the matter may be heard, in Department of the above-captioned Court located at 191 N. Main
26 Street, Santa Jose, California, defendant GS ALMADEN, LLC (hereinafter, “GS Almaden’) will and
27 hereby does move this Court for an order striking certain irrelevant and improper demands for
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
3734144.1
judgment in Plaintiff KATHERINE GILSON (hereinafter, “Plaintiff's”) Complaint, pursuant to
California Code of Civil Procedure section 431.1, 435, 436, and 437 (hereinafter, the “Motion”).
This Motion is made pursuant to California Civil Procedure Code sections 431.1, 435, 436,
and 437 on the grounds that Plaintiff's Complaint contains no allegations to support Plaintiffs requests
for punitive damages, which are set forth below. Specifically, GS Almaden moves to strike the
following requests for punitive damages, as made again Defendant GS Almaden, LLC only:
REQUESTS FOR PUNITIVE DAMAGES
1 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and
each of them.” (Compl. p. 10, § 61, lines 17-18.)
10 2 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and
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12 5 “For exemplary damages against defendants and each of them.” (Compl. prayer, p. 12,
13 42, line 12.)
we 14 GS Almaden brings this motion on grounds that Plaintiff's Complaint does not identify
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16 relies entirely on vague and conclusory statements of GS Almaden’s fraud, oppression, and malice
17 and further fails to identify any allegations of top-level corporate ratification, as required by statute to
18 support a claim for punitive damages against business forms.
19 This motion is based on this Notice of Motion and Motion, the accompanying Memorandum
20 of Points and Authorities, the attached Declaration of Michelle A. Perez (“Perez Decl.”), the Request
21 for Judicial Notice, this Court’s records of the action, and any additional arguments and evidence as
22 may be presented in reply or at the hearing on this Motion.
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DATED: September 8, 2020 WOLFE & WYMAN. LLP
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26 CHRISTOPHER E. BRUMFIEL
MICHELLE A. PEREZ
27 Attorneys for Defendant GS ALMADEN, LLC
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
3734144.1
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
The instant action arises out of a series of habitability claims brought by Plaintiff
KATHERINE GILSON (hereinafter, “Plaintiff’) in connection with her unit no. 404 at Avana
Almaden located at 925 Foxchase Drive, San Jose, California (hereinafter, the “Subject Premises”).
(Declaration of Michelle A. Perez in Support of Defendant’s Motion to Strike Portions of the
Complaint (hereinafter “Perez Decl.”), at § 2.) On or about July 9, 2020 Plaintiff filed the instant action
against defendants GS Almaden, LLC, Greystar Worldwide, LLC, and Avana Almaden asserting
causes of action for (1) breach of contract, (2) breach of the implied covenant of quiet enjoyment, (3)
10 negligence, (4) fraud, and (5) battery (hereinafter, the “Complaint”) (Perez Decl., at ] 3.)(Request for
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12 leak, the alleged mishandling of that leak by the ownership and/or management entities, and the
13 resultant harm, including the alleged presence of mold at the Subject Premises. (See, e.g., Complaint
we 14 49] 37, 58.) (Perez Decl., at § 4.)
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16 including GS Almaden, LLC. (Perez Decl., at 5.) As an initial matter, Plaintiff's Complaint which
17 attempts to capture claims against the ownership and management entities, incorrectly names
18 defendants Greystar Worldwide, LLC and Avana Almaden to this lawsuit. (Perez Decl., at § 6.) Such
19 defendants should be dismissed without prejudice and proper defendant Greystar California, Inc.
20 added as a Doe defendant to this action. (/bid.) Thus, this Motion concerns only Plaintiff's requests
21 for punitive damages as against the presently named defendant, GS Almaden, LLC (hereinafter, “GS
22 Almaden”).
23 IL. LEGAL ARGUMENT
24 GS Almaden respectfully requests this Court strike all reference to the improper requests for
25 punitive damages as specified in this Motion. Specifically, the following language is appropriately
26 stricken from the Complaint:
27 1 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
3734144.1
each of them.” (Compl. p. 10, § 61, lines 17-18.)
2 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and
each of them.” (Compl. p. 11, § 69, lines 23-25.)
3 “For exemplary damages against defendants and each of them.” (Compl. prayer, p. 12,
42, line 12.)
GS Almaden moves to strike only those portions of the Complaint which specifically reference
punitive damages on the grounds that (1) Plaintiff's Complaint contains no specific allegations
sufficient to identify the alleged fraudulent, malicious, and/ or oppressive conduct and (2) further fails
to identify any allegations of top-level corporation ratification as required by statute..
