Free Order on Motion to Dismiss - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On October 11, 2007, Arianna Padilla and the estate of Joseph Albert Padilla ("plaintiffs") filed, through Patricia G Padilla, legal guardian of Arianna Padilla and personal representative of the estate of Joseph Albert Padilla, a complaint alleging four California state law claims against Coleman Company, Inc, Jarden Corporation and Home Depot USA, Inc ("defendants"). Doc #1. All of the claims arise from the death of Joseph Padilla, The minor child, ARIANNA PADILLA, and the ESTATE OF JOSEPH ALBERT PADILLA, through PATRICIA G PADILLA, MD, legal guardian of ARIANNA PADILLA and personal representative of the ESTATE OF JOSEPH ALBERT PADILLA Plaintiffs, v COLEMAN COMPANY,INC, a Delaware Corporation, JARDEN CORPORATION, a Delaware Corporation, and HOME DEPOT USA, INC, Defendants. / No C 07-5211 VRW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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which was allegedly caused by a propane heater manufactured and sold by defendants. 1332. Defendants filed motions to dismiss two of plaintiffs' claims and to strike portions of plaintiffs' complaint on February 28, 2008. Doc #19. For reasons discussed below, the motion to Federal jurisdiction is proper under 28 USC §

dismiss is GRANTED IN PART and DENIED IN PART and the motion to strike is GRANTED IN PART and DENIED IN PART.

I "On a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit Partnership v

Turner Broadcasting System, Inc, 135 F3d 658, 661 (9th Cir 1998) (citing Parks School of Business, Inc v Symington, 51 F3d 1480, 1484 (9th Cir 1995)). Accordingly, what follows is drawn from

plaintiffs' complaint, taking its allegations as true. Joseph Albert Padilla, a resident of Sonoma County, used a Coleman Model 5045 propane top heater to warm his home on December 18, 2005. Doc #1 at 6:14-20. The heater was purchased

from defendant Home Depot USA, Inc ("Home Depot"), and designed, manufactured, labeled, promoted, sold and distributed by defendant Coleman Company, Inc ("Coleman"), a wholly owned subsidiary of defendant Jarden Corporation ("Jarden"). Doc #1 at 6:19, 2:5-8.

The heater emitted significant quantities of carbon monoxide, an invisible, tasteless and odorless gas, which in sufficient concentration causes carbon monoxide poisoning, which can be fatal to human beings. Doc #1 at 3:26-4:1. 2 Carbon monoxide poisoning

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produces a variety of painful symptoms culminating in cerebral hypoxemia, unconsciousness and death. Doc #1 at 4:2-23.

On December 18, 2005, Joseph Padilla was killed by carbon monoxide poisoning due to his use of the Coleman Model 5045 propane heater. Doc #1 at 6:14-19. Joseph Padilla's daughter, Arianna

Padilla, age fourteen on October 11, 2007, is the only surviving member of his immediate family. Doc #1 at 6:15-16.

Plaintiffs allege that the Coleman 5045 propane heater had a defective design and was not reasonably safe for use as a portable heater. Doc #1 at 7:2-3. They further allege that for

over a decade, Coleman and Home Depot have known that some of their customers were being killed by carbon monxide emissions from Coleman's line of radiant heaters and that Jarden has known of the risks of death and injury since its acquisition of Coleman. at 4:24-27. Doc #1

Plaintiffs believe that over 75 people in the United

States have died from the propane heater product line designed, manufactured, promoted and sold by Coleman. Plaintiffs further allege that safe alternative designs were available, but that Coleman and Jarden have chosen not to recall or make modifications to their products. 6:2. Doc #1 at 4:28-

They allege that Coleman, Jarden and Home Depot failed to

provide adequate warnings or instructions at the time of sale and that the product was not reasonably safe because it did not conform to the manufacturer's express or implied warranties. 7:7-11. Plaintiffs seek damages including, but not limited to: the death and pre-death suffering of JOSEPH ALBERT PADILLA, loss of earnings and/or income, loss of inheritance[,] funeral and burial expenses, estate 3 Doc #1 at

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administration costs, loss of nurture and guidance to the surviving minor child of the deceased, pain and suffering to the deceased and survivor, emotional and psychological injuries to the survivor, future medical expenses to the survivor, loss of home services, loss of consortium of the surviving child, loss of enjoyment of life, and other damages to be proven at trial. Doc #1 at 8:4-10. Plaintiffs also seek punitive damages for

conduct of defendants that was "willful, wanton, and malicious, and done with a reckless disregard for the rights and safety of plaintiffs and plaintiffs' decedent." Doc #1 at 10:5-8.

