On October 24, 2013 a
Motion-Secondary
was filed
involving a dispute between
Copernicus Dynamics, Lp,
Fleming, Norman C.,
Geisler, Fred,
Roes 1-25, Inclusive,
Zischke, Gena,
Tedan Surgical Innovations, Llc, A Texas Limited Liability Company,
and
3Cor, Inc, A California Corporation,
3Cor Medical, Inc.,
Azucena, Kimberly,
Bass, Daniel,
Does 1 To 25,
Does 2 To 25,
Fishman, Daniel,
Glynn, Robert John, Jr,
Industry Of The Redwoods, Llc, A Nevada Llc,
Johnston, Terry,
Magnolia Group, Llp,
Mier, Rowena,
Rhausler, Inc.,
Rhausler, Inc., A California Corporation,
Sims, Katie, Certified Public Acc,
Tedan Surgical Innovations, Llc, A Texas Limited Liability Company,
for Complex Civil Unlimited
in the District Court of San Mateo County.
Preview
Electrunically
Cm
by Superior cf {alifarmar Cnu My of San
rt Match
Robert M. Bodzin, State Bar No. 201327 UN 11/20/2018
Katrina R. Durek, State Bar No. 289461 By J's!Mia Marlowe
BURNHAM BROWN Del"!!! filed:
A Professional Law Corporation
P.O. Box 119
Oakland, California 94604
1901 Harrison Street, 14th Floor
Oakland,
\DWQGUIAUJNH
CaIifornia 94612
Telephone: (510)444-6800
Facsimiie: (510)835—6666
rbodzin@burnhambrown.com
kdurek@burnhambrown.com
Attorneys for Defendant
DANNY FISHMAN
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
CIVIL DIVISION — SOUTHERN BRANCH
UNLIMITED JURISDICTION
Hi—AHb—AHH‘p-‘y—th-d
FRED
wflQUIKWNHO
H. GEISLER, M.D.,. Ph.D., an Case No. 17CIV02888
individual and NORMAN C. FLEMING, an
individual, directly, and derivatively on DEFENDANT DANNY FISHMAN’S
behalf of RHAUSLER, INC., a California REPLY IN SUPPORT OF MOTION TO
Corporation, STRIKE PORTIONS OF THIRD
AMENDED COMPLAINT
Plaintiffs,
v. Date: November 28, 2018
Time: 2 p.m.
19 TERRY J. JOHNSTON, an individual; Dept: 2
KATIE SIMS, CPA, an individual;
20 ROBERT JOHN GLYNN, JR., an Complaint Filed: June 28, 2017 _
individual; 3COR MEDICAL, |NC., a Second Amended Complaint Filed:
21 California Corporation; TEDAN May 29, 2018
SURGICAL INNOVATIONS, LLC, a Third Amended Complaint Filed:
22 Texas Limited Liability Company, and September 27, 2018
DOES 1 to 25, Trial Date: None Set
23
Defendants.
24
And RHAUSLER, |NC., a California
25 Corporation,
26 Nominal Defendant.
27
28
DEFENDANT DANNY FISHMAN’S REPLY IN SUPPORT OF MOTION TO Case No. 17C|V02888
STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
I. INTRODUCTION
Plaintiffs’ prayer for punitive damages is unsupported by the allegations in the
TAC. The alleged conduct by Defendant Danny Fishman is insufficient under Civil Code
section 3294 to support a prayer for punitive damages against them.
\DWQQUI-RUJNr—t
A party is not entitled to attorney’s fees except where authorized by statute or
contract. Plaintiffs make no contractual claims and have not cited to any statute upon
which the prayer for attorneys’ fees may be based, Accordingly, Plaintiffs’ allegations
related to, and their prayer for attorney’s fees should be stricken from the TAC as
against Danny Fishman.
ll. LEGAL ARGUMENT
Plaintiffs’ claims for attorney’s fees and punitive damages against Danny
Fishman are improper matter not supported by the TAC and should therefore be
stricken from the complaint.
