Case Number: KC064733    Hearing Date: July 10, 2014    Dept: O

Wahl, et al. v. Armstrong Garden Centers, Inc., et al. (KC064733)

Defendant T.J. Maxx of California, LLC’s MOTION TO STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT

Respondents: Plaintiffs Wahl, et al.

TENTATIVE RULING

Defendant T.J. Maxx of California, LLC’s motion to strike portions of the first amended complaint is DENIED.

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP 436.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court’s own files or records). (CCP 437.)

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (1) “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. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (3) “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. (CC 3294.) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (CC 3294(b).)

The complaint alleges TJ Maxx intentionally sold the firepot without its original packaging and warnings. Further, one year before Plaintiff’s incident, TJ Maxx was put on notice of the dangers of the firepot. TJ Maxx refused to do anything to protect its customers who had purchased the firepot, and TJ Maxx conducted a secret internal recall that was designed to protect TJ Maxx but not TJ Maxx’s customers. See Pars. 15-23. Corporate ratification is alleged at Par. 23.

Pars. 15-19 alleges that TJ Maxx received the firepot inside a box prepared by Birdbrain that contained warnings and instructions regarding the firepot, including a warning to never add fuel gel to an open fire or flame as there is a danger of flash fire and severe burns; always let the fuel gel reservoir cool completely before adding additional fuel gel as there may be a risk of a vapor flash; and do not assume that the flame is out because you cannot see it. TJ Maxx intentionally sold the firepot outside of the box and without the package insert provided by Birdbrain. Pars. 22-23 alleges that TJ Maxx was alerted to an incident involving a customer who sustained injuries as a result of the firepot, but TJ Maxx took no steps to protect consumers who had purchased the firepot from TJ Maxx. Pars. 23 and 27 allege corporate ratification. Intentional failure to provide warnings and instructions in connection with known dangerous products can support punitive damages. The court finds the allegations are sufficient to support punitive damages based on malice.

Defendant contends the firepot was not the subject of a recall by the CPSC or any other federal or state organization, and therefore, its decision not to recall the product cannot support punitive damages. However, such is a triable issue that goes towards Defendant’s culpability, or lack thereof, and cannot be determined at this pleading stage.

Defendant also argues that it cannot be liable for punitive damages because it sold the subject firepot prior to receiving notice of the other incident involving the firepot. However, Plaintiffs are not alleging that Defendant should not have sold the firepot because of the other incident. Plaintiffs specifically allege at Pars. 22-23 that TJ Maxx took no steps to protect consumers who already purchased the firepot.

Motion is DENIED.