285310658 Motion to Strike Cross Complaint of Robledo and Niebla Temps On Time
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JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Plaintiff and Cross-Defendants TEMPS ON TIME, INC. and KATHERINE KIDD
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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NORTH CENTRAL DISTRICT, BURBANK COURTHOUSE
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TEMPS ON TIME,
) ) Cross-Complainants, ) ) vs. ) ) ROSE & SHORE, INC., a California ) corporation, RITE-WAY MEAT PACKERS, ) INC., a California corporation, JUDITH ) ROBLEDO, an individual, CARMEN ) NIEBLA, an individual, PARTNERSHIP ) STAFFING, LLC, a California Limited ) Liability Company, and DOES 1 to 10, ) ) Defendants. ) ) JUDITH ROBLEDO, an individual, ) CARMEN NIEBLA, an individual, ) ) Cross-Complainants, ) ) vs. ) ) TEMPS ON TIME, a business organization of ) unknown form, KATHERINE KIDD, an ) individual, and ROES 1 to 10, ) ) Cross-Defendants. ) )
Case No. EC058809 [Assigned to Judge Donna Fields Goldstein, Dept. NC”B”] CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF MOTION AND MOTION TO STRIKE CROSS-COMPLAINT OF CROSSCOMPLAINANTS JUDITH ROBLEDO AND CARMEN NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT THEREOF [Filed concurrently with Cross-Defendants Temps On Time and Katherine Kidd’s Demurrer to Cross-Complaint, and [Proposed] Order] Date: Time: Dept.
December 19, 2012 8:30 a.m. NC “B”
26 27 28 - 1CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE
2
NOTICE that on December 19, 2012 at 8:30 a.m. or as soon thereafter as the matter may be
3
heard in Department B of the above-entitled Court located at 300 East Olive Ave. Burbank, CA
4
91502, Cross-Defendants Temps On Time and Katherine Kidd (hereinafter collectively “Cross-
5
Defendants”) will move this Court for an order striking the prayer for attorneys’ fees, “civil
6
penalties,” and punitive and exemplary damages improperly asserted in the Cross-Complaint for
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Damages (“Cross-Complaint”) of Cross-Complainants Judith Robledo (“Robledo”) and Carmen
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Niebla (“Niebla”). Specifically, Temps On Time and Katherine Kidd will request the Court to
9
strike the following improper allegations:
10
Page 8, line 23-24 of the Cross-Complaint for “’civil penalties’ to the extent permitted by law and Labor Code §§ 2698 and 2699 et seq.”;
11
12 13
Page 8, line 26 of the Cross-Complaint for “punitive and exemplary damages”;
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Page 8, line 27 of the Cross-Complaint for “an accounting”;
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Page 9, line 2 of the Cross-Complaint for “attorney’s fees and costs.”
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Cross-Complainants cannot assert any claims for exemplary or punitive damages or for
17
attorneys’ fees incurred as each party to a civil action must bear its own legal fees, unless
18
otherwise provided for by agreement. CCP §§ 1021, 1033.5 and Civil Code § 1717. Cross-
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Complainants’ FEHA claims fail as a matter of law because they did not exhaust their
20
administrative remedies prior to filing their Cross-Complaint and they don’t plead facts to
21
support their unpaid wages claims.
22
Furthermore, this Motion is made pursuant to CCP §§435, 436 and 437, because Cross-
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Complainants failed to allege facts sufficient to entitle them to exemplary or punitive damages
24
and thus, the requests for exemplary and punitive damages are improper.
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///
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///
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/// - 2CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
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This Motion is based on this Notice of Motion and Motion to Strike, the Memorandum of
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Points and Authorities attached hereto, the pleadings and records filed in this action, and such
3
evidence as may be presented at or before the hearing of this Motion to Strike.
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Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
MEMORANDUM OF POINTS AND AUTHORITIES
1 2
I.
