Judge: Cynthia A Freeland, Case: 37-2023-00034107-CU-PO-NC, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - December 21, 2023

12/22/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00034107-CU-PO-NC GARCIA VS CRILLEY [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 11/07/2023

Defendants AINW Corporation dba The Kraken and Ronald Crilley (collectively, 'Defendants')'s motion to strike portions of Plaintiffs Gilbert Garcia and Veronica Garcia (collectively, 'Plaintiffs')'s First Amended Complaint (the 'FAC') is granted.

Initially, the court declines to deny the motion for Defendants' alleged failure to meet and confer personally or telephonically before filing the motion. See Cal. Code Civ. P. § 435.5(a)(4) ('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.').

California Code of Civil Procedure § 436 provides that '[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (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 laws of this state, a court rule, or an order of the court.' Cal. Code Civ. P. §§ 436(a)-(b). In ruling on a motion to strike, courts do not read allegations in isolation. See Perkins v. Sup. Ct. (1981) 117 Cal. App. 3d 1, 6. 'In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.' Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. The grounds for a motion to strike must appear on the face of the challenged pleading or any matter of which the court is required to take judicial notice. See Cal. Code Civ. P. § 437(a).

'In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294.' Turman v. Turning Point of Central California, Inc. (2010) 191 Cal. App. 4th 53, 63. California Civil Code § 3294 allows a plaintiff to recover punitive damages '[i]n 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.' Cal. Civ. Code § 3294(a). For purposes of awarding punitive damages, ''[m]alice' 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.' Cal. Civ. Code § 3294(c)(1). ''Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.' Cal. Civ. Code § 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.' Cal. Civ. Code § 3294(c)(3). 'Despicable conduct' is conduct that is so mean, vile, base, or contemptible that it would be looked down upon and despised by reasonable people. See CACI 3940. Such conduct has been described as having 'the character of Calendar No.: Event ID:  TENTATIVE RULINGS

3049325 CASE NUMBER: CASE TITLE:  GARCIA VS CRILLEY [IMAGED]  37-2023-00034107-CU-PO-NC outrage frequently associated with crime.' Scott v. Phoenix Schools, Inc. (2009) 175 Cal. App. 4th 702, 715.

The court finds that the FAC fails to plead the ultimate facts with the requisite specificity demonstrating that Defendants' conduct, if ultimately proven by clear and convincing evidence, could give rise to the imposition of punitive damages. See Brousseau v. Jarrett (1977) 73 Cal. App. 3d 864, 872; Hillard v. A.H. Robins Co. (1983) 148 Cal. App. 3d 374, 391-392. To start, the motion is granted to the extent that Plaintiffs seek punitive damages in conjunction with conduct that constitutes ordinary negligence, gross, negligence, or reckless conduct. See, e.g., Colombo v. BRP US Inc. (2014) 230 Cal. App. 4th 1442, 1486, fn. 8. The court must respectfully disagree with Defendants that Plaintiffs are precluded from seeking punitive damages in this action. Punitive damages are permitted in premises liability actions.

See, e.g., Nolin v. Nat'l Convenience Store, Inc. (1979) 95 Cal. App. 3d 279; Penner v. Faulk (1984) 153 Cal. App. 3d 858. However, Plaintiffs must still allege facts sufficient to constitute malicious, oppressive, or fraudulent conduct. The court, having reviewed the FAC's allegations as a whole and in their proper contexts, finds that Plaintiffs have failed to sufficiently plead an entitlement to punitive damages. The FAC alleges that on March 4, 2023, The Kraken bar hosted an event entitled 'XXX Motorcycle Club Night,' and invited members of a known dangerous motorcycle club. See FAC, ¶ 12. That same day, Mr.

Garcia, a retired Sheriff's Deputy in North County San Diego and a regular patron of The Kraken, attended the bar for a drink. Ibid., ¶¶ 8, 11. A fight was instigated, and Mr. Garcia was thrown to the ground, causing him to endure a traumatic brain injury. Ibid., ¶¶ 13, 17. The FAC alleges that Defendants intentionally bypassed alcohol service and/or licensing requirements, safety protocols, special event permits, and/or conditional use permits, which substantially and proximately caused Mr.

Garcia's injuries. The FAC further alleges that Defendants failed to provide adequate security and take other precautions to prevent criminal activity on the premises and ensure the safety of their patrons.

Ibid., ¶¶ 14-15, 33, 35, 43, 45, 49-50, 54.

The foregoing is insufficient to survive the pleading stage. To start, the FAC fails to adequately allege that Defendants intended to injure Mr. Garcia by allegedly failing to follow proper protocols and/or provide sufficient security. Moreover, the FAC fails to sufficiently allege how Defendants willfully and consciously disregarded Mr. Garcia's rights or safety by inviting a known dangerous motorcycle gang to The Kraken, or how doing so without proper safety protocols is so mean, vile, base, or contemptible that reasonable people would look down upon it. Nor does the FAC sufficiently allege facts demonstrating that the subject incident was a reasonably foreseeable consequence of Defendants' alleged conduct.

While Plaintiffs attempt to provide additional facts by way of their opposition, the court cannot consider those facts because its analysis in ruling on the motion to strike is limited to the four corners of the FAC and judicially noticeable facts.

Accordingly, the court grants Defendants' motion to strike portions of the FAC with leave to amend as Plaintiffs have demonstrated a reasonable possibility that the foregoing deficiencies can be cured by amendment. See Grieves v. Sup. Ct. (1984) 157 Cal. App. 3d 159, 168.

In light of the foregoing, the court grants Defendants' motion to strike portions of the FAC (namely ¶¶ 16, 36, 45, and 52 of the FAC, and ¶ 4 of the Prayer for Relief) with leave to amend. Plaintiffs shall file and serve a second amended complaint, if they choose to file such a pleading, within ten (10) days of this hearing. See Cal. R. Ct. 3.1320(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, December 22, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of December 22, 2023.

If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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