Judge: John C. Gastelum, Case: 22-01287858, Date: 2023-05-17 Tentative Ruling
(1) Motion to Strike (2) CMC
Tentative Ruling: The Motion to Strike Portions of the Complaint filed by Defendants, The Cheesecake Factory Incorporated; The Cheesecake Factory Bakery Incorporated; and The Cheesecake Factory Restaurants, Inc. (“Defendants”) is GRANTED in its entirety, with ten (10) days’ leave to amend.
Defendants move for an order striking all portions of Plaintiff John Goldberg’s Complaint that seek recovery of punitive damages including paragraph 47 (page 11:23-25), paragraph 57 (page 15:5-6), paragraph 65 (page 17:1-3), paragraph 74 (page 17:20-22), and Prayer for Judgment at page 18:3.
The court may strike out “...any irrelevant, false, or improper matter inserted in any pleading” or “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(a); Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Irrelevant matters include allegations not essential to a claim or defense, allegations not pertinent to nor supported by a sufficient claim or defense, or requesting relief not supported by the allegations of the complaint or cross-complaint. (Code Civ. Proc. § 431.10(b).)
Civil Code section 3294(a) provides, “[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, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by plaintiff. [Citations.] 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. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citations.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
To support exemplary damages, the complaint must allege facts of defendant’s oppression, fraud, or malice, as required by Civil Code section 3294. (Civil Code § 3294(a); College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) “Malice” is defined as 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. (Civil Code § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code § 3294(c)(2).) “Fraud” is defined as 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. (Civil Code § 3294(c)(3).)
“The adjective ‘despicable’ connotes conduct that is ... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. … [A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] The wrongdoer … must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff's rights. … Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages . . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate . . . .” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’ ” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044; Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [“[R]ecklessness alone is insufficient to sustain an award of punitive damages….”].)
Conclusory allegations that conduct was oppressive, fraudulent, or malicious are insufficient to support a claim for punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) There must be factual assertions supporting a conclusion that a defendant acted with oppression, fraud, or malice. (Ibid.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [122 Cal.Rptr. 218].]” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)
Corporations may be held liable for punitive damages through the malicious acts or omissions of their employees, but only for the acts or omissions of those employees with sufficient discretion to determine corporate policy. (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Civil Code section 3294, subdivision (b), provides: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. 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.” “ ‘Managing agents’ are employees who ‘exercise[ ] substantial discretionary authority over decisions that ultimately determine corporate policy.’ (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.)
Plaintiff alleges that he lunch with two friends at The Cheesecake Factory, located at 7871 Edinger Avenue in Huntington Beach, California on 10-29-2021; that Plaintiff ordered a Miso Salmon with brown rice and bit down on foreign substance in the rice which was solid and hard; that the Miso Salmon and brown rice was not “pure, safe, and unadulterated”; and that Plaintiff experienced pain and injury to his tooth on the left side of his mouth. (Complaint, ¶¶ 9, 11-24.) The Complaint alleges Plaintiff told the waitress about the incident and she stated she would inform the manager. (Complaint, ¶ 13.)
Plaintiff primarily cites to paragraphs 54 (3rd COA for Negligence Per Se) and 60 (4th COA for Strict Liability), and to the allegations for each of the five causes of action. Paragraphs 54 and 60 allege the following:
54. Defendants The Cheesecake Factory engaged in negligent acts and omissions included, but were not limited to: (a) failure to prevent the delivery of Miso Salmon with brown on October 29, 2021 adulterated and contaminated with an unknown foreign substance, including the failure to implement or non-negligently perform inspection and monitoring of the food such that its adulterated condition would be discovered prior to its sale to the public for human consumption; (b) failure to properly supervise, train, and monitor their employees, or the employees of their agents or subcontractors, on how to ensure the manufacture, distribution or sale of food product free of adulteration.
60. Defendants The Cheesecake Factory manufactured and sold food that was defective at the time it left the defendants control in that it was adulterated with a foreign substance, which rendered the food adulterated, unwholesome and injurious to health and unfit for human consumption. This defective condition created an unreasonable risk to patrons such as John Goldberg. It was reasonably foreseeable to defendants The Cheesecake Factory that the adulterated food, when put to its reasonably foreseeable use, would expose customers such as John Goldberg to harm. Defendants The Cheesecake Factory had actual notice that their adulterated food had caused harm to prior patrons.
The foregoing allegations, and the alleged violations of California Health and Safety Code Sections 110620, 110625, 110630, and 113980 of the Sherman Food, Drug, and Cosmetic Laws are insufficient to show oppression, fraud, or malice to support a claim for punitive damages against Defendants under Civil Code section 3294(a). No authority is cited to support that a violation of these statutes permits a claim of punitive damages as a matter of law. The allegations are conclusory and the claim for punitive damages is not supported by facts showing that Defendants’ conduct was despicable to support malice or oppression, willful to support malice, or otherwise fraudulent.
In addition, no facts are alleged which support that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice was on the part of an officer, director or managing agent to allow punitive damages against any of the defendants under Civil Code section 3294(b).
Defendants to give notice.