II Plaintiffs advance four claims for relief in their complaint, two of which defendants seek to dismiss. Plaintiffs

state claims for negligence, Doc #1 at 8:11-20, product liability, Doc #1 at 8:21-10:8, loss of consortium and parental nurture and guidance, Doc #1 at 10:9-10:16, and unfair and unlawful business practices, Doc #1 at 10:17-11:11. Defendants move to dismiss

plaintiffs' loss of consortium and parental nurture and guidance and unfair and unlawful business practices claims. For reasons discussed below, the court dismisses with prejudice plaintiffs' claim for loss of consortium and parental nurture and guidance. Defendants' motion to dismiss plaintiffs'

unfair and unlawful business practices claim is denied.

A FRCP 12(b)(6) motions to dismiss essentially "test whether a cognizable claim has been pleaded in the complaint." Scheid v Fanny Farmer Candy Shops, Inc, 859 F2d 434, 436 (6th Cir 1988). FRCP 8(a), which states that a plaintiff's pleadings must 4

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contain "a short and plain statement of the claim showing that the pleader is entitled to relief," provides the standard for judging whether such a cognizable claim exists. 250 F3d 668, 679 (9th Cir 2001). Lee v City of Los Angeles,

This standard is a liberal one

that does not require a plaintiff to set forth all the factual details of the claim; rather, all that the standard requires is that a plaintiff give the defendant fair notice of the claim and the grounds for making that claim. Leatherman v Tarrant County

Narcotics Intell & Coord Unit, 507 US 163, 168 (1993) (citing Conley v Gibson, 355 US 41, 47 (1957)). To this end, a plaintiff's

complaint should set forth "either direct or inferential allegations with respect to all the material elements of the claim." 2003). Under Rule 12(b)(6), a complaint "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Hughes v Rowe, Wittstock v Van Sile, Inc, 330 F3d 899, 902 (6th Cir

449 US 5, 9 (1980) (citing Haines v Kerner, 404 US 519, 520 (1972)). See also Conley, 355 US at 45-46. All material

allegations in the complaint must be taken as true and construed in the light most favorable to plaintiff. See In re Silicon Graphics With these

Inc Sec Litig, 183 F3d 970, 980 n10 (9th Cir 1999).

principles in mind, the court turns to defendants' arguments for dismissing plaintiffs' loss of consortium and unfair business practices claims.

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B Defendants argue that plaintiffs' claim for loss of consortium and parental nurture and guidance must be dismissed because a child does not have a cause of action for loss of consortium under California law. Doc #19 at 3. Defendants do not

dispute that plaintiff Arianna Padilla may be able to recover damages for loss of her father's support, guidance, comfort and society if she can prevail under her negligence or product liability claims, but they argue that the independent loss of consortium claim must be dismissed. agrees. "[A] child cannot maintain a cause of action for loss of parental consortium." Borer v American Airlines, Inc, 19 Cal 3d Doc #26 at 2. The court

441, 444 (1977); see also Elden v Shelden, 46 Cal 3d 267, 278 (1988). Plaintiffs do not dispute, nor can they, that California

law does not provide a loss of consortium claim to children of injured persons. Instead, plaintiffs devote three pages of their

opposition memorandum to making a point which defendants do not deny: that the daughter of a tortiously killed decedent can recover damages for loss of support, nurture, guidance, love and affection. Doc #25 at 7-10; see Allen v Toledo, 109 Cal App 3d 415, 423 (1980). Plaintiffs appear to suggest that the court should sustain

an untenable cause of action simply because the damages sought under that cause of action are also available under their negligence and product liability claims. argument makes little sense. Doc #25 at 9-10. This

Simply because a certain type of

damages can be recovered under one legal theory does not create a separate cause of action based on a different legal theory for 6

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recovery of those same damages.

Any loss of parental nurture and

guidance for which Arianna may be entitled to recover can be recovered on her negligence and product liability claims. The

"loss of consortium and parental nurture and guidance" claim is dismissed without leave to amend.

