After full consideration of the evidence, the separate statements submitted by each party, and the authorities submitted by each party, the court makes the following rulings:

This is a food poisoning case. The second amended complaint (“SAC”) alleges that plaintiff Martin Abdollahi (“Plaintiff”) and his aunt Arezoo consumed a scallop dish at defendant P.F. Chang’s China Bistro, Inc. (“Defendant”) in Sunnyvale on June 16, 2013. (See SAC, ¶ 7.) A few hours later, Martin and Arezoo suffered diarrhea, and Martin was taken to Kaiser Santa Clara. (See SAC, ¶¶ 8-9.) The doctor noted that Martin likely suffered from food poisoning. (See SAC, ¶¶ 9-11.) The SAC also references statements from other unidentified purported customers of Defendant’s Sunnyvale location in other later months claiming food illness, in addition to other anonymous comments referring to their experience at other locations, including an Oregon location. (See SAC, ¶¶ 12-13.) Based on those comments, Plaintiff asserts that he is entitled to punitive damages, asserting that Defendant acted in conscious disregard of the safety of its consumers. (See SAC, ¶¶14-17.) On February 21, 2014, the Court granted Defendant’s motion to strike the FAC’s allegations supporting punitive damages, stating:

In order to state a prima facie claim for punitive damages, a plaintiff must allege that a defendant has been guilty of oppression, fraud or malice. (See Civ. Code, § 3294, subd. (a); Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) As with other claims, the plaintiff must plead facts in support of such a claim as opposed to merely resting upon conclusions of law. (See Perkins v. Super. Ct. (General Telephone Directory Co.) (1981) 117 Cal.App.3d 1, 6.) Here, Plaintiff alleges only that he and his aunt became ill after eating from a single assertedly defective scallop dish. (See FAC, ¶¶ 7-11.) While Plaintiff goes on to plead that Defendant placed the scallop dish on the market in conscious disregard of consumer safety (see FAC, ¶ 15), this allegation is a legal conclusion that is unsupported by the facts alleged in the complaint as a whole. (See Perkins v. Super. Ct., supra, 117 Cal.App.3d at p. 6.)

(February 21, 2014 order re: Def.’s motion to strike, p.2: 3-13.)

Plaintiff filed the SAC, and Defendant again moves to strike allegations supporting punitive damages from the SAC. In opposition, Plaintiff does not claim that Defendant intended to poison Plaintiff, but asserts that he is entitled to punitive damages based on “the identification of 7 separate examples of this conduct.” (Opposition to Def.’s motion to strike (“Opposition”), p.12:1.) However, the opposition also notes that “only three of the instances of food poisoning are dated, and one of them precedes the date of plaintiff’s injury.” (Opposition, p.8:27-28, fn. 5, emphasis added.)

These facts are fairly critical for multiple reasons. Firstly, there is no way that Defendant could have “had knowledge of the repeated incidents of food born[e] [sic] illness” that occurred post-injury. Thus, the sole other dated allegation of an incident of food borne illness in the SAC is a patron who complained in September 2011—nearly two years before Plaintiff’s injury—from an incident that occurred at a different location. (See SAC, ¶ 13.) This allegation is not relevant to establish Defendant’s conscious disregard of others.

Further, due to the lapse in time between incidents, this allegation is irrelevant to the claim for punitive damages because it does not establish causation of Plaintiff’s injury. (See Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003, 1008-1009 (stating that “like any other personal injury action the plaintiff must prove that the food was unwholesome or unfit and caused his illness, irrespective of whether the action is based on negligence or warranty”; also stating that “mere proof of illness without a showing of unwholesomeness and causal connection is insufficient”; also stating that “[i]llness of others who have eaten the same food at approximately the same time… [w]hile… not controlling[,]… can support an inference of probable cause, although admittedly some other factor is usually required in order to tilt the balance in favor of a finding of unwholesomeness”).)

Plaintiff fails to show that he can allege malice. (See Goodman v. Kennedy (1976)18 Cal. 3d 335, 349 (stating that “Plaintiff [or a defendant answering a complaint] must show in what manner he can amend his complaint [or answer] and how that amendment will change the legal effect of his pleading”), quoting Cooper v. Leslie Salt Co. (1969) 70 Cal. 2d 627, 636; see also Hendy v. Losse (1991) 54 Cal. 3d 723, 742 (stating that “the burden is on the plaintiff [or answering defendant]… to demonstrate the manner in which the complaint [or answer] might be amended”).) Accordingly, the motion to strike is GRANTED without leave to amend.