Judge Melvin D. Sandvig, Case Number: 23CHCV02439, Date: 2024-04-30 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 23CHCV02439, Date: 2024-04-30 Tentative Ruling

Case Number: 23CHCV02439 Hearing Date: April 30, 2024 Dept: F47

Dept. F47

Date: 4/30/24

Case #23CHCV02439

MOTION TO STRIKE

Motion filed on 2/26/24.

MOVING PARTY: Defendant Garfield Beach CVS, LLC, erroneously sued and served as CVS Pharmacy, Inc.

RESPONDING PARTY: Plaintiffs Estate of Anita Y. Raphael, through its personal representative Joseph Rogoff and Charlotte Marion Raphael, individually, through her conservator Joseph Rogoff

NOTICE: ok

RELIEF REQUESTED: An order striking the punitive damages allegations against Defendant Garfield Beach CVS, LLC, erroneously sued and served as CVS Pharmacy, Inc. (CVS) from Plaintiffs’ Estate of Anita Y. Raphael, through its personal representative Joseph Rogoff, Charlotte Marion Raphael, individually, through her conservator Joseph Rogoff (collectively, Plaintiffs) complaint. Specifically, CVS seeks to strike the following portions of Plaintiffs’ complaint: (1) “punitive damages” at p.3, ¶14, line (a)(2) and (2) p.7, Exemplary Damages Attachment in its entirety.

RULING: The motion is granted with 20 days leave to amend.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of the death of Anita Y. Rapahel (Decedent). Plaintiffs Estate of Anita Y. Raphael, through its personal representative Joseph Rogoff and Charlotte Marion Raphael, individually, through her conservator Joseph Rogoff (collectively, Plaintiffs) allege that on 10/6/22, Decedent was placing items in a donation box when she became entangled in the donation box resulting in suffocation and death. In their complaint, Plaintiffs allege that all defendants, including Defendant Garfield Beach CVS, LLC, erroneously sued and served as CVS Pharmacy, Inc. (CVS), “negligently owned, maintained, operated, managed, operated, managed, designed, manufactured and controlled” the donation box. (See Complaint, p.4, ¶1). Plaintiffs’ complaint alleges three causes of action for (1) General Negligence, (2) Products Liability, and (3) Premises Liability. (See Complaint). The complaint seeks punitive damages. (See Complaint, p.3, ¶14 and p.7).

Despite CVS’ counsel’s multiple attempts to meet and confer with Plaintiffs’ counsel regarding the issues CVS had with the punitive damage allegations in the complaint, Plaintiffs’ counsel failed to respond. (See Conley Decl. ¶¶3-6, Ex.2). Therefore, on 2/26/24, CVS filed and served the instant motion seeking an order striking the punitive damages allegations against CVS from Plaintiffs’ complaint. Specifically, CVS seeks to strike the following portions of Plaintiffs’ complaint: (1) “punitive damages” at p.3, ¶14, line (a)(2) and (2) p.7, Exemplary Damages Attachment in its entirety.

On 4/17/24, Plaintiffs filed an opposition to the motion. On 4/23/24, CVS filed a reply to the opposition.

ANALYSIS

To state a claim for punitive damages, a plaintiff must plead specific facts showing the defendant engaged in conduct that amounts to malice, oppression or fraud. See Civil Code 3294; Clauson (1998) 67 CA4th 1253, 1254. Something more than the mere commission of a tort is required to support a claim for punitive damages. Taylor (1979) 24 C3d 890, 894-895. The mere carelessness, ignorance, unreasonableness or recklessness of a defendant does not justify the imposition of punitive damages. Tomaselli (1994) 25 CA4th 1269, 1287. Punitive damages are rarely awarded in unintentional tort cases because they usually lack the evil motive required for such an award. Lackner (2006) 135 CA4th 1188, 1210.

Plaintiffs have failed to allege sufficient specific facts to establish how CVS acted with the requisite malice, oppression or fraud by allowing the donation box to be placed near a CVS store. The complaint does not provide specific information regarding the alleged “dozens of similar incidents across North America” of which Plaintiffs claim defendants were or should have been aware or how defendants were or should have been aware of such incidents. Plaintiffs have also failed to allege sufficient facts to establish corporate approval of the alleged wrongful conduct which is necessary to state a claim for punitive damages against an entity defendant such as CVS. See CCP 3294(b).

The Court notes that the declaration of Plaintiffs’ counsel does not address their failure to respond to CVS’ meet and confer efforts regarding the issue presented by this motion. (See Wright Decl.). The reply indicates that on 4/17/24, the parties began a meet and confer process to potentially submit a Joint Stipulation which would render the instant motion moot. (See Reply, p.3:13-18; Conley Reply Decl., Ex.A).

CONCLUSION

The motion is granted. Due to the liberal policy of allowing leave to amend and because this is only the original complaint, Plaintiffs are given 20 days to try to cure the defects in their pleading.

If the Joint Stipulation is submitted and the order is entered thereon rendering this motion moot before the hearing, the motion will be placed off calendar. However, in such case, the Court notes that Plaintiffs’ failure to respond to meet and confer efforts before the motion was filed will have caused CVS to waste time and money preparing the instant motion and reply and will have caused the Court to waste time reviewing the motion, opposition and reply and preparing the tentative ruling.