Preview
20CV368229
Santa Clara — Civil
A. Floresca
Randall J. Dean, Esq., Bar No. 110441
Mark E. DiMaria, Esq., Bar No. 89378 Electronically Filed
CHAPMAN GLUCKSMAN DEAN & ROEB by Superior Court of CA,
A PROFESSIONAL CORPORATION County of Santa Clara,
11900 WEST OLYMPIC BOULEVARD, SUITE 800 on 4/12/2021 12:51 PM
LOS ANGELES, CALIFORNIA 90064-0704
(310) 207-7722 * FAX: (310) 207-6550
Reviewed By: A. Floresca
Case #20CV368229
Attorneys for Defendants Spot On Consulting Envelope: 6220876
Group, A Professional Accountancy Corporation,
Jonathan R. Laddy, CPA, and Kelly P. Playle
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
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PACIFIC OFFICE DESIGNS, INC., a Case No.: 20 CV 368229
11 California Corporation;
Complaint Filed: July 9, 2020
12 SAC Served: March 11, 2021
Plaintiff,
13 Case Management Judge:
Vv. The Honorable Socrates P. Manoukian,
14 Dept: 20
SPOT ON CONSULTING GROUP, a
15 Professional Accountancy Corporation; NOTICE OF MOTION AND MOTION
JONATHAN RONALD LADDY; EXEMPLIS, BY DEFENDANTS SPOT ON
16 LLC, a California Limited Liability Company; CONSULTING GROUP, JONATHAN
PAUL DE VRIES; KELLY PAULINE RONALD LADDY, AND KELLY
17 PLAYLE; NANCY LOPEZ; and DOES 1-150, PAULINE PLAYLE TO STRIKE
inclusive, PORTIONS OF PLAINTIFF’S SECOND
18 AMENDED COMPLAINT;
MEMORANDUM OF POINTS AND
19 Defendants. AUTHORITIES; AND DECLARATION
OF MARK E. DiMARIA PURSUANT TO
20 CODE OF CIVIL PROCEDURE §435.5
21 Date:
6-3-21 5001
Time: 9:00 a.m.
22 Dept.: 20
23 Trial Date: None Set
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
NOTICE OF MOTION
TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on
6-3-21 ; 2021, at 9:00 a.m., or
as soon thereafter as the matter may be heard, in Department 20 of the above-captioned Court,
located at 161 North First Street, San Jose, CA 95113, defendants Spot On Consulting Group, a
Professional Accountancy Corporation, Jonathan R. Laddy, CPA, and Kelly P. Playle (collectively
“Spot On”), will, and hereby do, move to strike the following portions of the “Second Amended
Complaint for Intentional Misrepresentation; Negligent Misrepresentation; Breach of Contract; and
Negligence” (the “SAC”) of plaintiff Pacific Office Designs, Inc., a California corporation
10 (“Pacific”), as to Spot On, on the grounds that such portions constitute improper matter that is not
11 drawn in conformity with the laws of this State:
12 A Each of (i) Paragraph 77 of the SAC’s Fourth Cause of Action for
13 Negligence, at page 19, lines 1-7, in its entirety, and (ii) the phrase “including
14 without limitation all attorney’s fees and costs incurred by Plaintiff in prosecution
15 and defense of said action against the Defendants EXEMPLIS under the provisions
16 of Prentice v. North American Guaranty Corp.” in Paragraph 1 of the Prayer for
17 Relief on the SAC’s Fourth Cause of Action for Negligence, at page 25, lines 9-12;
18 in that they impermissibly seek to recover attorneys’ fees without alleging any
19 legally cognizable basis therefor, either by statute or by agreement, in violation of
20 Code of Civil Procedure §1021.
21 This Motion is made pursuant to Code of Civil Procedure §§ 435, 436, and 435.5, and will
22 be based on this Notice of Motion; the accompanying Memorandum of Points and Authorities; the
23 attached Declaration of Mark E. DiMaria pursuant to Code of Civil Procedure §435.5; the pleadings,
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782-763 2
NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
records, and files in this action; and such other materials as may be presented to the Court, or judicially
noticed, at or before, or in connection with, the hearing on this Motion.
DATED: April 12, 2021. CHAPMAN, GLUCKSMAN, DEAN & ROEB,
A Professional Corporation
RANDALL J. DEAN
MARK E. DiMARIA
Attorneys for Defendants Spot On Consulting
Group, A Professional Accountancy Corporation,
Jonathan R. Laddy, CPA, and Kelly P. Playle
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
I
INTRODUCTION.
This Motion is necessitated by Pacific’s disingenuous attempt, following successful general
demurrers by Spot On, to re-animate its substantively defective and abandoned claim for “tort of
another,” by editing it down into a single paragraph and slipping it in as an amendment to a different
claim that was not demurred to, and thus not subject to any request or grant for leave to amend.
Because this amendment is both substantively and procedurally impermissible, it must be stricken.
A The Circumstances.
10 On January 27, 2021, this Court sustained Spot On’s demurrers to, and granted its motion
11 to strike, portions of Pacific’s first amended complaint (the “FAC”), in their entirety. Though the
12 Court generously allowed Pacific leave to amend the FAC’s demurrable causes of action and
13 stricken allegations as against Spot On, Pacific elected to excise and drop completely each such
14 defective claim and allegation from its next amended pleading, the SAC. As such, each of the four
15 causes of action of the FAC to which Spot On demurred, and each of its allegations that Spot On
16 moved to strike, now has been removed by Pacific and is gone from its SAC.
17 Among those defective and deleted portions of the FAC were its seventh cause of action
18 and its prayer for relief thereon, which sought to recover attorneys’ fees under the “tort of another
19 doctrine,” which in turn is based on Prentice v. North American Title Guaranty Corp., 59 Cal.2d
20 618, 620, 30 Cal.Rptr. 821 (1963). As was discussed and explained in Spot On’s general demurrer
21 to that seventh cause of action of the FAC, the “tort of another doctrine” is inherently unavailable
22 to Pacific in the context of this suit, as a matter of substantive law. Accordingly, the Court sustained
23 that demurrer, and Pacific then dropped that cause of action and its prayer for relief from the SAC.
24 Spot On’s demurrers were not directed toward the FAC’s third or fourth causes of action,
25 for breach of contract and negligence, respectively, against Spot On. Consequently, the Court made
26 no ruling with respect to either claim. Despite this, Pacific now has made a putative amendment to
27 the fourth cause of action for negligence of its new SAC, by re-packaging and inserting its defective
28 “tort of another” claim as a new Paragraph 77, along with a prayer for attorneys’ fees thereon.
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
That amendment is flatly impermissible, since (1) leave to amend the FAC’s Fourth Cause
of Action was neither in issue, not sought, nor granted; and (2) regardless, the Court already has
determined that the “tort of another” claim is not substantively cognizable, as a matter of law, under
the allegations of the FAC and consequently, under its remaining allegations that now comprise the
SAC’s surviving claims against Spot On. As such, the new material must be stricken, in its entirety.
