Kelly Nicholson v. The Home Depot, Inc., et al.

MOTION TO STRIKE

 

MOVING PARTY: Defendant Home Depot, Inc.

RESPONDING PARTY(S): Plaintiff Kelly Nicholson

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff Kelly Nicholson alleges she visited a Home Depot on January 14, 2023 and was attacked by security personnel from Allied Universal Security Services LLC. Plaintiff brings this action against Defendant Home Depot and Allied Universal for battery, assault, IIED, negligence, premises liability, violation of the Unruh Civil Rights Act, violation of the Ralph Act, and supervisor liability. 

Defendant Home Depot now moves to strike Plaintiff’s request for punitive damages. Plaintiff opposed.

TENTATIVE RULING:

Defendant’s Motion to Strike punitive damages is GRANTED.  Whether or not leave to amend is granted will depend on if Plaintiff can make a sufficient offer of proof at the hearing that there is a reasonable possibility of successful amendment, consistent with this ruling.  If not, no leave to amend will be allowed and Defendant will be ordered to file an Answer within 21 days.  

Moving party is ordered to give notice, unless waived.

DISCUSSION:

Motion to Strike

I. Meet and Confer

The declaration of Dana L. Ward reflects that the meet and confer obligations was satisfied. 

II. Legal Standard

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

III. Analysis

Defendant moves to strike Plaintiff’s references to punitive damages in the Complaint. Defendant argues Plaintiff has failed to plead facts against it to support an award of punitive damages against it. 

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” 

As defined in § 3294(c):

(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 that a defendant intentionally misrepresented or concealed a material fact and did so intended to harm a plaintiff.

Additionally, “[w]hen the defendant is a corporation, ‘[a]n award of punitive damages against a corporation ... must rest on the malice of the corporation's employees. But the law does not impute every employee's malice to the corporation.’ [Citation.] Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation. (Civ.Code, § 3294, subd. (b).)” (Wilson v. S. California Edison Co. (2015) 234 Cal. App. 4th 123, 164.)

Plaintiff alleges she was “attacked by security personnel” at Home Depot on January 14, 2023. (Compl. ¶ 22.) Plaintiff alleges Home Depot “retained and provided security personnel and/or employees for the Subject Premises” from Defendant Allied Universal Security Services. (Id. ¶ 67.) Plaintiff’s Complaint contains a section headed “specific allegations in support of punitive damages” which alleges, among other things, that “each Defendant was an officer, director, or managing agent of the remaining Defendants, and acting on behalf of the remaining Defendants…”;  “that an officer, director, or managing agent of the Defendants had advance knowledge of the unfitness of the remaining Defendants and employed the Defendants with a knowing disregard of the rights and/or safety of others”; and that the conduct “was authorized by an officer, director, and/or managing agent of the remaining Defendants.” (Id. ¶ 177.) 

Here, Plaintiff has not pled sufficient facts of malice, oppression, or fraud against the moving Defendant to justify an award of punitive damages. Plaintiff has not identified any “officer, director, or managing agent” of the moving Defendant. Thus, Plaintiff has failed to allege the requisite malice, oppression, or fraud perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the moving Defendant. Therefore, Plaintiff’s request for punitive damages must fail. 

Accordingly, Defendant’s Motion to Strike punitive damages is GRANTED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Whether or not leave to amend is granted will depend on if Plaintiff can make a sufficient offer of proof at the hearing that there is a reasonable possibility of successful amendment, consistent with this ruling.

IT IS SO ORDERED.

Dated:   April 9, 2025 ___________________________________