Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a premises liability case.  Plaintiff alleges that on July 24, 2022, he was working at a restaurant inside the Westfield Century City Mall when a tile broke apart, causing him to fall into a hole. (Compl. ¶¶ 1, 33). The Complaint alleges that the tile had manufacturing and design defects and did not include sufficient warnings when Plaintiff was walking on the tile in a normal manner. (Id. ¶¶ 35-37)  

The Complaint alleges that Defendants Westfield, LLC and Century City Mall, LLC (“Moving Defendants”) own and manage the mall. (Id. ¶¶ 3-4). The Complaint further alleges that Clune Construction, PSI3G, Inc. dba PSI Partition Specialties, Tile Tech, Inc. and Kronos USA are contractors or subcontractors who installed, distributed, supplied, marketed, and sold the tile where Plaintiff was injured.  (Id. ¶¶5-8). 

The operative complaint alleges four claims for (1) premises liability, (2) product liability, (3) res ipsa loquitur and (4) negligence.   

This hearing is on Moving Defendants’ motion to strike paragraph 17 of the Complaint, which alleges as follows:  “Plaintiff is informed and believes and thereon alleges that at all times relevant herein the DEFENDANTS, and each of them, had policies and procedures which required the collection, identification, and preservation of all witnesses, evidence, videos, information and items (both physical and electronic) following an injury/incident on the premises such as the one described herein which was caused by the PRODUCT, and/or which otherwise occurred on their dangerous premises, and said policies and procedures included but were not limited to the requirement of an investigation, collection and preservation of both videos and photographs of the area, the collection of the parts of the PRODUCT and/or other items involved in causing the injury/incident, including the fractured and broken tiles, hex-trays and adjustable pedestals, and said policies and procedures also required the DEFENDANTS to identify, collect, maintain, and preserve all evidence for the purpose of learning what caused the injury/incident to occur, and what caused the PRODUCT to fail, fracture and break, in order to prevent an injury/incident like this from happening again, and to notify any person or entity, including but not limited to DEFENDANTS and all persons and entities involved in the use, manufacture, design, distribution, sale, ownership, management, transportation, storage, inspection, display, and/or sale of the PRODUCT, for the purpose of notifying them of the danger posed to users, shoppers, bystanders, purchasers, and others of the PRODUCT. Plaintiff alleges that the DEFENDANTS and each of them negligently violated all of said policies and procedures.”  Moving Defendants argue these allegations are irrelevant and inflammatory.   

LEGAL STANDARD 

The court may, upon 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, subd. (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, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., §437.)¿ 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (See Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

DISCUSSION 

Moving Defendants argue the allegations that they failed to investigate, collect and preserve evidence does not support any essential element of any of Plaintiff’s causes of action and is immaterial to the Complaint.  The Court disagrees.  It is simply too early at this stage to conclude this allegation is immaterial, as it is possible Plaintiff could establish that Moving Defendants had an obligation to preserve evidence, and their failure to do so establishes spoliation and gives rise to an adverse inference.             

CONCLUSION 

Based on the foregoing, the Court DENIES the motion to strike paragraph 17 of the Complaint.   

 

IT IS SO ORDERED. 

 

DATED: September 26, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court