Judge: Ashfaq G. Chowdhury, Case: 22GDCV01076, Date: 2023-11-03 Tentative Ruling
Case Number: 22GDCV01076 Hearing Date: November 3, 2023 Dept: E
Case Name: GIORGI AVETISOVI, an individual; v.
GLENDALE I MALL ASSOCIATES, LP; GLENDALE II MALL ASSOCIATES, LLC; BROOKFIELD
PROPERTIES RETAIL, INC; ALLIED UNIVERSAL RISK ADVISORY AND CONSULTING SERVICES,
INC.; AND DOES 1-150
Case No: 22GDCV01076
Hearing Date: 11/03/2023 – 8:30am
Trial Date: 09/09/2024
[TENTATIVE RULING ON
MOTION TO STRIKE]
MOTION TO STRIKE
Moving Party: Defendants, Glendale I Mall Associates, LP; Glendale II Mall
Associates, LLC; and Brookfield Properties Retail, Inc. (Galleria Defendants)
Responding Party: No
Opposition submitted by Plaintiff
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b):Ok
Moving Papers: Notice/Motion;
Proposed Order; Hunt Declaration
Opposition Papers: No
Opposition submitted
Reply: No Reply
submitted
RELIEF REQUESTED
Galleria Defendants move
the Court for an order striking the Amended Complaint as follows:
1.
Page 6, lines 1-4, ¶ 28, "Defendants, and each of them, in performing the
acts alleged above, acted with conscious disregard of Plaintiff's rights and
health, acting with malice, oppression, or fraud towards Plaintiff and under
California Civil Code § 3294 and thereby entitling Plaintiff to exemplary or
punitive damages."
2.
Page 7, lines 6-9, ¶ 36, "Defendants, and each of them, in performing the
acts alleged above, acted with conscious disregard of Plaintiff's rights and
health, acting with malice, oppression, or fraud towards Plaintiff and under
California Civil Code § 3294 and thereby entitling Plaintiff to exemplary or
punitive damages."
This
motion will be made pursuant to Code of Civil Procedure sections 435 and 436
and California Rules of Court, rule 3.1320 subdivision (i) on the grounds the
Amended Complaint includes irrelevant, false or improper matters that should be
stricken. Specifically, the Amended Complaint improperly requests punitive
damages without alleging sufficient facts or law to support such relief.
BACKGROUND
Plaintiff, Giorgi
Avetisovi, filed a Complaint on 12/21/2022 alleging two causes of action for
(1) Premises Liability and (2) Negligence. On 03/22/2023, Plaintiff filed an
Amended Complaint (AC) alleging two causes of action for (1) Premises Liability
and (2) Negligence. The allegations in this action stem from Plaintiff going up
an escalator at the Glendale Galleria Mall wherein while going up the
escalator, near the end of the escalator path, Plaintiff slipped on a liquid
substance and nearly fell. (AC ¶¶10-11.)
On
06/08/2023, this Court signed a stipulation that was signed by Plaintiff and
Defendant, Allied Universal Risk Advisory and Consulting Services, Inc.,
wherein those parties agreed to strike paragraphs 28 and 36 from the AC. Now,
movants also seek to strike Paragraphs 28 and 36 from the AC.
Legal Standard – Motion to Strike
Any party, within the
time allowed to respond to a pleading may serve and file a notice of motion to
strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court,
Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion
and upon terms it deems proper: (1) strike out any irrelevant, false, or
improper matter inserted in any pleading; or (2) strike out all or any part of
any pleading not drawn or filed in conformity with the laws of California, a
court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz
(1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the
claim is surplusage; probative facts are surplusage and may be stricken out or
disregarded”].)
The
grounds for moving to strike must appear on the face of the pleading or by way
of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning
Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges
read allegations of a pleading subject to a motion to strike as a whole, all
parts in their context, and assume their truth”].)
ANALYSIS
Meet and Confer
“Before filing a motion
to strike pursuant to this chapter, the moving party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
the motion to strike for the purpose of determining if an agreement can be
reached that resolves the objections to be raised in the motion to strike. If
an amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading.” (CCP §435.5(a).)
“A determination by the court that the meet
and confer process was insufficient shall not be grounds to grant or deny the
motion to strike.” (CCP §435.5(a)(4).)