10 A. Prior to Filing this Motion, Defendant’s Counsel Met and Conferred with Plaintiff's
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12 As a preliminary matter, prior to filing the instant motion, GS Almaden’s law firm of record,
13 the Wolfe & Wyman firm, made every effort to properly meet and confer as required by California
we 14 Civil Procedure Code section 435.5, subdivision (a). On or about August 10, 2020, defendant’s
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16 instant Motion. (Perez Decl., ] 7; Exhibit “A” attached thereto.) Said correspondence laid out both
17 the procedural issue of the improperly named defendants to the action and the substantive issue of the
18 grounds for the anticipated Motion. (/bid.) The correspondence further laid out the basis of the
19 anticipated Motion and informed Mr. Dresser, defendant’s counsel would be reaching out to him
20 telephonically to discuss the basis of the Motion as required by statute. (/bid.)
21 Between August 13, 2020 and August 14, 2020, the Wolfe & Wyman firm attempted to meet
22 and confer with Mr. Dresser telephonically at his office number (408) 279-7529 on four separate
23 occasions. (Perez Decl., §8.) On each occasion, counsel for GS Almaden received a message
24 explaining that Mr. Dresser’s mailbox was full and counsel could not leave a message. (/bid.)
25 Thereafter, defendant’s counsel generated follow up correspondence electronically to Mr.
26 Dresser to inquire if his office line (408) 279-7529, appearing in his case caption, was still a good
27 number to reach him at, and further requested a time to speak to him regarding the anticipated Motion.
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
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3734144.1
(Perez Decl., { 9; Exhibit “B” attached thereto.)
On August 17, 2020, defendant’s counsel attempted once more to meet and confer with Mr.
Dresser telephonically at his office line (408) 279-7529. (Perez Decl., J 10.) This time, Defendant’s
counsel reached an assistant of Mr. Dresser’s office. (Jbid.) Defendant’s counsel was told Mr. Dresser
was unable to take the call, and a detailed message was left with Mr. Dresser’s assistant including
contact information, case information, and the purpose for the call. (Jbid.)
On August 20, 2020, counsel for GS Almaden received a voicemail from Mr. Dresser granting
GS Almaden a fifteen (15) day extension of time to file a responsive pleading to September 8, 2020.
(Perez Decl., § 11; Exhibit “C” attached thereto.) On September 3, 2020 counsel for GS Almaden
10 generated telephonic correspondence to Mr. Dresser. (Perez Decl., §] 12.) Counsel for GS Almaden
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12 upon which he included the punitive damages claim in the Plaintiff's Complaint. (/bid.) After a further
13 review of the Complaint, including the attached lease agreement, and a review of the basis for Mr.
we 14 Dresser’s punitive damages claim, counsel for GS Almaden continued to believe the best course of
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16 On September 4, 2020, counsel for GS Almaden generated further telephonic correspondence
17 to Mr. Dresser to inform him our office disagreed with his base for the punitive damages claim, we
18 continued to believe the punitive damages claim was improper as laid out in my August 10, 2020
19 correspondence, and to further inform him of our intent to go forward with the Motion. (Perez Decl.,
20 414)
21 B. This Court has the Authority to Strike Demands for Judgment not Supported by
22 Allegations in the Complaint,
23 In general, under California Civil Procedure Code section 436, “[t]he court may, upon
24 motion pursuant to Section 435, or at any time at its discretion and upon terms it deems proper...
25 [s]trike out any irrelevant, false or improper matter inserted in any pleading.” (Cal. Civ. Proc. Code
26 § 436, subd. (a).) This includes “[a] demand for judgment requesting relief not supported by the
27 allegations of the complaint or cross-complaint.” (Cal. Civ. Proc. Code § 431.10.) Thus, a motion to
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3734144.1
strike is appropriate to attack claims for damages, where as here, the damages are not supported by
the pleadings. (emphasis added.)(Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614.)
C. Plaintiff's Complaint Fails to Establish by Clear and Convincing Evidence that
Defendants are Guilty of Oppression, Fraud, or Malice.
First, Plaintiff's Complaint fails to meet the threshold showing that GS Almaden is guilty of
oppression, fraud, or malice. In general, a plaintiff is not entitled to exemplary or punitive damages as
a matter of right. (Bille v. Manning (1949) 94 Cal.App.4th 306, 328.) It is a universally recognized
principle that the law does not favor punitive damages, and they should be granted only with the
greatest of caution. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.App.3d 1379,
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Section 3294 expressly governs punitive damages and authorizes the recovery of same only
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where it is proven by clear and convincing evidence that a defendant is guilty of “oppression, fraud,
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or malice.” (Cal. Civ. Code § 3294.) Courts have consistently held that it is not sufficient for a plaintiff
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We to plead the conclusory statement that defendants acted with oppression, fraud, and malice. (Cyrus v.
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Oo Haveson (1976) 65 Cal.App.3d 306, 316-17.) Such a statement is merely an unsupported legal
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conclusion and is patently insufficient to support a tenable claim.
