Judge Daniel M. Crowley, Case Number: 23STCV05424, Date: 2023-10-18 Tentative Ruling

Defendants Sena Technologies, Inc.’s, LeMans Corporation’s, and Western Power Sports, LLC, fdba Western Power Sports, Inc.’s motion to strike portions of Plaintiff Darren Kubes’ first amended complaint is granted with 20 days leave to amend.

Defendants Sena Technologies, Inc. (“Sena”), LeMans Corporation dba Parts Unlimited (“LeMans”), and Western Power Sports, LLC, fdba Western Power Sports, Inc. (“WPS”) (collectively, “Moving Defendants”) move to strike portions of Plaintiff Darren Kubes’ (“Kubes”) (“Plaintiff”) first amended complaint (“FAC”) on the ground they are irrelevant, false, or improper matters. (Notice of Motion, pg. 2; C.C.P. §436.)

Plaintiff filed his initial Complaint on March 9, 2023, against Moving Defendants and non-moving Defendant Helmet House, LLC (“Helmet House”) (collectively, “Defendants”). On May 16, 2023, Plaintiff filed the operative FAC alleging seven causes of action: (1) strict liability- manufacturing defect [against Sena, LeMans, and WPS]; (2) strict liability- design defect [against Sena, LeMans, and WPS]; (3) negligence [against Sena]; (4) negligence [against LeMans, WPS, and Helmet House]; (5) negligence- failure to recall [against Sena, LeMans, WPS, and Helmet House]; (6) breach of implied warranty of merchantability [against Sena, LeMans, WPS, and Helmet House]; and (7) consumer legal remedies act [against Sena, LeMans, and WPI].

On July 13, 2023, Moving Defendants filed the instant motion. On October 5, 2023, Plaintiff filed his opposition. On October 11, 2023, Moving Defendants filed their reply.

Before filing a motion to strike, moving party’s counsel must meet and confer, in person or by telephone, with counsel for the party who filed the pleading in an attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing a motion to strike. (C.C.P. §435.5.) A declaration must be filed with the motion to strike regarding the results of the meet and confer process. (C.C.P. §435.5(a)(3).)

Moving Defendants’ counsel declares that on July 5, 2023, he communicated with Plaintiff’s counsel by telephone regarding the deficiencies addressed in the instant motion, and the parties were unable to come to an agreement. (Decl. of Juskie ¶7.) Therefore, Moving Defendants’ motion to strike is proper.

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. §436(a).)

Moving Defendants move to strike the following sections and prayers for relief from the FAC pertaining to punitive damages on the basis they are not permitted by law: (1) ¶21 (5:27-28); (2) ¶29 (7:1-2); (3) ¶37 (8:13-14); (4) ¶44 (9:10-11); (5) ¶51 (10:8-9); (6) ¶62 (11:18-19); (7) Prayer, First Cause of Action (15:6); (8) Prayer, Second Cause of Action (15:10); (9) Prayer, Third Cause of Action (15:14); (10) Prayer, Fourth Cause of Action (15:18); and (11) Prayer, Fifth Cause of Action (15:22). (Notice of Motion, pg. 2.)

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code §3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Id.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Id.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

“Conduct which warrants punitive damages must be of ‘such severity or shocking character [as] warrants the same treatment as accorded to willful misconduct – conduct in which defendant intends to cause harm.’” (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10, quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286.) “[C]onclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or

implied,’ within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Defendants, and each of them, failed to adequately test the 2020 Sena Outreach before or during marketing, in conscious disregard of the safety of others Defendants were aware of the probable dangerous consequences of placing a defective helmet in the stream of commerce, and they willfully failed to avoid those consequences. Defendants knew the helmet was defective and could have made inexpensive design changes to prevent it from failing during crashes, but instead deferred corrective action. Defendants knew that there was a problem with the quick release buckle and that there were available safer alternatives. However, Defendants willfully chose not to remedy the defect because the quick release buckle afforded more convenience and thereby greater marketability and higher profit, which they chose over the safety of consumers like Plaintiff, Darren Kubes. Defendants’ actions and failures to act constitute malice and oppression, justifying an award of punitive damages.

Plaintiff’s allegations pertaining to Moving Defendants’ knowledge of the 2020 Sena Outreach’s alleged defects are conclusory in nature and insufficient to meet his burden to plead specific facts that Moving Defendants’ conduct either (1) intended to cause injury to Plaintiff, or (2) was so “base, vile or contemptible” that it would be despised and looked down upon by ordinary persons. (See Civ. Code §3294(c); see also Smith, 10 Cal.App.4th at pg. 1041.)

Further, an award of punitive damages against a corporation also requires proof of oppression, fraud, or malice committed or authorized by a corporate officer, director, or managing agent who “exercise[ ] substantial discretionary authority over decisions that ultimately determine corporate policy.” (Cruz v. Homebase (2000) 83 Cal.App.4th 160, 167, quoting White v. Ultramar (1999) 21 Cal.4th 563, 573.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.” (Cruz, 83 Cal.App.4th at pg. 167.) To establish intentional conduct against a corporation, therefore, a plaintiff is required to identify a specific individual of the corporation, establish the individual’s authority to act on behalf of the corporation, and prove the intentional tortious conduct by said individual. (Tarmann v. State Farm

Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157.) No such allegations appear in the FAC.

Accordingly, Moving Defendants’ motion to strike Plaintiff’s request for punitive damages from the FAC is granted with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court