There is no alleged contract between Plaintiffs and Mr. Fishman that provide for
an award of attorney’s fees. The TAC contains various allegations of contractual
disputes, none of which involve Mr. Fishman.
As such,
NNNNNNNNNHHh—IHHu—Ap—tr—r—t’d
the prayer for attorney’s fees constitutes is immaterial and irrelevant
and should be stricken from the complaint. (CCP § 431 .10, 435, 436.)
wQQUIhMNb-icwwanIAmNI—IO
A. Defendant Danny Fishman Moves Only 0n His Own Behalf in
Seeking to Strike Portions of the Complaint That Are Improper
Against Him
As an initial point of clarification} Danny Fishman requests that portions of the
TAC be stricken only as to him. Plaintiffs ifmproperly suggest that Mr. Fishman moves
on behalf of all Defendants, which is untrue. (See Danny Fishman’s Motion to Strike
Memorandum of Points and Authorities, p. 1, lines 7—9: “Plaintiffs’ allegations related to,
and their prayer for attorney’s fees should be stricken from the TAC as against Mr.
Fishman;” and at p. 1, lines 1142: “The alleged conduct by Mr. Fishmgg is insufficient
under Civil Code section 3294 to support a prayer for punitive damages against him.)
1
DEFENDANT DANNY FISHMAN’S REPLY IN SUPPORT OF MOTION TO Case N0. 17C|V02888
L
STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
This nonsensical argument is not a basis to deny the Motion.
B. Plaintiffs Fail to Address the Impropriety of the Prayer for
Attorney Fees, as Stated in CMO# 5
Plaintiffs cite to the Court’s Case Management Order #5 in their Opposition, in
which the Court ruled:
©®QQUIJAMNH
There is no right to attorneys’ fees under B&P code section
17200. Plaintiffs have not alleged any contract provision for
attorney’s fees, and have not alleged any other statutory
basis for award of attorney’s fees in their Second Amended
Complaint.
Plaintiffs amended their complaint without addressing these deficiencies.
Plaintiffs state in the Opposition that they added a substantial number of new faétual
allegations against Mr. Fishman warranting attorneys fees. Plaintiffs indude six
paragraphs of allegations from the TAC. (Pls.’ Opp., 7:10—8:10.) None of the allegations
address the deficiencies from the SAC that the Court highlighted in CMO #5. Plaintiffs
'
ignore the fact that there is no right to attorneys’ fees under B&P Code section 17200.
Plaintiffs rely on the UCL and CCP 1021.5, which do not allow for attorney’s fees
for Plaintiffs in this case. The UCL does not provide for an award of attorney's fees to
the prevailing
NNNNNNNNNI—HHHb—HHI—Hw
party. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th
CCP
®\lG\UIAUJNH©\quc\UIhMNh-dc
1158, 1179.) Further, 1021.5 provides for an award of attorney's fees only when a
public interest issue is beinq litiqated. The allegations in the TAC are based on disputes
among shareholders, and do not constitute a public interest issue.
Plaintiffs stilldo not allege any contract provision for attorney’s fees. Plaintiffs still
db not allege any valid statutory basis for award of attorney’s fees. As such, the prayer
for attorney’s fees constitutes is immaterial and irrelevant and should be stricken from
the complaint as to Danny Fishman under CCP sections 431.10, 435, and 436.
2
DEFENDANT DANNY FISHMAN'S REPLY IN SUPPORT OF MOTION TO Case N0. 17CIV02888
STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
C. Plaintiffs’ Prayer for Punitive Damages is Improper and Should
'Be Stricken
Plaintiffs include four pages ofthe allegations copied and pasted from the TAC to
£0319
support their punitive damages Claim. (Pls.’ Opp., 3:18— 4:17.) These allegations do not
meet the standard for pleading punitive damages. CCP 436(a) provides that court may
strike out any irrelevant, false or improper matter in a pleading. “Irrelevant matter”
means an immaterial allegation in a pleading (CCP § 431.10(c)), and includes relief that
WOCQGUI
is not supponed by the allegations of the complaint or cross—complaint (CCP §
431 .10(b)(3)), a
i.e,., request for relief to which the plaintiff is not entitled. Here, Plaintiffs
are not entitled to punitive damages.
