MORRIS v. MRC CREATIONS, LLC, ET AL.

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.)

Plaintiff must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (Code Civ. Proc., Sec. 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) Plaintiff is required to allege facts "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action." (Gressley v.

Williams (1961) 193 Cal.App.2d 636, 643-644. Whether the Plaintiff will be able to prove the pleaded facts is irrelevant. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-610.)

III. ANALYSIS OF DEMURRER

A. Negligence. Sustain. The first cause of action appears to allege negligence against all Defendants based on the condition of the premises and potentially a products liability action on one or more theories against the shoe manufacturer. Premises liability is a form of negligence that imposes a duty on a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

Plaintiff alleges that Golden Delta made the shoe. (Complaint, P. 14.) The complaint then alleges in a conclusory manner, that Defendants, collectively owned, operated, maintained, oversaw, directed, and/or otherwise controlled the photoshoot. (Complaint, P. 23.) Plaintiff's opposition points to other conclusory allegations that Defendant owed a duty in connection with the premises, and that Defendant caused Plaintiff's injury: "An un-welcomed risk was thus created by Defendants due to their negligence and inappropriate acts and/or omissions in connection with the Premises and the Photoshoot, and Plaintiff suffered the sort of injuries that are the foreseeable result of Defendants' negligence as set forth herein." (Opp. 5:23-26.)

The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Plaintiff is required to allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) The premises liability claim is inadequately pled. The negligence claim is fatally uncertain.

B. Negligent undertaking. Sustain. This claim is based on alleged safety policies, training, and proper equipment in setting up the premises for the photo shoot. (Complaint, P. 40.) Again, Defendant is alleged to be the manufacturer of the shoe, and Plaintiff did not allege facts other than conclusions that Golden Delta had any role in the photo shoot. To required elements for this claim are: "(1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor's failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor's undertaking." (Paz v.

State of California (2000) 22 Cal.4th 550, 559.) A person who has not created a peril is not liable in tort for failing to take affirmative action to protect another unless the person has some relationship that gives rise to a duty to act. (Id. [" one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking."].) Contrary to Plaintiff's opposition, the complaint does not "clearly" allege that Golden Delta undertook any act in connection with the photo shoot. (Opp. 6:12-13.)

The allegations are conclusory and alleged against all Defendants as a group. (Complaint, P. 38, 40, 42-44.)

C. Premises liability. Overruled. This claim is not alleged against Golden Delta.

D. Strict Products liability - failure to warn. Sustained. This claim is based on the theory that Golden Delta had a duty to warn about using the shoe at the premises. (Complaint, P. 71.) Negligence based on a failure to warn requires a plaintiff to show that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, "i.e., what a reasonably prudent manufacturer would have known and warned about." (Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002.)

A strict-products liability claim requires a plaintiff to prove only that the defendant did not adequately warn of a particular risk "that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution." (Id.) Plaintiff alleges that the shoe came with a warning label. (Complaint, P. 16.) The alleged facts do not support that Golden Delta caused Plaintiff's injuries, as there are no facts showing that Golden Delta had any connection with the photo shoot.

E. GOLDEN DELTA'S MOTION TO STRIKE

Golden Delta separately moves to strike the claim for punitive damages as the complaint is devoid of facts constituting malice, fraud, or oppression. The allegations are conclusory. Plaintiff seeks attorney's fees under the Labor Code which implicates employers, and Golden Delta is not alleged to have employed Plaintiff.

1) Legal standards on motion to strike

The court may, upon motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the Court. Code Civ. Proc., Sec. 436 subd (a)-(b). Grounds for the motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. (Code Civ.

Proc., Sec. 437.) A plaintiff may recover on a claim for exemplary damages where the defendant is guilty of oppression, fraud, or malice. (Civ. Code, Sec. 3294 subd. (a) .) The predicate acts to support the claim must be intended to cause injury or must reflect conduct that is "malicious" or "oppressive" as defined by statute. "Malice" is defined as "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, Sec. 3294 subd. (c)(1); College Hospital Inc. v. Superior Cour t (1994) 8 Cal.4th 704, 725 ["malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them"].) "Oppression" is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." (Civ. Code, Sec. 3294 subd. (a) subd. (c)(2).) Absent an intent to injure the plaintiff, 'malice' requires more than a 'willful and conscious' disregard of the plaintiffs' interests.

The conduct must be "despicable" which is a "powerful term that refers to circumstances that are 'base,' 'vile,' or 'contemptible.'" (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Additionally, punitive damages against a corporate employer is permitted where there is a showing of advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice on the part of an officer, director or managing agent of the corporation. (Civ. Code, Sec. 3294.)

