Electronically FILED by Superior Court of California, County of Los Angeles on 01/10/2020 02:07 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 1 2 3 4 5 6 7 Albert K. Alikin (SBN# 265119) aalikin@goldbergsegalla. corn Brian W. Skalsky (SBN# 277883) bskalsky@goldbergsegalla.com GOLDBERG SEGALLA LLP 777 S. Figueroa Street, Suite 1900 Los Angeles, CA 90017 Telephone: 213.415.7200 Facsimile: 213.415.7299 Attorneys for Defendants PARAMOUNT PICTURES CORPORATION; COLUMBIA PICTURES INDUSTRIES, INC. and COLUMBIA PICTURES HYBRID PRODUCTIONS, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES — STANLEY MOSK COURTHOUSE 11 12 13 ROBIN HAMMOND, individually and as the parent of SYDNEY HAMMOND and DARRYL TODD HAMMOND, II; and DARRYN HAMMOND, 14 15 C C 16 14- 17 Z-; 18 19 20 21 22 Plaintiffs, v. ARENA FOOTBALL LEAGUE, LLC; ARENA FOOTBALL ONE, LLC; TENNESSEE ARENA FOOTBALL, LLC; WALT DISNEY MOTION PICTURES GROUP, INC.; WALT DISNEY PICTURES PRODUCTION, LLC; WALT DISNEY PICTURES; PARAMOUNT PICTURES CORPORATION; COLUMBIA PICTURES INDUSTRIES, INC.; COLUMBIA PICTURES HYBRID PRODUCTIONS, INC.; and DOES 1 through 100, inclusive, 23 Case No. 19STCV05943 Judge: Hon. David Sotelo DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF BRIAN W. SKALSKY Date: Time: Dept.: May 28, 2020 8:30 a.m. 40 Reservation ID: 093493506212 Complaint filed: 2/21/19 Trial date: None Defendants. 24 25 26 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 28, 2020, at 8:30 a.m. in Department 40 of the 27 above captioned court, Defendants Paramount Pictures Corporation, Columbia Pictures 28 Industries, Inc. and Columbia Pictures Hybrid Productions, Inc. (hereinafter collectively referred DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 to as "Defendants") will and hereby do move this Court to Strike the following portions of 2 Plaintiffs Robin Hammond, Sydney Hammond, Darryl Todd Hammond, II and Darryn 3 Hammond's (herein after collectively referred to as "Plaintiffs") First Amended Complaint 4 pursuant to Code of Civil Procedure §§ 435 and 436. 5 1. All references to punitive damages in Plaintiffs' Complaint. 6 It is well settled that bare conclusory allegations of oppression, fraud, or malice are 7 insufficient to plead entitlement to punitive damages. Brousseau v. Jarrett, (1976) 8 73 Ca1.App.3d 864, 872; Cyrus v. Haveson, (1976) 65 Cal.App.3d 306, 316-317. 9 Plaintiffs make nothing more than unsupported conclusory allegations to support 10 their conclusory claims for punitive damages generic to all defendants in the 11 lawsuit, with no specifics as to the 2004 filming of the movie The Longest Yard. 12 Accordingly, Defendants request the Court strike Plaintiffs' requests for punitive 13 damages, which are made in the following sections of the First Amended 14 Complaint: paragraphs 59, 73, 87, 103, 117, 132 and prayer for relief section letter 15 D. 16 This Motion will be supported by this Notice, the following Memorandum of Points and 17 Authorities, the Declaration of Brian W. Skalsky, the pleadings and records on file in this Action, 18 and such oral or documentary evidence as may be presented at the hearing on this Motion. 19 [Counsel for Defendants met and conferred with Plaintiffs' counsel prior to filing this motion, as 20 better discussed in the Declaration of Brian W. Skalsky. No agreement was reached causing 21 Defendants to bring the instant motion.] 22 Dated: January 10, 2020 GOLDBERG SEGALLA LLP 23 24 By: 25 26 27 28 ALBERT K. ALIKIN BRIAN W. SKALSKY Attorneys for Defendants PARAMOUNT PICTURES CORPORATION; COLUMBIA PICTURES INDUSTRIES, INC. and COLUMBIA PICTURES HYBRID PRODUCTIONS, INC. 2 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 2 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION 3 Darryl Hammond was a professional football player in the Arena Football League 4 ("AFL") from 1991 to 2006. See First Amended Complaint ("FAC") ¶ 21. According to 5 Wikipedia, Mr. Hammond's sixteen-year career is the longest career in AFL history. He had 6 8,559 receiving yards, 144 touchdowns, 802 receptions and 31 interceptions -- playing both 7 offense and defense -- during his 16-year professional football career in the AFL. He was a full- 8 time professional football player, who also, on two occasions, worked as a body double in movies 9 filmed over a decade ago. 10 Plaintiffs Robin Hammond, Sydney Hammond, Darryl Todd Hammond II, and Darryn 11 Hammond (herein after collectively referred to as "Plaintiffs") allege Mr. Hammond sustained 12 repetitive, traumatic sub-concussive and/or concussive head impacts and brain injury from his 16 13 seasons playing professional football in the AFL. See FAC ¶ 22. Mr. Hammond passed away on 14 February 19, 2017 allegedly due to Chronic Traumatic Encephalopathy ("CTE"). See FAC ¶ 41. 