SANORA ALEMAN VS WALMART INC.

Tentative Rulings

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Case Number: 20STLC06885 Hearing Date: September 13, 2021 Dept: 26

Aleman v. Walmart, Inc., et al. 20STLC06885

MOTION TO VACATE/SET ASIDE MOTION TO\r\nDISMISS

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(??)

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TENTATIVE RULING:

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Plaintiff Sanora Aleman’s Motion to Set Aside/Vacate\r\nDefendants Dismissal is DENIED.

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ANALYSIS:

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On August 14, 2020, Plaintiff Sanora Aleman (“Plaintiff”)\r\nfiled the instant action for premises liability against Defendant Walmart, Inc.\r\n(“Defendant”). On November 20, 2020, Defendant filed a Motion to Strike the\r\nRequest for Punitive Damages, which the Court granted without leave to amend on\r\nAugust 3, 2021. Defendant also filed a Motion to Dismiss on July 13, 2021,\r\nwhich is set for hearing on November 2, 2021.

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Plaintiff filed the instant “Motion to Set Aside/Vacate\r\nDefendants Dismissal” on September 3, 2021. The Motion to Vacate was initially\r\nset for hearing on September 7, 2021. Following Plaintiff’s failure to appear,\r\nthe Court continued the hearing on the Motion to Vacate to September 13, 2021.\r\n(Minute Order, 09/07/21.) No opposition has been filed to date.

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Discussion

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Plaintiff has not demonstrated\r\nproper notice of the Motion as required by the Code of Civil Procedure. The\r\nMotion was served on September 3, 2021 by mail for a hearing on September 7,\r\n2021. (Motion, Proof of Service, ¶¶4, 6.) Code of Civil Procedure section 1005,\r\nsubdivision (a) requires 16 court days’ notice prior to the hearing if the\r\npapers are personally delivered. In the case of service by mail, as here, an\r\nadditional five regular days are added by Code of Civil Procedure section 1013,\r\nsubdivision (b). The Motion, therefore, should have been served by August 8,\r\n2021. The Court additionally notes that the proof of service does not indicate\r\nthe address at which defense counsel was purportedly served. (Id. at\r\n¶5c.) Failure to give proper notice of a motion is not only a violation of the\r\nstatutory requirements but of due process. (Code Civ. Proc., § 1005; Jones\r\nv. Otero (1984) 156 Cal.App.3d 754, 757.)

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Additionally, the Motion is not brought pursuant to any\r\nlegal authority to “vacate” Defendant’s Motion to Dismiss. As the Court noted\r\nin its ruling on Plaintiff’s Motion to Strike Defendant’s Motion to Strike\r\nPunitive Damages, “[t]he memorandum must contain a statement of facts, a\r\nconcise statement of the law, evidence and arguments relied on, and a\r\ndiscussion of the statutes, cases, and textbooks cited in support of the\r\nposition advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b).) Plaintiff’s failure\r\nto provide a memorandum as required by the Rule is an “admission that the\r\n[request] is without merit and cause for its denial.” (Cal. Rules of Court,\r\nRule 3.1113, subds. (a), (b); In re Marriage of Falcone & Fyke\r\n(2012) 203 Cal.App.4th 964, 976.)

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Plaintiff, therefore, has not shown that the Court has any\r\ngrounds to “vacate” or “set aside” Defendant’s Motion to Dismiss.

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Conclusion

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Plaintiff Sanora Aleman’s Motion to Set Aside/Vacate\r\nDefendants Dismissal is DENIED.

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Court clerk to give notice.

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Case Number: 20STLC06885 Hearing Date: August 3, 2021 Dept: 26

Aleman v. Walmart, Inc., et al. 20STLC06885

MOTION TO STRIKE PUNITIVE DAMAGES

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(CCP §§ 435, 435)

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TENTATIVE RULING:

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Defendant Walmart Inc.’s Motion\r\nto Strike Punitive Damages from Plaintiff’s Complaint is GRANTED WITHOUT LEAVE\r\nTO AMEND.

ANALYSIS:

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On August 14, 2020, Plaintiff Sanora Aleman (“Plaintiff”)\r\nfiled this action for premises liability against Defendant Walmart, Inc.\r\n(“Defendant”). On November 20, 2020, Defendant filed the instant Motion to Strike\r\nthe Request for Punitive Damages. The Motion to Strike initially came for\r\nhearing on June 1, 2021 and was continued to allow Defendant to file a meet and\r\nconfer declaration. (Minute Order, 06/01/21.) Defendant filed a meet and confer\r\ndeclaration the same day. To date, no opposition has been filed.

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Discussion

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The Motion is now accompanied by\r\na meet and confer declaration as required by Code of Civil Procedure section\r\n435.5. (Colbert Decl., filed 06/01/21.) Defendant moves to strike the\r\nallegations and prayer for punitive damages on the grounds that they do not\r\nmeet the statutory requirements.

