Judge: Lee S. Arian, Case: 23STCV28616, Date: 2024-01-11 Tentative Ruling
Case Number: 23STCV28616 Hearing Date: January 11, 2024 Dept: 27
Erik Deutsch v. 99 Cents Only Stores, LLC
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Thursday, January 11, 2024 |
[OPPOSED]
Motion
– Defendant’s Motion to Strike
TENTATIVE
Defendant
99 Cents Only Stores, LLC’s Motion to Strike is GRANTED without leave to
amend.
Background
This
case stems out of a battery suffered by Erik Deutsch (“Plaintiff”) while
Plaintiff was shopping at one of 99 Cents Only Stores, LLC’s
(“Defendant”) locations. On October 16, 2023, Plaintiff was visiting one of
Defendant’s stores to make purchases. While there, an unknown assailant called
Plaintiff a racial slur, physically attacked Plaintiff, and knocked him to the
ground.(Complaint, ¶ 5.) No employee nor security guard came to Plaintiff’s
assistance, nor did Defendant’s store allow Plaintiff to use the store phone to
contact police. (Complaint, ¶ 7-8.)
Plaintiff filed suit against
Defendant on November 21, 2023, alleging a single cause of action for
negligence. Defendant now files a Motion to Strike (“Motion”) the request for punitive
damages from the Complaint.
Discussion
Meet and Confer
“Before 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 if an agreement can be reached
that resolves the objections to be raised in the motion to strike.” (CCP §
435.5(a).) Here, Defendant provides the Declaration of Brian M. Plessala which
states that the parties conferred telephonically on December 6, 2023 but could
not come to an agreement. (Declaration of Brian M. Plessala , ¶ 6.) Nevertheless,
the requirements of CCP § 435.5(a) have been met. Therefore, the Court turns to
the Motion.
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. (CCP § 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. (CCP § 436, subd. (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. (CCP § 436.)
The grounds for moving to strike must appear on the face of the pleading or by
way of judicial notice. (CCP § 437.) The Court notes that motions to strike punitive
damages may be granted, where the alleged facts do not support conclusions of
malice, fraud or oppression. (Turman v. Turning Point of Central Calif.,
Inc. (2010) 191 Cal.App.4th 53, 63.)
Analysis
Defendant
uses their Motion to argue that the Complaint fails to supply any facts that
support a finding of malice, oppression, or fraud as defined by CIV § 3294 in
order to support Plaintiff’s request for punitive damages. The Court agrees and
grants the Motion.
Defendant
argues that punitive damages are recoverable only in those instances where
plaintiff pleads an intentional tort or establishes “malice” against the
Plaintiff. (Motion, 7:7-10.)
Plaintiff
opposes the Motion arguing that Plaintiff can establish “malice” simply by
submitting evidence that the defendant acted with a conscious disregard of the
safety of others. Indeed, in one of Plaintiff’s cited cases, our California
Supreme Court noted that “punitive damages sometimes may be assessed in
unintentional tort actions…” (Potter v. Firestone Tire & Rubber Co.
(1993) 6 Cal.4th 965, 1004. Hereinafter, “Potter”.) However, Potter
is distinguishable from this case.
First,
Plaintiff has not alleged any facts that show Defendant behaved in a manner
that displayed conscious disregard of the safety of others. Second, in Potter,
landowners who lived next to a landfill brought an action against the tire
manufacturer whose hazardous wastes were disposed of at the landfill. In
Potter, the plaintiffs showed that their exposure to the toxic substance
was due to plaintiff’s breach of duty. (Id. 999-1000.) Thus, the action was predicated on the action
of the defendant in producing a toxic substance. Here, in contrast, the predicate
of the action does not stem from acts of Defendant; rather, the predicate action
arises from the conduct of a third-party assailant.
Plaintiff
also analogizes this case to Penner v. Falk (1984) 153 Cal.App.3d 858,
where a tenant sued landlords for injuries sustained when he was assaulted by
two nontenant intruders. In Penner, the Court awarded punitive damages
to the plaintiff because plaintiff there sufficiently set forth facts that long
existing physical conditions of the premises – that the landlords were aware of
for two years and failed to fix – allowed for the assault to occur. (Penner,
supra, at 867.) These conditions included the landlord being aware of
previous crimes in the building and that the landlord failed to correct a
defective condition on the property that allowed free entry into the building.
(Wylie v. Gresch (1987) 191 Cal.App.3d 412, 417, citing Penner.) Further,
Penner involved the duty of a landlord to residential tenants, which are
far different from duty owed by a commercial entity to its patrons. In any
event, Plaintiff only alleges on information and belief that “there have been
multiple prior similar incidents at the Store.” Without more, this statement provides
no support for an allegation of “malice.” Therefore, the Motion is granted.
Leave to Amend
Leave to
amend is allowed where there is a reasonable possibility of successful
amendment. (See Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to
amend if there is any reasonable possibility that the defect can be cured by
amendment”]. Plaintiff has not indicated how he may be able to amend the Complaint
successfully and, accordingly, the Court has no basis upon which to grant leave
to amend.
Conclusion
Accordingly,
Defendant 99 Cents Only Stores, LLC’s Motion to Strike is GRANTED without
leave to amend.
Moving party is ordered to give notice.