Free Motion to Strike - District Court of California - California

Case 3:07-cv-02172-BEN-JMA

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Filed 12/05/2007

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WILSON PETTY KOSMO & TURNER LLP REGINA A. PETTY (106163) SOTERA L. ANDERSON (211025) 550 West C Street, Suite 1050 San Diego, California 92101 Telephone: (619) 236-9600 Facsimile: (619) 236-9669 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant SAN DIEGO CONVENTION CENTER CORPORATION, INC.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

UNITED NATIONAL MAINTENANCE INC, A NEVADA CORPORATION, Plaintiff,

Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE, RULES 12(f) Complaint Filed: November 13, 2007

14 v. 15 16 17 Defendant. 18 19 20 21 SAN DIEGO CONVENTION CENTER CORPORATION, INC., A CALIFORNIA CORPORATION,

Date: Time: Dept.: Judge: Trial Date:

January 28, 2008 10:30 a.m. 3 Hon. Roger T. Benitez Not Set

[EXEMPT FROM FEES ­GOV. CODE, § 6103]

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Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: YOU ARE HEREBY NOTIFIED THAT Defendant SAN DIEGO CONVENTION CENTER CORPORATION, INC.'s ("SDCCC")Motion to Strike portions of Plaintiff's Complaint will be heard on January 28, 2008, at 10:30 a.m. in Courtroom 3 of this Court, located at 880 Front Street, San Diego, California 92101.

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Case 3:07-cv-02172-BEN-JMA

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SDCCC's Motion to Strike is based on the grounds that Plaintiff's request for damages, including but not limited to attorneys' fees and punitive damages, are "immaterial," "impertinent," and of a "scandalous" nature. Fed. R. Civ. P. 12(f). Specifically, even assuming, arguendo, that each of Plaintiff's causes of action pass muster and scrutiny of SDCCC's Motion to Dismiss, Plaintiff cannot recover monetary damages from SDCCC, a public entity. 1. Plaintiff's request for monetary damages for violation of the Sherman Act (causes of

action one through four) is improper as the United States Code protects SDCCC from monetary damages. 15 U.S.C. § 35. Accordingly, SDCCC moves to strike the following portions of the Complaint: · First Cause of Action for Attempted Monopolization: · · p. 22, ¶ 79, in its entirety. 15 U.S.C. § 35.

Prayer for Relief: · · · · · p. 29, ¶ 3, in its entirety. 15 U.S.C. § 35. P. 29, ¶ 4, in its entirety. 15 U.S.C. § 35. p. 29, ¶ 5, in its entirety. 15 U.S.C. § 35. p. 29, ¶ 6, in its entirety. 15 U.S.C. § 35. p. 29, ¶ 7, in its entirety. 15 U.S.C. § 35.

2.

With respect to Plaintiff's state claims, Plaintiff's request for monetary damages

under its fifth, sixth and seventh causes of action for Interference with Contract, Interference with Prospective Business Advantage, and violation of Business and Professions Code section 17000, respectively, are improper as California Government Code protects public entities, such as SDCCC, from monetary damages for these claims. Cal. Gov. Code §§ 814, 815, 818, 945.4. Accordingly, SDCCC moves to strike the following portions of the Complaint: · Fifth Cause of Action for Interference with Contract: · · p. 27, ¶ 101, in its entirety. Cal. Gov. Code §§ 814, 815, 945.4. p. 27, ¶ 102, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4.

Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

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Case 3:07-cv-02172-BEN-JMA

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 · · · 3. Plaintiff's request for punitive damages also fails in that the Complaint does not · Prayer for Relief: · · · · p. 29, ¶ 3, in its entirety. Cal. Gov. Code §§ 814, 815, 945.4. p. 29, ¶ 5, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4. p. 29, ¶ 6, in its entirety. Cal. Gov. Code §§ 814, 815, 945.4. p. 29, ¶ 7, in its entirety. Cal. Gov. Code §§ 814, 815, 945.4. · Seventh Cause of Action for Violation of Business and Professions Code section 17000: · · p. 28, ¶ 111, in its entirety. Cal. Gov. Code §§ 814, 815, 945.4. p. 28, ¶ 112, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4. · Sixth Cause of Action for Interference with Prospective Business Advantage: · · p. 28, ¶ 108, in its entirety. Cal. Gov. Code §§ 814, 815, 945.4. p. 28, ¶ 109, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4.

allege conduct that would entitle it to such relief under California Civil Code section 3294, even if such relief was recoverable, which it is not. Accordingly, SDCCC moves to strike the following portions of the Complaint: · Fifth Cause of Action for Interference with Contract: · p. 27, ¶ 102, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4.

Sixth Cause of Action for Interference with Prospective Business Advantage: · p. 28, ¶ 109, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4.

Seventh Cause of Action for Violation of Business and Professions Code section 17000: · p. 28, ¶ 112, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4.

Prayer for Relief: -3-

Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

Case 3:07-cv-02172-BEN-JMA

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p. 29, ¶ 5, in its entirety. Cal. Gov. Code §§ 814, 815, 818, 945.4.

This Motion to Dismiss is based upon this Notice of Motion, the attached Memorandum of Points and Authorities in Support of Motion, the Request for Judicial Notice (filed along with this Motion), the Notice of Lodgment of Foreign Authorities, and all pleadings and papers in the Court's file, any other matters of which the court may take judicial notice and upon such oral argument as may be entertained by this court. WHEREFORE, Defendant SDCCC prays that its Motion to Strike be sustained without leave to amend.

December 5, 2007

WILSON PETTY KOSMO & TURNER LLP

By: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/SOTERA L. ANDERSON REGINA A. PETTY SOTERA L. ANDERSON Attorneys for Defendant SAN DIEGO CONVENTION CENTER CORPORATION

Case No. 07-CV-2172 BEN (JMA) DEFENDANT SAN DIEGO CONVENTION CENTER CORPORATION, INC.'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

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