B. Procedural History.
On July 9, 2020, Pacific filed its initial complaint in this action against its accountants, Spot
On Consulting Group, a Professional Accountancy Corporation, and Jonathan R. Laddy, CPA, and
their employee, Kelly P. Playle (collectively “Spot On”), along with other defendants. That
10 complaint alleged that Spot On was induced to process and make payments on behalf of Pacific to
11 one of its trade creditors, defendant Exemplis, LLC, which payments instead were fraudulently re-
12 directed and obtained by undisclosed third parties posing as authorized Exemplis personnel. It thus
13 asserted claims against Spot On for negligence, intentional and negligent misrepresentation, breach
14 of contract, tort of another, constructive trust, money had and received, and “res ipsa loquitor” [sic].
15 In response, Spot On’s counsel sent the requisite pre-demurrer letter pursuant to Code of
16 Civil Procedure §430.31 to Pacific’s attorneys, citing various legal deficiencies in that original
17 complaint, and requesting that they be remedied. Consequently, on October 9, 2020, Pacific served
18 its FAC on counsel for Spot On, which deleted the former claims for constructive trust and money
19 had and received, dropped individual defendants Mr. Laddy and Ms. Playle from the claim for
20 breach of contract, dropped Mr. Laddy from the negligent misrepresentation claim, and made other
21 changes (primarily with respect to the FAC’s allegations against the named defendants other than
22 Spot On, to wit, Exemplis LLC and its personnel, Paul DeVries and Nancy Lopez).
23 Despite these amendments, the FAC continued to assert claims against Spot On which were
24 legally untenable, as its first, second, seventh and ninth purported causes of action, for intentional
25 misrepresentation, negligent misrepresentation, “tort of another,” and “res ipsa loquitor” [sic],
26 respectively. Spot On thus filed its general demurrers to those four claims (but not the third and
27 fourth causes of action for breach of contract and negligence), along with a motion to strike the
28 FAC’s requests to recover attorneys’ fees, special damages, and punitive damages.
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
Following a hearing thereon, the Court issued its order on January 27, 2021, sustaining Spot
On’s demurrers and granting its motion to strike, in their entirety, albeit with leave to amend.
On March 11, 2021, Pacific filed its SAC, The SAC deleted entirely (i) each of the FAC’s
claims against Spot On which had been the subject of its demurrers — the (now former) first, second,
seventh, and ninth purported causes of action, for intentional misrepresentation, negligent
misrepresentation, “tort of another,” and “res ipsa loquitor;” and (ii) each of the FAC’s former
allegations which had sought to recover attorneys’ fees, special damages, and punitive damages.
However, the SAC also inserted new material into its extant fourth cause of action against
Spot on, for negligence, to wit, Paragraph 77, claiming a right to recover attorneys’ fees under the
10 same defective “tort of another” doctrine upon which the former seventh cause of action had been
11 based, along with an expanded prayer for relief on that cause of action, now seeking attorneys’ fees.
12 I
13 AS A MATTER OF LAW, PACIFIC STILL CANNOT RECOVER ATTORNEYS’ FEES
14 FROM SPOT ON UNDER THE “TORT OF ANOTHER” DOCTRINE.
15 As this Court already has seen and determined, in sustaining Spot On’s general demurrers
16 (and those of co-defendant Exemplis) to the FAC’s seventh purported cause of action for “tort of
17 another,” Pacific cannot seek or obtain attorneys’ fees from Spot On in this action on that basis, as
18 a matter of substantive law.
19 California generally follows the “American Rule” on the recovery of attorneys’ fees:
20 “Except as attorney's fees are specifically provided for by statute, the measure and mode of
21 compensation of attorneys and counselors at law is left to the agreement, express or implied, of the
22 parties ....” Code of Civil Procedure §1021. However, “A person who through the tort of another
23 has been required to act in the protection of his interests by bringing or defending an action against
24 a third person is entitled to recover compensation for the reasonably necessary loss of time,
25 attorney's fees, and other expenditures thereby suffered or incurred.” Prentice v. North American
26 Title Guaranty Corp., 59 Cal.2d 618, 620, 30 Cal.Rptr. 821 (1963). This.is because such attorneys’
27 fees and expenses incurred in other prior underlying litigation are “akin to damages,” rather than
28 an expense of prosecuting the current claim. Id., at 59 Cal.2d 621.
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
Later rulings have interpreted, clarified, and narrowed the holding and language of Justice
McComb in Prentice v. North American Title Guaranty Corp., 59 Cal.2d 618, 30 Cal.Rptr. 821
(1963), in first articulating the “tort of another” doctrine nearly 60 years ago. Those decisions have
noted and proscribed the potential subterfuge of using of the rule to recover attorneys’ fees when a
plaintiff sues multiple parties for the very same damages from the same alleged harm, claiming that
the harm done by each defendant required that plaintiff to sue the others. See, e.g., Bear Creek
Planning Committee v. Title Insurance & Trust _Co., 164 Cal.App.3d 1227, 1243-1244, 211
Cal.Rptr. 172 (1985); Pederson v. Kennedy, 128 Cal.App.3d 976, 980, 180 Cal.Rptr. 740 (1982);
Vacco Industries, Inc. v. Van Den Berg, 5 Cal.App.4th 34, 57, 6 Cal.Rptr.2d 602 (1992); and
10 Gorman y. Tassajara Development Corp., 178 Cal.App.4th 44, 80, 100 Cal.Rptr.3d 152 (2009).
11 The context of this action is readily distinguishable from Prentice, which was a lawsuit by
12 the sellers of real property who wished to unwind the transaction and sought to quiet title against
13 the purchasers, to which an entirely separate claim for attorney fees against the broker was joined.
14 The Prentice court was not addressing a situation such as this, in which the same damages (or other
15 relief) simultaneously were being sought against two different defendants (Spot On and Exemplis),
16 much less one in which the plaintiff was asking to recover attorneys’ fees incurred in that same
17 action against both such defendants. In this lawsuit, Pacific is seeking to recover exactly the sam
18 damages for exactly the same harm, a misdirected payment of its money in the sum of $281,157,
19 against two defendants (Spot On and Exemplis) whose negligence it alleges caused that same harm,
20 while also seeking attorneys’ fees from both under the “tort of another doctrine.” This is precisely
21 the sort of claim that the Courts in Vacco and Gorman cautioned against, and proscribed:
«“The tort
tort of
of another
another doctrine
doctrine does
does not
not allow
allow aa party
par toto recover
recover the
the fees
fee:
22 ‘The
23 ind costs involved in litigating directly with a negligent defendant. [Pederson
24 v. Kennedy, 128 Cal.App.3d 976, 980, 180 Cal.Rptr. 740 (1982).]
25 “{Moreover], the tort of another doctrine does not apply to the situation
26 where a plaintiff has been damaged by the joint negligence of codefendants.
27 Vacco, supra,] stated at page 57: ‘The rule of Prentice was not intended to apply
28 to one of several joint tortfeasors in order to justify additional attorney fee damages.
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
If that were the rule there is no reason why it could not be applied in every multiple
tortfeasor case with the plaintiff simply choosing the one with the deepest pocket
as the “Prentice target.” Such a result would be a total emasculation of Code of
Civil Procedure section 1021 in tort cases.’” Gorman v. Tassajara Development
Corp., 178 Cal.App.4th 44, 80, 100 Cal.Rptr.3d 152 (2009). (Emphasis added.)
