Philip Brandes v. Paper Source, LLC

Case Number

23CV05675

Case Type

Hearing Date / Time

Mon, 09/16/2024 - 10:00

Nature of Proceedings

Motion to Strike Portions Of Plaintiff’s Unverified Complaint

Tentative Ruling

Philip Brandes v. Paper Source, LLC

Case No. 23CV05675           

Hearing Date: September 16, 2024                                       

HEARING:              Motion to Strike Portions Of Plaintiff’s Unverified Complaint

ATTORNEYS:        For Plaintiff Philip Brandes: A. Barry Cappello, Richard Lloyd, Andrew Dickerson, Cappello & Noel, LLP

                                    For Defendant Paper Source, LLC: William S. Edic, Mavredakis Phillips

                                   

TENTATIVE RULING:

The motion of defendant to strike portions of plaintiff’s complaint is granted, in part, with leave to amend. The prayer for punitive damages alleged in “Prayer” paragraph 4 of plaintiff’s complaint is stricken. Except as otherwise herein granted, the motion to strike is denied. Plaintiff shall file and serve a first amended complaint on or before September 27, 2024.

Background:

On December 22, 2023, plaintiff Philip Brandes (Brandes) filed a complaint against defendant Paper Source, LLC (Paper Source), alleging one cause of action for negligence. As alleged in the complaint:

Paper Source sells stationary, greeting cards, and other paper goods to the public. On December 23, 2021, Brandes entered a store located at 1125 State Street in Santa Barbara, California (the store) which is owned and operated by Paper Source. The entryway has approximately five square feet of white tile directly in front of double doors that lead to the interior of the store, and directly inside of the doors is a sloped, linoleum-covered, ramp that patrons must traverse to enter the main shopping area of the store. While exiting the store, Brandes slipped and fell on the ramp, which had become slick from rain that had accumulated on its linoleum surface and which has no anti-slip protection of any kind. Brandes ruptured his quadricep tendon in the fall and had to be transported to the hospital. The injury required surgical repair and limited Brandes’ mobility. Doctors estimate that the quadricep muscle will be 10 to 15 percent weaker, and Brandes will likely require future medical treatment.

On July 9, 2024, Paper Source filed a motion for an order striking portions of the complaint filed by Brandes on the grounds that Brandes has failed to allege facts showing that the conduct of Paper Source was despicable, or that Paper Source acted with oppression, fraud, or malice, sufficient to support an award of punitive damages. The motion is opposed by Brandes.

Analysis:

“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).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., §436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Relevant here, Civil Code section 3294 permits the recovery of punitive damages by a plaintiff “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).) (Note: Undesignated code references shall be to the Civil Code unless otherwise indicated.) As used in section 3294, “ ‘[m]alice’ 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.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “ ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

The parties here do not appear to dispute that the allegations of the complaint do not describe conduct by Paper Source which would constitute fraud under section 3294. (See e.g., Opp. at pp. 3-5 [arguing that the conduct of Paper Source demonstrates “malice” or a “willful and conscious disregard” for its patrons].) In addition, Brandes does not appear to contend, and alleges in the complaint no facts to show, that the conduct of Paper Source was intended to cause injury to Brandes. Therefore, whether Brandes seeks to recover punitive damages based on malice or oppression, Brandes must allege facts which, if proven, would be sufficient to show that the conduct of Paper Source was despicable. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (College Hospital) [also noting that, absent intent, “malice” requires more than a willful or conscious disregard of the plaintiff’s rights].)

“Despicable conduct” for purposes of an award of punitive damages means “conduct that is ‘ “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” ’ … [Citation.]” (McNeal v. Whittaker, Clark & Daniels, Inc. (2022) 80 Cal.App.5th 853, 872 [also noting that such conduct has the character of outrage associated with a crime].) “ ‘The wrongdoer “must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff’s rights [citations].” Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ ” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287, citations omitted.)

In addition, cases such as the present action “involving unintentional torts are far fewer and the courts have had to consider various factors in determining whether the defendant’s conduct was despicable. Thus, punitive damage awards have been reversed where the defendant’s conduct was merely in bad faith and overzealous [citations], or the defendant took action to protect or minimize the injury to the plaintiff. [Citations.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212 (Lackner).)

