Judge Michelle C. Kim, Case 21STCV00972 2023-04-17 Tentative Ruling

This case stems from an injury sustained when Danielle Hemple (“Plaintiff”) slipped, fell, and was injured while exiting a Bristol Farms (“Defendant”) grocery store. On February 3, 2019, Plaintiff alleges that while exiting Defendant’s store, she was caused to fall by the wet floor when leaving. (First Amended Complaint, hereinafter, “FAC”, ¶ 8.) Plaintiff filed her initial Complaint on November 11, 2021. The FAC was filed on February 7, 2023. The instant Motion to Strike (the “Motion”) was filed on March 9, 2023 by Defendant, concurrently with a Request for Judicial Notice (“RJN”). Plaintiff filed her opposition (“Opposition Papers”) on April 4, 2023, and Defendant filed their reply (“Reply Papers”) on April 10, 2023.

Concurrently filed with their Motion, Defendant’s filed a RJN, asking the Court to judicially notice the excerpts of a certified copy of the Transcript of Plaintiff’s Deposition in this case has taken on June 23, 2021. A court may take judicial notice of a deposition transcript if it is part of a court record. (see Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22.) Although the existence of statements contained in a deposition transcript filed as part of the court record can be judicially noticed, their truth is not subject to judicial notice. (Ibid.)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a)) In the Declaration of Mark I. Melo (hereinafter, “Melo Dec.”) Defendant states that they sent a meet and confer letter on March 3, 2023, to Plaintiff’s counsel and received no response from Plaintiff’s counsel. (Melo Dec., ¶ 2.)

The parties were unable to meet and confer, therefore, the requirements outlined in CCP § 435.5(a) remain unsatisfied. However, per CCP § 435.5(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.”

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.)

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. [CCP § 435(b)(1)]. This does not affect the court's power to strike sua sponte. Courts are specifically authorized to strike a pleading upon a motion or at any time in the court's discretion. [CCP § 436]

Defendant’s Motion requests that the Court strike: (1) paragraphs 13-19 within the FAC in their entirety and (2) paragraph 6 within the Prayer where Plaintiff requests “punitive damages according to proof”.

The single cause of action pled in the FAC is negligence based on premises liability. (FAC, p. 2.) Generally, “[I]f the action is one in tort, punitive damages may be recovered upon a proper showing of malice, fraud or oppression...” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal. App. 3d 376, 400.) For the victim of negligence to be awarded punitive damages the Court looks to CCP § 3294(a) which provides definitions for malice, oppression, and fraud:

“(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.” CCP § 3294(c)(1) – (c)(3).

Therefore, Plaintiff must show that the allegations as pled within the FAC are sufficient to meet these definitions. For the reasons below, the Court concludes that they do not.

The Court finds two primary contentions within Plaintiff’s Opposition Papers. First is that the allegations as charged are sufficient because conscious disregard for the safety of another is sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and yet the defendant willfully fails to avoid such consequences. (Opposition Papers, 5:18-22, citing Angie M. v. Superior Court, (1995) 37 Cal. App.4^th 1217.) The second contention the Court finds relies on Nolin v. National Convenience Stores, Inc. (1975) 95 Cal. App.3d 279 where Plaintiff analogizes the instant case to Nolin.

Regarding the first contention, Plaintiff argues that because there was not strict adherence to Defendant’s own safety policy that there was malice. More specifically, Plaintiff argues that “On the day that Plaintiff suffered injury, BRISTOL FARMS’ employee, Gloria Mathias, the Manager of Service, was mopping the front area of the Bristol Farms Store. Ms. Mathias was trying to mop from the ceramic tiles excess water tracked into the Bristol Farms Store by customers and employees.” (FAC, ¶ 16.) Plaintiff further contends that employee Mathias left the area that was mopped, that she did not remain there until it was completely dry, and that employee Mathias knew the area was wet. First, the Opposition Papers make several references to a safety policy that has not been judicially noticed. Second, Plaintiff makes clear in their FAC that on the day at issue it was raining and “that the subject floor area described herein was wet and getting wetter each time the employees, vendors, or others went outside in the rain and then tracked water back into the area…” (FAC, ¶ 7). In this context, not only was employee Mathias “trying to mop from the ceramic tiles excess water tracked into the Bristol Farms Store by customers and employees…” (FAC, ¶ 16), but there were also warning cones placed nearby. (FAC, ¶ 17.) Even assuming there was not strict adherence to the safety policy, that alone does not demonstrate conscious disregard for the safety of another.

The second contention is that this case is similar to Nolin, but the Court disagrees. In Nolin a customer of a convenience store brought an action for damages sustained in a slip-and-fall accident on store's premises. The Superior Court entered judgment in favor of customer. On appeal it was held that evidence, which established that area around convenience store's gasoline pump at which customer slipped and fell was continually covered with gasoline from a defective nozzle and with oil and that convenience store was aware of such dangerous condition and failed to remedy it, was sufficient to support jury's determination of malice and an award of punitive damages. (Nolin, supra at 279). The evidence that established punitive damages was that there were issues with the nozzle of the gasoline pumps four or five months before the plaintiff in that case fell. (Nolin, supra at 283). The fall was caused by spilled gasoline from the nozzle when it would overflow during use. Repairs had been requested many times but were never performed. (Ibid.) Additionally, two separate incidents similar to plaintiff’s had occurred before the incident that was at issue in that case. Moreover, the store sold motor oil to customers, but provided no way to open the cans and funnel the oil into customers’ vehicles. (Ibid.) In the process of opening the cans and making makeshift funnels, customers would leave empty oil cans and oil spills near the gas pumps. Finally, the defendant in Nolin gave no pre-employment or in-service training to employees concerning cleanup procedure. (Ibid.) None of the facts present in Nolin are presented in the FAC. In fact, within Plaintiff’s FAC, we find the contrary, that at minimum, there was an employee who was attempting to mop the area and make it safe, and that even if the employee did not stay until the floor was “100% dry”, there was at least a cone, warning of the possible danger of slipping and falling. These facts do not support a conscious disregard for the safety of another.

Accordingly, the Court will grant the Motion to Strike paragraphs 13-19 within the FAC in their entirety and paragraph 6 within the Prayer where Plaintiff requests “punitive damages according to proof”.

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.

Here, the Court will allow leave to amend, as there is a reasonable possibility that the defect can be cured.

Accordingly, Defendant Bristol Farms’ Motion to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED with twenty (20) days leave to amend.

· Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.

· If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

· Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

· If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.

Hon. Michelle Kim

Judge of the Superior Court