As such, the California courts have made it clear that this “tort of another” doctrine, since
codified in Code of Civil Procedure §1021.6, may not be used as a subterfuge to recover fees
incurred in cases such as this one.
Pacific’s latest efforts to apply the “tort of another” doctrine remain nothing more than a
10 proscribed attempt to recover attorneys’ fees that are to be incurred prospectively in litigation that
11 is directed against an alleged tortfeasor, Spot On. And the presence of an alleged jointly negligent
12 tortfeasor, Exemplis, still is not a permissible basis on which to assert otherwise. For the very same
13 reasons that required this Court to sustain Spot On’s demurrers to the FAC’s putative cause of
14 action for “tort of another,” the new allegations of the SAC seeking that very same substantive
15 relief must be stricken, as a matter of law.
16 Ill
17 PACIFIC’S AMENDMENT OF ITS FOURTH CAUSE OF ACTION, WHICH WAS NOT
18 WITHIN THE SCOPE OF SPOT ON’S EARLIER DEMURRERS THAT WERE
19 SUSTAINED WITH LEAVE TO AMEND, IS IMPROPER.
20 It is established that when a demurrer is sustained with leave to amend, such leave does not
21 extend to causes of action beyond those addressed by that demurrer, and that any amendment that
22 violates this rule is subject to a motion to strike:
23 “Tt is the rule that when a trial court sustains a demurrer with leave to amend,
24 the scope of the grant of leave is ordinarily a limited one. It gives the pleader an
25 opportunity to cure the defects in the particular causes of action to which the
26 demurrer _was sustained, but that is all [citing People v. Clausen, 248 Cal.App.2d
27 770, 785-786, 57 Cal.Rptr. 227 (1967)]. ‘The plaintiff may not amend the complaint
28 to add a new cause of action without having obtained permission to do so, unless
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
the new cause of action is within the scope of the order granting leave to amend’
[citing Harris v. Wachovia Mortgage, FSB, 185 Cal.App.4th 1018, 1023, 111
Cal.Rptr.3d 20 (2010). Accordingly, the trial court correctly granted the
motion to strike the new cause of action because it was ‘not drawn or filed in
conformity with ... an order of the court’ [citing Code of Civil Procedure §436(b)].”
Community Water Coalition _v. Santa Cruz County Local Agency Formation
Commission, 200 Cal.App.4th 1317, 1329, 134 Cal.Rptr.3d 899 (2011) (emphasis
added); accord, Gilkyson v. Disney Enterprises, Inc., 244 Cal.App.4th 1336, 1347,
198 Cal.Rptr.3d 611 (2016); and Zakk v. Diesel, 33 Cal.App.Sth 431, 456, 245
10 Cal.Rptr.3d 215 (2019).
11 “Scope of permissible amendment: Generally, where a court grants leave
12 to amend after sustaining a demurrer, the scope of permissible amendment _is
13 limited to the cause(s) of action to which the demurrer has been sustained: ‘(S)uch
14 granting of leave to amend must be construed as permission to the pleader fo amend
15 the cause of action which he pleaded in the pleading to which the demurrer has
16 been sustained.’ [citing People v. Clausen, supra, 248 Cal.App.2d at 785-786]; see
17 (Harris v. Wachovia Mortgage, FSB, supra, 185 Cal.App.4th at 1023] — plaintiff
18 may not amend the complaint to add a new cause of action without having obtained
19 permission to do so.” Edmon, et al., California Practice Guide: Civil Procedure
20 Before Trial, Pleadings §6:635.5 (Rutter Group 2017) (italics and bold type in
21 original; other emphasis added).
22 Although there is a line of case authority that may allow an amendment outside of the cause
23 of action demurred to, if that amendment “directly responds to” the grounds on which the demurrer
24 was sustained (e.g., Patrick v. Alacer Corp., 167 Cal.App.4th 995, 84 Cal.Rptr.3d 642 (2008)), that
25 approach is not available here. Spot On’s demurrers to the FAC’s seventh purported cause of action
26 for “tort of another” were based exclusively on the substantive ground that the tort of another
27 doctrine was not available at all against Spot On in the context of the current action (for the very
28 same reasons discussed in Part II above). The mere “re-packaging” of that “tort of another” claim
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT
as a single paragraph, and its transfer to the negligence cause of action, did not (and indeed, could
not) do anything to address the substance of those defects. And the Court’s Order which sustained
Spot On’s demurrers certainly did not expressly state that Pacific could employ such a stratagem
to perpetuate its defective claim.
Accordingly, the SAC’s new Paragraph 77 of its fourth cause of action for negligence, and
its expanded prayer for relief thereon seeking attorneys’ fees, must be stricken as a matter of law.
IV
CONCLUSION.
Pacific’s amendment of its SAC, to assert a claim for attorneys’ fees under the “tort of
10 another doctrine” within its fourth cause of action for negligence, by inserting a new Paragraph 77
11 and expanding its prayer for relief thereon, is wholly improper, both substantively and procedurally,
12 as a matter of law. Accordingly, the Court should grant this motion, and strike all such new matter
13 from the SAC, without leave to amend.
14 Respectfully submitted,
15 DATED: April 12, 2021. CHAPMAN, GLUCKSMAN, DEAN & ROEB,
A Professional Corporation
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18 RANDALL J. DEAN
MARK E. DiMARIA
19 Attorneys for Defendants Spot On Consulting
Group, A Professional Accountancy Corporation,
20 Jonathan R. Laddy, CPA, and Kelly P. Playle
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
DECLARATION OF MARK E. DiMARIA
PURSUANT TO CODE OF CIVIL PROCEDURE §435.5
I, MARK E. DiMARIA, declare:
1 The facts in this Declaration are set forth on my personal knowledge and, if called
as a witness, I could and would competently testify thereto under oath.
2 I am an attorney, duly authorized to practice before all courts of the State of
California, and I practice with the law firm of Chapman, Glucksman, Dean & Roeb, A Professional
Corporation, counsel of record in this action for defendants Spot On Consulting Group, a
Professional Accountancy Corporation, Jonathan R. Laddy, CPA, and Kelly P. Playle (collectively
“Spot On”). I submit this Declaration in support of Spot On’s accompanying motion to strike
10
portions of Pacific’s second amended complaint in this action (the “SAC”).
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3 On March 23, 2021, I sent a letter, a true and complete copy of which is attached
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hereto as Exhibit “A,” to Terry J. Mollica, Esq., of Mollica Law, and Glen H. Olives, Esq., of the
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Law Office of Glen H. Olives, counsel of record for Pacific in this action, by e-mail, at their
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respective addresses appearing on the face of the SAC. Mr. Mollica is the attorney who signed the
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SAC, and Mr. Olives is the attorney who served it on our office. A true and compete copy of the
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e-mail message to which my letter was attached is attached hereto as Exhibit “B.”
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4. My letter asked Mr. Mollica and Mr. Olives to meet to and confer with me by
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telephone (in person meetings currently are inadvisable, due to the COVID-19 pandemic, and our
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offices are located at opposite ends of the State), in order to determine whether we could reach an
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agreement that would resolve the objections that we intended to raise in our motion to strike
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portions of the FAC. The letter advised that our statutory deadline by which to meet and confer
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was April 7, 2021, the fifth day before Spot On’s pleading in response to the SAC was due, and
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asked them to let us know when and how they would like to conduct the meet and confer. It further
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set forth the legal basis, scope, and legal support for our prospective motion to strike.
