Case Number: BC627280 Hearing Date: May 31, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MOTIN GRANTED

On July 22, 2016, Plaintiff Scotty MacDowall (“Plaintiff”) filed this action against Defendant House of Blues (“Defendant”) arising out of an alleged assault and battery. In August 2016, Plaintiff filed a first amended complaint. In October 2017, Plaintiff filed amendments substituting Live Nation Worldwide, Inc. (“Live Nation”) as Doe 21, Steven Christopher Mazique (“Mazique”) as Doe 1, and Josue Lopez (“Lopez”) as Doe 2. On February 26, 2018, Plaintiff filed a Second Amended Complaint (“SAC”) omitting Live Nation, Mazique, and Lopez. Defendant moves to strike references to Live Nation, Mazique, and Lopez as defendants, and moves to strike the prayer for punitive damages and related allegations.

Defendant contends any references to Live Nation, Mazique, and Lopez as defendants are improper and false and Plaintiff has not sufficiently pled facts supporting an award of punitive damages. (Code of Civ. Proc., § 435, 436.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code of Civ. Proc., § 437.) A motion to strike must be accompanied by a meet and confer declaration in compliance with Code of Civil Procedure section 435.5.

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

In Opposition, Plaintiff contends Live Nation, Mazique, and Lopez may still be properly added as defendants and therefore, reference to them as defendants should no be stricken. However, the Court ruled on Plaintiff’s motion for leave to amend the complaint that Live Nation, Mazique, and Lopez had been dismissed and the actions against them were barred by the statute of limitations.

Accordingly, references to them as “defendants” are stricken from the complaint.

Plaintiff argues it alleged sufficient facts to support an award of punitive damages against House of Blues, alleging House of Blues “agreed and conspired among themselves, and retained, instructed, ordered, urged, conspired with, aided and abetted” each other “to assault, hold down, punch, batter, kick, swing at, whip, place in a choke hold, throw, shove, and/or beat Plaintiff.” (Second Amended Complaint, p. 6.) The pleading also states House of Blues authorized, instructed, and ordered the individual Doe Defendants “to assault, hold down, punch, batter, kick, swing at, whip, place in a choke hold, throw, shove, and/or beat Plaintiff.” (SAC, p. 6.)

The Court agrees that without more, Plaintiff’s allegations do not establish malice, fraud, or oppression. Plaintiff has not alleged sufficient facts showing House of Blues authorized or ratified the acts against him and the knowledge or ratification was on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294(b).)

The Motion to strike is GRANTED with twenty (20) days’ leave to amend as to punitive damages only.

Moving party to give notice.