# 3. James Duncan v. Cloud 9 Vape Pure LLC, et al.

Case No.: BC699996

Matter on calendar for: motion to strike

Tentative ruling:

I. Background

This is a product liability action against defendant retailers, distributors, and manufacturers of a defective e-cigarette vaping device and lithium battery. The device exploded in plaintiff James Duncan’s hands when he was placing the battery into the device.

Defendant Cloud 9 Vape Pure LLC moves to strike punitive damages, paragraph 14(a)(2), from the Complaint.

Cloud 9 failed to provide a meet and confer declaration pursuant to C.C.P. § 435.5 before filing this motion. This failure is not a ground for denying the motion. (C.C.P. § 435.5(a)(4).)

For the reasons set forth below, the Court grants the motion with leave to amend.

II. Standard

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 of the pleading. (C.C.P., § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a 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. (C.C.P., §§ 436(a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

III. Analysis

California Civil Code § 3294 allows for punitive damages against defendants if, by clear and convincing evidence, they are guilty of oppression, fraud, or malice. (Civ. Code § 3294.) 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(c)(1).) As the California Supreme Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Civil Code, § 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital found that “despicable conduct refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible’. [Citation.]” (Id. at 725.) “‘[I]ntent,’ in the law of torts, denotes not only those results the actor desires, but also those consequences which he knows are substantially certain to result from his conduct.” (Shroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 922.)

To support punitive damages the complaint must “’allege ultimate facts of the defendant’s oppression, fraud, or malice.’ [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) The court in Perkins v. Superior Court noted that “’the distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree’ [Citation.] . . . . What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief. [Citations.]” ((1981) 117 Cal.App.3d 1, 6–7.)

Here, Duncan alleges:

· “While sitting in his parked vehicle in the parking lot of the Urban Youth Academy . . . Plaintiff was injured while changing the battery of a vaporizer/vapor cigarette/e-cigarette, (“Subject Vaporizer”) and the battery exploded.” (Complaint pg. 4.)

· “Defendants, and each of them, breached their duties by, without limitation, failing to properly designing [sic], manufacture, label, maintain, inspect, repair, label and or operate the Subject Vaporizer before giving it to Plaintiff for use . . . .” (Ibid.)

· “Defendants, and each of them, were aware of the probable dangerous consequences that the use of the Subject Vaporizer posed to the safety of its users, and deliberately failed to avoid those consequences.” (Ibid.)

Duncan’s allegations too conclusory to support a claim for punitive damages. The facts before the Court are readily distinguishable from the facts in Monge v. Superior Court (1986) 176 Cal.App.3d 503, on which Duncan relies. That case involved comparatively extensive allegations of sexual harassment with subsequent employer ratification. (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 507.)

IV. Ruling

The motion to strike is granted with 20 days’ leave to amend. Any responsive pleading is to be filed and served 20 days thereafter or 25 if the amended pleading is served by mail.

Next dates: CMC 11/7/18

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