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5 On April 7, 2021, I received a letter in reply by e-mail from Mr. Olives, in which he
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disagreed with our positions on the motion to strike. After reading Mr. Olives’s letter and
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considering the positions he expressed, I sent him and Mr. Mollica another letter by e-mail on April
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
8, 2021, in which I advised them that we continued to believe that our positions were strongly
grounded in law, that motions to strike on all such grounds were both appropriate and necessary to
ensure that neither the parties nor the Court devoted significant resources to litigating claims that
were not legally tenable, and that it remained our intention to proceed with our motion to strike.
6 As of the execution of this Declaration, I have not heard anything further of
substance from Mr. Olives or Mr. Mollica with respect to the substance of our contemplated Motion
to Strike.
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 April 12, 2021, at Los
10 Angeles, California.
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12 A. MARK E. DiMARIA
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NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
EXHIBIT A
CHAPMAN GLUCKSMAN
DEAN & ROEB
A PROFESSIONAL CORPORATION
Mark E, DIMarRIA
ATTORNEYS AT LAW
11900 WEST OLYMPIC BOULEVARD, SUITE 800
LOS ANGELES, CALIFORNIA 90064-0704
TELEPHONE: (310) 207-7722
‘TELECOPIER: (310) 207-6550
WEBSITE: www.cgdrlaw.com
E-MAIL: mdimaria@cgdrlaw.com
April 8, 2021
BY E-MAIL
Terry J. Mollica, Esq. Glen H. Olives, Esq.
Mollica Law Law Office of Glen H. Olives
560 First Street, Suite B201 4701 Soquel Drive, Suite E
Benicia, CA 94510 Soquel, CA 95073
tjm@caattnys.com gho57942@gmail.com
Re: Pacific Office Designs, Inc., etc. v. Spot On Consulting Group, etc., et al.,
Santa Clara County Superior Court Case No. 20 CV 368229;
Our File No.:_2.0782.763
Dear Mr. Mollica and Mr. Olives:
Thank you very much for Mr. Olives’s letter of April 6, 2021, in response to my meet and
confer correspondence of March 23, 2012.
We appreciate your taking the time and trouble to respond to me at some length.
Nevertheless, after having considered your letter, we continue to believe that each of the positions
expressed in my March 23 correspondence is strongly grounded in established law, and that a
motion to strike portions of your second amended complaint on such grounds is both appropriate
and necessary to ensure that neither side needlessly devotes significant resources to litigating
claims that are not legally tenable. We thus anticipate filing our motion to strike portions of the
second amended complaint on those grounds.
We nevertheless will remain amenable to considering any further thoughts you may have
after reviewing our motion, including a stipulation to strike the subject portions of your pleading.
Thank you again for your consideration of our position.
Very truly yours,
CHAPMAN GLUCKSMAN DEAN & ROEB
A Professional Corporation
‘°
MARK E. DiMARIA
Los ANGELES - ORANGE CouUNTY BAY AREA
EXHIBIT B
DiMaria, Mark
From: DiMaria, Mark
Sent: Thursday, April 8, 2021 10:48 AM
To: Glen Olives Esq. (gho57942@gmail.com); Terry Mollica
Ce: Dean, Randall
Subject: Pacific Office v. Spot On
Attachments: COUNSEL (SAC Demurrer Meet & Confer Reply) 04-08-20.pdf
Tracking: Recipient Read
Glen Olives Esq. (gho57942@gmail.com)
Terry Mollica
Dean, Randall Read: 4/8/2021 10:59 AM
Hi Glen and Terry:
Attached please find my correspondence to you of this date.
Thanks.
MARK E. DiMARIA
mdimaria@cgdrlaw.com | Download vCard] www.cgdrlaw.com
CHAPMANGLUCKSMAN
Chapman, Glucksman, Dean & Roeb
11900 W. Olympic Boulevard Suite 800
Los Angeles, California 90064
Telephone: (310) 207-7722
Facsimile: (310) 207-6550
BA Please consider the environment before printing this e-mail
OS ANGELES | ORANGE COUNTY | BAY ARE:
THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN
INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 11900 W. Olympic Boulevard, Suite
800, Los Angeles, California 90064.
On April 12, 2021, I served the foregoing document described as NOTICE OF MOTION
AND MOTION BY DEFENDANTS SPOT ON CONSULTING GROUP, JONATHAN
RONALD LADDY, AND KELLY PAULINE PLAYLE TO STRIKE PORTIONS OF
PLAINTIFF’S SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND
AUTHORITIES; AND DECLARATION OF MARK E. DiMARIA PURSUANT TO CODE
OF CIVIL PROCEDURE §435.5 on the parties in this action as follows:
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SEE ATTACHED SERVICE LIST
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12 (BY MAIL)
I placed said document in an envelope addressed as shown on the attached service list. ]am
13 “readily familiar" with the firm's practice of collection and processing correspondence for
mailing with the United States Postal Service. Under that practice, said correspondence will
14 be deposited with the United States Postal Service the same day in the ordinary course of
business. I sealed said envelope and placed it for collection and mailing on the date stated
15 below to the addressed stated on the attached service list, following the firm's ordinary
business practices.
16
17 (ELECTRONIC MAIL)
I transmitted a true and correct copy of said document to the addressees shown on the
18 service list via Electronic Mail.
19
(ELECTRONIC MAIL)
20 By transmitting a copy of the foregoing document(s) via internet/electronic mail to a
Court Approved e-filing/e-service portal ONE LEGAL for service on all parties in this
21 case via their email addresses pursuant to the General Court Order authorizing e-service
of documents.
22
23 (STATE)
I declare under penalty of perjury under the laws of the State of California that the foregoing
24 is true and correct.
25 Executed on April 12, 2021, at Los Angeles, California.
26
/s/
27 C. Taylor
28
782-763 13
NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
PROOF OF SERVICE
PACIFIC OFFICE DESIGNS, INC. v. SPOT ON CONSULTING GROUP, et al.
