Judge: Michael E. Whitaker, Case: 22STCV29524, Date: 2022-12-19 Tentative Ruling

Case Number: 22STCV29524    Hearing Date: December 19, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Lucina Valdez (Plaintiff) sued Defendant Norms Restaurants, LLC (Defendant) based on injuries Plaintiff sustained while sitting on a chair in front of Defendant’s restaurant, waiting to be seated.  Defendant moves to strike Plaintiff’s claim and prayer for punitive damages in the complaint, as well as count two of Plaintiff’s second cause of action for premises liability.  Plaintiff has not filed an opposition to the motion.

ANALYSIS

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

1. Punitive Damages

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, 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.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

            In addition, “[t]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

Here, Defendant argues Plaintiff has failed to allege specific facts showing that Defendant acted with malice, fraud, or oppression.  Plaintiff’s Complaint alleges in pertinent part the following:

• “Defendants failed to inspect, repair, give a warning of a defective chair, and replace it with a safe folding chair being provided for public invitees to sit on while waiting to be served.”  (Complaint, p. 4.)
• “Defendants and each of them failed to inspect, repair, give a warning of a defective folding chair that was open and available for their invitees to sit while waiting to be served.”  (Complaint, p. 5.)
• “[Defendant] willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity.”  (Complaint, p. 5.)

The Court finds these allegations insufficient to demonstrate despicable conduct which is carried on by Defendant with a willful and conscious disregard of the rights or safety of others.  Plaintiff’s allegation that Defendant “willfully or maliciously failed to guard or warn against condition, use, structure, or activity” is conclusory; unsupported by assertions of specific facts as to Defendant’s failure to replace the chair in question.  Equally important, Plaintiff has not alleged malice, oppression or fraud among Defendant’s corporate leaders.  Without such assertions, Plaintiff’s claim and prayer for punitive damages is deficient. 

2. Second Count of Premises Liability Cause of Action

Next, Defendant argues count two of Plaintiff’s second cause of action for willful failure to warn, under Civil Code section 846 is flawed. 

Civil Code section 846 provides that a “landowner ‘owes no duty of care’ to persons using the land for recreation, either to maintain safe premises or to warn of hazards …” thereby “absolv[ing] California landowners from two separate and distinct duties: the duty to ‘keep the premises safe’ for recreational users, and the duty to warn such users of ‘hazardous conditions, uses of, structures, or activities’ on the premises.”  (Klein v. United States of America (2010) 50 Cal.4th 68, 78.)  However, section 846 does not limit the liability that otherwise exists for (1) “[w]ilfull or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[;] (2) [i]njury suffered in any case where permission to enter for [a recreational] purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where the consideration has been received from others for the same purpose[; or] (3) [a]ny persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” (Civ. Code, § 846, subd. (c)(1)-(3).)  

As to the failure to warn count, Plaintiff alleges the following: “Defendants, and each of them failed to inspect, repair, give a warning of a defective folding chair that was open and available for their invitees to sit while waiting to be served.  As a proximate result, plaintiff sat on the folding chair, it collapsed, proximately causing plaintiff to sustain injuries . . . [Defendant] willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity . . . .”  (Complaint, p. 5.)

Here Plaintiff sufficiently alleges Plaintiff’s status as an invitee, thus establishing the basis for Defendant’s alleged duty of care under Section 846.  Further, Plaintiff pleads that Defendant willfully failed to warn against the dangerous condition of the broken chair.  Accordingly, the Court finds Plaintiff’s second count of the premises liability cause of action is sufficiently supported.

1. Leave to Amend

Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has not opposed the motion to strike. Consequently, she has failed to meet her burden. Thus, the Court will deny Plaintiff leave to amend the Complaint.

CONCLUSION AND ORDER

Therefore, the Court grants in part Defendant’s motion to strike Plaintiff’s claim and prayer for punitive damages without leave to amend.  Further, the Court denies in part Defendant’s motion to strike the second count of the premises liability cause of action.  

The Court orders Defendant to file and serve an answer to the Complaint within 20 days of the hearing.   Defendant shall provide notice of the Court’s orders and file a proof of service of such.