Judge: Richard S. Whitney, Case: 37-2023-00009489-CU-PL-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Product Liability Demurrer / Motion to Strike 37-2023-00009489-CU-PL-CTL LEVINSKY VS L'OCCITANE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULINGS:

(1) DEFENDANTS L'OCCITANE, INC,'S AND NORDSTROM, INC.'S DEMURRER TO PLAINTIFF'S SECOND AMENDED ('SAC') COMPLAINT is SUSTAINED without leave to amend.

Defendants L'OCCITANE, INC. and NORDSTROM, INC. ('Defendants') demur to the second and sixth causes of action in Plaintiff Michael Levinsky's ('Plaintiff') SAC. Plaintiff fails to demonstrate the second and sixth causes of action are not duplicative of the negligence cause of action. (See Shoemaker v. Myers (1990) 52 Cal.3d 1, 24.) The demurrer is sustained. Plaintiff has the burden of proving a reasonable possibility of amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff has not met his burden. The demurrer is sustained without leave to amend.

(2) DEFENDANTS L'OCCITANE, INC.'S AND NORDSTROM, INC.'S MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFF'S SECOND AMENDED COMPLAINT ('SAC') is GRANTED with leave to amend.

Defendants L'OCCITANE, INC. and NORDSTROM, INC. ('Defendants') seek to strike allegations pertaining to punitive damages asserted by Plaintiff Michael Levinsky ('Plaintiff'). Pursuant to CCP section 436, the Court has discretion at any time to strike portions of pleadings, including irrelevant, immaterial, and improper allegations. (Code Civ. Proc., § 436.) A claim for punitive damages must be specifically pled and show facts that, if proved, demonstrates the requisite degree of culpability necessary for imposing exemplary damages under Civil Code Section 3294. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167.) A plaintiff's allegations are sufficient if the complaint alleges despicable conduct carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713.) Jury Instructions for punitive damages define 'Despicable conduct' as 'conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.' (CACI 3940.) Despicable conduct 'has been described as '[having] the character of outrage frequently associated with crime.'' (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 [citation omitted].) The Court agrees Plaintiff did not allege sufficient detail to support punitive damages. While Plaintiff alleges the ''Almonde Shower Oil' contained Tocopherol and Coumarin, which is known to cause allergic contact dermatitis (ACD),' Plaintiff does not allege whether there was a dangerous level of Tocopherol and Coumarin in the 'Almonde Shower Oil' nor that Defendants knew that the level of Tocopherol and Calendar No.: Event ID:  TENTATIVE RULINGS

2997973  49 CASE NUMBER: CASE TITLE:  LEVINSKY VS L'OCCITANE INC [IMAGED]  37-2023-00009489-CU-PL-CTL Coumarin in the 'Almonde Shower Oil' was likely to cause ACD. (SAC, ¶ 3.) At best, Plaintiff alleges that '[a]lthough the L'Occitane Inc. may have honestly believed that the representation was true, L'Occitane Inc. had no reasonable grounds for believing the representation was true when L'Occitane Inc. made them because the product contained ingredients that could lead to allergic contact dermatitis ('ACD') and resulting injuries permanent skin injuries to the consumers.' (SAC, ¶ 3 of Fourth Cause of Action.) Further, Plaintiff does not describe how the warnings or instructions were inadequate.

The motion is granted. Plaintiff has the burden of proving a reasonable possibility of amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff has not met his burden. The motion is granted without leave to amend.

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