Superior Court of the State of California — Santa Clara County
Case No. .: 20 CV 368229
Terry J. Mollica, Esq. Attorneys for Plaintiff,
Mollica Law PACIFIC OFFICE DESIGNS, INC., a
California Corporation
560 First Street, Suite B201
Benicia, CA. 94510
Tele: (925) 239-2380
Fax: (925)239-2382
E-mail: tim@caattnys.com
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11 Glen H. Olives, Esq. Attorneys for Plaintiff,
Law Office of Glen H. Olives PACIFIC OFFICE DESIGNS, INC., a
12 4701 Soquel Drive, Suite E California Corporation
Soquel, CA. 95073
13
Telephone: (408) 505-6889
14 E-mail: gho57942@gmail.com
15
Teresa C. Chow, Esq. Attorneys for Defendants,
16 BakerHostetler EXEMPLIS, LLC, a California Limited
11601 Wilshire Boulevard,| Suite 1400 Liability Company; PAUL DE VRIES;
17 Los Angeles, CA 90025-0509 and NANCY LOPEZ
18 Telephone: (310) 979-8458
tchow@bakerlaw.com
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782-763 14
NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT
Preview
20CV368229 Santa Clara — Civil A. Floresca Randall J. Dean, Esq., Bar No. 110441 Mark E. DiMaria, Esq., Bar No. 89378 Electronically Filed CHAPMAN GLUCKSMAN DEAN & ROEB by Superior Court of CA, A PROFESSIONAL CORPORATION County of Santa Clara, 11900 WEST OLYMPIC BOULEVARD, SUITE 800 on 4/12/2021 12:51 PM LOS ANGELES, CALIFORNIA 90064-0704 (310) 207-7722 * FAX: (310) 207-6550 Reviewed By: A. Floresca Case #20CV368229 Attorneys for Defendants Spot On Consulting Envelope: 6220876 Group, A Professional Accountancy Corporation, Jonathan R. Laddy, CPA, and Kelly P. Playle SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA 10 PACIFIC OFFICE DESIGNS, INC., a Case No.: 20 CV 368229 11 California Corporation; Complaint Filed: July 9, 2020 12 SAC Served: March 11, 2021 Plaintiff, 13 Case Management Judge: Vv. The Honorable Socrates P. Manoukian, 14 Dept: 20 SPOT ON CONSULTING GROUP, a 15 Professional Accountancy Corporation; NOTICE OF MOTION AND MOTION JONATHAN RONALD LADDY; EXEMPLIS, BY DEFENDANTS SPOT ON 16 LLC, a California Limited Liability Company; CONSULTING GROUP, JONATHAN PAUL DE VRIES; KELLY PAULINE RONALD LADDY, AND KELLY 17 PLAYLE; NANCY LOPEZ; and DOES 1-150, PAULINE PLAYLE TO STRIKE inclusive, PORTIONS OF PLAINTIFF’S SECOND 18 AMENDED COMPLAINT; MEMORANDUM OF POINTS AND 19 Defendants. AUTHORITIES; AND DECLARATION OF MARK E. DiMARIA PURSUANT TO 20 CODE OF CIVIL PROCEDURE §435.5 21 Date: 6-3-21 5001 Time: 9:00 a.m. 22 Dept.: 20 23 Trial Date: None Set 24 25 26 27 28 1 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT NOTICE OF MOTION TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on 6-3-21 ; 2021, at 9:00 a.m., or as soon thereafter as the matter may be heard, in Department 20 of the above-captioned Court, located at 161 North First Street, San Jose, CA 95113, defendants Spot On Consulting Group, a Professional Accountancy Corporation, Jonathan R. Laddy, CPA, and Kelly P. Playle (collectively “Spot On”), will, and hereby do, move to strike the following portions of the “Second Amended Complaint for Intentional Misrepresentation; Negligent Misrepresentation; Breach of Contract; and Negligence” (the “SAC”) of plaintiff Pacific Office Designs, Inc., a California corporation 10 (“Pacific”), as to Spot On, on the grounds that such portions constitute improper matter that is not 11 drawn in conformity with the laws of this State: 12 A Each of (i) Paragraph 77 of the SAC’s Fourth Cause of Action for 13 Negligence, at page 19, lines 1-7, in its entirety, and (ii) the phrase “including 14 without limitation all attorney’s fees and costs incurred by Plaintiff in prosecution 15 and defense of said action against the Defendants EXEMPLIS under the provisions 16 of Prentice v. North American Guaranty Corp.” in Paragraph 1 of the Prayer for 17 Relief on the SAC’s Fourth Cause of Action for Negligence, at page 25, lines 9-12; 18 in that they impermissibly seek to recover attorneys’ fees without alleging any 19 legally cognizable basis therefor, either by statute or by agreement, in violation of 20 Code of Civil Procedure §1021. 21 This Motion is made pursuant to Code of Civil Procedure §§ 435, 436, and 435.5, and will 22 be based on this Notice of Motion; the accompanying Memorandum of Points and Authorities; the 23 attached Declaration of Mark E. DiMaria pursuant to Code of Civil Procedure §435.5; the pleadings, 24 25 26 27 28 782-763 2 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT records, and files in this action; and such other materials as may be presented to the Court, or judicially noticed, at or before, or in connection with, the hearing on this Motion. DATED: April 12, 2021. CHAPMAN, GLUCKSMAN, DEAN & ROEB, A Professional Corporation RANDALL J. DEAN MARK E. DiMARIA Attorneys for Defendants Spot On Consulting Group, A Professional Accountancy Corporation, Jonathan R. Laddy, CPA, and Kelly P. Playle 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION. This Motion is necessitated by Pacific’s disingenuous attempt, following successful general demurrers by Spot On, to re-animate its substantively defective and abandoned claim for “tort of another,” by editing it down into a single paragraph and slipping it in as an amendment to a different claim that was not demurred to, and thus not subject to any request or grant for leave to amend. Because this amendment is both substantively and procedurally impermissible, it must be stricken. A The Circumstances. 10 On January 27, 2021, this Court sustained Spot On’s demurrers to, and granted its motion 11 to strike, portions of Pacific’s first amended complaint (the “FAC”), in their entirety. Though the 12 Court generously allowed Pacific leave to amend the FAC’s demurrable causes of action and 13 stricken allegations as against Spot On, Pacific elected to excise and drop completely each such 14 defective claim and allegation from its next amended pleading, the SAC. As such, each of the four 15 causes of action of the FAC to which Spot On demurred, and each of its allegations that Spot On 16 moved to strike, now has been removed by Pacific and is gone from its SAC. 17 Among those defective and deleted portions of the FAC were its seventh cause of action 18 and its prayer for relief thereon, which sought to recover attorneys’ fees under the “tort of another 19 doctrine,” which in turn is based on Prentice v. North American Title Guaranty Corp., 59 Cal.2d 20 618, 620, 30 Cal.Rptr. 821 (1963). As was discussed and explained in Spot On’s general demurrer 21 to that seventh cause of action of the FAC, the “tort of another doctrine” is inherently unavailable 22 to Pacific in the context of this suit, as a matter of substantive law. Accordingly, the Court sustained 23 that demurrer, and Pacific then dropped that cause of action and its prayer for relief from the SAC. 24 Spot On’s demurrers were not directed toward the FAC’s third or fourth causes of action, 25 for breach of contract and negligence, respectively, against Spot On. Consequently, the Court made 26 no ruling with respect to either claim. Despite this, Pacific now has made a putative amendment to 27 the fourth cause of action for negligence of its new SAC, by re-packaging and inserting its defective 28 “tort of another” claim as a new Paragraph 77, along with a prayer for attorneys’ fees thereon. 