In the complaint, Brandes alleges that at the time of the incident, Paper Source knew that it was raining and that some areas of the store had become slippery. (Compl., ¶ 15.) Despite this knowledge, Brandes alleges, Paper Source through its store management, corporate officers, and agents, failed to maintain a safe and dry entryway free from hazards, failed to inspect the entryway, failed to provide adequate warning signs or non-slip surfaces for Brandes and others to walk on, and failed to establish, maintain, or implement store policies and procedures to prevent slips and falls or that would have prevented the incident or similar incidents from occurring. (Id. at ¶¶ 14-16.) For present purposes, the Court assumes the truth of these allegations. (Clauson, supra, 67 Cal.App.4th at p. 1255.)

The allegations of the complaint described above do not show, as a matter of law, that Paper Source or any of its employees acted in an evil, vile, base, or contemptible manner. The allegations also do not establish a violation of any law or policy. Instead, the allegations further described above demonstrate, at most, a negligent or reckless failure to inspect the entryway where the incident occurred or to undertake measures to maintain a safe store entryway for its patrons.

The Court further notes that Brandes alleges that, after the incident, staff at the store rotated an existing entryway doormat ninety degrees. It can be inferred from this express allegation that a doormat was placed at the entryway at some point before the incident alleged in the complaint. This allegation appears to suggest that some measures were undertaken to protect patrons of the store and minimize injuries. Though this allegation indicates that there was some awareness by store employees that the ramp may have been or was slippery, the allegations of the complaint are insufficient to show any knowledge by management of a risk of injury to others before the incident or the time the doormat was placed. (Lackner, supra, 135 Cal.App.4th at p. 1213.) Even if the allegations of the complaint, if proven, are sufficient to show gross negligence by store employees or managers, “proof of … even gross negligence ... is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) The remaining allegations of the complaint which appear to relate to the punitive damages claim are conclusory and do not by themselves support a claim for punitive damages.

In addition, the complaint alleges in a conclusory manner that the store’s management failed to undertake appropriate measures to prevent the incident. To the extent Brandes seeks to hold Paper Source, alleged to be a corporate employer, liable for punitive damages based on the acts of one of its employees, “[w]ith 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.” (Civ. Code, § 3294, subd. (b).) The additional requirements imposed under section 3294 requires the employer to “have ‘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 the damages are awarded or [been] personally guilty of oppression, fraud, or malice.’ [Citation.] Subdivision (b) also states that, ‘[w]ith respect to a corporate employer,’ the offending conduct ‘must be on the part of an officer, director, or managing agent of the corporation.’ [Citation.]” (College Hospital, supra, 8 Cal.4th at p. 721.) To the extent Brandes contends a store employee acted with malice or oppression, Brandes fails to allege facts that would show the requisite advanced knowledge by Paper Source. The allegations of the complaint are also conclusory with respect to any offending conduct on the part of any officer, director, or managing agent of Paper Source with respect to the conditions allegedly present at the store, and insufficient to support an award of punitive damages.

For all reasons discussed above, the allegations of the complaint are insufficient to demonstrate that Paper Source engaged in despicable conduct even if Brandes were to prove these allegations at trial. Therefore, the Court will grant the motion. Though the Court will grant the motion, Paper Source has requested that the Court strike allegations including “grossly careless”, “reckless”, “reckless conduct”, and other similar language from paragraphs 14, 15, 16, 20 through 22, and 29 through 32 which appear to be essential to the claims or matters alleged in these paragraphs of the complaint. Therefore, the Court will deny the motion to the extent it requests that the Court strike these allegations. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

Brandes requests leave to amend the complaint. The standards for granting leave to amend on a motion to strike are analogous to an order sustaining a demurrer. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) Brandes bears the burden to show a reasonable possibility that the defects addressed herein can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Brandes asserts that there would be no impairment of the rights of Paper Source in granting leave to amend. However, Brandes offers no reasoned legal or factual argument demonstrating in what manner the complaint may be amended with respect to the claim for punitive damages or how an amendment will change its legal effect. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Though Brandes asserts only an abstract right to amend the complaint, because the complaint is an original pleading which does not show on its face that there exists no reasonable possibility that Brandes can allege facts sufficient to support an award of punitive damages against Paper Source, the Court will grant Brandes leave to amend the complaint with respect to the punitive damages claim. Brandes may amend the complaint only as authorized herein. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Procedural matters:

Each page of the complaint filed by Brandes is not numbered consecutively at the bottom. (See Cal. Rules of Court, rule 2.109.) Counsel is reminded of their obligation to comply with court rules. The Court expects that this deficiency will be corrected in any first amended complaint that may be filed by Brandes.