C Defendants argue that plaintiffs' unfair and unlawful business practices claim should be denied for three reasons: plaintiffs' lack of standing under Cal Bus & Prof Code § 17204, Doc #19 at 3-4; the availability of an adequate remedy at law, Doc #19 at 4-5; and lack of a provable fraud-based claim, Doc #19 at 5-6. In the alternative to dismissal, defendants argue that the court should strike plaintiffs' claim for monetary relief under the unfair and unlawful business practices claim. Before the court turns to defendants' individual arguments regarding this claim, reviewing the fundamentals of the unfair and unlawful business practices cause of action is in order. Codified at Cal Bus & Prof Code § 17200 et seq, California's unfair competition law ("UCL") prohibits a wide range of conduct. "It

embraces anything that can properly be called a business practice and that at the same time is forbidden by law." Korea Supply Co v

Lockheed Martin Corp, 29 Cal 4th 1134, 1143 (2003)(internal quotations emitted). "While the scope of the conduct covered by A UCL action is Korea Supply

the UCL is broad, its remedies are limited.

equitable in nature; damages cannot be recovered." Co, 29 Cal 4th at 1144 (internal citation omitted).

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1 Defendants' first argument for dismissal of the unfair and unlawful business practices claim is that plaintiffs lack standing under Cal Bus & Prof Code § 17204. Defendants are correct

that plaintiffs clearly erred by citing in their complaint a version of the UCL that was overruled by Proposition 64 in 2004, Doc #1 at 10:23-24. Section 17204 no longer authorizes lawsuits

brought by "any person acting for the interests of itself * * * or the general public," as plaintiffs assert, but rather it requires that individuals bringing a claim "[have] suffered injury in fact and [have] lost money or property as a result of the unfair competition." Cal Bus & Prof Code § 17204.

Having rightly clarified the state of the law, defendants then make the baseless argument that plaintiffs do not allege that they lost money or property as a result of the unfair business practice. Since the UCL proscribes all manner of unlawful conduct

that could be considered a business practice, the predicate conduct for a UCL violation could be any of the wrongful acts alleged by plaintiffs in their complaint, including defendants' failure to take reasonable steps to recall the heaters, warn consumers of their dangers, correct the defect or discontinue sales despite alleged knowledge of the unreasonable dangerousness of their product. See Doc #1 at 9:26-10:2. Plaintiffs allege that this act

of unfair competition by defendants resulted in various losses, including loss of income. Doc #1 at 8:4-5.

Perhaps defendants' argument is that the loss of money or property required for standing under § 17204 must be by someone in a direct business relationship with the defendant, such as a 8

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customer or competitor.

The court, however, is aware of no Plaintiffs have alleged

decision so narrowly construing § 17204. the requisite injury.

Defendants are not entitled to dismissal of

the UCL claim based on lack of standing under § 17204.

2 Defendants' second argument for dismissal of the UCL claim is that plaintiffs have an adequate remedy at law. While

defendants are correct that a UCL cause of action does not lie where legal remedies are adequate, Korea Supply Co, 29 Cal 4th at 1144, drawing all inferences in favor of the plaintiff, the complaint states a claim for equitable relief not available through legal remedies. Specifically, plaintiffs pray for injunctive relief under the UCL. Doc #1 at 11:5, 11:19-20. Injunctive relief under the

UCL is authorized by Cal Bus & Prof Code § 17203: "Any person who engages, has engaged, or proposes to engage in unfair competition may be enjoined in any court of competent jurisdiction." At this

early stage in the litigation, the court is not prepared to rule that such relief is foreclosed. Defendants, citing City of Los Angeles v Lyons, 461 US 95, 101-02 (1983), argue that "for standing based on injunctive claims to exist, plaintiffs must demonstrate a realistic, continuing threat of harm to themselves, not to others." But here,

plaintiffs are not attempting to base standing on their injunctive claims ­ as discussed above, standing is already established through their pecuniary losses. Rather, plaintiffs seek to enjoin

defendants from continuing their unlawful business practices, which 9

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plaintiffs allege continue to create a risk of death for users of defendants' products. The availability of injunctive relief under § 17203 is not without limit: § 17203 cannot be used to enjoin an event that has already transpired, and a showing of threatened future harm or continuing violation is required. 1, 20 (1984). People v Toomey, 157 Cal App 3d

