Judge Gail Killefer, Case Number: 22STCV20904, Date: 2023-10-03 Tentative Ruling

On June 27, 2022, Danny Silberstein (“Plaintiff”), filed a Complaint against MM Products, Inc. (“Defendant”) and Does 1 to 50.

On July 3, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) alleging a single cause of action for strict product liability.

On July 25, 2023, Defendant filed a Motion to Strike Plaintiff’s FAC. Plaintiff filed opposing papers on September 19, 2023. Defendant filed a reply on September 26, 2023.

Evidentiary Objections

Plaintiff objects to the Declaration of Bob Mizimakoski filed in support of Defendant’s motion to strike on the basis that Mr. Mizimakoski testified to matters about which he failed to indicate he had experience or personal knowledge.

Discussion

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); CRC, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿¿

CCP § 1005(b) requires that opposing papers be served and filed at least nine court days before the hearing. Plaintiff’s opposing papers were due on Friday, September 15, 2023, but Plaintiff did not file and serve his opposition to this Motion until Tuesday, September 19, 2023.

Although Plaintiff’s motion is untimely, Defendant has failed to state that it was prejudiced by the delay and the court has the discretion to consider Plaintiff’s untimely opposition. (CRC, rule 3.1300 [the court may entertain untimely opposition “in its discretion”]; see Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [The court may treat the appearance of Defense counsel at the hearing and her opposition to the motion on its merits as a waiver of defective notice of the motion.].)

Defendant moves to strike Plaintiff’s allegation for punitive damages in the FAC at Page 7, Paragraph 24 and at Page 9, Paragraph 7. Defendant asserts that the FAC fails to plead sufficient facts to support a cause of action for punitive damages.

CCP § 3294 allows for recovery of punitive damages if, by clear and convincing evidence, Plaintiff proves “defendant has been guilty of oppression, fraud, or malice.” Section 3294(c) provides the following definitions:

(1)¿“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.¿

(2)¿“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.¿

(3)¿“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.¿

Upon motion, the court shall strike an allegation of punitive damages unless the ultimate facts showing an entitlement of such relief have been pled by a plaintiff. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To survive a motion to strike, claims for punitive damages must provide facts showing the defendant acted maliciously, with the intention or willful and conscious disregard of her likelihood to cause harm. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Mere allegations concluding, for example, that defendant’s conduct was intentional, willful, or fraudulent are insufficient. (Smith v. Superior Court (1993) 10 Cal.App.4th, 1033, 1041-1042.) Specific facts must be alleged in the pleadings supporting these contentions of law. (Id.)

Here, the FAC alleges Defendant manufactured a JoyJolt Declan Glass 16 oz. Coffee Mug (the “Product”) with sodalime glass, which was safe to use for cold beverages, not hot beverages like coffee and tea. (FAC ¶¶ 6-8.) The FAC alleges that sodalime glass is unable to withstand thermal shock associated with temperature changes in going from hot to cold liquid. (FAC ¶ 8.) Despite putting a warning on Amazon, Defendant did not do the same on its JoyJolt website stating: “to wait 3 minutes before going from hot to cold in the mug” and no warning was provided in the box shipped with mugs, such that consumers who received the Product as a gift, such as Plaintiff, had no warning. (FAC ¶ 8.)

The FAC alleges that during the time the Product was manufactured from 2020 to 2021, Defendant received 400 notifications from consumers about the Product’s failure, “including over 350 complaints that the base of the mugs was failing allowing hot liquids to spill on to the users or otherwise causing injury.” (FAC ¶ 9.) The FAC alleges that Defendants investigated and discovered that reason for the Product’s failure was the sodalime glass, but nonetheless, Defendants continued to sell the product despite knowing it was unsafe and dangerous. (FAC ¶ 9.) In fact, Defendant developed “a newly designed mug that was made with borosilicate glass” that was “able to withstand the internal stresses associated with hot liquid.” (FAC ¶ 9.) “However, the original designed mug was continued to be sold without any warning of the danger the bottoms would separate from the mug.” (FAC ¶ 9.)

The FAC alleges that Defendant’s Chief Executive Officer Mordechai Mittelman, knew that the Product was failing and causing or potentially cause “serious burn or laceration injuries,” but he and other corporate executives made the conscious decision to not notify consumers of the defective Product and not issue a recall or warning, putting profit over safety. (FAC ¶¶ 10, 11.) Defendant’s CEO, Mordechai Mittelman, consciously refused not to notify the “Consumer Product Safety Commission (“CPSC”) about the danger, hazard, and unsafe defect of the product because they did now want to expose themselves to a potential recall “which would reduce defendant’s bottom line profits.” (FAC ¶ 12.)

The FAC further alleges that Defendant knew or should have known that sodalime glass is not a proper material to use with coffee mugs and a conscious decision to not provide a warning to consumers. (FAC ¶ 13.) Defendant also acted with conscious disregard of public safety by advertising the product as safe for use with hot liquids despite the Product being unsafe for its intended use. (FAC ¶ 15.) This was done because sodalime glass is cheaper than borosilicate glass and Defendant failed and refused to provide safe and proper instruction regarding the proper use and hazards associated with the Product. (FAC ¶ 16.) Said conduct was authorized and/or ratified by e corporate defendant’s management, including its CEO Mordechai Mittelman. (FAC ¶ 17.)

Based on the allegations in the FAC, the court finds that Plaintiff has pled sufficient facts to support a claim for punitive damages.

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP, § 437.) Defendant refers and relies on matters outside of the pleadings, including portions of the deposition transcript of Mordechai Mittelman and the Declaration of Bob Mizimakoski, to challenge Plaintiff’s entitlement to punitive damages. Defendant asks the court to deny Plaintiff’s claim for punitive damages based on the fact that Mr. Mittleman did not testify that sodalime glass is unsafe for hot beverages and Plaintiff has not proven that sodalime glass is unsafe. (Mot. at p. 4: 19-28.) Defendant further asserts that Plaintiff has not proven that a recall was warranted. (Mot. at p. 5:18-22; see e.g., Mizmakoski Decl.)

At the pleading stage, Plaintiff is not required to prove his claims but instead required to plead facts sufficient “to put the defendant on notice about what the plaintiff is complaining and what remedies are being sought.” (Leek v. Cooper (2011) 194 Cal.App.4th 399, 415.) The sufficiency of the Plaintiff’s evidence is tested on a motion for summary judgment or summary adjudication after discovery is complete, and not during a motion for strike. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162–163 [“Thus, where the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant's showing.”].)

Defendant has failed to show that a defect in the pleading exists on the face of the FAC. Moreover, the court finds that Plaintiff’s request for punitive damages is sufficiently pled. Therefore, the Defendant’s Motion is denied.

[1] CCP § 435.5 requires that “[b]efore 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 whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” Defense counsel failed to file a declaration attesting that the meet and confer requirement has been met. “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.” (CCP § 435.5(a)(4).) Therefore, the court considers the Motion on the merits.