DEANNA CLARK VS WALMART, INC.

Motion to Strike

Having considered the moving papers, the Court rules as follows. opposing papers have been filed.

BACKGROUND

On November 4, 2020, Plaintiff Deanna Clark (“Plaintiff”) filed a complaint against Defendant Walmart, Inc. for (1) premises and (2) negligence.  Plaintiff alleges that she slipped in clear puddle of liquid, and sustained injuries in Defendant’s store on November 5, 2019. 

On January 8, 2021, Defendant filed the subject motion to strike portions of Plaintiff’s complaint.  The motion is unopposed. 

Trial is set for May 4, 2022.

PARTY’S REQUESTS

Defendant Walmart, Inc. asks the Court to strike the prayer for punitive damages against Walmart on the grounds that no allegations to support punitive damages against Walmart are pled.

LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike a pleading 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).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  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).)  

DISCUSSION

Meet and Confer

The Court finds that Defendant has complied with the meet and confer requirements under Code of Civil Procedure Section 435.5.  On January 8, 2021 at 9:07 a.m., counsel for Defendant attempted to call Plaintiff at the telephone number she listed on the complaint.  (Colbert Decl., ¶ 6.)  Defendant’s counsel left Plaintiff a voicemail requesting that Plaintiff return his call.  Plaintiff’s counsel did not answer the phone call.  (Ibid.)  

Motion to Strike Punitive Damages

Defendant moves to strike the prayer for punitive damages from the complaint on the ground that there are no factual allegations alleged which would warrant an award of punitive damages.  The Court agrees.  

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).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “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.’ [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  “As amended to include [despicable], the [Civil Code Section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interest.  The additional component of ‘despicable conduct’ must be found.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Id.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  

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, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Tacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)  The 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, 1041-42.)  

Here, Plaintiff alleges that on November 5, 2019, while in Defendant’s store, Plaintiff slipped in a clear puddle of liquid while walking towards the pharmacy counter. (Compl., p.13.) her injuries were caused by Defendant’s negligence.  Plaintiff alleges that Defendant is attempting to disregard her case by “deliberately prolonging the process, then ultimately ‘low balling’ [Plaintiff], not providing any explanation regarding settlement figures or standard process procedures.”  (Compl., p. 15.)  There are no factual allegations in the complaint which would support a finding that Defendant engaged in conduct to the level of oppression, fraud, or malice.  Rather, Defendant’s alleged conduct may be described as negligent at best, but not “despicable” to justify punitive damages.  

Plaintiff has failed to file an opposition to Defendant’s motion to strike.  “A party who has not timely filed written opposition to a motion . . . may not be afforded an opportunity to offer oral argument at the hearing.”  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)  “The failure to file opposition creates an inference that the motion . . . is meritorious.”  (Id.)  

CONCLUSION

The motion to strike punitive damages from the complaint is GRANTED. 

Defendant Walmart, Inc. is ordered to give notice of this ruling.

Defendant Walmart, Inc. is ordered to file proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.