10 It is unclear why Plaintiffs argue that the Grieves case does not apply. The court
11 in Grieves specifically discussed the standard for punitive damages. (See Grieves v.
12 Superior Court (1984) 157 Cal.App.3d 159, 163.) The Court in Grieves stated that in
13 alleging punitive damages, “Not only must there be circumstances of oppression, fraud
14 or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves
15 v. Superior Court (1984) 157 Cal.App.3d 159, 166.)
16 The facts alleged in the TAC, no matter how voluminous, do not support a
17 conclusion that Mr. Fishman acted in a manner that intended to cause the Plaintiffs’
18 injury such that they support a claim for punitive damages. The facts alleged do not
19 support a conclusion that Mr. Fishman engaged in any despicable act with willful and
20 conscious disregard of Plaintiffs’ rights. There are no specific allegations in the TAC of
21 conduct by Mr. Fishman that give rise to punitive damages.
22 Accordingly, Plaintiffs’ allegations and prayer in the complaint seeking punitive
23 damages should be dismissed against Danny Fishman.
24 ///
25 ///
26 ///
27
28
3
DEFENDANT DANNY FISHMAN’S REPLY IN SUPPORT OF MOTION TO Case NO. 17CIV02888
STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
Ill. CONCLUSION
Defendant Danny Fishman respectfully requests that the Court strike from the
TAC the following language as applied to him:
1. “Punitive Damages as alleged and allowed by law for malicious conduct”
(TAC, 118: 10, 1121)
\OWQ@UIAMNH
2. “An award of Attorney's Fees as allowed by Bus. & Prof. Code 17200 et
seq. for Unfair Business Practices, contracted and CCP 1021.5. . . and
due to willful misappropriation of trade secrets under Cal. Civ. Code sec.
3426.4" (TAC, 118: 11-14, 1122)
DATED: November 20, 2018 Sam
By /
ROB‘E’RT M. BODZIN \
KATRINA R. DUREK
Attorneys for Defendant
DANNY FISHMAN
4833-8460-4288, V.1
NNNNNNNNN—Hn—I—AHHr—l—HH
wflam-BWNHcomflQUI-AWNHO
4
DEFENDANT DANNY FISHMAN'S REPLY IN SUPPORT OF MOTION TO Case No. 17C|V02888
STRIKE PORTIONS OF THIRD AMENDED COMPLAINT
Preview
Electrunically Cm by Superior cf {alifarmar Cnu My of San rt Match Robert M. Bodzin, State Bar No. 201327 UN 11/20/2018 Katrina R. Durek, State Bar No. 289461 By J's!Mia Marlowe BURNHAM BROWN Del"!!! filed: A Professional Law Corporation P.O. Box 119 Oakland, California 94604 1901 Harrison Street, 14th Floor Oakland, \DWQGUIAUJNH CaIifornia 94612 Telephone: (510)444-6800 Facsimiie: (510)835—6666 rbodzin@burnhambrown.com kdurek@burnhambrown.com Attorneys for Defendant DANNY FISHMAN SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO CIVIL DIVISION — SOUTHERN BRANCH UNLIMITED JURISDICTION Hi—AHb—AHH‘p-‘y—th-d FRED wflQUIKWNHO H. GEISLER, M.D.,. Ph.D., an Case No. 17CIV02888 individual and NORMAN C. FLEMING, an individual, directly, and derivatively on DEFENDANT DANNY FISHMAN’S behalf of RHAUSLER, INC., a California REPLY IN SUPPORT OF MOTION TO Corporation, STRIKE PORTIONS OF THIRD AMENDED COMPLAINT Plaintiffs, v. Date: November 28, 2018 Time: 2 p.m. 19 TERRY J. JOHNSTON, an individual; Dept: 2 KATIE SIMS, CPA, an individual; 20 ROBERT JOHN GLYNN, JR., an Complaint Filed: June 28, 2017 _ individual; 3COR MEDICAL, |NC., a Second Amended Complaint Filed: 21 California Corporation; TEDAN May 29, 2018 SURGICAL INNOVATIONS, LLC, a Third Amended Complaint Filed: 22 Texas Limited Liability Company, and September 27, 2018 DOES 1 to 25, Trial Date: None Set 23 Defendants. 24 And RHAUSLER, |NC., a California 25 Corporation, 26 Nominal Defendant. 