TENTATIVE RULING

Defendant DS Services of America, Inc. dba Primo Water North America’s Demurrer to Plaintiff’s Complaint is SUSTAINED with thirty (30) days leave to amend as to the third and sixth causes of action.

Defendant DS Services of America, Inc. dba Primo Water North America’s Motion to Strike Punitive Damages and Attorney’s Fees is GRANTED with thirty (30) days leave to amend as to the prayers for punitive damages and attorney fees.

Plaintiff Ciah Gutierrez may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant DS Services of America, Inc. dba Primo Water North America to give notice. 

REASONING

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, 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. (Code Civ. Proc., § 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. (Code Civ. Proc., § 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. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be 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”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by 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.)

Demurrer

Third Cause of Action: Breach of Express Warranties

“[T]o prevail on a breach of express warranty claim, the plaintiff must prove (1) the seller’s statements constitute an affirmation of fact or promise or a description of the goods; (2) the statement was part of the basis of the bargain; and (3) the warranty was breached.” (Patricia A. Murray Dental Corp. v. Dentsply International, Inc. (2018) 19 Cal.App.5th 258, 275, quotation marks omitted.)

In the third cause of action, Plaintiff Ciah Gutierrez (“Plaintiff”) alleges that Defendant DS Services of America, Inc. dba Primo Water North America (“Defendant”) expressly warranted to Plaintiff and the general public that the subject jug was safe, effective, fit, and proper for its intended use, and Plaintiff relies on those warranties, but Plaintiff was injured because the jug was not safe and was unfit for the uses for which it was intended. (Compl. ¶¶ 47-48.) Case law provides that “[i]n order to plead a cause of action for breach of express warranty, one must allege the exact terms of the warranty” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142), and Plaintiff has provided only conclusory statements that warranties were made. Plaintiff must amend the complaint to allege the terms of the warranty, i.e., the means by which it was communicated to Plaintiff or specific language of the warranty. Accordingly, Defendant’s demurrer to the third cause of action is SUSTAINED with thirty (30) days leave to amend.

Sixth Cause of Action: Violation of Business and Professions Code section 17200

To set forth a claim for a violation of Business and Professions Code section 17200, Plaintiff must establish Defendant was engaged in an “unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising” and certain specific acts. (Bus. & Prof. Code, § 17200.) A cause of action for unfair competition “is not an all-purpose substitute for a tort or contract action.” (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.)

In the sixth cause of action, Plaintiff alleges that Defendant falsely advertised the use of the jug, and it did not perform as advertised. (Compl. ¶¶ 72-74.) Defendant takes issue with this claim because Plaintiff is limited to a remedy of restitution or injunctive relief (Madrid v. Perot Systems Corp. (2005) 130 Cal.App.4th 440, 452), not damages, and neither restitution nor injunctive relief is proper here. It is unclear why Plaintiff would be entitled to restitution or injunctive relief, as Plaintiff has not pled facts that would support a conclusion that either remedy is warranted here, i.e., it appears Plaintiff’s claim is one seeking personal damages. Thus, Defendant’s demurrer to the sixth cause of action is SUSTAINED with thirty (30) days leave to amend.

Motion to Strike

In the prayer of Plaintiff’s complaint, she seeks punitive damages and attorney fees, which Defendant now moves to strike.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff has included a conclusory statement in her strict products liability causes of action, but she has alleged no specific facts showing malice, fraud, or oppression by Defendant. (See Compl. ¶¶ 35, 45.) It is not the responsibility of the trier of fact to determine the basis for punitive damages; the facts supporting such a prayer must be pled in the body of each cause of action. Moreover, a corporation like Defendant may be liable for punitive damages only where the acts supporting the award were performed by or with knowledge of or with ratification by corporate officials (Civ. Code, § 3294, subd. (b)), and Plaintiff has alleged no such facts in her complaint. Upon amending the complaint, Plaintiff must allege specific facts to allow for a finding of malice, fraud, or oppression by the trier of fact. Thus, Defendant’s motion to strike is GRANTED with thirty (30) days leave to amend as to Plaintiff’s prayer for punitive damages.

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Plaintiff has not pled the basis for an award of attorney fees because there is no contract or statute allowing for such an award, and insofar as she seeks fees under Business and Professions Code section 17200, the Court has sustained the demurrer to this cause of action, such that the request for attorney fees based on that cause of action must also be amended. Accordingly, Defendant’s motion to strike is GRANTED with thirty (30) days leave to amend as to Plaintiff’s prayer for attorney fees.