15 Plaintiffs also name Defendants Paramount Pictures Corporation, Columbia Pictures 16 Industries, Inc. and Columbia Pictures Hybrid Productions, Inc. (collectively "Defendants") in 17 their lawsuit because Mr. Hammond allegedly worked as a body double for football scenes on the 18 set of the movie The Longest Yard—filmed in 2004. See FAC ¶ 23. Plaintiffs allege Mr. 19 Hammond sustained repetitive, traumatic sub-concussive and/or concussive head impacts while a 20 body double filming scenes for the 2004 movie. See FAC ¶ 52. 21 Plaintiffs' lawsuit is flawed in many respects, which includes the request for punitive 22 damages as to the Defendants. Plaintiffs seek recovery of punitive damages against Defendants 23 without any allegations to support an award of punitive damages as more thoroughly addressed 24 below. Accordingly, Defendants respectfully request this Court strike all requests for punitive 25 damages from Plaintiffs' First Amended Complaint. Defendants respectfully ask the Court to 26 deny leave to amend because it is not possible for Plaintiffs to cure the defects in the pleadings. 27 If Plaintiffs believe they can further amend the Complaint, the Court should require Plaintiffs to 28 make an offer of proof as to how it could be amended to correct the defects. 3 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067. vl II. THE COURT MAY STRIKE FROM A PLEADING ANY IRRELEVANT, FALSE, 2 OR IMPROPER MATTER 3 It is proper for the Court to strike from any pleading irrelevant, false, or improper matter 4 as long as appropriate notice requirements have been met. Code of Civil Procedure § 435(b)(1) 5 provides, in pertinent part: Any party, within the time allowed to respond to a pleading may serve 6 and file a notice of motion to strike the whole or any part of a Complaint or a Cross-Complaint. 7 Further, Code of Civil Procedure § 436 provides: 8 The court may, . . . (a) strike out any irrelevant, false or improper 9 matter inserted in any pleading. (b) Strike out all or part of any 10 pleading not drawn or filed in conformity with the laws of this state, 11 a court rule or an order of the court. 12 An "immaterial allegation" means "irrelevant matter" as that term is used in § 436. Code of Civil 13 Procedure § 431.10(b) defines "immaterial allegation" as: "(1) An allegation that is not essential 14 to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported 15 by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not 16 supported by the allegations of the complaint or cross-complaint." Code of Civil Procedure § 17 431.10. Here, because Plaintiffs' requested relief is not supported by the allegations in the First 18 Amended Complaint, the Court must strike Plaintiffs' request for punitive damages. 19 III. PLAINTIFFS' COMPLAINT FAILS TO ALLEGE FACTS TO SUPPORT A 20 CLAIM FOR PUNITIVE DAMAGES 21 Conclusory allegations mimicking the language of Civil Code § 3294 are insufficient to 22 support a claim for punitive damages. Civil Code § 3294(a) requires "clear and convincing 23 evidence" that a defendant acted with "oppression, malice or fraud" before an award of punitive 24 damages may be made. The section further provides that if a plaintiff is attempting to prove 25 malice in addition to "conscious disregard" of the plaintiff's rights, a plaintiff must also provide 26 evidence of "despicable" and "willful" conduct. See College Hospital, Inc. v. Superior Court 27 (Crowell), 8 Ca1.4th 704, 713 (1994); See also Mock v. Michigan Millers Mutual Ins. Co., 4 28 Cal.App.4th 306, 328 (1992) (requiring a showing of more than just the commission of a tort for 4 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 2 0 0 cy) La_ a) rs•-• 5 (1) - a 2 It is well settled that bare conclusory allegations of oppression, fraud, or malice are 3 insufficient to plead entitlement to punitive damages. Brousseau v. Jarrett, 73 Cal.App.3d 864, 4 872 (1976); Cyrus v. Haveson, 65 Cal.App.3d 306, 316-317 (1976). Further, "Civil Code section 5 3294, subdivision (b) does not authorize an award of punitive damages against an employer for an 6 employee's wrongful conduct. It authorizes an award of punitive damages against an employer 7 for the employer's own wrongful conduct; Liability under subdivision (b) is vicariously to the 8 extent that the employer is liable for the actions of its officer, director or managing agent in hiring 9 or controlling the offending employee, in ratifying the offense or in acting with oppression, fraud 10 or malice. It is not vicarious in the sense that the employer is liable for the wrongful conduct of 11 the offending employee." Weeks v. Baker & McKenzie 63 Cal.App.4th 1128, 1154-1155 (1998). 