Opposition Motion to Strike
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Opposition Motion to Strike
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Cynthia Coulter Mulvihill SBN 171909 HYDE MULVIHILL APC 216 W. Foothill Blvd PO Box 1007 Monrovia CA 91017-1007 (626) 358-7471/Fax: (626) 358-2894 e-mail: HollywoodPaws@cmsynergy.com
SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES
TO THE COURT AND TO DEFENDANTS AND THEIR ATTORNEY OF RECORD HEREIN:
Plaintiffs hereby respectfully oppose the Defendants’ Motion to Strike on the basis that Plaintiffs are entitled to special damages as a remedy for Defendants’ breaches of contract (First Amended Complaint (FAC) page 65, line 24); fraud (FAC page 71, line 12 t o 13); negligent misrepresentation (FAC page 77, line 20 to 21); and violations of the Consumer Legal Remedies Act (CLRA) (FAC page 81, line 28). Plaintiffs are entitled to attorneys’ fees in this matter (FAC page 65, line 27; page 76, line 18; page 77, line 23). Plaintiffs have sufficiently pleaded allegations entitling them to punitive damages (FAC page 76, line 17; page 82, line 1). Finally, although Plaintiffs pleaded that they are entitled to punitive damages for fraud and violation of the CLRA, Plaintiffs never pleaded punitive damages as a remedy to Defendants’ Breach of Contract (FAC page 65 line 21 to 28). Therefore, this Court should ignore that portion of Defendants’ Motion that argues Plaintiffs are not entitled to punitive damages arising from Defendants’ Breach of Contract.
On January 2, 2007, Plaintiffs received an “AMENDED AND CORRECTED” Motion to Strike dated December 29, 2006. The Amended Motion contained two changes: the Caption was changed to add all of the Plaintiffs named in the First Amended Complaint; and the Amended Motion added a paragraph and footnote asking the Court to strike what it said were Plaintiffs’ requests for punitive damages for Breach of Contract. Plaintiffs are submitting a courtesy “red-line” copy of the AMENDED AND CORRECTED Notice to this Court so that the Court can see the changes Defendants made.
I. PLAINTIFFS ARE ENTITLED TO RECOVER SPECIAL (CONSEQUENTIAL) DAMAGES IN THIS MATTER.
In the Notice of Motion, Defendants state that they are seeking to strike Plaintiffs’ prayer for special damages as a remedy for each of the causes of action pleaded in this matter. Defendants’ Memorandum of Points and Authorities offers no statutory cites, case law or argument about the issue of punitive damages, except that Defendants join the terms “punitive” and “special” damages throughout the Motion to Strike.
Punitive and special damages are not the same thing. Each term represents a legally distinct concept. “Courts award exemplary [punitive] damages to discourage oppression, fraud, or malice by punishing wrongdoer. Southern California Disinfecting Co. v. Lomkin (1960) 183 Cal App.2d 431,” cited in the annotations to Civil Code § 3294. “[S]pecial damages are those losses that do not arise directly and inevitably from any similar breach of any similar agreement. Instead, they are secondary or derivative losses arising from circumstances that are particular to the contract or to the parties. Special damages are recoverable if the special or particular circumstances from which they arise were actually communicated to or known by the breaching party (a subjective test) or were matters of which the breaching party should have been aware at the time of contracting (an objective test)” Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal. 4th 960, 968-969.
Special damages are specifically recoverable in this matter, see, e.g., Civil Code §3300 etc. For example, “Contractual damages are of two types--general damages (sometimes called direct damages) and special damages (sometimes called consequential damages) [cites]” Lewis Jorge Construction Management at 968; see also the official annotations to the Judicial Council of California Civil Jury Instructions, 1-300 CACI 351, Special Damages.
II.
PLAINTIFFS HAVE ADEQUATELY
PLEADED
A. PUNITIVE DAMAGES ARE A REMEDY FOR FRAUD
Plaintiffs’ Second Cause of Action in the First Amended Complaint alleges that the Defendants committed fraud. Civil Code §3294 states, “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. . . . "Fraud" means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” Plaintiffs have alleged that the Defendants committed fraud, FAC, Second Cause of Action. That alone, properly pleaded, is sufficient for Plaintiffs to seek punitive damages as a remedy. Furthermore, Plaintiffs have pleaded violation of the Consumer Legal Remedies Act (CLRA), Civil Code §1770 et. seq. The CLRA also entitles Plaintiffs to seek punitive damages, § 1780(a)(4).
Defendants’ reliance on G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22 is misplaced. G.D. Searle was a product defect action. The G.D. Searle Plaintiff did not allege any intentional wrong by the product manufacturer. Perkins v. Superior Court (1981) 117 Cal. App. 3d 1 (also cited by Defendants), actually supports the Plaintiffs’ position that the allegations in their Complaint support a claim for punitive damages. “The stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner's complaint. Taken in context, the words "wrongfully and intentionally" in paragraph eight describe a knowing and deliberate state of mind from which a conscious, disregard of petitioner's rights might be inferred -- a state of mind which would sustain an award of punitive damages [cites]” Perkins, at 6.
B. THE CORPORATE DEFENDANTS IN THIS MATTER CAN BE HELD LIABLE FOR THE FRAUD OF THEIR OFFICERS, EMPLOYEES AND MANAGING AGENTS.