2) Analysis of Motion to Strike

The complaint lacks the specificity required to support a claim for punitive damages, particularly against Golden Delta, or acts that would fall within the definition of malice, fraud, or oppression or despicable conduct. Plaintiff sees recovery of punitive damages based on strict liability and failure to warn claims because Plaintiff sold the product without a warning. As noted previously, the claim is defective and is undermined by the allegation that the product came with a warning. (Complaint, P. 30.)

Conduct constituting negligence, gross negligence or recklessness is insufficient to support a claim for punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) Plaintiff's claims are based on alleged negligent failures to act. (Complaint, P.28, 42.) While Plaintiff has alleged corporate ratification, the specific facts alleged as noted above do not infer malice or oppression. (Complaint, P. 36.) Predicate acts supporting the claim must be intentional or despicable. "Malice" implies an act "conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.

There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient."(Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894 [italics in original]; ["In ultimate analysis, malice in fact is malice of evil motive."].) The request for attorney's fees is not alleged against Golden Delta. The motion to strike attorney's fees is denied attorney's fees is denied.

III. CONCLUSION

The complaint is fatally uncertain. Accordingly, demurrer is SUSTAINED in part as to the 1 st cause of action for negligence, 2 nd cause of action for negligent undertaking, and the 5 th cause of action for strict products liability. Demurrer to the 3 rd cause of action for premises liability is not alleged against Golden Delta, and therefore, demurrer is overruled. The motion to strike the claim for punitive damages is GRANTED. The request to strike attorney's fees is DENIED.

[TENTATIVE] ORDER GRANTING THE MOTION TO STRIKE PORTIONS OF COMPLAINT (2412)

I. BACKGROUND

Moving party is 571 South Anderson LLC ("571".) The photo shoot that Plaintiff participated in was located at 571 South Anderon, Unit B, in Los Angeles. (Complaint, P. 11.) 571 moves to strike the allegations forming the basis of Plaintiff's claim for punitive damages sought in the first cause of action for negligence, the second cause of action for negligent undertaking, and the third cause of action for premises liability. The complaint does not allege specific facts against 571, who is the owner of the premises, demonstrating that 571 acted with malice, fraud, or oppression.

II. LEGAL STANDARDS

The court may, upon motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the Court. Code Civ. Proc., Sec. 436 subd (a)-(b). Grounds for the motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. (Code Civ.

Proc., Sec. 437.) A plaintiff may recover on a claim for exemplary damages where the defendant is guilty of oppression, fraud, or malice. (Civ. Code, Sec. 3294 subd. (a) .) The predicate acts to support the claim must be intended to cause injury or must reflect conduct that is "malicious" or "oppressive" as defined by statute. "Malice" is defined as "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, Sec. 3294 subd. (c)(1); College Hospital Inc. v. Superior Cour t (1994) 8 Cal.4th 704, 725 ["malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them"].) "Oppression" is defined as "despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights." (Civ. Code, Sec. 3294 subd. (a) subd. (c)(2).) Absent an intent to injure the plaintiff, 'malice' requires more than a 'willful and conscious' disregard of the plaintiffs' interests.

The conduct must be "despicable" which is a "powerful term that refers to circumstances that are 'base,' 'vile,' or 'contemptible.'" (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Additionally, punitive damages against a corporate employer is permitted where there is a showing of advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice on the part of an officer, director or managing agent of the corporation. (Civ. Code, Sec. 3294.)

III. DISCUSSION

The complaint lacks the specificity required to support a claim for punitive damages against 571, or acts that would fall within the definition of malice, fraud, or oppression or despicable conduct. Plaintiff sees recovery based on negligence claims. Conduct constituting negligence, gross negligence or recklessness is insufficient to support a claim for punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) Plaintiff argues that the claim arises from Defendant "allowing the use of the dangerous footwear on their Premises and the slippery/hazardous condition of the Premises" which does not constitute "vile, base, or contemptible" conduct or "miserable, wretched or loathsome [such] that it would be looked down upon and despised by ordinary decent people." (Mock v.

Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) While Plaintiff has alleged corporate ratification, the specific facts alleged as noted above do not infer malice or oppression. (Complaint, P. 36.) The alleged acts are described as "failures." (Complaint, P. 41, 42, 51.) Predicate acts supporting the claim must be intentional or despicable. "Malice" implies an act "conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. There must be an intent to vex, annoy or injure.

Mere spite or ill will is not sufficient."(Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894 [italics in original]; ["In ultimate analysis, malice in fact is malice of evil motive."].)

IV. CONCLUSION

Based on the foregoing, the motion to strike is GRANTED. | Home -->)" -->