Skip to main content.

Fraud Alert: Scam Text Messages Claiming DMV Penalties -

We have been made aware of fraudulent text messages being sent to individuals claiming to be from the Department of Motor Vehicles (DMV) or the court system. These messages often state that the recipient owes penalties or fees related to traffic violations or DMV infractions and may include a link or phone number to resolve the matter. 

Take these steps to reduce the chances of falling victim to a text message scam:

  • Never respond to unsolicited or suspicious texts — If you receive a message asking for personal or financial information, do not reply.
  • Verify the source — If you are unsure, always contact the DMV through official channels.
  • Call the DMV if you have concerns — The DMV customer service team is available to help you at 800-777-0133.

Please see DMV warning about fraudulent texts: https://www.dmv.ca.gov/portal/news-and-media/dmv-warns-of-fraudulent-te…

Jury Scam alert -

The Santa Barbara Superior Court has received complaints about individuals trying to scam members of the public by pretending to be court officers or officials. The Jury Services office of the Santa Barbara Superior Court does not call citizens to request payments for failing to appear for jury duty. California law does not permit citizens to pay a fine in lieu of jury duty. If you receive such a call simply hang up and, if the scammer persists, call your local law enforcement agency. Learn more about the recent scam warning.

Notice to Jurors:

Prospective jurors summoned for jury service can expect to receive their jury summons in postcard form. Please check your mail for a postcard with important instructions to fulfil your jury service. Visit the Jury Services page for more information.

Teresa Nicoll et al vs Smart and Final Stores LLC

Case Number

24CV02377

Case Type

Civil Law & Motion

Hearing Date / Time

Fri, 10/11/2024 - 10:00

Nature of Proceedings

CMC; Motion to Strike

Tentative Ruling

The motion to strike the punitive damage allegations from the FAC is granted, with leave to amend on or before October 25, 2024, should plaintiffs opt to do so. Even if plaintiffs do not amend at this time, they may conduct discovery in an attempt to obtain facts to support a punitive damage allegation, and move to amend to add the claim at a later date.

Background: Plaintiffs Teresa Nicoll and Brendon Nicoll filed their original complaint on April 26, 2024, and their First Amended Complaint (FAC) on June 10, 2024. The Judicial Council Form FAC alleges causes of action for negligence and products liability, and alleges that plaintiffs purchased an oven-roasted First Street Chicken from Smart & Final on December 31, 2023, which was crawling with live maggots inside of it at the time of purchase and at the time they went to consume it, which was a substantial factor in causing them to get ill once they discovered the live maggots. The FAC alleges that defendant had a duty to warn about the “defective chicken product,” and failed to do so. It further alleges, on information and belief, that Smart & Final had advance knowledge of the condition of the chicken, and failed to report that fact to its customers or to the Santa Barbara Health Department. The cause of action for negligence alleges that “By virtue of their knowledge of the contaminated food product, and their failure to warn their customer or the Health Department, Plaintiffs are entitled to punitive damages in that the defendant acted with malice as a result of its conscious disregard for the safety of its customers, and specifically Plaintiffs.”

Motion to strike punitive damages: On July 10, 2024, defendant Smart & Final Stores LLC filed a motion to strike the punitive damages allegation from the FAC, on the basis that the FAC failed to state sufficient specific facts to constitute oppression, malice or fraud to support a claim for punitive damages. The motion reflects compliance with the pre-filing meet-and-confer requirement.

Plaintiff has not opposed the motion to strike.

ANALYSIS: The motion is granted, with leave to amend on or before October 25, 2024, should plaintiffs opt to do so. Even if plaintiffs do not amend at this time, they may conduct discovery in an attempt to obtain facts to support a punitive damage allegation, and move to amend to add the claim at a later date.

1.         Motions to strike punitive damages.

On motion to strike, a court can strike out any irrelevant, false, or improper matter inserted in a pleading. (Code Civ. Proc., §§ 435, subd. (b)(1); 436, subd. (a).) Just as with a demurrer, the grounds for a motion to strike must appear on the face of the pleading or from matter which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint is an “immaterial allegation,” and is considered “irrelevant matter” subject to a motion to strike. (Code Civ. Proc., §§ 431.10, subds. (b)(3), (c), and 436, subd. (a).)