4 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT That amendment is flatly impermissible, since (1) leave to amend the FAC’s Fourth Cause of Action was neither in issue, not sought, nor granted; and (2) regardless, the Court already has determined that the “tort of another” claim is not substantively cognizable, as a matter of law, under the allegations of the FAC and consequently, under its remaining allegations that now comprise the SAC’s surviving claims against Spot On. As such, the new material must be stricken, in its entirety. B. Procedural History. On July 9, 2020, Pacific filed its initial complaint in this action against its accountants, Spot On Consulting Group, a Professional Accountancy Corporation, and Jonathan R. Laddy, CPA, and their employee, Kelly P. Playle (collectively “Spot On”), along with other defendants. That 10 complaint alleged that Spot On was induced to process and make payments on behalf of Pacific to 11 one of its trade creditors, defendant Exemplis, LLC, which payments instead were fraudulently re- 12 directed and obtained by undisclosed third parties posing as authorized Exemplis personnel. It thus 13 asserted claims against Spot On for negligence, intentional and negligent misrepresentation, breach 14 of contract, tort of another, constructive trust, money had and received, and “res ipsa loquitor” [sic]. 15 In response, Spot On’s counsel sent the requisite pre-demurrer letter pursuant to Code of 16 Civil Procedure §430.31 to Pacific’s attorneys, citing various legal deficiencies in that original 17 complaint, and requesting that they be remedied. Consequently, on October 9, 2020, Pacific served 18 its FAC on counsel for Spot On, which deleted the former claims for constructive trust and money 19 had and received, dropped individual defendants Mr. Laddy and Ms. Playle from the claim for 20 breach of contract, dropped Mr. Laddy from the negligent misrepresentation claim, and made other 21 changes (primarily with respect to the FAC’s allegations against the named defendants other than 22 Spot On, to wit, Exemplis LLC and its personnel, Paul DeVries and Nancy Lopez). 23 Despite these amendments, the FAC continued to assert claims against Spot On which were 24 legally untenable, as its first, second, seventh and ninth purported causes of action, for intentional 25 misrepresentation, negligent misrepresentation, “tort of another,” and “res ipsa loquitor” [sic], 26 respectively. Spot On thus filed its general demurrers to those four claims (but not the third and 27 fourth causes of action for breach of contract and negligence), along with a motion to strike the 28 FAC’s requests to recover attorneys’ fees, special damages, and punitive damages. 5 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT Following a hearing thereon, the Court issued its order on January 27, 2021, sustaining Spot On’s demurrers and granting its motion to strike, in their entirety, albeit with leave to amend. On March 11, 2021, Pacific filed its SAC, The SAC deleted entirely (i) each of the FAC’s claims against Spot On which had been the subject of its demurrers — the (now former) first, second, seventh, and ninth purported causes of action, for intentional misrepresentation, negligent misrepresentation, “tort of another,” and “res ipsa loquitor;” and (ii) each of the FAC’s former allegations which had sought to recover attorneys’ fees, special damages, and punitive damages. However, the SAC also inserted new material into its extant fourth cause of action against Spot on, for negligence, to wit, Paragraph 77, claiming a right to recover attorneys’ fees under the 10 same defective “tort of another” doctrine upon which the former seventh cause of action had been 11 based, along with an expanded prayer for relief on that cause of action, now seeking attorneys’ fees. 12 I 13 AS A MATTER OF LAW, PACIFIC STILL CANNOT RECOVER ATTORNEYS’ FEES 14 FROM SPOT ON UNDER THE “TORT OF ANOTHER” DOCTRINE. 15 As this Court already has seen and determined, in sustaining Spot On’s general demurrers 16 (and those of co-defendant Exemplis) to the FAC’s seventh purported cause of action for “tort of 17 another,” Pacific cannot seek or obtain attorneys’ fees from Spot On in this action on that basis, as 18 a matter of substantive law. 19 California generally follows the “American Rule” on the recovery of attorneys’ fees: 20 “Except as attorney's fees are specifically provided for by statute, the measure and mode of 21 compensation of attorneys and counselors at law is left to the agreement, express or implied, of the 22 parties ....” Code of Civil Procedure §1021. However, “A person who through the tort of another 23 has been required to act in the protection of his interests by bringing or defending an action against 24 a third person is entitled to recover compensation for the reasonably necessary loss of time, 25 attorney's fees, and other expenditures thereby suffered or incurred.” Prentice v. North American 26 Title Guaranty Corp., 59 Cal.2d 618, 620, 30 Cal.Rptr. 821 (1963). This.is because such attorneys’ 27 fees and expenses incurred in other prior underlying litigation are “akin to damages,” rather than 28 an expense of prosecuting the current claim. Id., at 59 Cal.2d 621. 6 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT Later rulings have interpreted, clarified, and narrowed the holding and language of Justice McComb in Prentice v. North American Title Guaranty Corp., 59 Cal.2d 618, 30 Cal.Rptr. 821 (1963), in first articulating the “tort of another” doctrine nearly 60 years ago. Those decisions have noted and proscribed the potential subterfuge of using of the rule to recover attorneys’ fees when a plaintiff sues multiple parties for the very same damages from the same alleged harm, claiming that the harm done by each defendant required that plaintiff to sue the others. See, e.g., Bear Creek Planning Committee v. Title Insurance & Trust _Co., 164 Cal.App.3d 1227, 1243-1244, 211 Cal.Rptr. 172 (1985); Pederson v. Kennedy, 128 Cal.App.3d 976, 980, 180 Cal.Rptr. 740 (1982); Vacco Industries, Inc. v. Van Den Berg, 5 Cal.App.4th 34, 57, 6 Cal.Rptr.2d 602 (1992); and 10 Gorman y. Tassajara Development Corp., 178 Cal.App.4th 44, 80, 100 Cal.Rptr.3d 152 (2009). 11 The context of this action is readily distinguishable from Prentice, which was a lawsuit by 12 the sellers of real property who wished to unwind the transaction and sought to quiet title against 13 the purchasers, to which an entirely separate claim for attorney fees against the broker was joined. 14 The Prentice court was not addressing a situation such as this, in which the same damages (or other 15 relief) simultaneously were being sought against two different defendants (Spot On and Exemplis), 16 much less one in which the plaintiff was asking to recover attorneys’ fees incurred in that same 17 action against both such defendants. In this lawsuit, Pacific is seeking to recover exactly the sam 18 damages for exactly the same harm, a misdirected payment of its money in the sum of $281,157, 19 against two defendants (Spot On and Exemplis) whose negligence it alleges caused that same harm, 20 while also seeking attorneys’ fees from both under the “tort of another doctrine.” This is precisely 21 the sort of claim that the Courts in Vacco and Gorman cautioned against, and proscribed: «“The tort tort of of another another doctrine doctrine does does not not allow allow aa party par toto recover recover the the fees fee: 22 ‘The 23 ind costs involved in litigating directly with a negligent defendant. [Pederson 24 v. Kennedy, 128 Cal.App.3d 976, 980, 180 Cal.Rptr. 740 (1982).] 25 “{Moreover], the tort of another doctrine does not apply to the situation 26 where a plaintiff has been damaged by the joint negligence of codefendants. 