Judge: William A. Crowfoot, Case: 22STCV23626, Date: 2022-10-19 Tentative Ruling

Case Number: 22STCV23626    Hearing Date: October 19, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On July 21, 2022, plaintiff Samantha Alvarez filed this action against defendants Xperience Restaurant Group dba Acapulco Restaurant Y Cantina, FM Restaurants Holdco, LLC, FM Restaurants Acapulco Opco, LLC, and FM Restaurants Acapulco Finance, LLC (collectively, “Defendants”).  Plaintiff asserts causes of action for negligence, negligent hiring, supervision, and retention, assault, battery, and intentional infliction of emotional distress.  Plaintiff alleges that on or about July 24, 2021, she suffered second degree burns to her face, neck, chest, and ears when, as part of the theatrical food presentation, Defendants’ employee set a fajita plate on fire with excessive amounts of flammable liquid and a lighter.  (Compl., ¶ 1.)  Plaintiff alleges that the waiter squirted flammable liquid from a flimsy plastic bottle onto the fajita plate which splashed onto Plaintiff.  (Compl., ¶ 21.)  He then used a lighter to ignite the flame and the bottle exploded, a fire erupted, and flames shot up from the plate onto Plaintiff’s face, mouth, head, hair, ears, neck, chest, and fingers.  (Ibid.) 

On September 7, 2022, Defendants filed this motion to strike portions of Plaintiff’s Complaint, including lines 19 and 20 of paragraph 22, lines 2 to 6 of paragraph 24, as well as paragraphs 50, 51, 54, 62, 67, 73, and Plaintiff’s prayer for punitive and exemplary damages.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435 subd., (b)(1).)  The court may, upon a 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); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)    An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ Proc, § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

“Before filing a motion to strike . . . 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.”  (Code Civ Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).) 

Defense counsel, Ernest Martz, declares that on August 15, 2022 and August 22, 2022, he spoke with Plaintiff’s counsel over the telephone to meet and confer regarding the grounds for bringing this motion to strike.  The meet and confer requirement is satisfied.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).)  An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice.  (Id., subd. (b).)  With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Ibid.)   

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Plaintiff’s Complaint is too conclusory to state a case for punitive damages.  Plaintiff does not identify a single director, officer, or managing agent of any of the four corporate defendants who committed, authorized, or ratified the accidental explosion.   

Defendants’ motion to strike is GRANTED.  Leave to amend is not granted at this time.  If Plaintiff later determines through discovery that there are facts which give rise to a claim for punitive damages, Plaintiff may file a motion and seek leave to file an amended complaint. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.