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Punitive damages are authorized by Civil Code section 3294\r\nin non-contract cases “where the defendant has been guilty of oppression,\r\nfraud, or malice, express or implied . . . .” \r\n(Civil Code, § 3294, subd. (a).) Malice means conduct which is intended\r\nby the defendant to cause injury to the plaintiff or despicable conduct which\r\nis carried on by the defendant with a willful and conscious disregard of the\r\nrights or safety of others. (Civil Code, § 3294, subd. (c)(1).) Oppression\r\nmeans despicable conduct that subjects a person to cruel and unjust hardship in\r\nconscious disregard of that person’s rights. (Civil Code, § 3294, subd.\r\n(c)(2).) Finally, fraud means an intentional misrepresentation, deceit, or\r\nconcealment of a material fact known to the defendant with the intention on the\r\nparty of the defendant of thereby depriving a person of property or legal\r\nrights or otherwise causing injury. (Civil Code, § 3294, subd. (c)(3).)

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Plaintiff fails to allege sufficient facts to support the\r\nprayer for punitive damages in the Complaint. Plaintiff’s Complaint contains\r\ncauses of action for general negligence and premises liability. Plaintiff\r\nalleges that when she visited Defendant’s store, a case of water fell from the\r\ntop of a stack onto her leg. (Compl., ¶GN-1.) There are no allegations of any\r\nintentional conduct by Defendant that resulted in Plaintiff’s injury, or even\r\nconduct carried out in willful and conscious disregard of the rights or safety\r\nof others. (Ibid.) Therefore, the Complaint does not include allegations\r\nthat establish Defendant “has been guilty of oppression, fraud, or malice.”\r\n(Civ. Code, § 3294, subd. (a).) Plaintiff has not opposed the Motion to\r\ndemonstrate that the punitive damages allegations are proper, or that the\r\nComplaint can be amended to sufficiently allege a lawful basis for punitive\r\ndamages, as is her burden. (See Goodman v. Kennedy (1976) 18 Cal.3d 335,\r\n348.)

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Conclusion

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Defendant Walmart Inc.’s Motion\r\nto Strike Punitive Damages from Plaintiff’s Complaint is GRANTED WITHOUT LEAVE\r\nTO AMEND.

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Moving party to give notice.

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Case Number: 20STLC06885    Hearing Date: June 1, 2021    Dept: 26

Aleman v. Walmart, Inc., et al

MOTION TO STRIKE PUNITIVE DAMAGES

(CCP §§ 435, 435)

TENTATIVE RULING:

Defendant Walmart, Inc.’s Motion to Strike Punitive Damages from Plaintiff’s Complaint is CONTINUED TO AUGUST 3, 2021 AT _____ AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, DEFENDANT IS TO FILE A MEET AND CONFER DECLARATION IN CONFORMITY WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION 435.5. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING PLACED OFF CALENDAR.

ANALYSIS:

On August 14, 2020, Plaintiff Sanora Aleman (“Plaintiff”) filed the instant action for premises liability against Defendant Walmart, Inc. (“Defendant”). On November 20, 2020, Defendant filed the instant Motion to Strike the Request for Punitive Damages (“the Motion”). Instead of filing an opposition to the Motion, Plaintiff filed a “Motion to Dismiss or Vacate Defendant’s Motion to Strike Punitive Damages” on December 4, 2020. The Court denied the Motion to Dismiss the Motion to Strike on January 13, 2021.

Discussion

The Motion is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5. “[T]he 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).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 435.5 (a)(2).) Thereafter, the moving party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 435.5, subd. (a)(3).)

Therefore, the hearing on the Motion to Strike is CONTINUED TO AUGUST 3, 2021 AT _____ AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. AT LEAST 16 COURT DAYS PRIOR TO THE NEW HEARING DATE, DEFENDANT IS TO FILE A MEET AND CONFER DECLARATION IN CONFORMITY WITH THE REQUIREMENTS OF CODE OF CIVIL PROCEDURE SECTION 435.5. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING PLACED OFF CALENDAR.

Moving party to give notice.

Case Number: 20STLC06885    Hearing Date: January 13, 2021    Dept: 26

Aleman v. Walmart, Inc., et al.

MOTION TO STRIKE

TENTATIVE RULING:

Plaintiff Sanora Aleman’s Motion to Dismiss or Vacate Defendant’s Motion to Strike the Request for Punitive Damages is DENIED.

ANALYSIS:

On August 14, 2020, Plaintiff Sanora Aleman (“Plaintiff”) filed the instant action for premises liability against Defendant Walmart, Inc. (“Defendant”). On November 20, 2020, Defendant filed a Motion to Strike the Request for Punitive Damages.

Plaintiff filed the instant “Motion to Dismiss or Vacate Defendant’s Motion to Strike Punitive Damages” on December 4, 2020. Defendant filed an opposition on December 30, 2020.

Discussion

The Motion is not accompanied by a proof of service demonstrating service of either the Motion or Notice of Hearing on Defendant. Failure to give notice of a motion is not only a violation of the statutory requirements but of due process. (Code Civ. Proc., § 1005; Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) It does appear that Defendant has notice of the Motion, however, since it filed an opposition.

Additionally, the Motion is not brought pursuant to any legal authority to strike Defendant’s Motion to Strike the Request for Punitive Damages. “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b).) Plaintiff, therefore, has not shown that the Court has any grounds to strike Defendant’s Motion to Strike the Request for Punitive Damages.

Based on the foregoing defects, Plaintiff Sanora Aleman’s Motion to Dismiss or Vacate Defendant’s Motion to Strike the Request for Punitive Damages is DENIED.

Court clerk to give notice.