INTRODUCTION
3
Judith Robledo (“Robledo”) and Carmen Niebla (“Niebla”) (hereinafter “Cross-
4
Complainants”) fail to plead any facts regarding amounts of wages allegedly earned but not paid
5
by Temps On Time. Cross-Complainants do not specify what wages were allegedly earned
6
individually by Robledo or Niebla that Temps On Time failed to pay upon Cross-Complainants’
7
termination of their employment relationship with Temps On Time. Such vague claims are
8
subject to demurrer. CCP § 430.10; see also, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-
9
967 (1992). Failing to substantiate this claim, Cross-Complainants’ request for “civil penalties”
10 11
based on the Labor Code cannot survive. Cross-Complainants fail to plead facts to establish a viable claim against Temps On Time
12
for failure to pay wages and even plead facts that establish that the claim is not valid. Cross-
13
Complainants allege that Temps On Time “denied the amount or validity of wages due to Cross-
14
Complainants” falsely. (Cross-Complaint ¶23:11.) They allege only that “Cross-Defendants
15
failed and refused to pay Cross-Complainants all wages earned as required by the Labor Code
16
and other applicable laws and regulations.” (Cross-Complaint ¶ 22.) This limited pleading
17
amounts to nothing more than a legal conclusion. Cross-Complainants offer no specific facts
18
regarding amounts of wages earned individually by Niebla or Robledo that remain unpaid.
19
In addition, Cross-Complainants herein do not allege that they satisfied the necessary
20
prerequisites to filing their claims for harassment and discrimination against Cross-Defendants.
21
This failure by Cross-Complainants proves fatal to their harassment and discrimination claims
22
and to their requests for attorney’s fees and costs. Cross-Complainant’s claims for exemplary
23
and punitive damages also fail along with their harassment and discrimination charges.
24
Cross-Complainants do not allege any specific facts concerning Ms. Kidd and certainly
25
does not plead facts to support their claims for punitive or exemplary damages. In addition,
26
Cross-Complainants do not allege the existence of any written agreement that would provide a
27
legitimate basis to request attorney’s fees absent their FEHA claims. Accordingly, Cross-
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Defendants bring this Motion to Strike Cross-Complainants’ claims for punitive and exemplary - 4CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1
damages, “civil penalties,” and attorney fees.
2
II.
3
STANDARD ON MOTIONS TO STRIKE This Motion to Strike is directed toward Cross-Complainants’ request for punitive and
4
exemplary damages, “civil penalties,” and attorneys’ fees which must be stricken because each
5
party to a civil action must bear its own legal fees, unless otherwise provided by an agreement.
6
CCP § 1717. Cross-Complainants do not plead the existence of any agreement that gives rise to
7
their claim for attorney’s fees. In addition, Cross-Complainants do not plead facts establishing
8
malice, fraud or oppression against Ms. Kidd. Therefore, Cross-Complainants cannot maintain
9
claims for punitive or exemplary damages against her. Civil Code § 3294.
10
III.
ALL REFERENCES TO PUNITIVE DAMAGES IN THE CROSS-COMPLAINT
11
MUST BE STRICKEN
12
To warrant punitive damages, a complaint must allege conduct of “such severity or
13
shocking character that it warrants the same treatment as that accorded to willful misconduct –
14
conduct in which the defendant intends to cause harm.” Nolan v. National Convenience Stores
15
(1979) 95 Cal.App.3d 279, 286. Ultimate facts of the defendant’s oppression, fraud or malice
16
must be alleged. Cyrus v. Havision (1976) 65 Cal.App.3d 306, 316-317 (1976). Moreover, facts
17
alleging actual malice must be pleaded. Toole v. Richardson-Merrell, Inc. (1967) 251
18
Cal.App.2d 689, 711 (1967).
