Filed: Aug. 21, 2015
Latest Update: Aug. 21, 2015
Summary: STIPULATION STRIKING PORTIONS OF PLAINTIFF'S COMPLAINT; ORDER BETH LABSON FREEMAN , District Judge . IT IS HEREBY STIPULATED by and between Plaintiff KIM MCGEORGE ("Plaintiff") and Defendant KAZ USA, INC. ("Defendant" or "KAZ"), by and through their counsel of record, as follows: 1. Plaintiff filed her Complaint on April 6, 2015 in the Superior Court for the County of Monterey. It states causes of action for Negligence, Strict Products Liability, Breach of Implied Warranty, and Breach of
Summary: STIPULATION STRIKING PORTIONS OF PLAINTIFF'S COMPLAINT; ORDER BETH LABSON FREEMAN , District Judge . IT IS HEREBY STIPULATED by and between Plaintiff KIM MCGEORGE ("Plaintiff") and Defendant KAZ USA, INC. ("Defendant" or "KAZ"), by and through their counsel of record, as follows: 1. Plaintiff filed her Complaint on April 6, 2015 in the Superior Court for the County of Monterey. It states causes of action for Negligence, Strict Products Liability, Breach of Implied Warranty, and Breach of E..
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STIPULATION STRIKING PORTIONS OF PLAINTIFF'S COMPLAINT; ORDER
BETH LABSON FREEMAN, District Judge.
IT IS HEREBY STIPULATED by and between Plaintiff KIM MCGEORGE ("Plaintiff") and Defendant KAZ USA, INC. ("Defendant" or "KAZ"), by and through their counsel of record, as follows:
1. Plaintiff filed her Complaint on April 6, 2015 in the Superior Court for the County of Monterey. It states causes of action for Negligence, Strict Products Liability, Breach of Implied Warranty, and Breach of Express Warranty.
2. On May 20, 2015, Defendant KAZ removed the case from the Superior Court of the State of California for the County of Monterey, to the United States District Court, Northern District of California pursuant to 28 U.S.C. Sections 1332 and 1441(b) on grounds of diversity jurisdiction.
3. On May 29, 2015, Defendant KAZ filed its Motion to Strike Portions of Plaintiff's Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, Defendant challenged the legal sufficiency of Plaintiff's punitive damage allegations in the Complaint.
4. The parties hereby agree to strike the following portions of Plaintiff KIM MCGEORGE's Complaint, without prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6):
Paragraph 32 on pages 6-7 in its entirety, which reads as follows:
"32. Plaintiff is informed and believes, and thereon alleges, that Defendants KAZ and DOES 1 through 50, inclusive, and each of them, acted with "malice" in that they engaged in despicable conduct in conscious disregard of the rights, safety and welfare of the Plaintiff, thereby entitling the Plaintiff to an award of punitive damages pursuant to California Civil Code § 3294."
Paragraph 33 on page 7 in its entirety, which reads as follows:
"33. Plaintiff is informed and believes, and thereon alleges, that Defendants KAZ and DOES 1 through 50, inclusive, acted with "malice" by conduct that included, but is not limited to, the following:
a. Intentionally failing to adequately test the HP 710 Softheat Pad, before selling these items on the open market;
b. Having awareness of prior similar complaints and episodes involving burns and despite these events continuing to sell the Subject Softheat Pad;
c. Continuing to sell the Subject Softheat Pad, without proper warnings, despite knowing of its dangerous propensities and prior similar events;
e. Misleading customers, users and individuals with assurances that the Subject Softheat Pad was actually safe and non-harmful to foreseeable users, despite knowing that such items had had an unacceptably high propensity to cause burn injuries such as those inflicted upon the Plaintiff herein, during reasonably foreseeable use;
f. Designing, developing, engineering, manufacturing, fabricating, assembling, distributing, marketing, advertising, warranting, promoting placing into the stream of commerce, selling, and/or providing the Subject Softheat Pad, despite knowing the high likelihood of injury;
g. Purposefully understanding the warnings on the Subject Softheat Pad to customers, users and individuals in an effort to boost sales and put profits over safety;
h. Receiving and/or learning of numerous customer reports of injuries resulting from the use of these products prior to the sale of the Subject Softheat Pad."
