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I LAW OFFICES OF RONALD JASON PALMIERI

Ronald Jason Palmieri, State Bar #96953 .f41L~JlI
LOS ANnPT
2 Robert P. Wargo, State Bar #175177 , ,p'~ ~fPPI?rnl? COURT
911 Linda Flora Drive
3 Los Angeles, California 90049 SEP 1 0200/
Tel: (310) 471-1881
4 Fax: (310) 471-3511 JOHN ~o'jI..AHK£:. CLERK
BY ...,.~
5 M. FRF~n..fr) DEPUTY
Attorneys for Defendants Cirgadyne, Inc.; ABC Escrow;
6 Craig A. Block and Cindy Block

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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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MARCIA J. HOLTZMAN, an individual ) CASE NO.: BC254506
11 )
Plaintiff, ) REPLY TO OPPOSITION TO MOTION TO
12 ) STRIKE PORTIONS OF COMPLAINT;
vs, ) MEMORANDUM OF POINTS AND
13 ) AUTHORITIES
CIRGADYNE, INC., et al. )
14 ) Date: September 20,2001
Defendants ) Time: 8:30 AM
15 ) Dept.: 32
Hon. William Highberger
16
Complaint Filed: July 20, 2001
17
18 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

19 COME NOW DEFENDANTS Cirgadyne, Inc.; ABC Escrow; Craig A. Block; and Cindy
20 Block and hereby Reply to Plaintiff's Opposition to Defendants' Motion to Strike Plaintiff's for

21 pWlitive damages contained in the Complaint filed herein.

22 Respectfully submitted.

23 Date: September 7, 2001

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ORIGINAL REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT

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MEMORANDUM OF POINTS AND AUTHORITIES
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2 I
3 INTRODUCTION

4 The Opposition to the Motion to Strike is nothing more than a vitriolic attack by a bitter

5 woman who is the disgruntled Aunt of Defendants' Craig and Cindy Block and the mother of

6 James Yaker, a former business associate of Defendant Cirgadyne whose business relationship

7 was recently terminated due to his failure to perform his duties in a business like fashion. In fact,

8 if the allegations in the Complaint have any merit at all, which they do not, the wrongdoing, if

9 any, was the creation and scheme of Plaintiff, Marcia Holtzman's, son, James Yaker, who

10 Plaintiff has conveniently sought not to sue in the instant action.

11 In truth and fact, Defendants have done nothing improper, and Plaintiffs sole motive is a

12 veiled threat at economic blackmail, through the guise of the litigation privilege, while defaming

13 her nephew and niece, while her son has entered a business in direct competition with them,

14 apparently immune from her scathing lies.

15 That said, the Opposition, for the most part, is mere boiler plate regurgitation of black

16 letter law relating to Demurrers and fails to analyze or refute the fatal fundamental flaws which

17 mandate, as a matter oflaw, that the Motion to Strike be granted.

18 II.

19 THE COURT MAY STRIKE ANY PORTION OF A PLEADING WHICH IS NOT

DRAWN OR FILED IN CONFORMITY WITH THE LAWS OF THIS STATE, A
20 COURT RULE, OR ANY ORDER OF THE COURT

21 On or about July 20, 2001, Plaintiff Marcia J. Holtzman filed a two-count complaint for:

22 (I) Invasion of Privacy under Common Law, and (2) Invasion of Privacy under Civil Code §3344

23 against seven defendants, including moving parties Cirgadyne, Inc.; ABC Escrow; Craig A.

24 Block and Cindy Block. Moving parties request that the Court strike certain portions of the
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25 cQll1plaint which are "not drawn or filed in conformity with the laws of this state, a court rule, or
q

26 4prder of the court," as permitted by CCP §436. Specifically, these Defendants request that the
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27 C~prt strike the claims throughout the Complaint for punitive damages as Plaintiff has alleged no
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28 fa~s to support such a claim.
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REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT
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Code of Civil Procedure §435(b) provides, in pertinent part: "Any party within the time

2 allowed to respond to the pleading, may serve and file a notice of motion to strike the whole or

3 any part thereof." Code of Civil Procedure §436 states:

4 The court may, upon a motion made pursuant to Section 435, or at any time in its
discretion, and upon terms it deems proper:
5 (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.
(b) Strike out all or any part of any pleading not drawn or filed in conformity with the
6 laws of this state, a court rule, or an order of the court.

7 As stated in CCP §431.1 0, "Irrelevant matters," as that term is used in §436, means:

8 (I) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient
9 claim or defense.
(3) A demand for judgment requesting relief not supported by the allegations of the
10 complaint or cross-complaint.