27 28 DEFENDANT DANNY FISHMAN’S REPLY IN SUPPORT OF MOTION TO Case No. 17C|V02888 STRIKE PORTIONS OF THIRD AMENDED COMPLAINT I. INTRODUCTION Plaintiffs’ prayer for punitive damages is unsupported by the allegations in the TAC. The alleged conduct by Defendant Danny Fishman is insufficient under Civil Code section 3294 to support a prayer for punitive damages against them. \DWQQUI-RUJNr—t A party is not entitled to attorney’s fees except where authorized by statute or contract. Plaintiffs make no contractual claims and have not cited to any statute upon which the prayer for attorneys’ fees may be based, Accordingly, Plaintiffs’ allegations related to, and their prayer for attorney’s fees should be stricken from the TAC as against Danny Fishman. ll. LEGAL ARGUMENT Plaintiffs’ claims for attorney’s fees and punitive damages against Danny Fishman are improper matter not supported by the TAC and should therefore be stricken from the complaint. There is no alleged contract between Plaintiffs and Mr. Fishman that provide for an award of attorney’s fees. The TAC contains various allegations of contractual disputes, none of which involve Mr. Fishman. As such, NNNNNNNNNHHh—IHHu—Ap—tr—r—t’d the prayer for attorney’s fees constitutes is immaterial and irrelevant and should be stricken from the complaint. (CCP § 431 .10, 435, 436.) wQQUIhMNb-icwwanIAmNI—IO A. Defendant Danny Fishman Moves Only 0n His Own Behalf in Seeking to Strike Portions of the Complaint That Are Improper Against Him As an initial point of clarification} Danny Fishman requests that portions of the TAC be stricken only as to him. Plaintiffs ifmproperly suggest that Mr. Fishman moves on behalf of all Defendants, which is untrue. (See Danny Fishman’s Motion to Strike Memorandum of Points and Authorities, p. 1, lines 7—9: “Plaintiffs’ allegations related to, and their prayer for attorney’s fees should be stricken from the TAC as against Mr. Fishman;” and at p. 1, lines 1142: “The alleged conduct by Mr. Fishmgg is insufficient under Civil Code section 3294 to support a prayer for punitive damages against him.) 1 DEFENDANT DANNY FISHMAN’S REPLY IN SUPPORT OF MOTION TO Case N0. 17C|V02888 L STRIKE PORTIONS OF THIRD AMENDED COMPLAINT This nonsensical argument is not a basis to deny the Motion. B. Plaintiffs Fail to Address the Impropriety of the Prayer for Attorney Fees, as Stated in CMO# 5 Plaintiffs cite to the Court’s Case Management Order #5 in their Opposition, in which the Court ruled: ©®QQUIJAMNH There is no right to attorneys’ fees under B&P code section 17200. Plaintiffs have not alleged any contract provision for attorney’s fees, and have not alleged any other statutory basis for award of attorney’s fees in their Second Amended Complaint. Plaintiffs amended their complaint without addressing these deficiencies. Plaintiffs state in the Opposition that they added a substantial number of new faétual allegations against Mr. Fishman warranting attorneys fees. Plaintiffs indude six paragraphs of allegations from the TAC. (Pls.’ Opp., 7:10—8:10.) None of the allegations address the deficiencies from the SAC that the Court highlighted in CMO #5. Plaintiffs ' ignore the fact that there is no right to attorneys’ fees under B&P Code section 17200. Plaintiffs rely on the UCL and CCP 1021.5, which do not allow for attorney’s fees for Plaintiffs in this case. The UCL does not provide for an award of attorney's fees to the prevailing NNNNNNNNNI—HHHb—HHI—Hw party. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th CCP ®\lG\UIAUJNH©\quc\UIhMNh-dc 1158, 1179.) Further, 1021.5 provides for an award of attorney's fees only when a public interest issue is beinq litiqated. The allegations in the TAC are based on disputes among shareholders, and do not constitute a public interest issue. Plaintiffs stilldo not allege any contract provision for attorney’s fees. Plaintiffs still db not allege any valid statutory basis for award of attorney’s fees. As such, the prayer for attorney’s fees constitutes is immaterial and irrelevant and should be stricken from the complaint as to Danny Fishman under CCP sections 431.10, 435, and 436. 2 DEFENDANT DANNY FISHMAN'S REPLY IN SUPPORT OF MOTION TO Case N0. 17CIV02888 STRIKE PORTIONS OF THIRD AMENDED COMPLAINT C. Plaintiffs’ Prayer for Punitive Damages is Improper and Should 'Be Stricken Plaintiffs include four pages ofthe allegations copied and pasted from the TAC to £0319 support their punitive damages Claim. (Pls.’ Opp., 3:18— 4:17.) These allegations do not meet the standard for pleading punitive damages. CCP 436(a) provides that court may strike out any irrelevant, false or improper matter in a pleading. “Irrelevant matter” means an immaterial allegation in a pleading (CCP § 431.10(c)), and includes relief that WOCQGUI is not supponed by the allegations of the complaint or cross—complaint (CCP § 431 .10(b)(3)), a i.e,., request for relief to which the plaintiff is not entitled. Here, Plaintiffs are not entitled to punitive damages. 10 It is unclear why Plaintiffs argue that the Grieves case does not apply. The court 11 in Grieves specifically discussed the standard for punitive damages. (See Grieves v. 12 Superior Court (1984) 157 Cal.App.3d 159, 163.) The Court in Grieves stated that in 13 alleging punitive damages, “Not only must there be circumstances of oppression, fraud 14 or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves 15 v. Superior Court (1984) 157 Cal.App.3d 159, 166.) 16 The facts alleged in the TAC, no matter how voluminous, do not support a 17 conclusion that Mr. Fishman acted in a manner that intended to cause the Plaintiffs’ 18 injury such that they support a claim for punitive damages. The facts alleged do not 19 support a conclusion that Mr. Fishman engaged in any despicable act with willful and 20 conscious disregard of Plaintiffs’ rights. There are no specific allegations in the TAC of 21 conduct by Mr. Fishman that give rise to punitive damages. 22 Accordingly, Plaintiffs’ allegations and prayer in the complaint seeking punitive 23 damages should be dismissed against Danny Fishman. 24 /// 25 /// 26 /// 27 28 3 DEFENDANT DANNY FISHMAN’S REPLY IN SUPPORT OF MOTION TO Case NO. 17CIV02888 STRIKE PORTIONS OF THIRD AMENDED COMPLAINT Ill. CONCLUSION Defendant Danny Fishman respectfully requests that the Court strike from the TAC the following language as applied to him: 1. “Punitive Damages as alleged and allowed by law for malicious conduct” (TAC, 118: 10, 1121) \OWQ@UIAMNH 2. “An award of Attorney's Fees as allowed by Bus. & Prof. Code 17200 et seq. for Unfair Business Practices, contracted and CCP 1021.5. . . and due to willful misappropriation of trade secrets under Cal. Civ. Code sec. 3426.4" (TAC, 118: 11-14, 1122) DATED: November 20, 2018 Sam By / ROB‘E’RT M. BODZIN \ KATRINA R. DUREK Attorneys for Defendant DANNY FISHMAN 4833-8460-4288, V.1 NNNNNNNNN—Hn—I—AHHr—l—HH wflam-BWNHcomflQUI-AWNHO 4 DEFENDANT DANNY FISHMAN'S REPLY IN SUPPORT OF MOTION TO Case No. 17C|V02888 STRIKE PORTIONS OF THIRD AMENDED COMPLAINT