12 Here, Plaintiffs have not alleged any behavior on the part of Paramount Pictures 13 Corporation, Columbia Pictures, Inc. or Columbia Pictures Hybrid Productions, Inc. that would 14 rise to the level of "oppression, fraud, or malice" which is required to make a claim for punitive 15 damages. Darryl Hammond had a lengthy 16 yearlong professional football career. Plaintiffs use 16 broad-brush strokes and improperly stretch their alleged medical studies to allege punitive 17 damages against the Defendants. Plaintiffs make no differentiation between Darryl Hammond's 18 lengthy professional football career from 1991 to 2016 (with the alleged medical link to an 19 increased risk of developing CTE) and Darryl Hammond's limited role in the movie The Longest 20 Yard as a body double for the scripted and highly choreographed football scenes in 2004 (where 21 there is no medical link showing an increased risk of developing CTE). 0 0 < 0 u) o a) Io 0 an award of punitive damages). CI) a) (1) ce 0) c o • _1 ti N- 22 A. Plaintiffs Allege Scientific Studies Show Professional Football Players Are At 23 Risk Of Brain Injury And/Or CTE From Their Chosen Profession Which Is 24 Irrelevant To Movie Making 25 Throughout the First Amended Complaint, Plaintiffs' allege medical studies show 26 professional football players have higher rates of brain injuries and/or CTE from playing 27 professional football when compared to the normal population. Plaintiffs allege there are studies 28 documenting the autopsies of NFL players and that 90% of those professional football players 5 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 autopsied suffered from CTE. See FAC ¶ 36. Plaintiffs allege there are scientific studies that 2 show that head impacts while playing professional football are linked to significant risk for 3 permanent brain injury. See FAC ¶ 37. Plaintiffs allege there are peer reviewed scientific studies 4 that show professional football retirees suffer from depression at a higher rate than the general 5 population. See FAC ¶ 38. Plaintiffs allege there are scientific studies that show professional 6 football retirees have a higher rate of dementia when compared to the normal non-professional 7 football playing population. See FAC ¶ 39. These medical studies pertain to professional 8 football players playing professional football, not body doubles filming carefully choreographed 9 football scenes for a movie. 10 Plaintiffs do not allege the existence of any medical study showing body doubles filming 11 football movies are at an increased risk of developing CTE when compared to the general public. 12 Plaintiffs do not allege the existence of any medical study showing movie body doubles who 13 participate in scripted and choreographed football scenes are at an increased risk of developing 14 CTE when compared to the general public. 15 Further, Plaintiffs' FAC omits key facts on the medical studies that relate to professional 16 football players. Plaintiffs fail to allege when these studies were published to show they were 17 published before the 2004 movie The Longest Yard. Plaintiffs fail to allege who conducted the 18 studies of the professional football players and where the studies were published, much less how 19 Defendants should have known of those studies. Plaintiffs do not allege Defendants had any 20 control over how the medical studies were conducted or where they were published. Even had 21 the medical studies concerning professional football players been provided to Defendants, they do 22 not show a link between participating in a scripted and highly choreographed football scenes 23 (where no football game is actually played) and an increased risk of CTE, when compared to the 24 general public. 25 Therefore, the generic medical studies cited are a red herring and not a basis for Plaintiffs 26 to seek punitive damages against Defendants. 27 /// 28 /// 6 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 B. Plaintiffs Blur The Differences Between A Professional Football Career And 2 Filming A Scripted And Highly Choreograph Movie That Has Football 3 Scenes 4 Plaintiffs cannot be allowed to conflate a lengthy professional football career and the 5 limited participation by Darryl Hammond in the scripted and highly choreographed filming of a 6 few scenes in a single movie. Professional football games are not scripted or controlled 7 environments. In professional football games players make full body contact at full speed at 8 varying angles during the entirety of the game. By contrast, scripted and choreographed movie 9 football scenes take place in a controlled environment, where no actual football game is played. 