II A. The Court Should Strike The Requests for Punitive Damages Throughout the
Complaint Because Plaintiff Has Plead No Facts Showing An Entitlement To Such
12 Relief

13 In paragraph 21 (located within the first cause of action for Invasion of Privacy under

14 Common Law)and paragraph 24 (located within the second cause of action for Invasion of

15 Privacy under Civil Code §3344), Plaintiff seeks punitive damages against all Defendants based

16 on the allegations of her Complaint (all of which are alleged on information and belief) that

17 Defendants acted "were guilty of oppression, fraud, or malice, in that said defendants engaged in

18 the above-specified conduct and transactions with the intent to vex, injure or annoy Plaintiff,

19 andlor with a willful and conscious disregard of Plaintiff's rights." Since these allegations are
20 wholly devoid of factual support, the Court must strike paragraphs 21 and 24, as well as

21 paragraphs A.2 and B.2 of the prayer for relief (requesting punitive damages), from the

22 Complaint.

23 In order to survive a motion to strike an allegation of punitive damages, the ultimate facts

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showing an entitlement to such relief must be pled by a plaintiff. Clauson v. Superior Court

(I.A98) 67 Cal.App.4th 1253, 1255, citing Grieves v. Superior Court (1984) 157 Cal.App.3d 159,
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26 I~f; Blegen v. Superior Court (1981) 125 CaI.App.3d 959,962-963. Indeed, the mere allegation
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27 all}ntentional tort was committed is not sufficient to warrant an award of punitive damages. Not
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REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT
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only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the

2 pleading to support such a claim. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.

3 It is respectfully submitted the Plaintiffs Opposition has failed to establish these

4 necessary elements, despite the Opposition's citation to black letter law which is unrelated to

5 Plaintiffs claims.

6 Civil Code §3294(c) defines malice, oppression and fraud as follows:

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(1) "Malice" means conduct which is intended by the defendant to cause injury to the
8 plaintiff or despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.
9 (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.
10 (3) "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
11 depriving a person of property or legal rights or otherwise causing injury.

12 Plaintiffs allegations that Defendants' conduct was malicious, fraudulent or oppressive

13 are conclusory and not supported by any facts whatsoever. The incorporation by Plaintiff of her

14 general information and belief allegations do not sustain her pleading burden. Rather, allegations

15 of "ultimate facts" showing an entitlement to punitive damages are wholly absent from the

16 complaint. Accordingly, the Court must strike paragraphs 21 and 24, and the prayers for relief

17 for punitive damages from the Complaint.

18 III.
19 CONCLUSION

20 For all the reasons set forth above, the Court should strike paragraphs 21 and 24, and the

21 prayers for relief for punitive damages, from the Complaint.

22 Dated: September 7,2001 LAW OFFICES OF RONALD JASON PALMIERI

23

24 By::-I.,),~~~1fhz~~~~~-""'"
len
25 fendants Cirgadyne, Inc.; ABC
. Block and Cindy Block
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REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT
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• PROOF OF SERVICE
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2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,

3 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 911 Linda Flora Drive, Los Angeles,
4 CA 90049.

5 On September 7,2001, I served the following documents described as REPLY TO

OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT on the interested
6 parties in this action by as follows:

7 Lawrence M. Adelman, Esq.

Law Offices of Lawrence M. Adelman
8 5850 Canoga Avenue #400
Woodland Hills, CA 91367-6554
9 FAX: 8181710-3844

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BY MAIL
11 As follows: "I am readily familiar" with the firm's practice of collection and processing
correspondence for mailing. Under that practice, it would be deposited with the U.S.
12 Postal Service on that same day with postage thereon fully prepaid at Los Angeles,
California, in the ordinary course of business. I am aware that on motion of the party
13 served, service is presumed invalid if the postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.
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BY FACSIMILE
15 I faxed copies of such document listed above to the persons whose name, address and
facsimile number appears above.
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BY PERSONAL SERVICE
17 I caused such envelope to be delivered by hand to the individual(s) whose name(s)
appear(s) above.
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Executed on September 7, 2001, at Los Angeles, California.
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...x.. (STATE) I declare under penalty of perjury under the laws of the State of California that
20 the foregoing is true and correct.

21 (FEDERAL) I declare under penalty of perjury under the laws

America that the foregoing is true and corr
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REPLY TO OPPOSITION TO MOTION TO STRIKE PORTIONS OF COMPLAINT

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