Judge Ashfaq G. Chowdhury, Case Number: 24GDCV00309, Date: 2024-04-18 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24GDCV00309, Date: 2024-04-18 Tentative Ruling

Case Number: 24GDCV00309 Hearing Date: April 18, 2024 Dept: E

Case No: 24GDCV00309
Hearing Date: 04/18/2024 – 8:30am

Trial Date: UNSET

Case Name: EMY ESCOBAR LOPEZ, an individual; v. THE VONS COMPANIES, INC., a Michigan corporation; SAFEWAY INC., a Delaware corporation; AVIANA DOE, an individual; and DOES 1-100

TENTATIVE RULING ON MOTION TO STRIKE

RELIEF REQUESTED
“Defendant, The Vons Companies, Inc. (erroneously sued as Safeway Inc.) moves the Court for an order striking the following portions of Plaintiff’s Complaint:

1. Portions of paragraph 32 of Plaintiff’s Complaint as set forth below: "so as to justify an award of punitive damages against Defendants in an amount according to proof,"

2. Portions of paragraph 37 of Plaintiff’s Complaint as set forth below: "so as to justify an award of exemplary or punitive damages against Defendants in an amount according to proof at trial."

3. Portions of paragraph 45 of Plaintiff’s Complaint as set forth below: "entitling Plaintiff to recover punitive damages from the Defendants in an amount sufficient to deter such conduct in the future and according to proof."

4. Paragraph 7 in Plaintiff’s Prepare for Relief as follows: "For punitive and exemplary damages in a sum to be determined at trial."

This motion to strike is made pursuant to Rules of Court, Rule 3.1322, Code of Civil Procedure §§425.10, 435, 435.5, 436, and 437, on the grounds that plaintiff’s complaint does not contain allegations which adequately support plaintiff's prayer for punitive damages as against any named defendant as a matter of law.”

PROCEDURAL
Moving Party: Defendant, The Vons Companies, Inc. (erroneously sued as Safeway Inc.)

Responding Party: Plaintiff, Emy Escobar Lopez

Moving Papers: Notice/Motion

Opposition: Opposition

Reply: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Ok

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).)

Defendant’s counsel met and conferred. (See Decl. Lewis ¶¶3-4.)

LEGAL STANDARD – MOTION TO STRIKE
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).)

The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).)

A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

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”].)

Further, CCP § 431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) 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 claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(CCP § 431.10(a)-(c).)

TENTATIVE RULING

Defendant’s motion to strike is DENIED.

Defendant moves to strike the punitive damages requests in the assault, battery, and intentional infliction of emotional distress causes of action in Plaintiff’s Complaint. Defendant also moves to strike the punitive and exemplary damages request in ¶7 of the Prayer for Relief.

Defendant argues that Plaintiff fails to allege specific facts to support an award of punitive damages against any named Defendant in this matter.

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, Plaintiff has pled sufficient facts at the pleading stage to support a claim for punitive damages. Plaintiff pled that Aviana (an alleged Vons employee/supervisor) followed Plaintiff to her car, yelled at Plaintiff and accused her of trying to steal, called Plaintiff a “dirty Latino stealing,” told Plaintiff she should be ashamed of herself for using EBT, told Plaintiff that Vons is a store for people who have money and not for bums using EBT, and that Plaintiff should go somewhere for “Spanish people” because “Glendale is for Armenians and white people,” and that Aviana spit on Plaintiff. (See Compl. ¶¶19-22.)

Those allegations are sufficient for a jury to potentially find that the assault, battery, and intentional infliction of emotional distress claims were committed with oppression or malice.

Defendant also argues that sufficient allegations were not alleged against Vons because Vons is a corporate defendant. Defendant cites to Civil Code § 3294(b) which 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.

(Cal. Civ. Code § 3294(b).)

Here, Plaintiff alleged approval and ratification in ¶7 of the Complaint:

Plaintiff is informed and believes and thereon alleges, that at all times relevant herein, Defendants and some of DOES 1 through 100 were the agents, employees, and/or servants, masters, or employers of the remaining DOES 1 through 100, and in doing the things herein alleged, were acting within the course and scope of such agency or employment, and with the approval and ratification of each of the other Defendants.

(Compl. ¶7.)

To the extent that the Reply argues that Complaint only alleges that Aviana was only a supervisor, and does not allege that Aviana was an officer, director, or managing agent of Vons, the Court does not find this argument availing in light of Paragraph 8:

Plaintiff is ignorant of the true names and capacities of Defendants sued herein as DOES 1 through 100, inclusive, and therefore Plaintiff sues these Defendants by such fictitious names and capacities. Plaintiff will amend her Complaint to show their true names and capacities when they have been ascertained. These DOE Defendants held ownership, officer, director and/or executive positions with the remaining Defendants, and acted on behalf of the remaining Defendants, which included the wrongful acts engaged in by Defendants which have damaged Plaintiff.

(Compl. ¶8.)

The Court notes the following:

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 fact.” ’ [Citations.] 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. [Citations.]''

(Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins Ins. Exchange (2005) 132 Cal.App.4th 1076, 1098-99 citing Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

Defendant’s motion to strike is DENIED.