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Rather, to support a viable claim for punitive damages, a plaintiff must allege ultimate facts of
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a defendant’s “oppression, fraud, or malice” as those terms are defined in California Civil Code section
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3294, subdivision (c). (See also, /nterior Systems, Inc. v. Del E. Webb Corp. (1981) 121 Cal.App.3d
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312, 316 (“Conclusionary allegations without facts to support them are ambiguous and may be
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disregarded”), and G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 (‘fairness
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demands that [a defendant] receive adequate notice of the kind of conduct charged against him.”).)
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Indeed, caselaw interpreting Civil Code section 3294 clearly establishes that the recovery of punitive
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damages is only warranted where the act complained of is intentional and accompanied by malicious
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aggravating circumstances. Thus, there must be an intent to vex, annoy, or injure. (G. D. Searle,
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supra, 49 Cal.App.3d at p. 31.)
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Here, no specific allegations have been offered such that would support Plaintiff's claim for
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
3734144.1
punitive damages and notify GS Almaden of the allegations against it. Indeed, Plaintiff fails to identify
with specificity any wrongful conduct in her Complaint. Plaintiff offers the conclusory allegations that
Defendant had “advanced knowledge of the harm to Plaintiff when they acted wrongfully” and
suggests “[t]heir actions constituted malice, oppression or fraud, and were despicable.” (See, Compl.
at J 61, § 69.) While Plaintiff contends generally, that defendants “subjected[ed] [her] to live in an
apartment that contained offensive injurious mold” and “force[d] [her] to be subjected to offensive
and injurious mold”, these assertions, without more, are unpersuasive. (Compl. at § 65.) Indeed,
Plaintiff offers no basis for her allegations that defendants, and each of them, acted with “advanced
knowledge” of the alleged harm. (See generally, Compl.) While Plaintiffs displeasure with GS
10 Almaden’s handling of the habitability concerns is clear, Plaintiff's Complaint fails to identify which
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12 Almaden is forced to speculate as to what the alleged egregious behavior may have been. (See
13 generally, Compl.) Thus, Plaintiff's Complaint does not, and cannot, meet the initial threshold
we 14 showing of “clear and convincing” evidence.
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az 15 D. Moreover, Plaintiff's Complaint Fails to Meet the Heightened Standard of Review.
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16 Second, Plaintiff's Complaint does not allege facts sufficient to meet the heightened standard
17 of review as established by statute. In general, when alleging punitive damages against a corporate
18 defendant, a plaintiff must meet a heightened pleading standard. (See, Cal. Civ. Code § 3294, subd.
19 (b) which sets forth the circumstances under which an employer may be held liable for punitive
20 damages based upon acts of an employee.) To meet this standard, a party must establish that the
21 defendant employer (1) had advance knowledge of the employee's unfitness; (2) authorized or ratified
22 the wrongful conduct; and (3) had personal culpability. (Grieves v. Superior Court (1984) 157
23 Cal.App.3d 159, 167.) Thus, an employer is only liable if the knowledge, authorization, ratification or
24 act was on the part of an officer, director or managing agent of the corporation. (/bid.)
25 Here, Plaintiff's Complaint fails in all respects. Throughout her Complaint, Plaintiff makes
26 only vague claims about various individuals including “a man who answered the phone”, “a different
27 man who identified himself as a supervisor of Avana Almaden”, a woman named “Rebecca”,
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3734144.1
woman named “Olga”, and “Juan Tabares, Community Manager of Avana Almaden”. (See, Compl.
at § 13, 13, 18, 24, and 29.) However, she does not identify which, if any, of these individuals
commnitted the alleged fraud and/or battery; she does not particularize acts of advanced knowledge nor
otherwise identify the wrongful conduct. (See generally, Compl.) Moreover, Plaintiffs Complaint is
absent any discussion of ratification by an officer, director or managing agent, and further absent any
specified facts identifying which named employer defendant, purportedly acquiesced in the fraud
and/or battery. (See generally, Compl.) Thus, Plaintiff’s baseless claims are insufficient to support a
viable claim for punitive damages.
Ii. CONCLUSION
10 Based on the foregoing arguments and authorities, GS Almaden respectfully request that this
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13 DATED: September 8, 2020 WOLFE & WYMAN LLP
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a CHRISTOPHER E. BRUMFIEL
16 MICHELLE A. PEREZ
Attorneys for Defendant
17 GS ALMADEN, LLC
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
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3734144.1
PROOF OF SERVICE
STATE OF CALIFORNIA
) ss.
COUNTY OF CONTRA COSTA )
I, JoAnne M. Perri, declare:
I am employed in the County of Contra Costa, State of California. 1 am over the age of 18 and not a party to the within
action. My business address is 2175 N. California Blvd., Suite 645, Walnut Creek, California 94596-3502.