10 The action is controlled to obtain the desired shots, correct lighting, correct camera angles, 11 intended depiction of dialogue and movement, all to advance the plot of the movie. There was no 12 "real" football game in The Longest Yard's fictional football game between the prison guards and 13 convicts. Plaintiffs' FAC conveniently overlooks these significant differences in the attempt to 14 stretch their alleged medical studies to areas outside of professional football and manufacture 15 claims against Defendants. 16 C. 17 18 Plaintiffs Do Not Allege Any Specific Conduct Of Defendants To Support Punitive Damages There is nothing specific to Defendants (Paramount Pictures Corporation, Columbia 19 Pictures Industries, Inc., and Columbia Pictures Hybrid Productions, Inc.) alleged in Plaintiffs 20 FAC to show that any company personnel had any knowledge of any increased risk Darryl 21 Hammond might have had of developing CTE from his involvement in the scripted and highly 22 choreographed scenes from the movie The Long Yard. Plaintiffs' FAC does not identify how a 23 company individual could have gained such knowledge before 2004. Plaintiffs cannot allege 24 these facts because there are no medical studies showing an increased risk of CTE to body 25 doubles who participate in the filming of football movies as compared to the normal population. 26 Lastly, Plaintiffs do not name any individual(s) from Defendants that concealed information, 27 what their involvement was with the movie The Longest Yard or what their role was within 28 Defendants' corporate structure. Plaintiffs do not allege Defendants had any control or 7 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 involvement in the medical studies cited. 2 3 cr C' PLAINTIFFS CANNOT RECOVER PUNITIVE DAMAGES UNDER THEIR FIRST CAUSE OF ACTION FOR MERE NEGLIGENCE 5 "It has long been the rule that conduct classified only as unintentional carelessness, while 6 it may constitute negligence or even gross negligence, will not support an award of punitive 7 damages. Carol Ann DAVIS, v 14857 ROSCOE BLVD., INC., No. 00000191, 2003 WL 8 25455545 (2003). Plaintiffs' first cause of action for negligence alleges Defendants were 9 negligent. Plaintiffs seek recovery of punitive damages in relation to their negligence cause of 10 action, which is improper. See FAC ¶ 59. Accordingly, this specific paragraph must be struck 11 from the Negligence Cause of Action in the First Amended Complaint because it is not supported 12 by California law. 13 V. 15 C IV. 4 14 C C' Accordingly, the Court must strike all of Plaintiffs' requests for punitive damages. 16 CONCLUSION For the foregoing reasons, Defendants respectfully requests that this Court grant its Motion to Strike and strike the following from Plaintiffs' First Amended Complaint: 1. All references to punitive damages in Plaintiffs' First Amended Complaint, which 17 are made in the following sections: paragraphs 59, 73, 87, 103, 117, 132 and 18 prayer for relief section letter D. 19 20 GOLDBERG SEGALLA LLP Dated: January 10, 2020 21 By: 22 23 24 25 ALBERT K. ALIKIN BRIAN W. SKALSKY Attorneys for Defendants PARAMOUNT PICTURES CORPORATION; COLUMBIA PICTURES INDUSTRIES, INC. and COLUMBIA PICTURES HYBRID PRODUCTIONS, INC. 26 27 28 8 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067. vl DECLARATION OF BRIAN W. SKALSKY 2 I BRIAN W. SKALSKY, ESQ., declare and state as follows: 3 1. I am an attorney at law licensed to practice before all courts of the State of 4 California. I am employed by Goldberg Segalla, LLC. I have personal knowledge of the facts 5 stated herein and if called upon as a witness, I could and would competently testify thereto. 6 2. Goldberg Segalla is counsel for Defendants PARAMOUNT PICTURES 7 CORPORATION, COLUMBIA PICTURES INDUSTRIES, INC. and COLUMBIA PICTURES 8 HYBRID PRODUCTIONS, INC. in this action. 9 3. Pursuant to the requirements of Code of Civil Procedure section 435.5, I attempted 10 to meet and confer with Plaintiffs' counsel by sending a written correspondence on December 27, 11 2019, inviting a response from Plaintiffs' counsel. My written correspondence was sent by e-mail 12 and a true and correct copy of both emails with the attached letter is attached hereto and 13 incorporated herein as Exhibit A. I followed up again with Plaintiffs' counsel on December 30, O O cs) 14 2019 by email. A true and correct copy of this email communication is attached hereto and a. .