27 Vacco, supra,] stated at page 57: ‘The rule of Prentice was not intended to apply 28 to one of several joint tortfeasors in order to justify additional attorney fee damages. 7 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT If that were the rule there is no reason why it could not be applied in every multiple tortfeasor case with the plaintiff simply choosing the one with the deepest pocket as the “Prentice target.” Such a result would be a total emasculation of Code of Civil Procedure section 1021 in tort cases.’” Gorman v. Tassajara Development Corp., 178 Cal.App.4th 44, 80, 100 Cal.Rptr.3d 152 (2009). (Emphasis added.) As such, the California courts have made it clear that this “tort of another” doctrine, since codified in Code of Civil Procedure §1021.6, may not be used as a subterfuge to recover fees incurred in cases such as this one. Pacific’s latest efforts to apply the “tort of another” doctrine remain nothing more than a 10 proscribed attempt to recover attorneys’ fees that are to be incurred prospectively in litigation that 11 is directed against an alleged tortfeasor, Spot On. And the presence of an alleged jointly negligent 12 tortfeasor, Exemplis, still is not a permissible basis on which to assert otherwise. For the very same 13 reasons that required this Court to sustain Spot On’s demurrers to the FAC’s putative cause of 14 action for “tort of another,” the new allegations of the SAC seeking that very same substantive 15 relief must be stricken, as a matter of law. 16 Ill 17 PACIFIC’S AMENDMENT OF ITS FOURTH CAUSE OF ACTION, WHICH WAS NOT 18 WITHIN THE SCOPE OF SPOT ON’S EARLIER DEMURRERS THAT WERE 19 SUSTAINED WITH LEAVE TO AMEND, IS IMPROPER. 20 It is established that when a demurrer is sustained with leave to amend, such leave does not 21 extend to causes of action beyond those addressed by that demurrer, and that any amendment that 22 violates this rule is subject to a motion to strike: 23 “Tt is the rule that when a trial court sustains a demurrer with leave to amend, 24 the scope of the grant of leave is ordinarily a limited one. It gives the pleader an 25 opportunity to cure the defects in the particular causes of action to which the 26 demurrer _was sustained, but that is all [citing People v. Clausen, 248 Cal.App.2d 27 770, 785-786, 57 Cal.Rptr. 227 (1967)]. ‘The plaintiff may not amend the complaint 28 to add a new cause of action without having obtained permission to do so, unless 8 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT the new cause of action is within the scope of the order granting leave to amend’ [citing Harris v. Wachovia Mortgage, FSB, 185 Cal.App.4th 1018, 1023, 111 Cal.Rptr.3d 20 (2010). Accordingly, the trial court correctly granted the motion to strike the new cause of action because it was ‘not drawn or filed in conformity with ... an order of the court’ [citing Code of Civil Procedure §436(b)].” Community Water Coalition _v. Santa Cruz County Local Agency Formation Commission, 200 Cal.App.4th 1317, 1329, 134 Cal.Rptr.3d 899 (2011) (emphasis added); accord, Gilkyson v. Disney Enterprises, Inc., 244 Cal.App.4th 1336, 1347, 198 Cal.Rptr.3d 611 (2016); and Zakk v. Diesel, 33 Cal.App.Sth 431, 456, 245 10 Cal.Rptr.3d 215 (2019). 11 “Scope of permissible amendment: Generally, where a court grants leave 12 to amend after sustaining a demurrer, the scope of permissible amendment _is 13 limited to the cause(s) of action to which the demurrer has been sustained: ‘(S)uch 14 granting of leave to amend must be construed as permission to the pleader fo amend 15 the cause of action which he pleaded in the pleading to which the demurrer has 16 been sustained.’ [citing People v. Clausen, supra, 248 Cal.App.2d at 785-786]; see 17 (Harris v. Wachovia Mortgage, FSB, supra, 185 Cal.App.4th at 1023] — plaintiff 18 may not amend the complaint to add a new cause of action without having obtained 19 permission to do so.” Edmon, et al., California Practice Guide: Civil Procedure 20 Before Trial, Pleadings §6:635.5 (Rutter Group 2017) (italics and bold type in 21 original; other emphasis added). 22 Although there is a line of case authority that may allow an amendment outside of the cause 23 of action demurred to, if that amendment “directly responds to” the grounds on which the demurrer 24 was sustained (e.g., Patrick v. Alacer Corp., 167 Cal.App.4th 995, 84 Cal.Rptr.3d 642 (2008)), that 25 approach is not available here. Spot On’s demurrers to the FAC’s seventh purported cause of action 26 for “tort of another” were based exclusively on the substantive ground that the tort of another 27 doctrine was not available at all against Spot On in the context of the current action (for the very 28 same reasons discussed in Part II above). The mere “re-packaging” of that “tort of another” claim 9 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT as a single paragraph, and its transfer to the negligence cause of action, did not (and indeed, could not) do anything to address the substance of those defects. And the Court’s Order which sustained Spot On’s demurrers certainly did not expressly state that Pacific could employ such a stratagem to perpetuate its defective claim. Accordingly, the SAC’s new Paragraph 77 of its fourth cause of action for negligence, and its expanded prayer for relief thereon seeking attorneys’ fees, must be stricken as a matter of law. IV CONCLUSION. Pacific’s amendment of its SAC, to assert a claim for attorneys’ fees under the “tort of 10 another doctrine” within its fourth cause of action for negligence, by inserting a new Paragraph 77 11 and expanding its prayer for relief thereon, is wholly improper, both substantively and procedurally, 12 as a matter of law. Accordingly, the Court should grant this motion, and strike all such new matter 13 from the SAC, without leave to amend. 14 Respectfully submitted, 15 DATED: April 12, 2021. CHAPMAN, GLUCKSMAN, DEAN & ROEB, A Professional Corporation 16 17 18 RANDALL J. DEAN MARK E. DiMARIA 19 Attorneys for Defendants Spot On Consulting Group, A Professional Accountancy Corporation, 20 Jonathan R. Laddy, CPA, and Kelly P. Playle 21 22 23 24 25 26 27 28 10 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT DECLARATION OF MARK E. DiMARIA PURSUANT TO CODE OF CIVIL PROCEDURE §435.5 I, MARK E. DiMARIA, declare: 1 The facts in this Declaration are set forth on my personal knowledge and, if called as a witness, I could and would competently testify thereto under oath. 2 I am an attorney, duly authorized to practice before all courts of the State of California, and I practice with the law firm of Chapman, Glucksman, Dean & Roeb, A Professional Corporation, counsel of record in this action for defendants Spot On Consulting Group, a Professional Accountancy Corporation, Jonathan R. Laddy, CPA, and Kelly P. Playle (collectively “Spot On”). I submit this Declaration in support of Spot On’s accompanying motion to strike 10 portions of Pacific’s second amended complaint in this action (the “SAC”). 