19
Under California Civil Code § 3294, punitive damages are permitted only “where
20
defendant has been guilty of oppression, fraud or malice.” The terms “oppression,” “fraud” and
21
“malice” are defined by Section 3294. Malice is “despicable” conduct of the defendant with a
22
willful and conscious disregard of the rights or safety of others. Oppression is despicable
23
conduct that exposes an individual to cruel and unjust hardship in conscious disregard of that
24
individual’s rights. Fraud is intentional misrepresentation, deceit, or concealment of a material
25
fact known to the defendant with the intention on the part of the defendant of thereby depriving a
26
person of property or legal rights or otherwise causing injury. Sufficient facts must be pled in
27
order to show a party’s acts are oppressive, fraudulent or malicious. Hilliard vs. A.H. Robbins
28
Co., 148 Cal.App.3d 374, 392 (1983). A prayer for punitive damages may not be based on - 5CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1 2
conclusory allegations. G.D. Searle & Co. vs. Superior Court, 49 Cal.App.3d 22, 29 (1975). In this case, Cross-Complainants failed to allege any fact showing “malice,”
3
“oppression,” or “fraud” by Ms. Kidd. Cross-Complainants’ claims for exemplary and punitive
4
damages are presumably based on their harassment and discrimination charges. As set forth
5
above and in the Demurrer, those claims fail as a matter of law due to Cross-Complainants’
6
failure to exhaust their administrative remedies. Even if Cross-Complainants exhausted their
7
administrative remedies, the allegations in the Cross-Complaint cannot support claims for
8
exemplary or punitive damages. See Hilliard vs. A.H. Robbins Co., 148 Cal.App.3d 374, 392
9
(1983). Cross-Complainants do not allege any specific facts against Ms. Kidd and assert only
10
legal conclusions parroting the statutory language of “oppression, fraud or malice,” to describe
11
the conduct of “Defendants” generally. (see Cross-Complaint ¶30.) Under California Civil
12
Code § 3294, punitive damages are permitted only “where defendant has been guilty of
13
oppression, fraud or malice.”
14
A pleading is not sufficient if it merely alleges statutory language. Rather, sufficient
15
facts must be pleaded to show a party’s acts are oppressive, fraudulent or malicious. Hilliard vs.
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A.H. Robbins Co., 148 Cal.App.3d 374, 392 (1983). Moreover, a prayer for punitive damages
17
may not be based on conclusory allegations. G.D. Searle & Co. vs. Superior Court, 49
18
Cal.App.3d 22, 29 (1975). Where a prayer for relief for punitive damages is not based on
19
supported conclusions, those conclusions are properly stricken. “Whatever words are found in
20
pleading (for instance, as ‘carelessly, negligently, willfully, wrongfully, and in fraud of the right
21
of these Cross-Complainants’) going to state the pleader’s conclusions, may be disregarded. A
22
motion to strike out would be the proper way to seek their elimination….” Smithson v. Sparber,
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123 Cal.App. 225, 232 (1932). “Allegations that the acts of [defendant] were ‘arbitrary,
24
capricious, fraudulent, wrongful and unlawful’ like other adjectival descriptions of such
25
proceedings, constitute mere conclusions of law.” Faulkner v. California Toll Bridge Authority,
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40 Cal.2d 317, 319 (1952). These rules are consistent with California’s general disfavor of --
27
and strict pleading requirements for -- punitive damages. Henderson vs. Security Pac. Nat’l.
28
Bank, 72 Cal.App.3d 764 (1977). - 6CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1 2
The Cross-Complainant fails even the most basic legal standards for pleading a claim for exemplary damages and the requests must be stricken. A.
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There Are No Allegations that Temps on Time Knew of Any Alleged Oppression, Fraud, or Malice on the Part of Any Defendant.
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Civil Code § 3294(b) states in relevant part: “…With respect to a corporate employer, the advance knowledge and conscious
6 7
disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of
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an officer, director, or managing agent of the corporation.”
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As discussed above, and in the accompanying Demurrer, the Cross-Complaint is
10
completely devoid of any allegation that any officer, director, or managing agent of Temps on
11
Time had advance knowledge and with conscious disregard, authorized or ratified any acts of
12
oppression, fraud or malice against Cross-Complainants. (see Cross-Complaint.) In fact, the
13
Cross-Complaint makes no mention of any officer, director or managing agent of Temps on
14
Time engaging an any conduct that warrants exemplary or punitive damages. (see Cross-
15
Complaint.)
16
Because Cross-Complainants failed to allege any fraudulent, oppressive, or malicious
17
conduct by Ms. Kidd or Temps on Time, Cross-Complainants did not meet the minimum
18
pleading requirements to recover punitive damages, and the Court must grant the Motion to
19
Strike, in its entirety.
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IV.
CROSS-COMPLAINANTS’ REQUEST FOR ATTORNEYS’ FEES MUST BE
21
STRICKEN
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As a matter of law, Cross-Complainants cannot assert any damages for any attorney’s
23
fees incurred. Under CCP §§ 1021 and 1033.5, each party to a civil action must bear its own
24
legal fees, unless otherwise provided for by agreement. Also see, Civil Code § 1717 (any action
25
on a contract, where contract specifically provides for attorneys’ fees, the prevailing party can be
26
awarded attorneys’ fees).
