Judge: Lee S. Arian, Case: 23STCV16507, Date: 2024-06-13 Tentative Ruling

Case Number: 23STCV16507    Hearing Date: June 13, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTION TO STRIKE 

Hearing Date: 6/12/24 

CASE NO./NAME: 23STCV16507 CHESTER GILCHRIST vs FLORENCE BARGAIN, INC

Moving Party: Defendant Viva Bargain Center

Responding Party: Plaintiff

Notice: Sufficient 

Ruling: MOTION TO STRIKE IS GRANTED WITH LEAVE TO AMEND 

Background

On November 28, 2023, Plaintiff filed his first amended complaint alleging that he was attacked and detained by employees of Defendant Viva Bargain Center after being accused of stealing a lighter. In the FAC, Plaintiff seeks punitive damages against Defendant Viva Bargain Center. Defendant now moves the Court to strike Plaintiff’s prayer for punitive damages.

Legal Standard

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. (Code Civ. Proc., § 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. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (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.)

There is a dispute between the parties regarding the timeliness of the present motion to strike. On November 28, 2023, Plaintiff filed the first amended complaint, and on May 10, 2024, Defendant filed the motion to strike. The motion to strike was not filed within the statutory deadline. The issue revolves around an email exchange between the parties concerning whether Plaintiff granted Defendant an extension to file the present motion. On April 26, 2024, Defendant requested an extension of two weeks to file a responsive pleading by May 10, 2024. Plaintiff responded that “two weeks to answer the complaint is agreeable.” Defendant believed that the extension applied to the motion to strike when it asked for an extension to file a responsive pleading in the initial email, while Plaintiff argued that the extension only applied to an answer and not to a motion to strike based on the language of the response. The Court finds Plaintiff’s argument unpersuasive, as the use of the word “answer” while also using the word “agreeable” in response to the broader inquiry appears to be gamesmanship that the Court will not condone. In any event, the Court can at any time in is discretion strike all or any part of any pleading not drawn or filed in conformity with the laws of this state. Code Civ. Proc., § 436(a).) The court exercises that discretion.

Defendant has fulfilled the meet and confer requirement, as Plaintiff did not respond to Defendant’s meet and confer letter. Although Defendant did not quote in full portions sought to be stricken, Defendant’s request to strike Plaintiff’s prayer for punitive damage falls under an exception under California Rules of Court Rule 3.1322(a).

Punitive Damages

A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042; Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.)  Because Defendant Viva Bargain Center is a corporation, a different set of facts need to be pled for punitive damages against an employer/corporation. “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.” (Civ. Code, § 3294(b).) 

Discussion

In the Opposition, Plaintiff argues that he has fulfilled the pleading requirement for punitive damages by pleading the following in the FAC:

·        On or about July 22, 2021, PLAINTIFF, a Black eighty-seven-year-old male who walks with cane, was a customer inside the business known as Viva Bargain Center and/or Florence Viva Bargain Center located 1526 East Florence Avenue in the City of Los Angeles (the “PREMISES”). (FAC ¶ 14).

·        On or about July 22, 2021, unidentified non-Black employees of Defendants…, while on the PREMISES and providing store business and/or security services at the PREMISES on behalf of the PREMISES DEFENDANTS,…instigated and participated in a verbal and physical altercation with PLAINTIFF by aggressively confronting PLAINTIFF, addressing PLAINTIFF in a combative tone and demeanor, accusing PLAINTIFF of stealing a lighter, and using physical force against PLAINTIFF, by, amongst other actions, physically detaining PLAINTIFF, restricting PLAINTIFF’s freedom of movement by force, and causing PLAINTIFF to sustain injuries to his person. (FAC ¶ 16).

·        The PREMISES DEFENDANTS ratified the tortious conduct and…training and incentivized their store employees and/or security guards…to use unreasonably violent force in the course of scope of providing store business and security services.

·        Additionally, PREMISES DEFENDANTS knew or should have reasonably known that their store employees and/or security services, and failed to intercede in their known pattern of using such force.

·        Additionally, PREMISES DEFENDANTS knew that [its security guard] used unreasonably violent force against PLAINTIFF,…and failed to investigate or discipline [him] for his use of force.

·        Additionally, PREMISES DEFENDANTS knew that [its security guard] used unreasonably violent force against PLAINTIFF…and took actions to cover up [his] conduct by either failing to preserve or actively destroying video recordings depicting their conduct.

·        DEFENDANTS committed, allowed, encouraged, tolerated, and ratified the above-described acts and conduct deliberately, oppressively, fraudulently and maliciously, in conscious disregard for PLAINTIFF’s rights and safety, and with the intent to vex, injure, and annoy PLAINTIFF. As such, DEFENDANTS have caused PLAINTIFF to suffer cruel and unjust hardship needlessly, and DEFENDANTS’ acts and conduct warrant an award of punitive and exemplary damages in an amount sufficient to punish and deter DEFENDANTS from ever engaging in such conduct again in the future.

(FAC ¶¶ 14, 16, 18, 27, 28, 35, 36, 41, 42, 47, 48, 68, 61, 69, 75).

The Court finds that Plaintiff has not met the heightened pleading standard required for punitive damages. To support a claim for punitive damages, Plaintiff must assert specific facts demonstrating that Defendant acted with oppression, fraud, or malice. (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) Moreover, as Defendant Viva Bargain Center is a corporation, Plaintiff must meet the additional requirements of Civil Code § 3294(b). Specifically, Plaintiff must demonstrate that the corporation had advance knowledge of the unfitness of the employee and employed the individual with conscious disregard for the rights or safety of others, or that the corporation authorized, ratified the employee’s conduct.

Plaintiff's FAC includes general allegations that the PREMISES DEFENDANTS ratified tortious conduct, trained and incentivized their employees to use unreasonable force, and failed to intercede in the employee’s known patterns of misconduct. However, these allegations lack the specificity required by the law. For instance, Plaintiff fails to identify which of Defendant's managing agents authorized or ratified the alleged wrongful conduct, how they ratified or authorized the misconduct, or when and who among Defendant's managing agents learned of the employee’s similar past conduct and what specific similar past conduct occurred.

Plaintiff has not pled specific facts to fulfill the heightened pleading standard for his punitive damage claims. However, based on the facts alleged, which are not completely conclusory, there does appear to be a reasonable possibility of successful amendment. Thus, the Court GRANTS the motion to strike with leave to amend.

PLEASE TAKE NOTICE: 

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting. 

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue. 

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.