Judge: Richard S. Whitney, Case: 37-2023-00015198-CU-BC-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00015198-CU-BC-CTL DAVIS TRUCKING LLC VS BIMBO BAKERIES USA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANTS' MOTION TO STRIKE PUNITIVE DAMAGES is DENIED.

Defendants Nathan Garcia and N.G. Trucking, Inc. ('Defendants') seek to strike certain allegations, including the prayer for punitive damages, asserted by Plaintiff DAVIS TRUCKING, LLC ('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].) 'There is no question that punitive damages may be recovered in an action for conversion.' (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678.) The Court finds the allegations as to conversion of personal property is sufficient to support a prayer for punitive damages. Plaintiff alleges '[a]fter NGT purported to terminate that Agreement in or about December 2022, Plaintiff repeatedly demanded that NGT return such property. Defendant has failed and refused to return that property despite Plaintiff's demands therefor, wrongfully and without Plaintiff's consent, in violation of Plaintiff's right to immediate and exclusive possession.' (First Amended Complaint, ¶ 53.) The allegations indicate that Defendant is still in possession of the personal property. The allegations support Defendant acted with a willful and conscious disregard of the rights of Plaintiff.

Defendant also seeks to strike Plaintiff's prayer for relief in paragraph 6, which prays '[f]or three times the actual damages sustained, costs, and reasonable attorney's fees, pursuant to 15 U.S.C. §1117.' The Lanham Act permits an award of attorneys' fees to the prevailing party in 'exceptional cases.' 15 U.S.C. § 1117(a). 'While the term 'exceptional' is not defined in the statute, generally a trademark case is exceptional for purposes of an award of attorneys' fees when the infringement is malicious, fraudulent, deliberate or willful.' Lindy Pen, 982 F.2d at 1409.

(Gracie v. Gracie (9th Cir. 2000) 217 F.3d 1060, 1068.) Calendar No.: Event ID:  TENTATIVE RULINGS

3004389 CASE NUMBER: CASE TITLE:  DAVIS TRUCKING LLC VS BIMBO BAKERIES USA INC [IMAGED]  37-2023-00015198-CU-BC-CTL The Court agrees with Plaintiff that the plain language of 15 U.S.C. § 1117 does not require the pleading of specifics showing 'malicious, fraudulent, deliberate or willful' infringement to obtain treble damages.

The limitation in 15 U.S.C. § 1117 is as to attorney's fees. 'The court in exceptional cases may award reasonable attorney fees to the prevailing party.' (15 U.S.C.A. § 1117.) No such limitation is stated as to obtaining treble damages and Defendant fails to cite any authority that holds such is the case. The Court believes the allegations are sufficient to obtain treble damages.

Plaintiff asserts that the requirement that the infringement be 'malicious, fraudulent, deliberate or willful' is not a pleading requirement. Neither party cites to any authority that applies the California pleading standard to 15 U.S.C. § 1117. The cases cited by the Defendant involve post-judgment cases. 'The Supreme Court explained that 'an 'exceptional' case is simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.'' (SunEarth, Inc.

v. Sun Earth Solar Power Co., Ltd. (9th Cir. 2016) 839 F.3d 1179, 1180 [Citation omitted and emphasis added].) '[A] request for fees under the Lanham Act should examine the 'totality of the circumstances' to determine if the case was exceptional, Octane Fitness, 134 S.Ct. at 1756, exercising equitable discretion in light of the nonexclusive factors identified in Octane Fitness and Fogerty, and using a preponderance of the evidence standard.' (Id. at 1181.) Given that the standard in patent cases are applied to Lanham Act cases and exceptional cases can include whose where the case was litigated in an 'unreasonable manner,' the Court concludes the 'exceptional' standard may be met after the pleading stage. (Octane Fitness, LLC v. ICON Health & Fitness, Inc. (2014) 572 U.S. 545, 554.) This is an indication that the pleading standard does not require the same as what is ultimately proven at trial. Further, the plain language of 15 U.S.C. § 1117 does not indicate that it sets forth the pleading standard. The Court declines to grant the motion.

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