27 28
Cross-Complainants has not attached or alleged any agreement in their Cross-Complaint between Cross-Complainants and Ms. Kidd or Temps on Time which would support an award of - 7CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
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attorneys’ fees. Cross-Complainants fails to allege the existence of any written contract that
2
would provide a basis for the recovery of attorneys’ fees. In addition, Cross-Complainants’
3
FEHA claims fail as a matter of law. Therefore, Cross-Complainants’ request for attorneys’ fees
4
must be stricken.
5
V.
6 7 8
CONCLUSION Based on the foregoing, Cross-Defendants Temps on Time and Katherine Kidd urge the
Court respectfully to strike the following language from the Cross-Complainant:
permitted by law and Labor Code §§ 2698 and 2699 et seq.”;
9 10
Page 8, line 23-24 of the Cross-Complaint for “’civil penalties’ to the extent
Page 8, line 26 of the Cross-Complaint for “punitive and exemplary damages”;
11 12
Page 8, line 27 of the Cross-Complaint for “an accounting”;
13
Page 9, line 2 of the Cross-Complaint for “attorney’s fees and costs.”
14 15 16 17 18
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
19 20 21 22 23 24 25 26 27 28 - 8CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
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PROOF OF SERVICE
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I, Sandy Bell, declare as follows: I am a citizen of the United States, over 18 years of age and am not a party to the within action. My place of employment and business address is 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071, which is located in the County of Los Angeles where the service took place.
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
On October 12, 2012, I served a copy of the following entitled document(s): CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF MOTION AND MOTION TO STRIKE CROSS-COMPLAINT OF CROSSCOMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT THEREOF; [PROPOSED] ORDER on the following interested party(s) in said cause: Alan G Novodor, Esq. Attorneys for Defendants LAW OFFICES OF ALAN G. NOVODOR ROSE & SHORE, INC; 11835 W. Olympic Blvd, Suite 1125 E RITE-WAY MEAT PACKERS, INC. Los Angeles, CA 90064-5001 PH: (310) 479-9387/FAX (310) 479-9388 Email: [email protected] Gene J. Goldsman, Esq. LAW OFFICES OF GENE J. GOLDSMAN 501 Civic Center Drive West Santa Ana, California 92701 PH (714) 541-3333 /FAX (714) 541-0456
Attorney for Defendants PARTNERSHIP STAFFING, LLC, JUDITH ROBLEDO and CARMEN NIEBLA
VIA FACSIMILE I caused such document to be transmitted via facsimile to the addressee(s) from the facsimile machine of Sanders Roberts LLP whose fax number is (213) 234-4581 . No error was reported by the machine and pursuant to Rule 2008(e)(3), I caused the machine to print a record of the transmission. VIA ELECTRONIC MAIL I caused the documents to be sent to all interested parties in this action as set forth above. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission(s) were unsuccessful. VIA MAIL I am readily familiar with this office’s practice for collection and processing of correspondence for mailing with the U.S. Postal Service. Per that practice the within correspondence will be deposited with the U.S. Postal Service on the same day shown on this affidavit in a sealed envelope with postage fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in this affidavit. VIA OVERNIGHT DELIVERY (FEDERAL EXPRESS) I caused the attached document(s) to be delivered via overnight delivery by depositing copies with the Federal Express service located at 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071. The envelope was marked for overnight delivery, with the delivery charged to the sender’s account. VIA PERSONAL SERVICE I caused to be delivered by hand the attached documents to the office(s) of the addressee.
I certify and 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 October 12, 2012, at Los Angeles, California.