“An act of oppression, fraud or malice, by an officer, director or managing agent, is sufficient to impose liability on a corporate employer for punitive damages, without any additional showing of ratification by the employer” Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal. App. 4th 397, 420.
This Motion to Strike was filed on behalf of all of the Defendants, which includes four corporate defendants: HOLLYWOOD PAWS, LLC; HOLLYWOOD PAWS FRANCHISING, LLC; BARBIZON SCHOOL OF SAN FRANCISCO, INC.; and PETS ON CAMERA; and five individuals who are corporate officers, employees, or both of the corporate defendants: LARRY LIONETTI, LENA LIONETTI, LENA MARIE LIONETTI, TAMMY BOWERS, KIMBERLY KLEINMAN, and RAQUELLE VALLEJO. A good portion of the Motion to Strike consists of arguments that Plaintiffs have not alleged that HOLLYWOOD PAWS, LLC can be held liable for the acts of its individual employees (Motion to Strike, page 4, line 23 to page 6, line 11).
“An employer shall not be liable for damages . . . based upon acts of an employee of the employer, unless the employer . . . authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation” Civil Code § 3294.
The lengthy First Amended Complaint (FAC) speaks for itself. However, to briefly summarize, the reasons why the individually named Defendants are appropriate parties to this action Plaintiffs allegations that:
· LARRY LIONETTI and LENA LIONETTI are corporate officers of each corporate defendant FAC ¶¶ 24 and 25.
· The individually named Defendants, as well as PETS ON CAMERA and HOLLYWOOD PAWS LLC made misrepresentations about the movies that they had cast that were repeated (ratified) by HOLLYWOOD PAWS, LLC’S on its websites, FAC ¶¶ 52 to 59.
· The individually named Defendants told the Plaintiffs that PETS on CAMERA and HOLLYWOOD PAWS, LLC were talent agencies, and that misrepresentation was repeated (ratified) by HOLLYWOOD PAWS, LLC’S on its websites, FAC ¶¶ 60 to 68.
· The individuals and the corporate defendants were agents and managers of each other, and that each ratified the acts of the other FAC ¶¶ 30 to 31.
Regardless of any arguments in the Motion to Strike applicable to HOLLYWOOD PAWS, LLC the Defendants make no argument that each individual Defendant cannot – or should not -- be liable for fraud an individual committed.
C. PLAINTIFFS DID NOT REQUEST PUNITIVE DAMAGES AS A REMEDY FOR BREACH OF CONTRACT
In the Motion to Strike, page 4, line 23 to page 5, line 5, and Footnote 2, page 5, Defendants ask this Court to strike Plaintiffs’ punitive damages claims arising from Breach of Contract. However, Plaintiffs did not request punitive damages for this cause of action FAC ¶293. Therefore, there is nothing for this Court to strike.
III. THE PLAINTIFFS DID NOT ASK THIS COURT TO ENFORCE THE LABOR CODE. RATHER, PLAINTIFFS ALLEGED VIOLATION OF THE LABOR CODE AS AN ELEMENT OF FRAUD.
Defendants’ Motion to Strike erroneously asks this Court to strike Plaintiffs’ allegations on the basis that Plaintiffs have alleged a cause of action based on the California Talent Agencies Act, Labor Code §1700, and are seeking relief in accordance therewith. The Labor Commissioner is empowered to hear fee disputes arising from violations of this act, Labor Code §1700.44 (a). “The Labor Commissioner may certify without a hearing that there is no controversy within the meaning of this section if he or she has by investigation established that there is no dispute as to the amount of the fee due” Labor Code § 1700.44.
In their First Amended Complaint, Plaintiffs have alleged that Defendants misrepresented themselves as licensed talent agents as an element of fraud. Plaintiffs are not asking the Court to enforce the Labor Code itself.
IV. PLAINTIFFS ARE ENTITLED ALLEGE THE RIGHT TO RECOVER ATTORNEYS’ FEES IN THIS MATTER.
If Plaintiffs prove Defendants violated the Consumer Legal Remedies Act (CLRA), Plaintiffs will be entitled to attorneys’ fees. “The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section” Civil Code § 1780(d), cited in Hayward v. Ventura Volvo (2003) 108 Cal.App.4th 509, 511.
With respect to the causes of action for Breach of Contract, Fraud and Negligent Misrepresentation, Plaintiffs’ FAC asks for, “Attorneys’ fees and costs, as may be permitted by common law” or “if permitted by law.” Plaintiffs do not have Contracts for all of the Plaintiffs, and Plaintiffs do not know if those Contracts contain attorneys’ fees provisions or not. What Plaintiffs do know is that in order to recover those fees, Plaintiffs need to ask for attorneys’ fees as part of the Complaint.
IV. CONCLUSION
For the reasons stated above, Defendants’ Motion to Strike must be denied in its entirety. To the extent that this Court does grant any portion of the Motion to Strike, Plaintiffs respectfully request that this Court grant it leave to amend to conform their pleadings to the law.
Dated: January 3, 2007 HYDE MULVIHILL APC
_________________________________ Cynthia Coulter Mulvihill Attorney for Plaintiffs
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