° 15 incorporated herein as Exhibit B. To aic 7911f1 0 (n 0 Cr) 17 Plaintiffs' counsel indicated availability to meet and confer by phone on January 7, 2020. I had a QC" 18 meet and confer telephone conversation with Plaintiffs' counsel concerning the substance of this 19 motion on January 7, 2020. The parties could not reach an agreement. Accordingly, the instant 20 motion is being filed to address the defects in the First Amended Complaint. a) < 0) 20 or) co -7, a) cr _o "0 o 0 -7-- Cl) LI- 0 • -J ti ti N 16 21 22 4. I did not hear from Plaintiffs' counsel until a week later on January 6, 2020. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 10, 2020, at Los Angeles, California. 23 24 25 26 27 28 9 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 EXHIBIT A Skalsky, Brian W. From: Sent: To: Cc: Subject: Attachments: Kahlon, Rippan Friday, December 27, 2019 11:28 AM rwills@rwillslawfirm.com Skalsky, Brian W.; Alikin, Albert K. (Al) Robin Hammond, et al. v Arena Football League, LLC., et al. Ltr to R. Wills re Meet and Confer for DMR and Mtn to Strike.PDF Counsel, Attached please find a meet and confer letter re the Demurrer and Motion to Strike Defendants intend to file. Please provide your availability to discuss. Should you have any questions or concerns, do not hesitate to contact our office. Thank you, Rippan Rippan Kahlon I Legal Assistant 777 S. Figueroa Street, Suite 2000 777 Tower I Los Angeles, CA 90017 DIRECT 213.415.7233 I 7233 I FAX 213.415.7299 rkahlon@qoldberqseqalla.com www.qoldberqsegalla.com GOLDBERG SEGALLA California I Connecticut I Florida I Illinois I Maryland I Missouri NewJersey I New York I North Carolina I Pennsylvania I United Kingdom GREAT PLACE TO WORK 2 017 Privileged attorney-client communication / attorneys work product. This email message and any attachments are confidential. If you are not the intended recipient, please immediately reply to the sender and delete the message from your email system. 1 Skalsky, Brian W. From: Sent: To: Cc: Subject: Skalsky, Brian W. Friday, December 27, 2019 12:40 PM Kahlon, Rippan; rwills@rwillslawfirm.com Alikin, Albert K. (Al) RE: Robin Hammond, et al. v Arena Football League, LLC., et al. - Dear Rhonda, Please let us know a time when you are available to discuss by phone this next Monday or Tuesday. Best regards Brian From: Kahlon, Rippan Sent: Friday, December 27, 2019 11:28 AM To: rwills@rwillslawfirm.com Cc: Skalsky, Brian W. ; Alikin, Albert K. (Al) Subject: Robin Hammond, et al. v Arena Football League, LLC., et al. Counsel, Attached please find a meet and confer letter re the Demurrer and Motion to Strike Defendants intend to file. Please provide your availability to discuss. Should you have any questions or concerns, do not hesitate to contact our office. Thank you, Rippan Rippan Kahlon I Legal Assistant 777 S. Figueroa Street, Suite 2000 777 Tower I Los Angeles, CA 90017 213.415.7233 I 7233 I FAX 213.415.7299 rkahlon©goldbercisegalla.com www.goldberqsecialla.com rt6=1GOLDBERG SEGALLA California I Connecticut I Florida I Illinois I Maryland I Missouri NewJersey I New York I North Carolina I Pennsylvania I United Kingdom Bea Workplaces 1.00. Mk GREAT PL TO WORK 2017 Privileged attorney-client communication / attorney's work product. This email message and any attachments are confidential. If you are not the intended recipient, please immediately reply to the sender and delete the message from your email system. 1 5 GOLDBERG SEGALLA Brian Skalsky I Attorney Direct 213.415.7218 I bskalsky@goldbergsegalla.com December 27, 2019 VIA E-MAIL Rhonda H. Wills Wills Law Firm, PLLC 1776 Yorktown, Suite 570 Houston, Texas 77056 rwills@rwillslawfirm.com Re: Robin Hammond, et al. v. Arena Football League, LLC., et al. Re Our Clients: Paramount Pictures Corporation, Columbia Pictures, Inc. and Columbia Pictures Hybrid Productions, Inc. Dear Counsel: Please allow this to serve as our meet and confer with regards to Plaintiffs Robin Hammond, Sydney Hammond, Darryl Todd Hammond II and Darryn Hammonds (collectively "Plaintiffs") lawsuit against our clients Defendants Paramount Pictures Corporation, Columbia Pictures, Inc. and Columbia Pictures Hybrid Productions, Inc. (collectively "Defendants"). Defendants intend to file a demurrer and motion to strike as to Plaintiffs' First Amended Complaint based on the below grounds. I. Plaintiffs' General Allegations As To Defendants Paramount Pictures Corporation, Columbia Pictures, Inc. and Columbia Pictures Hybrid Productions, IRE, Plaintiffs allege Darryl Hammond worked as a body double during the football scenes on the set of the movie The Longest Yard in 2004. See First Amended Complaint ¶ 23. Plaintiffs alleged Darryl Hammond sustained repetitive, traumatic sub-concussive and/or concussive head impacts during the filming of the movie The Longest Yard. See First Amended Complaint ¶ 24. Plaintiffs allege the Defendants knew about the risks of head