2013-00144527-CU-PO

Olga Mendiola vs. Los Imortales Taqueria

Nature of Proceeding: Motion to Strike

Filed By: Wiesner, Fred G.

Defendant’s Motion to Strike Punitive damages language in the 1st amended
complaint is granted, with leave to amend.

Plaintiff was burned at defendant’s restaurant when boiling menudo was spilled on her
body. Plaintiff alleges that her server told plaintiff that the restaurant knew that
plaintiff’s table was wobbly. Plaintiff also alleges that the menudo was boiling when it
left the kitchen and that the defendant did nothing to regulate the temperature of the
menudo, nor did they train employees how to serve the menudo properly.

The current allegations sound in negligence and do not allege the type of despicable
conduct necessary to support a claim for punitive damages.

Civil Code § 3294(a), allows recovery only if a plaintiff proves, by clear and convincing
evidence, “that the defendant has been guilty of oppression, fraud, or malice.”
Additionally, it is a universally-recognized principle that ‘[t]he law does not favor
punitive damages and they should be granted with the greatest caution.'”
(Dyna-Med, Inc. v. Fair Employment & Housing Commission (1987) 43 Cal.3d 1379,
1392.) California courts require that specific facts be pled in support of punitive
damage allegations; mere conclusions are not enough. (Hilliard v. A.H. Robbins (1983)
148 Cal.App.3d 374, 391; Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7;
Grieves v. Superior Court, supra, 157 Cal.App.3d at 166.)
To establish malice, a plaintiff must demonstrate that the defendant acted not just with
a conscious disregard of the rights or safety of others, but also that the defendant
willfully engaged in despicable conduct. (Civil Code section 3294(c)(1); College
Hospital, Inc., supra, 8 Cal.4th at p. 713.) As the Supreme Court noted in College
Hospital, the reference to “despicable” conduct is a substantive limitation on punitive
damage awards because the term refers to circumstances which are base, vile or
contemptible. (8 Cal.4th at p. 725.) Likewise, oppression requires “despicable conduct
that subjects a person to cruel and unjust hardship in conscious disregard” of another’s
rights. {Civil Code, section 3294(c)(2).) In other words, the bar for recovery of punitive
damages under Civil Code section 3294 is quite high.

Simple negligence cannot support an award of punitive damages (Grieves v. Superior
Court, supra, 157 Cal. App.3d at 166-168) nor can “gross negligence” (Woolslrum v.
Mailloux (1983) 141 Cal.App.3d Supp. 1, 10; see, also Ebaugh v. Rabkin (1972) 22
Cal. App. 3d 891, 894. ). Non-intentional conduct can only support a punitive damage
award if the defendant intentionally performs an act, and that act is of such severity
and shocking character that it warrants the same treatment as that accorded willful
misconduct. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279.)
Here, plaintiffs fail to state specific facts which show that defendant acted with malice
because they have not alleged that the restaurant had knowledge that the servers
were serving boiling menudo in a manner that would burn the plaintiff.

Plaintiff may file and serve a 2nd amended complaint on or before December 6, 2013.
Response to be filed and served within 15 days of service of the amended complaint,
20 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item 8 2013-00144527-CU-PO

Olga Mendiola vs. Los Imortales Taqueria

Nature of Proceeding: Hearing on Demurrer

Filed By: Wiesner, Fred G.

Defendant’s Demurrer to the First Amended Complaint, 5th cause of action for
Spoliation of evidence, is sustained without leave to amend for failure to state facts
sufficient to constitute a cause of action.
Plaintiff was burned at defendant’s restaurant when boiling hot menudo was spilled on
her body. Plaintiff alleges that the server told plaintiff that the defendant knew that the
table was wobbly. Plaintiff alleges that the menudo was boiling when it left the kitchen
and that the defendant did nothing to regulate the temperature of the menudo nor did
they train employees how to properly serve the menudo.

Plaintiff concedes there is no tort cause of action for spoilation of evidence pursuant to
Cedars-Sinai Medical Center v Superior Court (1998) 18 Cal.4th 1.

Plaintiff shall file and serve a 2nd amended complaint, after considering the ruling on
the motion to strike, on or before December 13, 2013. Response to be served within
15 days of service of the SAC, 20 days if served by mail. The proposed 2nd amended
complaint is not authorized since it includes the unsupported claims for punitive
damages.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.