But there is no requirement of likelihood of future

harm to plaintiffs for an injunctive remedy to lie under the UCL. Plaintiffs allege that defendants continue to manufacture an unreasonably safe product and otherwise engage in unfair and unlawful business practices, Doc #1 at 6:8-11; they may be entitled to an injunction to stop the ongoing risk even if that risk does not place them in immediate peril. In addition, plaintiffs' complaint could be read to request restitutionary disgorgement of profits from defendants: "defendants, and each of them, have made profits from plaintiffs and other similarly situated persons, and should be required to disgorge the same." An order for restitution "compelling a

defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken" is an equitable remedy available under the UCL. Supply Co, 29 Cal 4th at 1149. Korea

The estate of Joseph Padilla, as

Joseph Padilla's successor in interest, thus may be entitled to seek restitution of the profits defendant earned from the sale of the Coleman 5045 heater to Padilla, which would not have occurred but for the unlawful business practice. But the complaint does not

allege that Joseph Padilla purchased the heater that allegedly killed him and thus does not state a claim for restitutionary 10

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disgorgement.

As plaintiffs have standing to pursue a UCC claim,

the scope of any remedy under that claim need not be decided at this juncture.

3 Defendants also argue that the UCL claim should be dismissed because it is based on fraud. Doc #19 at 5. Plaintiffs

did not respond to this argument, but the court considers and rejects it nonetheless. Defendants' argument is premised on the erroneous assumption that a UCL claim must be based on allegations of fraud. As discussed above, the UCL claim may be based on any unlawful business alleged by plaintiffs, including the unlawful business practice of selling an unreasonably dangerous product. But even if

the UCL claim were based only on plaintiffs' allegation of fraud, defendants would not be entitled to dismissal. Plaintiffs' allegation of fraud, which defendants move to strike, states: Plaintiffs are informed and believe, and upon such information and belief allege, that Defendants, and each of them, conspired, agreed and/or acted in concert with each other to actively, intentionally and systematically suppress and conceal material information from and mislead plaintiffs and the general public regarding the serious defects and dangers, hazards and risks associated with the propane heaters sold for profit by defendants. Doc #1 at 3:16-20. Defendants argue that plaintiffs' complaint

fails to meet the particularity requirements of FRCP 9(b) and that plaintiffs cannot establish the type of duty necessary to sustain this allegation. Doc #19 at 5-6.

Under FRCP 9(b), in alleging fraud, a party must state

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with particularity the circumstances constituting fraud or mistake. FRCP 9(b). Rule 9(b) demands that "the circumstances constituting

the alleged fraud be specific enough to give defendants notice of the particular misconduct * * * so that they can defend against the charge and not just deny that they have done anything wrong." Vess

v Ciba-Geigy Corp USA, 317 F3d 1097, 1106 (9th Cir 2003)(citations omitted). The particularity requirement applies to state law causes of action tried in federal court, but it is to state law that the court looks to determine what circumstances must be alleged with particularity to constitute fraud. Vess, 317 F3d at 1103. And

unlike common law fraud (which requires allegations of actual deception, reasonable reliance and damage), a showing of fraud under the UCL requires only a showing that members of the public are likely to be deceived. 4th 36, 49 (2005). Blakemore v Superior Court, 129 Cal App

And the challenged portion of the complaint

makes clear that the deceptive act alleged is simply promoting and selling an unreasonably safe product without disclosing the risks. Doc 319 at 3:16-20. Defendants assert that this alleged

concealment of risk cannot constitute a fraudulent act under § 17200, but the only authority defendants cite for this proposition is inapposite. See Kunert v Mission Fin Svcs Corp, 110 Cal App 4th

242, 264 (2003)(failure of auto dealers and lenders to disclose payment of "dealer reserve" by lender not fraudulent act under § 17200 because no facts suggest that such nondisclosure deceives public in any manner); Searle v Wyndham International, Inc, 102 Cal App 4th 1327, 1335 (2002)(hotel's failure to notify hotel guests that "service charge" added to room service bill is paid to server 12

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not deception because hotel guest has no right to know what hotel pays server). Here, where the alleged nondisclosure is of an

unreasonable risk of harm, deception of the public, which expects to buy a reasonably safe product, can be inferred.

4 For the reasons stated above, defendants are not entitled to dismissal of the unfair and unlawful business practices claim. In the alternative, defendants request that the court strike plaintiffs' claims for monetary relief under the statute. at 6. Doc #19

Because, as discussed above, the complaint does not allege

that Joseph Padilla purchased the heater that allegedly killed him, plaintiffs have not stated a claim for restitutionary disgorgement under the UCL. The portion of the complaint praying for

restitutionary disgorgement, Doc #1 at 11:8-9, shall be stricken with leave to amend upon a showing that Joseph Padilla purchased the heater.