On September 8, 2020, I served the document(s) described as:
NOTICE OF MOTION AND MOTION OF DEFENDANT GS ALMADEN, LLC TO STRIKE
PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT THEREOF;
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF MOTION AND
MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE
10 COMPLAINT;
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4s 11 DECLARATION OF MICHELLE A. PEREZ IN SUPPORT OF NOTICE OF MOTION AND
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MOTION OF DEFENDANT GS ALMADEN, LLC TO STRIKE PORTIONS OF THE
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22 13 [PROPOSED] ORDER ON NOTICE OF MOTION AND MOTION OF DEFENDANT GS
ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT
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We on all interested parties in said action by placing a true copy thereof in a sealed envelope addressed as stated on the
i ATTACHED SERVICE LIST.
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16 & BY MAIL: as follows:
17 & STATE - | am “readily familiar” with Wolfe & Wyman LLP’s practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
18 day with postage thereon fully prepaid at Walnut Creek, California, in the ordinary course of business. I am
aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter
19 date is more than one (1) day after date of deposit for mailing in affidavit.
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21 BY ELECTRONIC MAIL SERVICE as follows: I jmperri@ww.law caused the following party(s)
to be served the above listed document(s) by electronic mail service at the following email addresses
22 to the party(ies) noted on the attached Service List.
23 BY ELECTRONIC MAIL as follows: I hereby certify that I electronically transmitted the attached
document(s) to the U.S. District Court using the CM/ECF System for filing, service and transmittal of Notice
24 of Electronic Filing to the CM/ECF registrants for this case. Upon completion of the electronic transmission
of said document(s), a receipt is issued to the serving party acknowledging receipt by ECF’s system, which will
25 be maintained with the original document(s) in our office.
BY CERTIFIED MAIL as follows: I am “readily familiar” with Wolfe & Wyman LLP’s practice for the
26 collection and processing of correspondence for mailing with the United States Postal Service; such envelope
will be deposited with the United States Postal Service on the above date in the ordinary course of business at
27 the business address shown above; and such envelope was placed for collection and mailing, by Certified United
States Mail, Return Receipt Requested, on the above date according to Wolfe & Wyman LLP’s ordinary
28 business practice.
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NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF
THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
3734144.1
BY PERSONAL SERVICE as follows: I caused a copy of such document(s) to be delivered by hand to the
offices of the addressee between the hours of 9:00 A.M. and 5:00 P.M.
BY OVERNIGHT COURIER SERVICE as follows: I caused such envelope to be delivered by overnight
courier service to the offices of the addressee. The envelope was deposited in or with a facility regularly
maintained by the overnight courier service with delivery fees paid or provided for.
BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the
addressee listed on the attached service list, by use of facsimile machine telephone number. The facsimile
machine used complied with California Rules of Court, Rule 2004 and no error was reported by the machine.
Pursuant to California Rules of Court, Rule 2006(d), a transmission record of the transmission was printed.
STATE I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
FEDERAL I declare that I am employed in the offices of a member of the State Bar of this Court at whose
direction the service was made.
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SERVICE LIST
Santa Clara County Superior Court 20CV368213
KATHERINE GILSON v. GS ALMADEN, LLC; et al.
WE&W File No. 1900-007
[Revised: July 31, 2020]
William C. Dresser, Esq. Attorneys for Plaintiff KATHERINE GILSON
LAW OFFICES OF WILLIAM C. DRESSER
4 North Second Street, Suite 1230 Tel: (408) 279-7529
San Jose, CA 95113 Fax: (408) 298-3306
loofwed@aol.com
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Preview