injuries from playing football and concealed those risks from Darryl Hammond. See First Amended Complaint TT 32-40. Darryl Hammond died on February 19, 2017 from alleged Chronic Traumatic Encephalopathy ("CTE"). See First Amended Complaint ¶ 41. Plaintiffs filed this action on February 21, 2019, approximately 16 years after Darryl Hammond was on the set of the movie The Longest Yard. II. Legal Basis For Demurrer To Plaintiffs' Complaint Plaintiffs alleged a total of 9 causes of action against the Defendants. Plaintiffs allege (1) Negligence; (2) Negligent Misrepresentation; (3) Fraud; (4) Fraudulent Misrepresentation by Office Location: 777 S. Figueroa Street, Suite 1900, Los Angeles, CA 90017 1213.415.7200 I Fax: 213.415.7299 I www.goldbergsegalla.com CALIFORNIA I CONNECTICUT I FLORIDA I ILLINOIS I NEW JERSEY I NEW YORK I NORTH CAROLINA I MARYLAND I MISSOURI I PENNSYLVANIA I UNITED KINGDOM 24971100.v1 December 27, 2019 Page 2 Concealment; (5) Fraudulent Misrepresentation by Nondisclosure; (6) Vicarious Liability/Respondeat Superior; (7) Wrongful Death; (8) Survival; and (9) Loss of Consortium. A. All Causes Of Action In The First Amended Complaint Are Barred By The Statute Of Limitations Plaintiffs' factual basis for their lawsuit against the Defendants was from Darryl Hammond's work as a body double on the set of the movie The Longest Yard, in 2004. The statute of limitations for alleged injuries suffered in 2004 has long passed and Defendants Paramount Pictures Corporation, Columbia Pictures, Inc. and Columbia Pictures Hybrid Productions, Inc. must be dismissed as a matter of law. i. Personal Injury/Wrongful Death And Survival/Negligence/Negligent Misrepresentation/Loss Of Consortium Statute Of Limitations Code of Civil Procedure § 335.1 provides a two year statute of limitations for matters that involve an injury to, or for the death of, an individual caused by the wrongful act or neglect of another. In California, the spouse of an individual injured by a third party has a cause of action for loss of consortium: the loss of conjugal fellowship and sexual relations. Rodriguez v. Bethlehem Steel Corp., (1974) 12 Ca1.3d 382. A loss of consortium claim is derivative of and dependent on the spouse's negligence action. Calatayud v. State of California, (1998)18 Ca1.4th 1057 n. 4, 77 Cal.Rptr.2d 202. Plaintiffs allege Defendants wrongful conduct occurred in 2004. The two year statute of limitations on these causes of action has long passed. . ii. Fraudulent Misrepresentation By Concealment/Fraudulent Misrepresentation By Non-Disclosure/Fraud Statute Of Limitations Code of Civil Procedure § 338 creates a three year statute of limitations for matters based upon fraud. Plaintiffs allege Defendants wrongful conduct occurred in 2004. The three year statute of limitations on these causes of action has long passed. iii. Breach of Contract Which plaintiffs Dropped From Their Original Complaint Code of Civil Procedure § 337 creates a four year statute of limitations for matters based upon a written contract. Plaintiffs allege Defendants wrongful conduct occurred in 2004. The four year statute of limitations on these causes of action has long passed. B. Plaintiffs Cause Of Action For Vicarious Liability/Respondeat Superior Does Not Plead Facts Sufficient To Support A Cause Of Action Against Defendants And Is Vague, Ambiguous And Uncertain Plaintiff brings a new 6th cause of action for Vicarious Liability/Respondeat Superior without alleging any specific facts as to the Defendants. For this reason it is uncertain, vague and 24971100.v1 December 27, 2019 Page 3 ambiguous and Plaintiffs failed to plead facts sufficient to plead this cause of action against Defendants. C. Plaintiffs Allegations Fail To Meet California's Heightened Pleading Standard To Alleged The Multiple Causes of Action for Fraud Against Defendants The multiple fraud causes of action in Plaintiffs' First Amended Complaint do not meet the heightened pleading standards required to plead a cause of action for fraud in the State of California. Pursuant to California law, Fraud must be pled with specificity. Lazar v. The Superior Court of Los Angeles, (1983) 12 Ca1.4th 631, 645. "This means: (1) general pleading of the legal conclusion of fraud is insufficient; and (2) every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect." Wilhelm v. Pray, Price, Williams & Russell, (1986) 186 CalApp.3d 1324, 1331. The rationale for such strict pleading requirements is not merely notice to the defendant. Committee on Children's Television, Inc. v. General Foods Corp, (1983) 35 Ca1.3d. 197, 216. Rather, allegations of fraud involve a serious attack on