27 28
Sandy Bell -1PROOF OF SERVICE
JUSTIN H. SANDERS (SBN 211488) [email protected] REGINALD ROBERTS, JR. (SBN 216249) [email protected] SANDERS ROBERTS LLP 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071 Telephone: 213-943-1314 Facsimile: 213-234-4581 Attorneys for Plaintiff and Cross-Defendants TEMPS ON TIME, INC. and KATHERINE KIDD
7 8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF LOS ANGELES
10
NORTH CENTRAL DISTRICT, BURBANK COURTHOUSE
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TEMPS ON TIME,
) ) Cross-Complainants, ) ) vs. ) ) ROSE & SHORE, INC., a California ) corporation, RITE-WAY MEAT PACKERS, ) INC., a California corporation, JUDITH ) ROBLEDO, an individual, CARMEN ) NIEBLA, an individual, PARTNERSHIP ) STAFFING, LLC, a California Limited ) Liability Company, and DOES 1 to 10, ) ) Defendants. ) ) JUDITH ROBLEDO, an individual, ) CARMEN NIEBLA, an individual, ) ) Cross-Complainants, ) ) vs. ) ) TEMPS ON TIME, a business organization of ) unknown form, KATHERINE KIDD, an ) individual, and ROES 1 to 10, ) ) Cross-Defendants. ) )
Case No. EC058809 [Assigned to Judge Donna Fields Goldstein, Dept. NC”B”] CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF MOTION AND MOTION TO STRIKE CROSS-COMPLAINT OF CROSSCOMPLAINANTS JUDITH ROBLEDO AND CARMEN NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT THEREOF [Filed concurrently with Cross-Defendants Temps On Time and Katherine Kidd’s Demurrer to Cross-Complaint, and [Proposed] Order] Date: Time: Dept.
December 19, 2012 8:30 a.m. NC “B”
26 27 28 - 1CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, PLEASE TAKE
2
NOTICE that on December 19, 2012 at 8:30 a.m. or as soon thereafter as the matter may be
3
heard in Department B of the above-entitled Court located at 300 East Olive Ave. Burbank, CA
4
91502, Cross-Defendants Temps On Time and Katherine Kidd (hereinafter collectively “Cross-
5
Defendants”) will move this Court for an order striking the prayer for attorneys’ fees, “civil
6
penalties,” and punitive and exemplary damages improperly asserted in the Cross-Complaint for
7
Damages (“Cross-Complaint”) of Cross-Complainants Judith Robledo (“Robledo”) and Carmen
8
Niebla (“Niebla”). Specifically, Temps On Time and Katherine Kidd will request the Court to
9
strike the following improper allegations:
10
Page 8, line 23-24 of the Cross-Complaint for “’civil penalties’ to the extent permitted by law and Labor Code §§ 2698 and 2699 et seq.”;
11
12 13
Page 8, line 26 of the Cross-Complaint for “punitive and exemplary damages”;
14
Page 8, line 27 of the Cross-Complaint for “an accounting”;
15
Page 9, line 2 of the Cross-Complaint for “attorney’s fees and costs.”
16
Cross-Complainants cannot assert any claims for exemplary or punitive damages or for
17
attorneys’ fees incurred as each party to a civil action must bear its own legal fees, unless
18
otherwise provided for by agreement. CCP §§ 1021, 1033.5 and Civil Code § 1717. Cross-
19
Complainants’ FEHA claims fail as a matter of law because they did not exhaust their
20
administrative remedies prior to filing their Cross-Complaint and they don’t plead facts to
21
support their unpaid wages claims.
22
Furthermore, this Motion is made pursuant to CCP §§435, 436 and 437, because Cross-
23
Complainants failed to allege facts sufficient to entitle them to exemplary or punitive damages
24
and thus, the requests for exemplary and punitive damages are improper.
25
///
26
///
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///
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/// - 2CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1
This Motion is based on this Notice of Motion and Motion to Strike, the Memorandum of
2
Points and Authorities attached hereto, the pleadings and records filed in this action, and such
3
evidence as may be presented at or before the hearing of this Motion to Strike.
4 5 6 7 8 9
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
MEMORANDUM OF POINTS AND AUTHORITIES
1 2
I.