Here,
Defendants’ counsel met and conferred. (Hunt Decl. ¶¶7-12.)
DISCUSSION
Punitive
Damages
In an action for the breach of an
obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example by way of punishing the defendant. (Cal. Civ. Code
§3294(a).) “‘Malice’ means conduct
which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (CCP §3294(c)(1).)
“‘Oppression’ means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights. (CCP
§3294(c)(2).) “‘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 depriving a person of property or legal rights
or otherwise causing injury. (CCP §3294(c)(3).)
“In order to survive a motion to strike
an allegation of punitive damages, the ultimate facts showing an entitlement to
such relief must be pled by a plaintiff.” (Clauson v. Superior Court
(1998) 67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any
factual assertions, are insufficient to support a conclusion that parties acted
with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App.
4th 1033, 1042.)
Here, Defendants argue that ¶28 and ¶36
should be stricken from the AC because the AC improperly requests punitive
damages without alleging sufficient facts or law to support such relief. Defendants
argue that Plaintiff’s allegations are conclusory and generic.
The Court does not find Defendants’
arguments availing.
The Court will not address every single
case cited by Defendants in their motion in this ruling; however, the Court
will point out a few cases that Defendants cited to demonstrate why Defendants’
arguments are not availing.
Defendants cite to Mahoney v.
Corralejo (1974) 36 Cal.App.3d 966, 973 by quoting a portion that says, “No
amount of descriptive adjective or epithets may turn a negligence action into
an action for intentional or willful misconduct.”
The issue with this citation is that it
was at a completely different procedural posture than the instant case. In Mahoney,
a jury trial had been conducted and the court refused to instruct on willful or
wanton misconduct. The court of appeal affirmed because the court found no
evidence which would have supported an instruction on willful or wanton
misconduct. Here, this case is at the pleading stage and no determinations of
fact have been made.
Additionally, Defendants cite to G.D.
Searle & Co. (1975) 49 Cal.App.3d 22, 31 for the proposition that conduct
that may be characterized as unreasonable, negligent, grossly negligent, or
reckless does not satisfy the highly culpable state of mind required for
punitive damages.
However, the most relevant portion of G.D.
Searle & Co. that is left out by Defendants and useful for this ruling
is as follows:
In a
personal injury action the notion of conscious disregard of the Safety of
others logically may be substituted for that of disregard of the Rights of
others. We suggest Conscious disregard of safety as an appropriate
description of the Animus malus which may justify an exemplary damage award
when nondeliberate injury is alleged.
The
complaint does not charge Searle with knowledge of the dangerous potential of
its product, but only with awareness that unspecified products of this ‘type’
might cause injury. It does not allege that Searle knew its implicit
representations of safety were false; inconsistently enough—perhaps
fortuitously—it alleges that Searle knew that its products ‘could safely do the
jobs.’ Its allegation of wrongful, knowing, and willful conduct is
conclusory. It fails to allege, directly or in equivalent terms, that
Searle either intended to injure consumers of its product or acted in conscious
disregard of their safety. It fails to plead *33 malice as a
ground for the exemplary award. The trial court erred in overruling the
demurrer.
(G.D.
Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32-33.)
Here,
unlike in G.D. Searle & Co., Plaintiff alleged a conscious disregard
of Plaintiff’s rights and health, and Plaintiff alleged malice. “Defendants,
and each of them, in performing the acts alleged above, acted with conscious
disregard of Plaintiff’s rights and health, acting with malice, oppression, or
fraud towards Plaintiff and under California Civil Code § 3294 and thereby
entitling Plaintiff to exemplary or punitive damages.” (AC ¶28.)
