Judge: Michael Shultz, Case: 22CMCV00726, Date: 2024-02-20 Tentative Ruling
Case Number: 22CMCV00726 Hearing Date: February 20, 2024 Dept: A
22CMCV00726 David Mortley
v. Al’s Liquors, et al.
[TENTATIVE] ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANT’S MOTION STRIKE PORTIONS OF COMPLAINT
I.
BACKGROUND
The
complaint alleges that Plaintiff chipped his tooth which subsequently required
removal after eating a Lorna Doone Shortbread Cookie made by Defendant Mondelez Global, LLC. (“Defendant”) and sold by
Al’s Liquors. Plaintiff alleges claims for negligence, strict products
liability, breach of implied warranty.
Defendant moves to strike the prayer for
punitive damages and related allegations as well as the request for attorney’s
fees, which is not supported by any statute or contract. The complaint is also
uncertain in that it refers to a different plaintiff who purportedly suffered an
injury and infection to “her” throat. Defendant timely served Plaintiff with
the motion, who did not file an opposition.
II.
LEGAL
STANDARDS
The court may, upon motion or at any time
in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of the 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 subd (a)-(b).) Grounds for a motion to
strike are limited to matters that appear on the face of the complaint or on any matter of which the court shall
or may take judicial notice. (Code Civ. Proc., § 437.)
A plaintiff may recover on a claim for
exemplary damages where the defendant is guilty of oppression, fraud, or
malice. (Civ. Code, § 3294 subd. (a).) The predicate acts to support a claim for
punitive damages must be intended to cause injury or must constitute
“malicious” or “oppressive” conduct as defined by statute. “Malice” is defined
as “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.”
(Civ.
Code, § 3294 subd. (c)(1); College
Hospital Inc. v. Superior Court (1994)
8 Cal.4th 704, 725, ["malice involves awareness of
dangerous consequences and a willful and deliberate failure to avoid
them"].) "Oppression" is defined as “despicable conduct that
subjects a person to cruel and unjust hardship in conscious disregard of that
person's rights.” (Civ. Code, § 3294 subd. (a) subd. (c)(2).)
Liability for
punitive damages will not be imposed against a corporate employer absent proof
of advance knowledge or ratification by an officer, director or managing agent.
(Civ.
Code, § 3294 subd. (b).)
III.
DISCUSSION
A.
The request to strike attorney’s fees is DENIED.
Recovery
of attorney’s fees is permitted where provided by contract or statute. (Code
Civ. Proc., § 1021.) However, with respect to the propriety of alleging
recovery of attorney’s fees in the prayer of a complaint, it is not an abuse of
discretion to refuse to strike a claim for such fees where a plaintiff has not
had a full opportunity to determine the basis for its recovery. (Camenisch
v. Superior Court (1996) 44 Cal.App.4th 1689, 1699; Yassin
v. Solis (2010) 184 Cal.App.4th 524, 533 ["There is no
requirement that a party plead that it is seeking attorney fees, and there is
no requirement that the ground for a fee award be specified in the
pleadings."].)
B.
The request to strike the prayer and related
allegations for punitive damages is GRANTED.
Plaintiff alleges that
Defendant showed a pattern of “extreme indifference and reckless disregard for
the value of human life” by failing to properly inspect the cookies and failing
to implement adequate policies to train employees. (Complaint, ¶ 19-20.) As
Plaintiff did not allege an intent to injure, the predicate acts must be “despicable”
which is defined as “base, vile, or contemptible.” (College Hospital Inc. v. Superior
Court (1994) 8
Cal.4th 704, 725.)
Plaintiff alleges failures by Defendant
to adequately train or inspect, which does not meet the standard of “despicable
conduct.” Conduct constituting negligence, gross negligence or recklessness is
insufficient to support a claim for punitive damages. (Dawes v. Superior Court (1980) 111
Cal.App.3d 82, 87.)
C.
The
allegation concerning a female plaintiff who suffered injury to her throat is
stricken.
The complaint is inconsistent and
therefore ambiguous in that it alleges throat injuries to a different person.
Plaintiff alleges he suffered injury to his tooth which required removal. These
inconsistent allegations render the complaint uncertain.
IV.
CONCLUSION
Based on the foregoing, the Court GRANTS the
motion in part to strike the punitive damage allegations and the reference to a
different plaintiff. (Complaint ¶¶ 27, 29, 38, 49, 60, and prayer, ¶ 2.) The
Court DENIES the motion to strike the prayer for attorney’s fees.