Electronically Filed Christopher E. Brumfiel (SBN 214866) by Superior Court of CA, cebrumfiel@ww.law County of Santa Clara, Michelle A. Perez (SBN 317746) on 10/8/2020 7:48 PM maperez@ww.law Reviewed By: R. Tien WOLFE & WYMAN LLP Case #20CV368213 2175 N. California Blvd., Suite 645 Envelope: 5079051 Walnut Creek, California 94596-3502 Telephone: (925) 708-7000 Facsimile: (925) 280-0005 Attorneys for Defendant GS ALMADEN, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA CLARA az pa de 11 KATHERINE GILSON, Case No.: 20CV368213 Zu <5 12 Plaintiff, =i NOTICE OF MOTION AND MOTION 22 13 Vv. OF DEFENDANT GS ALMADEN, LLC TO STRIKE PORTIONS OF THE w. 14 GS ALMADEN, LLC., GREYSTAR COMPLAINT; MEMORANDUM OF le WORLDWIDE, LLC., AVANA ALMADEN, and POINTS AND AUTHORITIES IN ha dz 15 DOES | through 20, inclusive, SUPPORT THEREOF Oo 16 Defendants. [Filed Concurrently with the Declaration of Michelle A. Perez in Support Thereof, 17 the Request for Judicial Notice, and the [Proposed] Order] 18 Date: 19 Time: Dept.: 20 Trial Date: None. 21 Action Filed: July 09, 2020 22 23 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 24 PLEASE TAKE NOTICE that on at ., or as soon thereafter as 25 the matter may be heard, in Department of the above-captioned Court located at 191 N. Main 26 Street, Santa Jose, California, defendant GS ALMADEN, LLC (hereinafter, “GS Almaden’) will and 27 hereby does move this Court for an order striking certain irrelevant and improper demands for 28 1 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 judgment in Plaintiff KATHERINE GILSON (hereinafter, “Plaintiff's”) Complaint, pursuant to California Code of Civil Procedure section 431.1, 435, 436, and 437 (hereinafter, the “Motion”). This Motion is made pursuant to California Civil Procedure Code sections 431.1, 435, 436, and 437 on the grounds that Plaintiff's Complaint contains no allegations to support Plaintiffs requests for punitive damages, which are set forth below. Specifically, GS Almaden moves to strike the following requests for punitive damages, as made again Defendant GS Almaden, LLC only: REQUESTS FOR PUNITIVE DAMAGES 1 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and each of them.” (Compl. p. 10, § 61, lines 17-18.) 10 2 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and az 4s 11 each of them.” (Compl. p. 11, § 69, lines 23-25.) a. Zu 12 5 “For exemplary damages against defendants and each of them.” (Compl. prayer, p. 12, 13 42, line 12.) we 14 GS Almaden brings this motion on grounds that Plaintiff's Complaint does not identify We i az 15 sufficient facts to support a viable claim for punitive, or exemplary, damages. Plaintiff's Complaint Oo 16 relies entirely on vague and conclusory statements of GS Almaden’s fraud, oppression, and malice 17 and further fails to identify any allegations of top-level corporate ratification, as required by statute to 18 support a claim for punitive damages against business forms. 19 This motion is based on this Notice of Motion and Motion, the accompanying Memorandum 20 of Points and Authorities, the attached Declaration of Michelle A. Perez (“Perez Decl.”), the Request 21 for Judicial Notice, this Court’s records of the action, and any additional arguments and evidence as 22 may be presented in reply or at the hearing on this Motion. oahu 23 DATED: September 8, 2020 WOLFE & WYMAN. LLP 24 Vi 25 26 CHRISTOPHER E. BRUMFIEL MICHELLE A. PEREZ 27 Attorneys for Defendant GS ALMADEN, LLC 28 2 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION The instant action arises out of a series of habitability claims brought by Plaintiff KATHERINE GILSON (hereinafter, “Plaintiff’) in connection with her unit no. 404 at Avana Almaden located at 925 Foxchase Drive, San Jose, California (hereinafter, the “Subject Premises”). (Declaration of Michelle A. Perez in Support of Defendant’s Motion to Strike Portions of the Complaint (hereinafter “Perez Decl.”), at § 2.) On or about July 9, 2020 Plaintiff filed the instant action against defendants GS Almaden, LLC, Greystar Worldwide, LLC, and Avana Almaden asserting causes of action for (1) breach of contract, (2) breach of the implied covenant of quiet enjoyment, (3) 10 negligence, (4) fraud, and (5) battery (hereinafter, the “Complaint”) (Perez Decl., at ] 3.)(Request for az 4s 11 Judicial Notice (hereinafter, “RJN”) at § 1.) Fundamentally, the case revolves around an alleged water a. Zu 12 leak, the alleged mishandling of that leak by the ownership and/or management entities, and the 13 resultant harm, including the alleged presence of mold at the Subject Premises. (See, e.g., Complaint we 14 49] 37, 58.) (Perez Decl., at § 4.) We i az 15 Plaintiff's Complaint seeks, among other things, punitive damages against defendants, Oo 16 including GS Almaden, LLC. (Perez Decl., at 5.) As an initial matter, Plaintiff's Complaint which 17 attempts to capture claims against the ownership and management entities, incorrectly names 18 defendants Greystar Worldwide, LLC and Avana Almaden to this lawsuit. (Perez Decl., at § 6.) Such 19 defendants should be dismissed without prejudice and proper defendant Greystar California, Inc. 20 added as a Doe defendant to this action. (/bid.) Thus, this Motion concerns only Plaintiff's requests 21 for punitive damages as against the presently named defendant, GS Almaden, LLC (hereinafter, “GS 22 Almaden”). 23 IL. LEGAL ARGUMENT 24 GS Almaden respectfully requests this Court strike all reference to the improper requests for 25 punitive damages as specified in this Motion. Specifically, the following language is appropriately 26 stricken from the Complaint: 27 1 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and 28 3 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 each of them.” (Compl. p. 10, § 61, lines 17-18.) 2 “Plaintiff is thus entitled to recovery of exemplary damages against defendants, and each of them.” (Compl. p. 11, § 69, lines 23-25.) 