INTRODUCTION
3
Judith Robledo (“Robledo”) and Carmen Niebla (“Niebla”) (hereinafter “Cross-
4
Complainants”) fail to plead any facts regarding amounts of wages allegedly earned but not paid
5
by Temps On Time. Cross-Complainants do not specify what wages were allegedly earned
6
individually by Robledo or Niebla that Temps On Time failed to pay upon Cross-Complainants’
7
termination of their employment relationship with Temps On Time. Such vague claims are
8
subject to demurrer. CCP § 430.10; see also, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-
9
967 (1992). Failing to substantiate this claim, Cross-Complainants’ request for “civil penalties”
10 11
based on the Labor Code cannot survive. Cross-Complainants fail to plead facts to establish a viable claim against Temps On Time
12
for failure to pay wages and even plead facts that establish that the claim is not valid. Cross-
13
Complainants allege that Temps On Time “denied the amount or validity of wages due to Cross-
14
Complainants” falsely. (Cross-Complaint ¶23:11.) They allege only that “Cross-Defendants
15
failed and refused to pay Cross-Complainants all wages earned as required by the Labor Code
16
and other applicable laws and regulations.” (Cross-Complaint ¶ 22.) This limited pleading
17
amounts to nothing more than a legal conclusion. Cross-Complainants offer no specific facts
18
regarding amounts of wages earned individually by Niebla or Robledo that remain unpaid.
19
In addition, Cross-Complainants herein do not allege that they satisfied the necessary
20
prerequisites to filing their claims for harassment and discrimination against Cross-Defendants.
21
This failure by Cross-Complainants proves fatal to their harassment and discrimination claims
22
and to their requests for attorney’s fees and costs. Cross-Complainant’s claims for exemplary
23
and punitive damages also fail along with their harassment and discrimination charges.
24
Cross-Complainants do not allege any specific facts concerning Ms. Kidd and certainly
25
does not plead facts to support their claims for punitive or exemplary damages. In addition,
26
Cross-Complainants do not allege the existence of any written agreement that would provide a
27
legitimate basis to request attorney’s fees absent their FEHA claims. Accordingly, Cross-
28
Defendants bring this Motion to Strike Cross-Complainants’ claims for punitive and exemplary - 4CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1
damages, “civil penalties,” and attorney fees.
2
II.
3
STANDARD ON MOTIONS TO STRIKE This Motion to Strike is directed toward Cross-Complainants’ request for punitive and
4
exemplary damages, “civil penalties,” and attorneys’ fees which must be stricken because each
5
party to a civil action must bear its own legal fees, unless otherwise provided by an agreement.
6
CCP § 1717. Cross-Complainants do not plead the existence of any agreement that gives rise to
7
their claim for attorney’s fees. In addition, Cross-Complainants do not plead facts establishing
8
malice, fraud or oppression against Ms. Kidd. Therefore, Cross-Complainants cannot maintain
9
claims for punitive or exemplary damages against her. Civil Code § 3294.
10
III.
ALL REFERENCES TO PUNITIVE DAMAGES IN THE CROSS-COMPLAINT
11
MUST BE STRICKEN
12
To warrant punitive damages, a complaint must allege conduct of “such severity or
13
shocking character that it warrants the same treatment as that accorded to willful misconduct –
14
conduct in which the defendant intends to cause harm.” Nolan v. National Convenience Stores
15
(1979) 95 Cal.App.3d 279, 286. Ultimate facts of the defendant’s oppression, fraud or malice
16
must be alleged. Cyrus v. Havision (1976) 65 Cal.App.3d 306, 316-317 (1976). Moreover, facts
17
alleging actual malice must be pleaded. Toole v. Richardson-Merrell, Inc. (1967) 251
18
Cal.App.2d 689, 711 (1967).
19
Under California Civil Code § 3294, punitive damages are permitted only “where
20
defendant has been guilty of oppression, fraud or malice.” The terms “oppression,” “fraud” and
21
“malice” are defined by Section 3294. Malice is “despicable” conduct of the defendant with a
22
willful and conscious disregard of the rights or safety of others. Oppression is despicable
23
conduct that exposes an individual to cruel and unjust hardship in conscious disregard of that
24
individual’s rights. Fraud is intentional misrepresentation, deceit, or concealment of a material
25
fact known to the defendant with the intention on the part of the defendant of thereby depriving a
26
person of property or legal rights or otherwise causing injury. Sufficient facts must be pled in
27
order to show a party’s acts are oppressive, fraudulent or malicious. Hilliard vs. A.H. Robbins
28
Co., 148 Cal.App.3d 374, 392 (1983). A prayer for punitive damages may not be based on - 5CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1 2
conclusory allegations. G.D. Searle & Co. vs. Superior Court, 49 Cal.App.3d 22, 29 (1975). In this case, Cross-Complainants failed to allege any fact showing “malice,”
3
“oppression,” or “fraud” by Ms. Kidd. Cross-Complainants’ claims for exemplary and punitive
4
damages are presumably based on their harassment and discrimination charges. As set forth
5
above and in the Demurrer, those claims fail as a matter of law due to Cross-Complainants’
6
failure to exhaust their administrative remedies. Even if Cross-Complainants exhausted their
7
administrative remedies, the allegations in the Cross-Complaint cannot support claims for
8
exemplary or punitive damages. See Hilliard vs. A.H. Robbins Co., 148 Cal.App.3d 374, 392
9
(1983). Cross-Complainants do not allege any specific facts against Ms. Kidd and assert only
10
legal conclusions parroting the statutory language of “oppression, fraud or malice,” to describe
11
the conduct of “Defendants” generally. (see Cross-Complaint ¶30.) Under California Civil
12
Code § 3294, punitive damages are permitted only “where defendant has been guilty of
13
oppression, fraud or malice.”
