2013-00151655-CU-PO

Diana Landry vs. Hillstone Restraurant Group

Nature of Proceeding:      Motion to Strike
Nature of Proceeding:   Motion to Strike

Filed By:  Farley, Keith W.

Defendant Hillstone Restaurant Group’s Motion to Strike claim for punitive damages
and additional related language set forth in the notice is denied.

Plaintiff’s Request for Judicial Notice is granted.

The Court previously denied a similar motion brought by co-defendant on December 3,
2013.  (See minute order December 3, 2013, Dept. 53)

In this action Plaintiff asserts a premises liability cause of action against Defendant
arising from allegations that while she was using a wheelchair ramp on its property, the
wheel of her chair was caught in a gap causing her to fall.  She alleges Defendant
knew there was a gap in the ramp that could cause wheelchair bound patrons to fall
and become seriously injured and that despite such knowledge and for monetary
reasons only, it decided not to remedy the gap.

Defendant seeks to strike punitive damages allegations on the basis that Plaintiff’s
allegations are conclusory and not based on specific facts.  Punitive damages are
available in premises liability actions and malice in such situation exists where the
defendant performs or fails to perform an act defendant knows or should know will
probably cause harm.  (Nolin v. National Convenience Stores, Inc. (1979) 95
Cal.App.3d 279, 286-288 [defendant’s inattention to a slip and fall danger “reflected
defendant’s overriding concern for a minimum expense operation, regardless of the
peril”].)  The Court finds that for pleading purposes, the allegations that Defendant was
aware of the gap, was aware of the serious injury that could result from the gap, and
the failure to take any corrective action, including placing warning signs, based solely
on monetary reasons, are sufficient.  (Comp. ¶¶ 10-14.)  Indeed, the allegations are
sufficient for pleading purposes to show that Defendant acted with a conscious
disregard for the safety of others with knowledge of the probable dangerous
consequence to others.

The Court is mindful of defendant’s arguments. Civil Code section 3294 requires as a
prerequisite to the recovery of punitive damages that the defendant “has been guilty of
oppression, fraud, or malice,” and the cases have uniformly recognized that proof of
negligence, even gross negligence, or recklessness is insufficient to warrant an award
of punitive damages. (E.g., G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d
22, 31; Nolin v. National Convenience Stores, Inc., supra, at pp. 285-286 ; see also
Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869.) However, the term
“malice” as used in Civil Code section 3294 has been interpreted as including a
conscious disregard of the probability that the actor’s conduct will result in injury to
others. (G. D. Searle & Co. v. Superior Court, supra, 49 Cal.App.3d at pp. 30-32; Nolin
v. National Convenience Stores, Inc., supra, 95 Cal.App.3d at p. 286; cf. Pelletti v.
Membrila (1965) 234 Cal.App.2d 606, 611-613.)

The motion is denied.

Answer to be filed and served on or before February 24, 2014.

The minute order is effective immediately.