Judge: Theodore R. Howard, Case: 22-1260756, Date: 2022-11-10 Tentative Ruling

Defendant Smart & Final Stores, LLC’s unopposed Motion to Strike Portions of Plaintiff Anahi Avila’s Complaint is GRANTED with leave to amend.

Pursuant to Cal. Code of Civ. Proc. § 436, the Court may strike out any irrelevant, false or improper matter inserted in any pleading” and “strike out all or any part of any pleading not drawn or filed in conformity with the laws of the state, a court rule, or an order of the court.”

Civil Code § 3294(a) provides that punitive damages may be awarded “[i]n an action for 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. . .”

Here, the allegations pertaining to punitive damages are conclusory.  (See Complaint, pg. 3, para. 11(g) and 14(a)(2).)  Defendant’s actions as alleged do not rise to the level of despicable conduct.  “Despicable conduct” is conduct that is so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)  In addition, the allegations in the Complaint are insufficient to support a claim of fraud against Defendant.

Furthermore, by failing to oppose the motion, Plaintiff created an inference that the motion is meritorious.  (See, e.g., Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20; see also, Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Accordingly, the motion is GRANTED with 10 days leave to amend.

Moving party to give notice.