11 3 On March 23, 2021, I sent a letter, a true and complete copy of which is attached 12 hereto as Exhibit “A,” to Terry J. Mollica, Esq., of Mollica Law, and Glen H. Olives, Esq., of the 13 Law Office of Glen H. Olives, counsel of record for Pacific in this action, by e-mail, at their 14 respective addresses appearing on the face of the SAC. Mr. Mollica is the attorney who signed the 15 SAC, and Mr. Olives is the attorney who served it on our office. A true and compete copy of the 16 e-mail message to which my letter was attached is attached hereto as Exhibit “B.” 17 4. My letter asked Mr. Mollica and Mr. Olives to meet to and confer with me by 18 telephone (in person meetings currently are inadvisable, due to the COVID-19 pandemic, and our 19 offices are located at opposite ends of the State), in order to determine whether we could reach an 20 agreement that would resolve the objections that we intended to raise in our motion to strike 21 portions of the FAC. The letter advised that our statutory deadline by which to meet and confer 22 was April 7, 2021, the fifth day before Spot On’s pleading in response to the SAC was due, and 23 asked them to let us know when and how they would like to conduct the meet and confer. It further 24 set forth the legal basis, scope, and legal support for our prospective motion to strike. 25 5 On April 7, 2021, I received a letter in reply by e-mail from Mr. Olives, in which he 26 disagreed with our positions on the motion to strike. After reading Mr. Olives’s letter and 27 considering the positions he expressed, I sent him and Mr. Mollica another letter by e-mail on April 28 11 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT 8, 2021, in which I advised them that we continued to believe that our positions were strongly grounded in law, that motions to strike on all such grounds were both appropriate and necessary to ensure that neither the parties nor the Court devoted significant resources to litigating claims that were not legally tenable, and that it remained our intention to proceed with our motion to strike. 6 As of the execution of this Declaration, I have not heard anything further of substance from Mr. Olives or Mr. Mollica with respect to the substance of our contemplated Motion to Strike. 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 April 12, 2021, at Los 10 Angeles, California. 11 12 A. MARK E. DiMARIA 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT EXHIBIT A CHAPMAN GLUCKSMAN DEAN & ROEB A PROFESSIONAL CORPORATION Mark E, DIMarRIA ATTORNEYS AT LAW 11900 WEST OLYMPIC BOULEVARD, SUITE 800 LOS ANGELES, CALIFORNIA 90064-0704 TELEPHONE: (310) 207-7722 ‘TELECOPIER: (310) 207-6550 WEBSITE: www.cgdrlaw.com E-MAIL: mdimaria@cgdrlaw.com April 8, 2021 BY E-MAIL Terry J. Mollica, Esq. Glen H. Olives, Esq. Mollica Law Law Office of Glen H. Olives 560 First Street, Suite B201 4701 Soquel Drive, Suite E Benicia, CA 94510 Soquel, CA 95073 tjm@caattnys.com gho57942@gmail.com Re: Pacific Office Designs, Inc., etc. v. Spot On Consulting Group, etc., et al., Santa Clara County Superior Court Case No. 20 CV 368229; Our File No.:_2.0782.763 Dear Mr. Mollica and Mr. Olives: Thank you very much for Mr. Olives’s letter of April 6, 2021, in response to my meet and confer correspondence of March 23, 2012. We appreciate your taking the time and trouble to respond to me at some length. Nevertheless, after having considered your letter, we continue to believe that each of the positions expressed in my March 23 correspondence is strongly grounded in established law, and that a motion to strike portions of your second amended complaint on such grounds is both appropriate and necessary to ensure that neither side needlessly devotes significant resources to litigating claims that are not legally tenable. We thus anticipate filing our motion to strike portions of the second amended complaint on those grounds. We nevertheless will remain amenable to considering any further thoughts you may have after reviewing our motion, including a stipulation to strike the subject portions of your pleading. Thank you again for your consideration of our position. Very truly yours, CHAPMAN GLUCKSMAN DEAN & ROEB A Professional Corporation ‘° MARK E. DiMARIA Los ANGELES - ORANGE CouUNTY BAY AREA EXHIBIT B DiMaria, Mark From: DiMaria, Mark Sent: Thursday, April 8, 2021 10:48 AM To: Glen Olives Esq. (gho57942@gmail.com); Terry Mollica Ce: Dean, Randall Subject: Pacific Office v. Spot On Attachments: COUNSEL (SAC Demurrer Meet & Confer Reply) 04-08-20.pdf Tracking: Recipient Read Glen Olives Esq. (gho57942@gmail.com) Terry Mollica Dean, Randall Read: 4/8/2021 10:59 AM Hi Glen and Terry: Attached please find my correspondence to you of this date. Thanks. MARK E. DiMARIA mdimaria@cgdrlaw.com | Download vCard] www.cgdrlaw.com CHAPMANGLUCKSMAN Chapman, Glucksman, Dean & Roeb 11900 W. Olympic Boulevard Suite 800 Los Angeles, California 90064 Telephone: (310) 207-7722 Facsimile: (310) 207-6550 BA Please consider the environment before printing this e-mail OS ANGELES | ORANGE COUNTY | BAY ARE: THIS ELECTRONIC MESSAGE IS INTENDED FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED AND CONFIDENTIAL. IF YOU ARE NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY REPLY E-MAIL OR BY TELEPHONE AT (310) 207-7722, AND DESTROY THE ORIGINAL TRANSMISSION AND ITS ATTACHMENTS WITHOUT READING OR SAVING THEM TO DISK. THANK YOU. PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 11900 W. Olympic Boulevard, Suite 800, Los Angeles, California 90064. On April 12, 2021, I served the foregoing document described as NOTICE OF MOTION AND MOTION BY DEFENDANTS SPOT ON CONSULTING GROUP, JONATHAN RONALD LADDY, AND KELLY PAULINE PLAYLE TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF MARK E. DiMARIA PURSUANT TO CODE OF CIVIL PROCEDURE §435.5 on the parties in this action as follows: 10 SEE ATTACHED SERVICE LIST 11 12 (BY MAIL) I placed said document in an envelope addressed as shown on the attached service list. ]am 13 “readily familiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, said correspondence will 14 be deposited with the United States Postal Service the same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing on the date stated 15 below to the addressed stated on the attached service list, following the firm's ordinary business practices. 16 17 (ELECTRONIC MAIL) I transmitted a true and correct copy of said document to the addressees shown on the 18 service list via Electronic Mail. 19 (ELECTRONIC MAIL) 20 By transmitting a copy of the foregoing document(s) via internet/electronic mail to a Court Approved e-filing/e-service portal ONE LEGAL for service on all parties in this 21 case via their email addresses pursuant to the General Court Order authorizing e-service of documents. 22 23 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing 24 is true and correct. 25 Executed on April 12, 2021, at Los Angeles, California. 26 /s/ 27 C. Taylor 28 782-763 13 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT PROOF OF SERVICE PACIFIC OFFICE DESIGNS, INC. v. SPOT ON CONSULTING GROUP, et al. Superior Court of the State of California — Santa Clara County Case No. .: 20 CV 368229 Terry J. Mollica, Esq. Attorneys for Plaintiff, Mollica Law PACIFIC OFFICE DESIGNS, INC., a California Corporation 560 First Street, Suite B201 Benicia, CA. 94510 Tele: (925) 239-2380 Fax: (925)239-2382 E-mail: tim@caattnys.com 10 11 Glen H. Olives, Esq. Attorneys for Plaintiff, Law Office of Glen H. Olives PACIFIC OFFICE DESIGNS, INC., a 12 4701 Soquel Drive, Suite E California Corporation Soquel, CA. 95073 13 Telephone: (408) 505-6889 14 E-mail: gho57942@gmail.com 15 Teresa C. Chow, Esq. Attorneys for Defendants, 16 BakerHostetler EXEMPLIS, LLC, a California Limited 11601 Wilshire Boulevard,| Suite 1400 Liability Company; PAUL DE VRIES; 17 Los Angeles, CA 90025-0509 and NANCY LOPEZ 18 Telephone: (310) 979-8458 tchow@bakerlaw.com 19 20 21 22 23 24 25 26 27 28 782-763 14 NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT