Judge Kerry Bensinger, Case Number: 23STCV15278, Date: 2023-10-13 Tentative Ruling

Judge: Kerry Bensinger, Case: 23STCV15278, Date: 2023-10-13 Tentative Ruling

Case Number: 23STCV15278 Hearing Date: October 13, 2023 Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE: October 13, 2023 TRIAL DATE: December 27, 2024

CASE: Tomas Jesus Martinez v. Target Corporation

CASE NO.: 23STCV15278

MOTION TO STRIKE

MOVING PARTY: Defendant Target Corporation

RESPONDING PARTY: No opposition

I. BACKGROUND

On June 30, 2023, Plaintiff, Tomas Jesus Martinez, filed a complaint against Defendant, Target Corporation, for injuries arising from a slip and fall on Defendant’s premises. Plaintiff filed the operative First Amended Complaint (“FAC”) on July 5, 2023. Plaintiff seeks punitive damages and attorney’s fees.

On August 25, 2023, Defendant filed this motion to strike punitive damages and attorney’s fees from the FAC.

The motion is unopposed.

II. LEGAL STANDARD FOR MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (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. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)

A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54, subd. (c).)

III. DISCUSSION

Defendant seeks to strike punitive damages and attorney’s fees from the FAC. The Court addresses each in turn.

1. Punitive damages

“In 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.” (Civ. Code, § 3294, subd. (a).) “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.” (Civ. Code, § 3294, subd. (b).)

Defendant argues the Court should strike the request for punitive damages from the FAC because there are no allegations to show that Defendant acted with oppression, fraud, or malice within the meaning of Civil Code section 3294. The Court agrees. The FAC is devoid of any allegations rising to the level of oppression, fraud, or malice. Nor are there allegations that Defendant’s officer, director, or managing agent had advanced knowledge of, authorized, or ratified any act of oppression fraud, or malice. The FAC is deficient.

Accordingly, the motion to strike punitive damages is granted.

2. Attorney’s Fees

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.) Attorney’s fees are allowable costs under Code of Civil Procedure section 1032 when authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)

Defendant next seeks to strike attorney’s fees from the FAC because there are no allegations identifying any statute to support an award of attorney’s fees. Nor are there any allegations regarding a contract or breach of contract. The Court agrees. There are no allegations showing a statutory or contractual basis for an award of attorney’s fees in this matter.

Accordingly, the motion to strike attorney’s fees is granted.

IV. CONCLUSION

The unopposed motion to strike punitive damages and attorney’s fees from the First Amended Complaint is granted. Leave to amend is denied.

Plaintiff is to file and serve a Second Amended Complaint consistent with this order within 20 days of the date of this order.

Defendant is to file and serve a responsive pleading to the Second Amended Complaint within 30 days of service of the amended pleading.

Moving party to give notice, unless waived.

Dated: October 13, 2023 ___________________________________

Kerry Bensinger

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.