Superior Court, State of California

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 19, Honorable Peter H. Kirwan, Presiding
Ingrid Stewart, Courtroom Clerk
Court Reporter: SEE NOTE BELOW
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.

LAW AND MOTION TENTATIVE RULINGS

DATE: January 9, 2018 TIME: 9 A.M.

PLEASE NOTE: EFFECTIVE 7-24-17, THE COURT WILL NO LONGER BE PROVIDING COURT REPORTERS. IF YOU WANT A COURT REPORTER AT YOUR HEARING, ALL PARTIES MUST JOINTLY AGREE AND A STIPULATION AND APPOINTMENT MUST BE COMPLETED, SEE FORM CIV-5063

THE COURT WILL PREPARE THE ORDER UNLESS STATED

OTHERWISE BELOW

TROUBLESHOOTING TENTATIVE RULINGS

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LINE # / CASE # / CASE TITLE / RULING /
LINE 1 / 16CV292093 / Konica Minolta All Covered vs. Wagic, Inc. / Hearing on Order of Examination----Ronald L. Johnson, CEO Wagic, Inc.----Proof of Service Required /
LINE 2 / 2014-1-CV-268896 / John Deere Landscapes, LLC v. Vivanco Reinoso / Hearing on Return of Warrant re: Juan Vivanco /
LINE 3 / 2015-1-CV-282269 / Milestone Financial LLC v. K. Smith et al / Order of Examination of William R. Stuart, Managing Member of Milestone Financial, LLC /
LINE 4 / 17CV314454 / Adolfo Sequeira, Jr. v. Opal Nightclub et al / Click on Line 4 for Ruling /
LINE 5 / 2011-1-CV-211815 / Loubar, LLC v. Barbaccia Properties Holdings, LLC / Click on Line 5 for Ruling /
LINE 6 / 2011-1-CV-211815 / Loubar, LLC v. Barbaccia Properties Holdings, LLC / Click on Line 5 for Ruling /
LINE 7 / 17CV310684 / Midland Funding LLC v. Kerry Scribner / Click on Line 7 for Ruling /
LINE 8 / 2014-1-CV-268149 / Savi Technologies v. Wackpro, Inc. / Click on Line 8 for Ruling /
LINE 9 / 2015-1-CV283437 / Karamcheti v. Midland Funding, LLC / Click on Line 9 for Ruling /
LINE 10 / 2015-1-CV283437 / Karamcheti v. Midland Funding, LLC / Click on Line 10 for Ruling /
LINE 11 / 17CV313422 / Cruz Rodas et al v. State of California et al / Click on Line 11 for Ruling /
LINE 12 / 17CV316865 / U.S. Bank National Association v. Yolanda Lewis / Notice of Application for Writ of Possession and Hearing re: Turnover Order-----Proof of Service Required /
LINE 13 / 2014-1-CV-268624 / Xerox Corporation v. SJ Digiprint, et al / Plaintiff’s Motion for Order to Amend Judgment to Alter Name of Judgment Debtor’s is unopposed and GRANTED. /
LINE 14 / 2015-1-CV-283597 / Kalbali v. Adeeb / Parties to Appear /
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Case Name: Adolfo Sequeira v. Opal Nightclub, et al.

Case No.: 17CV314454

Defendants Azure, Inc. dba Opal Nightclub (erroneously sued as Azure, Inc. and Opal Nightclub) and Sarah Catherine Astels’ Motion to Strike

Factual and Procedural Background

On August 22, 2015, plaintiff Adolfo Sequeira (“Sequeira”) went with his friends to defendant Azure, Inc. dba Opal Nightclub (erroneously sued as Azure, Inc. and Opal Nightclub; hereafter, “Opal”). (Complaint, ¶7.) Sometime between 10:00pm and 12:30am, plaintiff Sequeira slipped and fell on a slippery substance that had accumulated on the staircase. (Complaint, ¶9.) Plaintiff initially believed he sprained his wrist, but later learned that he suffered a fracture of his left wrist and dislocation of left finger. (Complaint, ¶¶11 – 12.) Plaintiff Sequeira alleges Opal’s owner, defendant Sarah Catherine Astels (“Astels”), negligently used or maintained the property. (Complaint, ¶¶19.) Plaintiff alleges Opal nightclub exceeded its capacity, was understaffed, had only one person assigned to clean, and failed to train employees. (Complaint, ¶¶18 – 19.)

On August 15, 2017, plaintiff Sequeira filed a complaint against defendants Opal and Astels asserting causes of action for:

(1)  Premises liability w/ Civil Code §3294.

(2)  Poorly trained staff, poorly managed staff and understaffed to meet OSHA safety standards with Civil Code §3294.

(3)  General Negligence

(4)  Dangerous Condition

(5)  Violation of Administrative Policies from the State’s alcoholic beverage authority (request for punitive damages Civil Code, §3294)

On November 1, 2017, defendants Opal and Astels filed the motion now before the court, a motion to strike plaintiff Sequeira’s punitive damage allegations and request for attorney’s fees.

I.  Defendants Opal and Astels’ motion to strike is GRANTED.

Defendants Opal and Astels move to strike plaintiff Sequeira’s allegations regarding punitive damages. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”

In G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26 (Searle), the court wrote, “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’” “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations.Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberalconstruction. When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at p. 29; internal citations omitted.)

“Punitive damage allegations cannot be pleaded generally. The complaint must allege facts showing statutory ‘oppression,’ ‘malice’ or ‘fraud’ (Civil Code §3294(a), (c)).” (Flahavan, Rea Kelly, CAL. PRAC. GUIDE: PERSONAL INJURY (The Rutter Group 2005) ¶5:428, p. 5-165.) “In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such languagewhen read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503 citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 – 7.)

“‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code §3294, subd. (c)(1); emphasis added.) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civil Code §3294, subd. (c)(2).) In the complaint, there are no allegations that defendants Opal or Astels intended to cause injury to plaintiff Sequeira. Instead, plaintiff Sequeira contends defendants Opal and Astels acted with a willful and conscious disregard of the rights or safety of others.

To plead a “willful and conscious disregard of the rights of others,” a plaintiff must allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 (Lackner).) Here, plaintiff Sequeira included allegations that, “The club has history of violation (over pouring, exceeds capacity, failure to train employee, wet floor etc.), however the owners did not fix the problem. The owner knew or should have known that their carelessness in maintaining the property will cause foreseeable harm.” (Complaint, ¶18.) “The nightclub was and continues to be understaffed with approximately one ‘barback’ assigned to clean.” These allegations, however, do not sufficiently allege defendants’ awareness of the probable dangerous consequences or defendants’ deliberate and willful failure to avoid those consequences. Rather, the allegations merely sound in negligence.

Moreover, the definition of malice and oppression also requires that the conduct be despicable. “‘Despicable conduct’ has been described as conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “[I]n cases involving conduct performed without intent to harm, a finding of ‘malice’ for punitives purposes requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to ‘despicable conduct’ and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 (College Hospital).)

“Malice” is defined as conduct “intended by the defendant to cause injury to the plaintiff,” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” [Citation.] As noted earlier, the italicized words were added by the 1987 Reform Act. We assume they are not surplusage. [Citation.]

By adding the word “willful” to the “conscious-disregard” prong of malice, the Legislature has arguably conformed the literal words of the statute to existing case law formulations. [Citation.] However, the statute’s reference to “despicable” conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective “despicable” is a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible.” [Citation.] As amended to include this word, the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs’ interests. The additional component of “despicable conduct” must be found.

(College Hospital, supra, 8 Cal.4th at p. 725.)

There are no facts alleged here to indicate that defendants acted with some vile, base, evil, or criminal intent.

“In 1980, the Legislature added subdivision (b) to section 3294, to add a special qualification for employer liability for those damages. Subdivision (b) states, in relevant part, that an employer shall not be liable for punitive damages based on an employee’s acts unless ‘the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.’ The statute includes an additional qualification for corporate employers, who may not be liable for punitive damages unless ‘the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice [is] on the part of an officer, director, or managing agent of the corporation.’”

(White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566 (White).)

Defendant Opal argues further that it cannot be liable for punitive damages based upon the conduct of its employees because there are no allegations that defendant Opal had advance knowledge of the unfitness of any of their employees and employed them with a conscious disregard of the rights or safety of others. Defendants also contend there are no allegations that an officer, director, or managing agent ratified or approved any act of oppression, fraud, or malice or were, themselves, personally guilty of oppression, fraud, or malice. In opposition, plaintiff Sequeira tacitly concedes the complaint does not include allegations that an officer, director, or managing agent ratified or approved any act of oppression, fraud, or malice or were, themselves, personally guilty of oppression, fraud, or malice. Instead, plaintiff Sequeira requests leave to amend.

Defendants Opal and Astels also request the court strike plaintiff’s claim for attorney’s fees. Plaintiff offers no opposition on this point.

For all the reasons stated above, defendants Opal and Astels’ motion to strike portions of plaintiff Sequeira’s complaint is GRANTED. To the extent plaintiff Sequeira is able to obtain factual support during discovery, plaintiff Sequeira may thereafter seek leave to amend to pursue punitive damages.

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Case Name: LouBar, LLC v. Barbaccia Properties Holdings, LLC, et al.

Case No.: 2011-1-CV-211815

(1)  Vivian Martorana, as Trustee and Catherine Pecoraro’s Demurrer to Amendment to Cross-Complaint

(2)  Cross-Defendant LouBar, LLC, and Louis Barbaccia, Sr.’s, Demurrer to Cross-Complainants GBR Magic Sands MHP, LLC’s Cross Complaint and Amendment to Cross-Complaint

Factual and Procedural Background

On March 28, 2017, cross-complainants GBR Magic Sands MHP, LLC and MHP Roll-Up, LLC (“Cross-Complainants”) filed and served their cross-complaint in this action. The cross-complaint alleges the original ownership of a 20 acre parcel of real property in Santa Clara County belonging 50% to the parents of Cyril G. Barbaccia and Louis P. Barbaccia (“Parents”) and 50% to Cyril G. Barbaccia (“Cy”) and Louis P. Barbaccia (“Lou”). (Cross-Complaint, ¶16.) In 1963, Parents leased their undivided 50% interest to Cy and Lou for a term of 98 years (“1963 Lease”) giving Cy and Lou full possession of the 20 acre parcel. (Id.) The 20 acre parcel became an integral part of a 56 acre mobile home park known as Magic Sands Mobile Home Park (“Magic Sands”) developed by Cy and Lou. (Cross-Complaint, ¶¶1 and 16.)

In 1967, Cy and Lou formed a company called Magic Sands Mobile Community (“MSMC”) to operate Magic Sands. (Cross-Complaint, ¶17.) As outright owners of a 50% undivided interest in the 20 acre parcel and as tenants under the 1963 Lease, Cy and Lou leased and subleased their interest in the 20 acre parcel to MSMC. MSMC obtained possession of the 20 acres. (Id.) Cy and Lou acted as partners in the operation of Magic Sands. (Cross-Complaint, ¶16 – 17.)