Judge: Martha K. Gooding, Case: 2020-01168473, Date: 2022-10-10 Tentative Ruling

Motion to Strike Portions of Complaint

The Court DENIES the Motion by Defendant LAVA USA Inc. to Strike parts of the First Amended Complaint (“FAC”) of Plaintiffs Instant Tuck USA, LLC and Instant Tuck, Inc.  

Where there are grounds both for demurring and moving to strike, the two documents must be filed together and noticed for the same hearing date. [CCP § 435(b)(3), (d); CRC 3.1322(b).]

Even if the Motions were filed concurrently, it is Moving Defendant’s responsibility to ensure they are set for the same hearing date.

Here, Defendant’s demurrer was heard on 7/25/22. (ROA 293) Thus, the Court denies this Motion on the ground that it is untimely.

Even if the Court were to hear the untimely Motion on the merits, it is DENIED.

Defendant seeks to strike certain words from the factual background and fifth cause of action relating to punitive damages, including “defrauded”, “purposely”, “purposefully concealed”, “Misleading”, “purposefully”, “intentionally”, and in “in effort to defraud.”  Defendant also seeks to strike punitive damages from the Prayer for Relief.

These allegations appear in the FAC to support the fraud claim. Defendant argues that these allegations are conclusory and that there are insufficient facts to support a claim for punitive damages. The Court disagrees.

“What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. [Citations.] The stricken language must be read ... in the context of the facts alleged in the rest of petitioner's complaint. Taken in context, the words ‘wrongfully and intentionally’ [may] describe a knowing and deliberate state of mind from which a conscious[ ] disregard of petitioner's rights might be inferred-a state of mind which would sustain an award of punitive damages. [Citations.]” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Similarly, “[t]he allegation that defendants were guilty of ‘oppression, fraud, and malice’ ... is not objectionable when sufficient facts are alleged to support the allegation. [Citation.]” (Id. at pp. 6-7.)

Here, the fifth cause of action for fraud sufficiently alleges a wrong for which punitive damages may be recovered. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal. 4th 1226; Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal. App. 4th 1198).

The FAC alleges that Johan Vanwelden, Owner and CEO of both Defendants Lava USA and Lava BVBA, and Jonathan Cruz Martines, Sales Representative at Lava USA, made representations in November and December of 2019 that were knowingly untrue regarding the weight of the yarn, in an effort to charge Plaintiffs a higher dollar amount but with no actual increase in yarn weight. “Defendants defrauded Plaintiffs by ‘overfeeding’ the fabric into the machine to increase the weight of the finished knitted piece misleading Instant Tuck to think that the weight increase was due to a thicker 180 grams/meter yarn”. Defendants also represented that the material sold ‘shrinks a bit’ when washed, but Plaintiffs discovered it shrank by 15%. Because of this, Plaintiffs had to order 15% more material for which it had to pay over and above the agreed upon price. (FAC, ¶¶14, 41-45.)