14
A pleading is not sufficient if it merely alleges statutory language. Rather, sufficient
15
facts must be pleaded to show a party’s acts are oppressive, fraudulent or malicious. Hilliard vs.
16
A.H. Robbins Co., 148 Cal.App.3d 374, 392 (1983). Moreover, a prayer for punitive damages
17
may not be based on conclusory allegations. G.D. Searle & Co. vs. Superior Court, 49
18
Cal.App.3d 22, 29 (1975). Where a prayer for relief for punitive damages is not based on
19
supported conclusions, those conclusions are properly stricken. “Whatever words are found in
20
pleading (for instance, as ‘carelessly, negligently, willfully, wrongfully, and in fraud of the right
21
of these Cross-Complainants’) going to state the pleader’s conclusions, may be disregarded. A
22
motion to strike out would be the proper way to seek their elimination….” Smithson v. Sparber,
23
123 Cal.App. 225, 232 (1932). “Allegations that the acts of [defendant] were ‘arbitrary,
24
capricious, fraudulent, wrongful and unlawful’ like other adjectival descriptions of such
25
proceedings, constitute mere conclusions of law.” Faulkner v. California Toll Bridge Authority,
26
40 Cal.2d 317, 319 (1952). These rules are consistent with California’s general disfavor of --
27
and strict pleading requirements for -- punitive damages. Henderson vs. Security Pac. Nat’l.
28
Bank, 72 Cal.App.3d 764 (1977). - 6CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1 2
The Cross-Complainant fails even the most basic legal standards for pleading a claim for exemplary damages and the requests must be stricken. A.
3
There Are No Allegations that Temps on Time Knew of Any Alleged Oppression, Fraud, or Malice on the Part of Any Defendant.
4 5
Civil Code § 3294(b) states in relevant part: “…With respect to a corporate employer, the advance knowledge and conscious
6 7
disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of
8
an officer, director, or managing agent of the corporation.”
9
As discussed above, and in the accompanying Demurrer, the Cross-Complaint is
10
completely devoid of any allegation that any officer, director, or managing agent of Temps on
11
Time had advance knowledge and with conscious disregard, authorized or ratified any acts of
12
oppression, fraud or malice against Cross-Complainants. (see Cross-Complaint.) In fact, the
13
Cross-Complaint makes no mention of any officer, director or managing agent of Temps on
14
Time engaging an any conduct that warrants exemplary or punitive damages. (see Cross-
15
Complaint.)
16
Because Cross-Complainants failed to allege any fraudulent, oppressive, or malicious
17
conduct by Ms. Kidd or Temps on Time, Cross-Complainants did not meet the minimum
18
pleading requirements to recover punitive damages, and the Court must grant the Motion to
19
Strike, in its entirety.
20
IV.
CROSS-COMPLAINANTS’ REQUEST FOR ATTORNEYS’ FEES MUST BE
21
STRICKEN
22
As a matter of law, Cross-Complainants cannot assert any damages for any attorney’s
23
fees incurred. Under CCP §§ 1021 and 1033.5, each party to a civil action must bear its own
24
legal fees, unless otherwise provided for by agreement. Also see, Civil Code § 1717 (any action
25
on a contract, where contract specifically provides for attorneys’ fees, the prevailing party can be
26
awarded attorneys’ fees).