III A Defendants also move to strike portions of plaintiffs' complaint. FRCP 12(f) authorizes a court to strike "from any

pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FRCP 12(f). This includes

"any part of the prayer for relief when the relief sought is not recoverable as a matter of law." Rosales v Citibank, 133 F Supp 2d

1177, 1180 (ND Cal 2001)(Trumbull, MJ), citing Bureerong v Uvawas, 922 F Supp 1450, 1479 n34 (CD Cal 1996). 13 Motions to strike are

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designed to "avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial." Fantasy, Inc v Fogerty, 984 F2d 1524, 1527

(9th Cir 1993), rev'd on other grounds, Fogerty v Fantasy Inc, 510 US 517 (1994). A district court properly grants a "motion to

strike for the purpose of streamlining the ultimate resolution of the action and focusing the jury's attention on the real issues in the case." Fogerty, 984 F2d at 1528. When considering a motion to

strike, the pleading at issue must be viewed in a light most favorable to the pleader and treat "as admitted all material facts alleged and all reasonable presumptions that can be drawn therefrom." Rosales, 133 F Supp at 1180.

B 1 First, defendants argue that language in the complaint relating to implied warranties must be stricken because privity of contract with the particular defendant is an essential element of a claim for breach of implied warranty. Doc #19 at 6; see Osborne v Plaintiffs do not

Subaru of America, Inc, 198 Cal App 3d 646, 656.

dispute that privity is required, but merely argue that privity is implied. Nowhere, however, does the complaint state or imply who

purchased the heater that allegedly killed Joseph Padilla. Accordingly, the words "or implied" at 7:11, 7:27 and 9:25 shall be stricken with leave to amend.

2 Defendants also argue that references to breach of 14

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express warranty must be stricken from the complaint because "[i]n order to plead a cause of action for breach of express warranty, one must allege the exact terms of the warranty * * *." Beechnut Nutrition Corp, 185 Cal App 3d 135, 142 (1986). Plaintiffs argue that their complaint contains virtually identical language to the language that satisfied the Williams court: an allegation that defendant Beechnut "`expressly warranted to the general public including plaintiff herein, that said product was effective, proper and safe for its intended use.'" Cal App 3d at 142. Williams, 185 Williams v

Plaintiffs, however, do not cite the portion of

their complaint that is virtually identical to this passage, nor can they: the complaint does not allege what was expressly warranted. The following portions of the complaint shall be

stricken with leave to amend to allege the terms of an express warranty: "because it did not conform to the manufacturer's express," Doc #1 at 7:10-11, "breaches of express," Doc #1 at 7:27, and "because it did not conform to the manufacturer's express," Doc #1 at 9:24-25.

3 Defendants request that references to damages for grief, pain, suffering and loss of enjoyment of life and other damages not recoverable in a wrongful death action be stricken from the complaint. Plaintiffs do not dispute that wrongful death

plaintiffs are not entitled to damages for grief, sorrow or decedent's pain and suffering. 573, 614 (2001). See Rufo v Simpson, 86 Cal App 4th

Accordingly, the following portions of the

complaint shall be stricken: "grief," Doc #1 at 6:25, and "pain and 15

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suffering to the deceased and survivor, emotional and psychological injuries to the survivor, future medical expenses to the survivor, loss of consortium of the surviving child, loss of enjoyment of life," Doc #1 at 8:7-9.

4 Next, defendants contend that punitive damages are not available to either plaintiff and that all reference to punitive damages and the allegedly willful and wanton conduct that justify them should be stricken. Defendants' argument is essentially that

Arianna Padilla is not entitled to punitive damages in her wrongful death action and that because the estate cannot recover for Joseph Padilla's pain, suffering, disfigurement or any other pre-death damages, it has no compensatory damages on which to base an award of punitive damages. Defendants appear to be correct, and plaintiffs do not dispute, that plaintiff Arianna Padilla is not entitled to punitive damages in her own right. Cal Code Civ Proc §377.61; Garcia v The estate,

Superior Court, 42 Cal App 4th 177, 186-87 (1996).