3 “For exemplary damages against defendants and each of them.” (Compl. prayer, p. 12, 42, line 12.) GS Almaden moves to strike only those portions of the Complaint which specifically reference punitive damages on the grounds that (1) Plaintiff's Complaint contains no specific allegations sufficient to identify the alleged fraudulent, malicious, and/ or oppressive conduct and (2) further fails to identify any allegations of top-level corporation ratification as required by statute.. 10 A. Prior to Filing this Motion, Defendant’s Counsel Met and Conferred with Plaintiff's az 4s 11 Counsel. a. Zu 12 As a preliminary matter, prior to filing the instant motion, GS Almaden’s law firm of record, 13 the Wolfe & Wyman firm, made every effort to properly meet and confer as required by California we 14 Civil Procedure Code section 435.5, subdivision (a). On or about August 10, 2020, defendant’s We i az 15 counsel generated electronic correspondence to Plaintiff's attorney William Dresser, prior to filing the Oo 16 instant Motion. (Perez Decl., ] 7; Exhibit “A” attached thereto.) Said correspondence laid out both 17 the procedural issue of the improperly named defendants to the action and the substantive issue of the 18 grounds for the anticipated Motion. (/bid.) The correspondence further laid out the basis of the 19 anticipated Motion and informed Mr. Dresser, defendant’s counsel would be reaching out to him 20 telephonically to discuss the basis of the Motion as required by statute. (/bid.) 21 Between August 13, 2020 and August 14, 2020, the Wolfe & Wyman firm attempted to meet 22 and confer with Mr. Dresser telephonically at his office number (408) 279-7529 on four separate 23 occasions. (Perez Decl., §8.) On each occasion, counsel for GS Almaden received a message 24 explaining that Mr. Dresser’s mailbox was full and counsel could not leave a message. (/bid.) 25 Thereafter, defendant’s counsel generated follow up correspondence electronically to Mr. 26 Dresser to inquire if his office line (408) 279-7529, appearing in his case caption, was still a good 27 number to reach him at, and further requested a time to speak to him regarding the anticipated Motion. 28 4 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 (Perez Decl., { 9; Exhibit “B” attached thereto.) On August 17, 2020, defendant’s counsel attempted once more to meet and confer with Mr. Dresser telephonically at his office line (408) 279-7529. (Perez Decl., J 10.) This time, Defendant’s counsel reached an assistant of Mr. Dresser’s office. (Jbid.) Defendant’s counsel was told Mr. Dresser was unable to take the call, and a detailed message was left with Mr. Dresser’s assistant including contact information, case information, and the purpose for the call. (Jbid.) On August 20, 2020, counsel for GS Almaden received a voicemail from Mr. Dresser granting GS Almaden a fifteen (15) day extension of time to file a responsive pleading to September 8, 2020. (Perez Decl., § 11; Exhibit “C” attached thereto.) On September 3, 2020 counsel for GS Almaden 10 generated telephonic correspondence to Mr. Dresser. (Perez Decl., §] 12.) Counsel for GS Almaden az 4s 11 discussed with Mr. Dresser the basis for GS Almaden’s Motion. (/bid.) Mr. Dresser discussed the basis a. Zu 12 upon which he included the punitive damages claim in the Plaintiff's Complaint. (/bid.) After a further 13 review of the Complaint, including the attached lease agreement, and a review of the basis for Mr. we 14 Dresser’s punitive damages claim, counsel for GS Almaden continued to believe the best course of We i az 15 action for the client was to file the Motion. (Perez Decl., J 13.) Oo 16 On September 4, 2020, counsel for GS Almaden generated further telephonic correspondence 17 to Mr. Dresser to inform him our office disagreed with his base for the punitive damages claim, we 18 continued to believe the punitive damages claim was improper as laid out in my August 10, 2020 19 correspondence, and to further inform him of our intent to go forward with the Motion. (Perez Decl., 20 414) 21 B. This Court has the Authority to Strike Demands for Judgment not Supported by 22 Allegations in the Complaint, 23 In general, under California Civil Procedure Code section 436, “[t]he court may, upon 24 motion pursuant to Section 435, or at any time at its discretion and upon terms it deems proper... 25 [s]trike out any irrelevant, false or improper matter inserted in any pleading.” (Cal. Civ. Proc. Code 26 § 436, subd. (a).) This includes “[a] demand for judgment requesting relief not supported by the 27 allegations of the complaint or cross-complaint.” (Cal. Civ. Proc. Code § 431.10.) Thus, a motion to 28 5 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 strike is appropriate to attack claims for damages, where as here, the damages are not supported by the pleadings. (emphasis added.)(Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614.) C. Plaintiff's Complaint Fails to Establish by Clear and Convincing Evidence that Defendants are Guilty of Oppression, Fraud, or Malice. First, Plaintiff's Complaint fails to meet the threshold showing that GS Almaden is guilty of oppression, fraud, or malice. In general, a plaintiff is not entitled to exemplary or punitive damages as a matter of right. (Bille v. Manning (1949) 94 Cal.App.4th 306, 328.) It is a universally recognized principle that the law does not favor punitive damages, and they should be granted only with the greatest of caution. