Case Name:    Lynn Rogers v. 24 Hour Fitness, et al.

Case No.:        1-14-CV-265009

Defendant 24 Hour Fitness USA, Inc., dba 24 Hour Fitness (“Defendants”) filed a motion to strike portions of the Complaint of Plaintiff Lynn Rogers (“Plaintiff”) that alleged and sought punitive damages.

The motion to strike was properly noticed and served.  Plaintiff did not file timely opposition to the demurrer, but instead filed a document called “reply” to motion to strike, claiming that on August 8, 2014, Plaintiff filed a First Amended Complaint.  No First Amended Complaint has been filed, and it appears that the amended complaint was properly rejected by the court clerk, because the Defendants had filed both an answer and the pending motion to strike.  Code of Civil Procedure section 472 [a party may amend a pleading once as of right, before an answer is filed or a demurrer is heard]; See Alden v. Hinden (2003) 110 Cal.App.4^th 1502, 1508-1509.  The motion to strike portions of the Complaint is SUSTAINED.  With some reluctance, the Court will grant ten days leave to amend.

A plaintiff has the burden to show a reasonable possibility that amendment could cure the defects in the pleading.  Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. As Plaintiff provided no explanation of how she might amend to cure the defects in her punitive damages allegations as she provided no substantive response to the motion to strike, the Court is unable to discern how the defect in the Complaint could be cured by amendment, and the Court is skeptical that a valid claim for punitive damages can be alleged in the context of Plaintiff’s claims.  In granting leave to amend, the Court notes that this is the first challenge to the complaint.

Prevailing party is to prepare the order.