however, as successor in interest to Joseph Padilla, may be entitled to punitive damages based on the cause of action Joseph Padilla would have had had he survived. Simpson, 86 Cal App 4th at 616. Defendants argue that the estate cannot recover punitive damages because, under Cal Code Civ Proc §377.34, damages recoverable by a decedent's successor in interest are limited to damage sustained or incurred by decedent before death "and do not include damages for pain, suffering, or disfigurement," the estate 16 Cal Code Civ Proc §377.34;

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has claimed no pre-death compensatory damages upon which it could be awarded punitive damages. See Cal Civil Code § 3294; Kizer v Remarkably,

County of San Mateo, 53 Cal 3d 139, 147 (1991). plaintiffs do not respond to this argument.

Nonetheless, the court

concludes that plaintiffs have stated a basis on which the estate could be awarded punitive damages. The well-settled rule that punitive damages cannot be awarded unless actual damages are suffered does not, as defendants contend, require that such damages be awarded or awardable. Rather, the actual damages requirement imposed by Cal Civil Code § 3294 is "simply the requirement that a tortious act be proven if punitive damages are to be assessed." Carr v Progressive Cas Ins

Co, 152 Cal App 3d 881, 892 (1984)(citing Werschkull v United California Bank, 85 Cal App 3d 981, 1002 (1978)). Joseph Padilla's

right to recover damages for his alleged pain and suffering does not survive his death, but this does not mean that the damages were not suffered. To hold that the requirement of actual damages is as

strict as defendants contend would lead to the perverse result that punitive damages recoverable by Joseph Padilla had he survived ­ or had plaintiffs alleged that defendants' tortious conduct damaged Joseph Padilla's property before he died ­ are not recoverable because the tortious conduct actually killed him. Absent clear

direction from the California courts to do so, and given the explanation of the actual damages requirement in the Carr and Werschkull decisions, the court declines to hold that the estate of Joseph Padilla cannot recover punitive damages because it has not stated a claim for actual pre-death damages that it can recover. Defendants are not entitled to an order striking the 17

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portions of the complaint relating to punitive damages.

But

because damages for Joseph Padilla's pre-death suffering are not recoverable by plaintiffs, the words "the death and pre-death pain and suffering of Joseph Albert Padilla" shall be stricken from the complaint at 8:4-5.

5 Finally, defendants contend that references to attorney fees must be stricken from the complaint. Plaintiffs argue that

they may be entitled to an award of attorney fees under Cal Code Civ Proc § 1021.5, which provides that a court may award attorney fees to a successful party in any action which has conferred a significant benefit on the general public. The court has already

determined that plaintiffs are entitled to request injunctive relief, and the court agrees that plaintiffs may be entitled to attorney fees if they ultimately receive that remedy. Therefore,

defendants are not entitled to an order striking the portions of the complaint relating to attorney fees.

IV For the reasons discussed above, plaintiffs' "loss of consortium and parental nurture and guidance" claim is DISMISSED WITHOUT LEAVE TO AMEND. Defendants' motion to dismiss plaintiffs'

unfair and unlawful business practices claim is DENIED. Defendants' motion to strike is GRANTED IN PART and DENIED IN PART. The portion of the complaint praying for

restitutionary disgorgement, Doc #1 at 11:8-9, is STRICKEN WITH LEAVE TO AMEND. The words "or implied," Doc #1 at 7:11, 7:27 and 18

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9:25, are STRICKEN WITH LEAVE TO AMEND.

The words "because it did

not conform to the manufacturer's express," Doc #1 at 7:10-11 and 9:24-25, and "breaches of express," Doc #1 at 7:27, are STRICKEN WITH LEAVE TO AMEND. The words "grief," Doc #1 at 6:25, and "pain

and suffering to the deceased and survivor, emotional and psychological injuries to the survivor, future medical expenses to the survivor, loss of consortium of the surviving child, loss of enjoyment of life," Doc #1 at 8:7-9, are STRICKEN. The words "the

death and pre-death pain and suffering of Joseph Albert Padilla," Doc #1 at 8:4-5, are STRICKEN. Defendants' motion to strike is

DENIED with regard to other portions of the complaint. Plaintiffs may file an amended complaint within twenty days or, alternatively, stand on the present pleading, preserving their appellate rights and moving to amend pursuant to FRCP 15(b) on any theory or cause of action stricken or dismissed that depends on evidence adduced at trial.

IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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