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.App.3d 1379, 10 az 1392.) 4s 11 a. Section 3294 expressly governs punitive damages and authorizes the recovery of same only Zu 12 where it is proven by clear and convincing evidence that a defendant is guilty of “oppression, fraud, 13 or malice.” (Cal. Civ. Code § 3294.) Courts have consistently held that it is not sufficient for a plaintiff we 14 We to plead the conclusory statement that defendants acted with oppression, fraud, and malice. (Cyrus v. i az 15 Oo Haveson (1976) 65 Cal.App.3d 306, 316-17.) Such a statement is merely an unsupported legal 16 conclusion and is patently insufficient to support a tenable claim. 17 Rather, to support a viable claim for punitive damages, a plaintiff must allege ultimate facts of 18 a defendant’s “oppression, fraud, or malice” as those terms are defined in California Civil Code section 19 3294, subdivision (c). (See also, /nterior Systems, Inc. v. Del E. Webb Corp. (1981) 121 Cal.App.3d 20 312, 316 (“Conclusionary allegations without facts to support them are ambiguous and may be 21 disregarded”), and G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 (‘fairness 22 demands that [a defendant] receive adequate notice of the kind of conduct charged against him.”).) 23 Indeed, caselaw interpreting Civil Code section 3294 clearly establishes that the recovery of punitive 24 damages is only warranted where the act complained of is intentional and accompanied by malicious 25 aggravating circumstances. Thus, there must be an intent to vex, annoy, or injure. (G. D. Searle, 26 supra, 49 Cal.App.3d at p. 31.) 27 Here, no specific allegations have been offered such that would support Plaintiff's claim for 28 6 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 punitive damages and notify GS Almaden of the allegations against it. Indeed, Plaintiff fails to identify with specificity any wrongful conduct in her Complaint. Plaintiff offers the conclusory allegations that Defendant had “advanced knowledge of the harm to Plaintiff when they acted wrongfully” and suggests “[t]heir actions constituted malice, oppression or fraud, and were despicable.” (See, Compl. at J 61, § 69.) While Plaintiff contends generally, that defendants “subjected[ed] [her] to live in an apartment that contained offensive injurious mold” and “force[d] [her] to be subjected to offensive and injurious mold”, these assertions, without more, are unpersuasive. (Compl. at § 65.) Indeed, Plaintiff offers no basis for her allegations that defendants, and each of them, acted with “advanced knowledge” of the alleged harm. (See generally, Compl.) While Plaintiffs displeasure with GS 10 Almaden’s handling of the habitability concerns is clear, Plaintiff's Complaint fails to identify which az 4s 11 specific acts or omissions constitute the alleged fraud, oppression, or malice. Accordingly, GS a. Zu 12 Almaden is forced to speculate as to what the alleged egregious behavior may have been. (See 13 generally, Compl.) Thus, Plaintiff's Complaint does not, and cannot, meet the initial threshold we 14 showing of “clear and convincing” evidence. We i az 15 D. Moreover, Plaintiff's Complaint Fails to Meet the Heightened Standard of Review. Oo 16 Second, Plaintiff's Complaint does not allege facts sufficient to meet the heightened standard 17 of review as established by statute. In general, when alleging punitive damages against a corporate 18 defendant, a plaintiff must meet a heightened pleading standard. (See, Cal. Civ. Code § 3294, subd. 19 (b) which sets forth the circumstances under which an employer may be held liable for punitive 20 damages based upon acts of an employee.) To meet this standard, a party must establish that the 21 defendant employer (1) had advance knowledge of the employee's unfitness; (2) authorized or ratified 22 the wrongful conduct; and (3) had personal culpability. (Grieves v. Superior Court (1984) 157 23 Cal.App.3d 159, 167.) Thus, an employer is only liable if the knowledge, authorization, ratification or 24 act was on the part of an officer, director or managing agent of the corporation. (/bid.) 25 Here, Plaintiff's Complaint fails in all respects. Throughout her Complaint, Plaintiff makes 26 only vague claims about various individuals including “a man who answered the phone”, “a different 27 man who identified himself as a supervisor of Avana Almaden”, a woman named “Rebecca”, 28 1 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 woman named “Olga”, and “Juan Tabares, Community Manager of Avana Almaden”. (See, Compl. at § 13, 13, 18, 24, and 29.) However, she does not identify which, if any, of these individuals commnitted the alleged fraud and/or battery; she does not particularize acts of advanced knowledge nor otherwise identify the wrongful conduct. (See generally, Compl.) Moreover, Plaintiffs Complaint is absent any discussion of ratification by an officer, director or managing