The courts have long been charged with an important gate-keeping function with respect to claims for punitive damages. Because of the inflammatory nature of a punitive damage allegation, the law requires that all pleadings in which punitive damages are sought allege specific facts which, if proven, would constitute malice, oppression, or fraud supporting a punitive damage request, as those terms are defined by Civil Code section 3294(c). (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) When presented with a motion to strike, a trial court is obligated to strike from a pleading a request for punitive damages if there are insufficient specific facts alleged to meet the statutory definitions of malice, oppression, or fraud. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; and Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Under Civil Code section 3294(c), “malice” 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).) An allegation of “intent” is an allegation of fact which is sufficiently alleged through use of the term. (See City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803 [“Allegations of the defendant’s knowledge and intent to deceive may use conclusive language.”].)

 “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).)

The Legislature added the element of “despicable conduct” to the statutory definitions of malice [related to one of the two alternate means of showing “malice” under Section 3294(c)(1)] and oppression in 1987, for the purpose of providing greater assurance that punitive damages will be awarded only to punish conduct that is truly blameworthy and reprehensible. (Mock v. Michigan Millers Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.) It has been defined to mean conduct which is so vile, contemptible, miserable, wretched, or loathsome that it would be looked down on and despised by ordinary decent people. (Id.)

2.         Application

The FAC contends that defendant’s conduct establishes its “malice,” thereby entitling plaintiffs to allege a claim for punitive damages. (FAC @ p.4, ¶ GN-1, last sentence.) As noted above, “malice” is specifically defined by Civil Code section 3294(c)(1) to mean conduct which is intended by the defendant to cause injury to plaintiff, or, despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. The FAC does not allege that defendant intended to cause injury to plaintiffs, eliminating that as a basis for a punitive damage allegation.

The alternative way of establishing malice requires not only that the defendant acted in a willful and conscious disregard of the rights or safety of others, but also that such conduct rose to the level of constituting “despicable conduct,” as that term has subsequently been defined by the courts, i.e., conduct so vile, contemptible, miserable, wretched, or loathsome that it would be looked down on and despised by ordinary decent people.

The FAC alleges, on information and belief, that Smart & Final had advance knowledge of the condition of the chicken, and failed to report that fact to its customers or to the Santa Barbara Health Department. While such conduct may constitute a conscious disregard of the rights or safety of plaintiffs as customers who purchased the chicken, the allegations are insufficient to establish its conduct as “willful.” More importantly, while the Court would certainly classify the sale of maggot-infested chicken as disgusting, the allegations of the FAC are insufficient to cause it to rise to the level of despicable conduct, within the meaning of Section 3294(c)(1). Simply having advance knowledge of the condition of the chicken is insufficient, and does not foreclose the possibility that defendant was simply negligent in failing to either remove it from sale or to notify the Health Department, if in fact such notification requirement exists.

Although the FAC does not appear to allege an entitlement to punitive damages based upon oppression or fraud, the Court also cannot find that the FAC contains sufficient specific facts to support a punitive damage allegation based upon either oppression or fraud.  

Since there are insufficient specific facts alleged in the FAC to support a punitive damage allegation, the Court will therefore grant the motion to strike those allegations from the FAC.

The Court will grant plaintiffs leave to file a Second Amended Complaint, no later than October 25, 2024, to provide them with an opportunity to allege sufficient specific facts to support a claim for punitive damages, if they are able to do so. Certainly, even if plaintiffs opt not to file a Second Amended Complaint at this time, they may conduct discovery with respect to a possible punitive damage claim against defendant, and move for leave to amend to add the claim at a later date.

If no SAC is filed by October 25, 2024, that date will trigger defendant’s obligation to file its responsive pleading.

Was this helpful?

Yes No
This question is for testing whether or not you are a human visitor and to prevent automated spam submissions.
Was this helpful?