Additionally,
the Court points Defendants’ attention to Perkins v. Superior Court:
While
it is true that pleading conclusions of law does not fulfill this requirement,
it has long been recognized that “(t)he distinction between conclusions of law
and ultimate facts is not at all clear and involves at most a matter
of degree. (Citations.) For example, the courts have permitted allegations
which obviously included conclusions of law and have termed them
‘ultimate facts' or ‘conclusions of facts.’ ” (Burks v. Poppy
Construction Co., 57 Cal.2d 463, 473, 20 Cal.Rptr. 609, 370 P.2d
313.) What is important is that the complaint as a whole contain
sufficient facts to apprise the defendant of the basis upon which the
plaintiff is seeking relief. (Youngman v. Nevada Irrigation Dist., 70 Cal.2d
240, 74 Cal.Rptr. 398, 449 P.2d 462; Semole v. Sansoucie, 28 Cal.App.3d
714, 104 Cal.Rptr. 897.) The stricken language must be read not in
isolation, but in the context of the facts alleged in the rest of
petitioner's complaint. Taken in context, the words “wrongfully and
intentionally” in paragraph eight describe a knowing and deliberate state of
mind from which a conscious, disregard of petitioner's rights might be inferred
a state of mind which would sustain an award of punitive damages. (Taylor
v. Superior Court, supra; G. D. Searle & Co. v. Superior Court, 49
Cal.App.3d 22, 122 Cal.Rptr. 218.)
The
word “retaliation” in paragraph ten of the complaint describes defendants'
motive for shutting off petitioner's home phone service a motive which, if
proven, would sustain a finding of malice.
The
allegation that defendants were guilty of “oppression, fraud,
and malice” simply pleaded a claim for punitive damages in the language of
the statute authorizing such damages. (Civ.Code, s 3294.) Pleading in the
language of the statute is not objectionable when
sufficient facts are *7 alleged to support the
allegation. (Semole v. Sansoucie, supra, 28 Cal.App.3d 714, 718-719, 104
Cal.Rptr. 897.)
(Perkins
v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)
Here,
when taking the AC as a whole, Plaintiff pled a claim for punitive damages because
whether Defendants acted with a conscious disregard of Plaintiff’s rights and
health could potentially be found by a jury.
Defendants
also argue that Plaintiff cannot establish vicarious liability against the
Galleria Defendants. Defendants argue that there are no factual allegations to
support a finding that an employee or agent of the Galleria Defendants
participated in conduct that was oppressive, fraudulent, or malicious, nor has
Plaintiff provided any facts to indicate that the Galleria Defendants knew
about or ratified any such conduct.
The
Court does not find Defendants’ arguments availing.
As to the requirement of pleading
punitive damages with respect to a corporate defendant, Civil Code §3294(b)
states:
An
employer shall not be liable for damages pursuant to subdivision (a), based
upon acts of an employee of the employer, unless the employer had advance
knowledge of the unfitness of the employee and employed him or her with a
conscious disregard of the rights or safety of others or authorized or ratified
the wrongful conduct for which the damages are awarded or was personally guilty
of oppression, fraud, or malice. With respect to a corporate employer, the
advance knowledge and conscious disregard, authorization, ratification or act
of oppression, fraud, or malice must be on the part of an officer, director, or
managing agent of the corporation.
(Civil
Code §3294(b).)
Here,
Plaintiff sufficiently alleged ratification:
At
all times mentioned herein, each of the Defendants sued herein was the agent,
servant, and employee of each other and of his said co-Defendants,
and, as such, was acting within the time, place, purpose, and scope of said
agency, service, and employment; each and every Defendant, as aforesaid, when
acting as a principal, was negligent in the selection and hiring of each and
every other Defendant as an agent, servant, and employee.
Plaintiff
is informed and believes, and based thereupon alleges, that at all times
relevant hereto, Defendants and DOES 1-50 inclusive, and each of them, were the
agents, principles, joint ventures, employees, employers, managing agents,
supervisors, coconspirators, parent corporation, joint employers, alter egos,
successors, single enterprise, joint enterprise, and/or joint ventures of the
other Defendants, and each of them, and in doing the things alleged herein,
were acting at least in part within the course and scope of said agency,
employment, conspiracy, joint employer, alter ego status, single enterprise,
successor status and/or joint venture with the permission, consent, approval or
ratification of each of the other Defendants. Plaintiff is informed and
believes and thereon alleges that each of the defendants was the successor in
interest to each of the remaining defendants, and on that basis is liable for
any act, omission or other conduct of the defendants alleged in this complaint.
(AC
¶¶7-8, emph added.)
TENTATIVE
RULING
Defendants’ motion to strike Paragraphs 28 and 36 of the AC is
DENIED.