character, "... and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense." Id. See also Goldrich v. Natural Y Surgical Specialties, Inc., (1994) 25 Cal.App.4th 772, 782 (holding that fraud must be pleaded with specificity, to provide the defendants with the fullest possible details of the charge so they are able to prepare a defense to this serious attack.) As a result, the Courts have long held that the policy of liberal construction of the pleadings are not applicable to fraud claims, and in order to overcome a Demurrer, a properly plead fraud claim requires the Plaintiff to plead facts which "... show how, when, where, to whom, and by what means the representations were tendered." Stansfield v. Starkey, (1990) 220 Cal.App.3d 59, 73, citing Hills Trans. Co. v. Southwest Forest Industries Inc., (1986) 266 Cal.App.2d 702, 707 (emphasis added). Plaintiffs' three causes of action based upon Fraud fail to provide any such detail. Plaintiffs do not allege the specifics of how Defendants committed fraud or who from the Defendants committed the alleged fraud associated with the 2004 filming of the movie The Longest Yard. Plaintiffs do not alleged facts to show how, when, where, to whom, and by what means the fraudulent representations were tendered. D. Plaintiffs Cause Of Action For Survival Does Not Plead Facts Sufficient To Support A Cause Of Action Against Defendants And Is Vague, Ambiguous And Uncertain Plaintiff brings a new 8th cause of action for survival without alleging any specific facts as to the Defendants. For this reason it is uncertain, vague and ambiguous and Plaintiffs failed to plead facts sufficient to plead this cause of action against Defendants. 24971100.v1 December 27, 2019 Page 4 III. Legal Basis For Motion To Strike Select Portions Of Plaintiffs' First Amended Complaint A. Punitive Damages Are Not Properly Alleged Plaintiffs' First Amended Complaint makes conclusory allegations mimicking the language of Civil Code § 3294 that are insufficient to support a claim for punitive damages. Civil Code § 3294(a) requires "clear and convincing evidence" that a defendant acted with "oppression, malice or fraud" before an award of punitive damages may be made. The section further provides that if a plaintiff is attempting to prove malice in addition to "conscious disregard" of the plaintiff's rights, a plaintiff must also provide evidence of "despicable" and "willful" conduct. See College Hospital, Inc. v. Superior Court (Crowell), (1994) 8 Ca1.4th 704, 713; See also Mock v. Michigan Millers Mutual Ins. Co., (1992) 4 Cal.App.4th 306, 328 (requiring a showing of more than just the commission of a tort for an award of punitive damages). It is well settled that bare conclusory allegations of oppression, fraud, or malice are insufficient to plead entitlement to punitive damages. Brousseau v. Jarrett, (1976) 73 Ca1.App.3d 864, 872; Cyrus v. Haveson, (1976) 65 Cal.App.3d 306, 316-317. The Supreme Court found that when adjudicating a punitive damages award on appeal, the more stringent de novo standard should apply. See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., (2001) 532 U.S. 424. Here, Plaintiffs have not alleged any behavior on the part of any of the Defendants that would rise to the level of "oppression, fraud, or malice" which is required to sustain a cause of action for punitive damages. Plaintiffs make nothing more than unsupported conclusory allegations to support their conclusory claims for punitive damages generic to all defendants in the lawsuit, with no specifics as to the 2004 filming of the movie The Longest Yard. Please advise if you are available to discuss on December 30, 2019 or December 31, 2019. We look forward to discussing this matter with you by telephone at your earliest convenience. Very t yours, Albert K. Alikin Brian W. Skalsky BWS 24971100.v1 EXHIBIT Skalsky, Brian W. From: Sent: To: Cc: Subject: Skalsky, Brian W. Monday, December 30, 2019 4:23 PM Kahlon, Rippan; 'rwills@rwillslawfirm.com' Alikin, Albert K. (Al) RE: Robin Hammond, et al. v Arena Football League, LLC., et al. - Dear Rhonda, I just wanted to follow up with you in regards to the below sent last Friday. Best regards, Brian Skalsky From: Skalsky, Brian W. Sent: Friday, December 27, 2019 12:40 PM To: Kahlon, Rippan ; rwills@rwillslawfirm.com Cc: Alikin, Albert K. (Al) Subject: RE: Robin Hammond, et al. v Arena Football League, LLC., et al. Dear Rhonda, Please let us know a time when you are available to discuss by phone this next Monday or Tuesday. Best regards Brian From: Kahlon, Rippan Sent: Friday, December 27, 2019 11:28 AM To: rwills@rwillslawfirm.com Cc: Skalsky, Brian W. ; Alikin, Albert K. (Al) Subject: Robin Hammond, et al. v Arena Football League, LLC., et al. Counsel, Attached please find a meet and confer letter re the Demurrer and Motion to Strike Defendants intend to file. Please provide your availability to discuss. Should you have any questions or concerns, do not hesitate to contact our office. Thank you, Rippan Rippan Kahlon I Legal Assistant 777 S. Figueroa Street, Suite 2000 777 Tower I Los Angeles, CA 90017 DIRECT 213.415.7233 I EXT 7233 I FAX 213.415.7299 rkahlon cioldbercsecialla.com www.goldbergsegalla.com 1 Case No. 19STCV20944 2 PROOF OF SERVICE 3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 4 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 777 S. Figueroa Street, Suite 2000, Los Angeles, CA 90017. 