27 28
Cross-Complainants has not attached or alleged any agreement in their Cross-Complaint between Cross-Complainants and Ms. Kidd or Temps on Time which would support an award of - 7CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1
attorneys’ fees. Cross-Complainants fails to allege the existence of any written contract that
2
would provide a basis for the recovery of attorneys’ fees. In addition, Cross-Complainants’
3
FEHA claims fail as a matter of law. Therefore, Cross-Complainants’ request for attorneys’ fees
4
must be stricken.
5
V.
6 7 8
CONCLUSION Based on the foregoing, Cross-Defendants Temps on Time and Katherine Kidd urge the
Court respectfully to strike the following language from the Cross-Complainant:
permitted by law and Labor Code §§ 2698 and 2699 et seq.”;
9 10
Page 8, line 23-24 of the Cross-Complaint for “’civil penalties’ to the extent
Page 8, line 26 of the Cross-Complaint for “punitive and exemplary damages”;
11 12
Page 8, line 27 of the Cross-Complaint for “an accounting”;
13
Page 9, line 2 of the Cross-Complaint for “attorney’s fees and costs.”
14 15 16 17 18
Dated: October 12, 2012
SANDERS ROBERTS LLP By: REGINALD ROBERTS, JR. Attorneys for Plaintiff and Cross-Defendant TEMPS ON TIME, INC., and KATHERINE KIDD
19 20 21 22 23 24 25 26 27 28 - 8CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S MOTION TO STRIKE CROSSCOMPLAINT OF CROSS-COMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLAF
1
PROOF OF SERVICE
2
I, Sandy Bell, declare as follows: I am a citizen of the United States, over 18 years of age and am not a party to the within action. My place of employment and business address is 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071, which is located in the County of Los Angeles where the service took place.
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
On October 12, 2012, I served a copy of the following entitled document(s): CROSS-DEFENDANTS TEMPS ON TIME AND KATHERINE KIDD’S NOTICE OF MOTION AND MOTION TO STRIKE CROSS-COMPLAINT OF CROSSCOMPLAINANTS’JUDITH ROBLEDO AND CARMEN NIEBLA; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF IN SUPPORT THEREOF; [PROPOSED] ORDER on the following interested party(s) in said cause: Alan G Novodor, Esq. Attorneys for Defendants LAW OFFICES OF ALAN G. NOVODOR ROSE & SHORE, INC; 11835 W. Olympic Blvd, Suite 1125 E RITE-WAY MEAT PACKERS, INC. Los Angeles, CA 90064-5001 PH: (310) 479-9387/FAX (310) 479-9388 Email: [email protected] Gene J. Goldsman, Esq. LAW OFFICES OF GENE J. GOLDSMAN 501 Civic Center Drive West Santa Ana, California 92701 PH (714) 541-3333 /FAX (714) 541-0456
Attorney for Defendants PARTNERSHIP STAFFING, LLC, JUDITH ROBLEDO and CARMEN NIEBLA
VIA FACSIMILE I caused such document to be transmitted via facsimile to the addressee(s) from the facsimile machine of Sanders Roberts LLP whose fax number is (213) 234-4581 . No error was reported by the machine and pursuant to Rule 2008(e)(3), I caused the machine to print a record of the transmission. VIA ELECTRONIC MAIL I caused the documents to be sent to all interested parties in this action as set forth above. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission(s) were unsuccessful. VIA MAIL I am readily familiar with this office’s practice for collection and processing of correspondence for mailing with the U.S. Postal Service. Per that practice the within correspondence will be deposited with the U.S. Postal Service on the same day shown on this affidavit in a sealed envelope with postage fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in this affidavit. VIA OVERNIGHT DELIVERY (FEDERAL EXPRESS) I caused the attached document(s) to be delivered via overnight delivery by depositing copies with the Federal Express service located at 355 S. Grand Ave., Suite 2450, Los Angeles, CA 90071. The envelope was marked for overnight delivery, with the delivery charged to the sender’s account. VIA PERSONAL SERVICE I caused to be delivered by hand the attached documents to the office(s) of the addressee.
I certify and 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 October 12, 2012, at Los Angeles, California.
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Sandy Bell -1PROOF OF SERVICE
