Case Number: BC606676??? Hearing Date: April 25, 2016??? Dept: 97
35
ALEX KROSS,
Plaintiff,
v.
LERAY GROUP LTD, et al.,
Defendants.
Case No.: BC 606676
Hearing Date: April 25, 2016
[TENTATIVE] ORDER RE:DEFENDANT AMAZON.COM, INC.?S MOTION TO STRIKE
On September 1, 2015, Plaintiff Alex Kross (?Plaintiff?) used Amazon.com, Inc.?s (?Amazon?) online services to purchase the Dreamwalker Self-Balancing Scooter (the ?Scooter?). (Compl., ? 9.) On September 4, 2015, Plaintiff was riding the Scooter when he came to a complete stop and attempted to get off the Scooter. (Id., ?? 11-12.) Upon doing so, the right side of the Scooter abruptly moved forward and caused Plaintiff to fall backward and hit his head against a brick wall. (Id., ? 12.) As a result of his fall, Plaintiff alleges that he suffered and continues to suffer injuries. (Id., ?? 13-17.)
On January 11, 2016, Plaintiff filed his Complaint for Damages against Defendants Leray Group LTD and Amazon (collectively ?Defendants?), asserting nine causes of action: (1) Negligence, (2) Gross Negligence, (3) Strict Products Liability, (4) Strict Products Liability: Failure to Warn, (5) Breach of Implied Warranty: Merchantability, (6) Breach of Implied Warranty: Fitness for Particular Purpose, (7) Breach of Express Warranty, (8) Fraudulent Misrepresentation, and (9) Willful Misconduct.
Amazon now moves to strike from the Complaint Plaintiff?s prayer for punitive damages and the portions of paragraphs 22, 34, 64, 71, 81, 89, and 95 that allege Plaintiff is entitled to exemplary and punitive damages.
Civil Code Section 3294 authorizes the recovery of punitive damages in non-contract cases where the defendant has been found guilty of oppression, fraud, or malice. (Civ. Code ? 3294.) In order to survive a motion to strike an allegation of punitive damages, Plaintiff must allege something more than the mere commission of a tort. Plaintiff is required to plead the ultimate facts and circumstances of aggravation or outrage, such as malice, or a fraudulent or evil motive on the part of Amazon, or such a conscious and deliberate disregard for the interests of others that its conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)
Here, the Court finds that Plaintiff?s prayer for punitive damages is unsupported. Plaintiff merely alleges, ?Defendants were guilty of oppression, fraud, and/or malice as defined in Civil Code section 3294, and Plaintiff should recover, in addition to actual damages, exemplary and punitive damages to make an example of and to punish Defendants, in an amount according to proof.? (Compl., ? 95.) Although, Plaintiff?s Opposition attempts to assert new facts not alleged in the Complaint or subject to judicial notice, for purposes of this Motion, the Compliant fails to allege facts sufficient to support a claim that Amazon acted with oppression, fraud, and/or malice. Therefore, Defendant?s Motion to Strike Plaintiff?s request for punitive damages, including the portions of paragraphs 22, 34, 64, 71, 81, 89, and 95 alleging entitlement to exemplary and punitive damages is granted with leave to amend.