Judge: Deirdre Hill, Case: 20STCV49848, Date: 2022-10-18 Tentative Ruling

Case Number: 20STCV49848    Hearing Date: October 18, 2022    Dept: M

Hearing Date:                          October 18, 2022

Moving Parties:                      Defendant Seera Creative LLC

Responding Party:                  Plaintiff Glynis Cynthia Bogda

Motion to Strike Punitive Damage Claim, All References to the King Matter, and Third Cause of Action for Breach of Warranty in FAC
 

            The court considered the moving and opposition papers.

RULING

            The motion to strike is GRANTED IN PART and DENIED IN PART.  The court strikes the 3^rd cause of action in its entirety.  The motion is DENIED as to plaintiffs’ claim for punitive damages and allegations referencing the King case.

BACKGROUND

On December 30, 2020, plaintiffs Glynis Cynthia Bogda and Michael Leonard Larsen filed a complaint against TouchofModern, Inc. dba Touch of Modern and Seera Creative LLC for (1) product negligence, (2) strict liability, and (3) breach of warranty.   

On April 1, 2021, TouchofModern, Inc. filed a cross-complaint against Seera Creative LLC.

On August 10, 2022, the court granted plaintiff Bogda’s motion for leave to file a FAC to add a claim for punitive damages.

On August 10, 2022, plaintiff Bogda filed a FAC.

On August 11, 2022, the case was transferred to Dept. M from the PI Hub.

On October 7, 2022, the parties stipulated, and the court ordered that the punitive damages claim against TouchofModern be stricken.

LEGAL AUTHORITY

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.  CCP § 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.  CCP § 436(b).  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  CCP § 437.

DISCUSSION

            Defendant requests that the court strike punitive damages claims; allegations referencing Laura King, et al. v. Seera Creative, LLC, et al., case no. 37-2019-00060582-CU-PL-NC in San Diego Superior Court; and the 3^rd cause of action for breach of warranty.

            The court notes that on August 10, 2022, the court (PI Hub) granted plaintiff’s motion for leave to amend to add a claim for punitive damages and allegations as to the King matter.  The court stated that as to defendant’s “arguments concerning the propriety of the proposed claim for punitive damages,” the court “will generally not consider the merits of the proposed amendments in determining whether to grant leave to amend.”  Further, the court noted that defendant “may address the propriety of Plaintiff’s references to the separate litigation . . . through a motion to strike.”

In the FAC, plaintiffs allege that on June 8, 2019, Bogda and Larsen were in their apartment located at 346 Palos Verdes Blvd., #2, Redondo Beach, when Bogda suffered catastrophic burn injuries after Larsen poured 91% isopropyl alcohol into the hot base of their FLIKR, causing sudden vaporization of the fuel and a subsequent flash explosion when he lit the fireplace.  The explosion caused Bogda to catch on fire.  The details of how the incident occurred are as follows:

A.    Larsen set up the FLIKR fireplace on their living room table.

B.     Per the product instructions, Larsen ensured the fireplace was level.  He placed it on a cork trivet and used a spirit/bubble level.

C.     As recommended per the instructions, Larsen used 91% isopropyl alcohol and poured it into the fireplace to one inch below the brim of the burn chamber.

D.    Per the instructions, Larsen lit the fireplace using a long-handled lighter.  The alcohol burned for approximately 15 minutes.

E.     Larsen ensured the flame was extinguished before he again refilled the fireplace with the alcohol; he filled it approximately halfway.  He again lit the fireplace with the long-handled lighter.  The fireplace then burned the second time for approximately 15-20 minutes.

F.      Larsen again ensured the flames were extinguished before he refilled the fireplace with the alcohol for a third time, again to approximately the halfway mark.

G.    When Larsen lit the alcohol for the third time, a wall of flame burst outward from the fireplace projected directly toward Bogda, who was sitting approximately six to eight feet away on a sofa.  The flame caused Bogda to catch on fire, resulting in severe burns over a significant portion of her body.  FAC, ¶6.

Plaintiff further alleges that in an almost identical case, Laura King sustained serious burn injuries on June 27, 2019, when her FLIKR exploded after her husband Wade went to refill the fireplace with 70% isopropyl alcohol after a first burn appeared to have ended.  Following the instructions, both Wade and Laura checked the fireplace for any lingering flame before attempting the refill.  No flame was visible, and the burn chamber appeared to be dry.  The cause of the explosion was an imperceptible flame that turned into a huge fireball as soon as Wade added the alcohol to the fireplace.  Id., ¶7.

Plaintiff further alleges that the FLIKR is manufactured by defendant Seera Creative, LLC and was created and designed by its owner, Travis Seera. 

A.    All versions of the FLIKR were designed, manufactured, and safety tested by Travis.  Travis also wrote the safety instructions and warnings that accompanied each version of the product.  At the time of the incident, Travis was the only person in charge of Seera’s operations.

B.     Currently, Seera is run by Travis and current company president, Haley Seera.  The Seeras make all decisions for the company and are responsible for all of the company’s day-to-day operations.