Paragraph 34 on pages 7-8 in its entirety, which reads as follows:
"34. Said acts and omissions were ratified by managerial employees of said Defendants, and each of them, and were carried out with the consent of their officers, directs, and/or managing agents whose identities are currently unknown but will be identified when ascertained. Said conduct by these Defendants was oppressive, despicable, highly reprehensible, and done in the conscious disregard for the rights and safety of Plaintiff and, as such, warrants imposition of punitive damages against said Defendants."
Paragraph 42 on pages 9 in its entirety, which reads as follows:
"42. Plaintiff is informed and believes, and thereon alleges, that Defendants KAZ and DOES 1 through 50, inclusive, and each of them, acted with "malice" in that they engaged in despicable conduct in conscious disregard of the rights, safety and welfare of the Plaintiff, thereby entitling the Plaintiff to an award of punitive damages pursuant to California Civil Code § 3294."
Paragraph 43 on pages 9-10 in its entirety, which reads as follows:
"43. Plaintiff is informed and believes, and thereon alleges, that Defendants KAZ and DOES 1 through 50, inclusive, acted with "malice" by conduct that included, but is not limited to, the following:
a. Intentionally failing to adequately test the HP 710 Softheat Pad, before selling these items on the open market;
b. Having awareness of prior similar complaints and episodes involving burns and despite these events continuing to sell the Subject Softheat Pad;
c. Continuing to sell the Subject Softheat Pad, without proper warnings, despite knowing of its dangerous propensities and prior similar events;
e. Misleading customers, users and individuals with assurances that the Subject Softheat Pad was actually safe and non-harmful to foreseeable users, despite knowing that such items had had an unacceptably high propensity to cause burn injuries such as those inflicted upon the Plaintiff herein, during reasonably foreseeable use;
f. Designing, developing, engineering, manufacturing, fabricating, assembling, distributing, marketing, advertising, warranting, promoting placing into the stream of commerce, selling, and/or providing the Subject Softheat Pad, despite knowing the high likelihood of injury;
g. Purposefully understanding the warnings on the Subject Softheat Pad to customers, users and individuals in an effort to boost sales and put profits over safety;
h. Receiving and/or learning of numerous customer reports of injuries resulting from the use of these products prior to the sale of the Subject Softheat Pad."
Paragraph 44 on page 10 in its entirety, which reads as follows:
"44. Said acts and omissions were ratified by managerial employees of said Defendants, and each of them, and were carried out with the consent of their officers, directs, and/or managing agents whose identities are currently unknown but will be identified when ascertained. Said conduct by these Defendants was oppressive, despicable, highly reprehensible, and done in the conscious disregard for the rights and safety of Plaintiff and, as such, warrants imposition of punitive damages against said Defendants."
The prayer for punitive damages on pg. 12, line 28, which reads in pertinent part:
4. For punitive damages, according to proof.
5. The parties hereby agree that Defendant KAZ withdraw its Motion to Strike Portions of Plaintiff's Complaint, including the hearing date on said motion on August 27, 2015 at 9:00 a.m., before this Court in light of the above stipulation. However, Plaintiff reserves her right to subsequently amend the pleadings if it is later determined after conducting discovery that there is evidence to substantiate a claim for exemplary damages.
6. WHEREFORE, based on the foregoing the parties hereby stipulate and agree to stipulate to strike any and all of Plaintiff's punitive damage allegations without prejudice, in addition to Plaintiff's prayer for punitive damages without prejudice, from the operative Complaint.
7. The parties stipulate and request that an Order be issued in accordance with this Stipulation.
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