agent, and further absent any specified facts identifying which named employer defendant, purportedly acquiesced in the fraud and/or battery. (See generally, Compl.) Thus, Plaintiff’s baseless claims are insufficient to support a viable claim for punitive damages. Ii. CONCLUSION 10 Based on the foregoing arguments and authorities, GS Almaden respectfully request that this az 4s 11 Court grant this Motion in its entirety. a. Zu 12 13 DATED: September 8, 2020 WOLFE & WYMAN LLP we We i az Oo 14 15 a CHRISTOPHER E. BRUMFIEL 16 MICHELLE A. PEREZ Attorneys for Defendant 17 GS ALMADEN, LLC 18 19 20 21 22 23 24 25 26 27 28 8 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 PROOF OF SERVICE STATE OF CALIFORNIA ) ss. COUNTY OF CONTRA COSTA ) I, JoAnne M. Perri, declare: I am employed in the County of Contra Costa, State of California. 1 am over the age of 18 and not a party to the within action. My business address is 2175 N. California Blvd., Suite 645, Walnut Creek, California 94596-3502. On September 8, 2020, I served the document(s) described as: NOTICE OF MOTION AND MOTION OF DEFENDANT GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE 10 COMPLAINT; az 4s 11 DECLARATION OF MICHELLE A. PEREZ IN SUPPORT OF NOTICE OF MOTION AND a. MOTION OF DEFENDANT GS ALMADEN, LLC TO STRIKE PORTIONS OF THE Zu 12 COMPLAINT; AND =i 22 13 [PROPOSED] ORDER ON NOTICE OF MOTION AND MOTION OF DEFENDANT GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT we 14 We on all interested parties in said action by placing a true copy thereof in a sealed envelope addressed as stated on the i ATTACHED SERVICE LIST. az 15 Oo 16 & BY MAIL: as follows: 17 & STATE - | am “readily familiar” with Wolfe & Wyman LLP’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 18 day with postage thereon fully prepaid at Walnut Creek, California, in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter 19 date is more than one (1) day after date of deposit for mailing in affidavit. 20 21 BY ELECTRONIC MAIL SERVICE as follows: I jmperri@ww.law caused the following party(s) to be served the above listed document(s) by electronic mail service at the following email addresses 22 to the party(ies) noted on the attached Service List. 23 BY ELECTRONIC MAIL as follows: I hereby certify that I electronically transmitted the attached document(s) to the U.S. District Court using the CM/ECF System for filing, service and transmittal of Notice 24 of Electronic Filing to the CM/ECF registrants for this case. Upon completion of the electronic transmission of said document(s), a receipt is issued to the serving party acknowledging receipt by ECF’s system, which will 25 be maintained with the original document(s) in our office. BY CERTIFIED MAIL as follows: I am “readily familiar” with Wolfe & Wyman LLP’s practice for the 26 collection and processing of correspondence for mailing with the United States Postal Service; such envelope will be deposited with the United States Postal Service on the above date in the ordinary course of business at 27 the business address shown above; and such envelope was placed for collection and mailing, by Certified United States Mail, Return Receipt Requested, on the above date according to Wolfe & Wyman LLP’s ordinary 28 business practice. 9 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 BY PERSONAL SERVICE as follows: I caused a copy of such document(s) to be delivered by hand to the offices of the addressee between the hours of 9:00 A.M. and 5:00 P.M. BY OVERNIGHT COURIER SERVICE as follows: I caused such envelope to be delivered by overnight courier service to the offices of the addressee. The envelope was deposited in or with a facility regularly maintained by the overnight courier service with delivery fees paid or provided for. BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the addressee listed on the attached service list, by use of facsimile machine telephone number. The facsimile machine used complied with California Rules of Court, Rule 2004 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2006(d), a transmission record of the transmission was printed. STATE I declare under penalty of perjury under the laws of the State of California that the above is true and correct. FEDERAL I declare that I am employed in the offices of a member of the State Bar of this Court at whose direction the service was made. 10 az Executed on September 8, 2020, at Walnut Creek, California. 4s 11 a. cS dnne LOnne Zu 12 JoAnne M. Perri 13 we 14 We i az 15 Oo 16 17 18 19 20 21 22 23 24 25 26 27 28 10 NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1 SERVICE LIST Santa Clara County Superior Court 20CV368213 KATHERINE GILSON v. GS ALMADEN, LLC; et al. WE&W File No. 1900-007 [Revised: July 31, 2020] William C. Dresser, Esq. Attorneys for Plaintiff KATHERINE GILSON LAW OFFICES OF WILLIAM C. DRESSER 4 North Second Street, Suite 1230 Tel: (408) 279-7529 San Jose, CA 95113 Fax: (408) 298-3306 loofwed@aol.com 10 az 4s 11 a. Zu 12 13 we 14 We i az 15 Oo 16 17 18 19 20 21 22 23 24 25 26 27 28 ll NOTICE OF MOTION AND MOTION OF DEFENDANTS GS ALMADEN, LLC TO STRIKE PORTIONS OF THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 3734144.1