C.     Travis admits knowing the dangers associated with fire, highly flammable substances and indoor fireplaces and their potential to cause serious injury.  But, he lacked the knowledge and training necessary to understand how to protect the safety of consumers using the fireplaces Seera manufactured.  Specifically, Travis had no education or training in any of the relevant disciplines, including fire safety, engineering, hazardous materials, human factors, writing safety instructions, and warnings, product testing, and/or product safety.

D.    Despite being completely self-taught and aware of his lack of knowledge and training, Travis chose to bring the fireplaces to market without ever having the product evaluated or tested by experts in any relevant safety field.

E.     Travis never made an independent effort to learn what needed to be done in order to make the fireplaces safe for consumers to use.

F.      Haley is similarly lacking in the knowledge, training, and/or expertise necessary to understand what needs to be done in order to make the fireplaces safe for use by consumers.

G.    Seera’s first fireplaces were marketed as “Burn Fireplace.”  Seera later rebranded its fireplace as the FLIKR fireplace.  The design of the FLIKR was exactly the same as the design of the Burn. 

H.    Both the Bun and the FLIKR were packaged with instructions and warnings that were written by Travis based on his testing and understanding of the product.

I.        Seera is not in possession of any writings that document whether Travis actually tested the fireplaces, the type of testing he conducted, and/or how the results of the testing were implemented into the warnings and instructions.

J.       The Burn fireplace came with certain warning/instructions.

K.    Travis subsequently removed the instructions before rebranding of the fireplace.  He testified that he felt they were no longer necessary and implied that they were potentially interfering with the commercial viability of the product.

L.     Seera/Travis never obtained an independent confirmation that the instructions and warnings provided with the FLIKR fireplaces were appropriate or adequate for safety purposes. 

M.   Taking the FLIKR to market without any independent safety testing and analysis violates a fundamental rule of product testing that the person who designed the product and/or wrote the warnings and instructions cannot be the person who tests the product to determine if it is safe. This rule is in place because of the inherent bias the tester has, given his/her knowledge of the product (design, composition, etc.) and how to safely use it.  Id., ¶8.

The FAC further alleges that in explaining why Seera removed the instructions to wait 30-45 minutes between burns to let the product cool, invisible flames, and snuffing out the flame, Seera/Travis claimed that the warnings served no utility.  Id., ¶¶9-10.

            Punitive damages

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .”  The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages.  There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”  “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is caried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4^th 704, 725.

Civil Code §3294(b) states:  “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.”

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie clam for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  See Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal. App. 4^th 53, 63.

 Defendant argues that plaintiff has not alleged sufficient allegations of a conscious disregard for the rights or safety of plaintiffs as required to support a claim for punitive damages.  Defendant contends that plaintiff has not alleged that defendant knew of the dangers but intentionally ignored them.  Defendant also argues that there are insufficient allegations of malice.  Defendant asserts that plaintiff “cannot adequately allege that Seera knowingly put an unsafe product into the marketplace, and knowingly reworded the warnings/instructions to endanger” plaintiff.

In opposition, plaintiff argues that a motion to strike is “not a proper vehicle for substantively challenging the punitive damage claim.”  In any event, plaintiff argues, the allegations are sufficient as plaintiff has alleged Seera’s elimination of a single instruction that would have prevented the fire incident, which shows “despicable and conscious disregard for the safety of consumers using the product” and that Seera was aware of the risks involved, “which is why the warning was written in the first place.”  Plaintiff also contends that there are other facts that support a claim for punitive damages, including bringing the product to market without ever having proper safety testing performed by independent experts or having its instructions and warnings evaluated by independent experts and that Travis lacked knowledge and training necessary to understand how to protect the safety of consumers.

A motion to strike is the proper method to attack a claim for punitive damages.  PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4^th 1680, 1683.  The court finds that the allegations are sufficient to support malice, including willful and conscious disregard of safety 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.”  G.D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22, 32.

Allegations referencing the King matter

Defendant argues that it is improper for plaintiff to reference the King case because other accidents are only admissible in products liability actions when they have occurred under substantially the same general circumstances and the cases “are diametrically opposed.”

In opposition, plaintiff argues that reference to the King case is relevant and appropriate.  Plaintiff contends that the King fire incident would have been prevented if the warning to not refill and relight the fireplace for at least 30-45 minutes after a burn had been provided, which “[t]he same is true with the Bogda fire incident.”  Plaintiff also asserts that the King incident further corroborates “the danger evident from the Bogda incident of relighting the FLIKR without waiting for at least 30 minutes” and how Seera’s removal of the warning was done with a conscious and despicable disregard for the safety of consumers.

The court finds that a ground to strike does not appear on the face of the FAC.  Both involved the same product, purported lack (or removal) of warnings, and burn incident.

Third cause of action for breach of warranty

Defendant argues that the allegations are insufficient because plaintiff does not allege that she purchased the FLIKR from defendant, which is a required element.

In opposition, plaintiff stipulates to striking the cause of action “as it was her fiancé and not her who bought the FLIKR.”

Accordingly, the motion is GRANTED IN PART and DENIED IN PART.  The motion is granted as to the 3^rd cause of action and denied as to claim for punitive damages and references to King case.

Plaintiff is ordered to give notice of ruling.

Moving defendants are ordered to give notice of the ruling.