5 6 7 8 9 On January 10, 2020, I served the following document(s) described as DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT HTEREOF; DECLARATION FO BRIAN W. SKALSKY on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: 10 11 12 rn _1 5 14 15 Attorneys for Plaintiffs __J To o) a) u) cm a) _o -o 0 a) — (13 O Wills Law Firm, PLLC 1776 Yorktown, Suite 570 Houston, Texas 77056 Telephone: (713) 528-4455 Facsimile: (713) 528-2047 13 16 17 Kevin C. Mayer (SBN 118177) kmayer@crowell.com Laura Schwartz (SBN 302907) lschwartz@crowell.com CROWELL & MORING LLP 515 S Flower St., 40th Floor Los Angeles, CA 90071 Telephone: 213.622.4750 Facsimile:213.622.2690 Rhonda H. Wills rwills@rwillslawfirm.com Attorneys for Defendants WALT DISNEY MOTION PICTURES GROUP, INC., WALT DISNEY PICTURES PRODUCTION, LLC, and WALT DISNEY PICTURES ROBIN HAMMOND, individually and as the parent of SYDNEY HAMMOND and DARRYL TODD HAMMOND, II; and DARRYN HAMMOND 18 -c2) vi N- N- 19 Asir Fiola (SBN 222833) Cyndie M. Chang (SBN 227542) 20 afiola@selmanlaw.com SELMAN BREITMAN LLP cmchang@duanemorris.corn 21 22 23 24 Bryan Rhie (SBN 285357) 6 Hutton Centre Drive, Suite 1100 Santa Ana, CA 92707 Telephone: 714.647.9700 Facsimile: 714.647.9200 brhie@duanemorris.com DUANE MORRIS LLP 865 South Figueroa Street, Suite 3100 Los Angeles, CA 90017-5450 Telephone: 213.689.7400 Facsimile: 213.689.7401 Attorney for Defendant TENNESSEE ARENA FOOTBALL, LLC Attorneys for Defendants ARENA FOOTBALL LEAGUE, LLC and ARENA FOOTBALL ONE, LLC 25 26 27 28 10 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v1 1 2 3 4 5 6 7 8 9 10 11 [X ] BY U.S. MAIL I deposited such envelope in the mail at Los Angeles, California with postage thereon fully prepaid. 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 affidavit. [ ] BY PERSONAL SERVICE I caused such envelope to be delivered by hand via messenger service to the address above. [ ] BY FACSIMILE I served true and correct copy by facsimile during regular business hours to the number(s) listed above. Said transmission was reported complete and without error. [ ] BY EMAIL I caused a copy of the document(s) to be sent by email from the email address dcarrillo@goldbergsegalla.com to the persons at the email addresses listed in the Service List. The document(s) were transmitted at a.m./p.m. I did not receive within a reasonable time after the transmission any electronic message or any other indication that the transmission was unsuccessful. [ X ] BY ELECTRONIC SERVICE I electronically served the attached documents(s) on each party or other person that is required to be served and accept service of documents electronically pursuant to Code of Civil Procedure section 1010.6(4). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 12 13 rn CL .7 —1 5 (S _1 co c — •-• c a.) < O N a "-• vow w a) S' TD a) c in c < -0 T:) u) 0 0 Executed on January 10, 2020, at Los Angeles, California. 14 15 1 Denise M. Carrillo 16 17 18 19 ti 20 21 22 23 24 25 26 27 28 11 DEFENDANTS' NOTICE OF MOTION AND MOTION TO STRIKE SELECT PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT 25030067.v I Journal Technologies Court Portal Reschedule a Reservation Reservation Reservation ID: 093493506212 Reservation Type: Demurrer - with Motion to Strike (CCP 430.10) Case Number: 19STCV05943 Case Title: DARRYN HAMMOND, et al. vs ARENA FOOTBALL LEAGUE, LLC, et al. Filing Party: PARAMOUNT PICTURES CORPORATION (Defendant) Location: Stanley Mosk Courthouse - Department 40 Date/Time: January 23rd 2020, 8:30AM Status: CONFIRMED Number of Motions: 1 Motions to Reschedule Demurrer - with Motion to Strike (CCP 430.10) Reschedule To: Date: 05/28/2020 8:30 AM Location: Stanley Mosk Courthouse - Department 40 Fees Description Reschedule Fee Fee 20.00 Qty Amount 1 20.00 Fee Description 0.55 Credit Card Percentage Fee (2.75%) 1 Amount 0.55 $20.55 TOTAL Payment Amount: Type: $20.55 MasterCard Account Number: Authorization: XXXX0670 041528 • Pri. Print Receipt Qty + Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved.