# Gastelum

> District Court, S.D. California · March 24, 2026

URL: https://www.frixlaw.com/law-library/cases/11366855

## Case

- **Full name:** Fernando Gastelum v. Town Center Village II, LLC
- **Court:** District Court, S.D. California
- **Decided:** March 24, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11366855

## Opinion text

1
2
3
4
5
6
7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9 FERNANDO GASTELUM, Case No.: 3:25-cv-00745-JAH-LR

10 Plaintiff,
ORDER DENYING MOTION TO
11 v. STRIKE AND GRANTING IN PART
MOTION TO DISMISS
12

13 TOWN CENTER VILLAGE II, LLC, [ECF Nos. 13, 14]
14 Defendant.
15
16 Pending before the Court is Defendant Town Center Village II, LLC’s (“Defendant”)
17 Motion to Strike and Motion to Dismiss, filed pursuant to Federal Rules of Civil Procedure
18 12(f) and 12(b)(6). ECF Nos. 13, 14. Plaintiff Fernando Gastelum (“Plaintiff”) opposes
19 the motions. ECF Nos. 15, 16.
20 Plaintiff filed an amended complaint alleging claims under 1) Title III of the
21 Americans with Disabilities Act, 2) the Unruh Act, 3) the Disabled Persons Act (“DPA”),
22 and 4) Section 3294 of the California Civil Code for punitive damages based on malice and
23 oppression of the disabled, supplementing Plaintiff’s Unruh Act and DPA claims. ECF
24 No. 10 (“Amended Complaint” or “AC”). Defendant responded by filing the present
25 motions to 1) strike all references to punitive damages in the Amended Complaint and 2)
26 dismiss Plaintiff’s claim for malice and oppression.
27 For the reasons described below, the Court DENIES the Motion to Strike and
28 GRANTS the Motion to Dismiss with leave to amend.
1 DISCUSSION
2 I. Motion to Strike Under Rule 12(f)
3 Defendant moves to strike all references to punitive damages in the Amended
4 Complaint pursuant to Rule 12(f). Fed. R. Civ. P. 12(f). Defendant argues the relief is
5 warranted based on Plaintiff’s failure to plead sufficient allegations to support his claim
6 for punitive damages under section 3294(a). Cal. Civ. Code § 3294(a).
7 In opposition, Plaintiff argues that Defendant fails to cite the correct legal standard
8 in support of its motion to strike and therefore fails to establish that relief is warranted.
9 A. Legal Standard
10 Federal Rule of Civil Procedure 12(f) permits a court to “strike from a pleading an
11 insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.
12 R. Civ. P. 12(f). The purpose of a motion to strike is to “avoid the expenditure of time and
13 money that must arise from litigating spurious issues by dispensing with those issues prior
14 to trial.” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010) (citation
15 omitted). A court should not grant a motion to strike “unless it is clear that the matter to
16 be stricken could have no possible bearing on the subject matter of the litigation.” Fluence
17 Energy, LLC v. M/V BBC Finland, 726 F. Supp. 3d 1086, 1098 (S.D. Cal. 2024). In ruling
18 on a motion to strike, the Court “must view the pleading under attack in the light most
19 favorable to the pleader.” Id.
20 Here, Defendant argues that Plaintiff fails to allege sufficient facts to support his
21 claim for punitive damages under California law. ECF No. 13-1 at 2–3. Specifically,
22 Defendant argues that Plaintiff’s allegations relating to malice and oppression are “entirely
23 conclusory” and that Plaintiff fails to allege any conduct showing that Defendant’s
24 corporate leaders or members acted with the requisite intent. Id. at 3. Thus, Defendant
25 moves the Court to strike all references to requests for punitive damages for failure to plead
26 sufficient allegations to support his claim. Id. at 2. As discussed below, the Court agrees
27 with Plaintiff that Defendant fails to cite to the correct standard under Rule 12(f).
28 Defendant’s argument makes no attempt to demonstrate that Plaintiff’s punitive
1 damages allegations are redundant, immaterial, impertinent, or scandalous as required by
2 Rule 12(f). Rather, Defendant’s motion to strike Plaintiff's claims for punitive damages is
3 based entirely on the issues of whether Plaintiff sufficiently pled facts to show that there
4 was oppression or malice and whether Plaintiff sufficiently pled facts to show that
5 Defendant’s corporate leaders or members acted with the requisite intent.1
6 Notably, Defendant’s own cited authority establishes that a Rule 12(f) motion is not
7 the proper vehicle for challenging the sufficiency of punitive damages allegations. See
8 Kelley v. Corr. Corp. of Am., 750 F. Supp. 2d 1132, 1146 (E.D. Cal. 2010). In Kelley, the
9 defendants similarly moved to strike punitive damages allegations based on fraud,
10 oppression, or malice by challenging the sufficiency of the underlying factual allegations.
11 Kelley, 750 F. Supp. 2d at 1146. The court held that the proper vehicle for challenging the
12 sufficiency of factual allegations is Rule 12(b)(6), not Rule 12(f), and proceeded to address
13 the substance of the motion to strike as if it were pled pursuant to Rule 12(b)(6). Id.
14 (explaining “where a motion is in substance a Rule 12(b)(6) motion, but is incorrectly
15 denominated as a Rule 12(f) motion, a court may convert the improperly designated Rule
16 12(f) motion into a Rule 12(b)(6) motion”).
17 In light of the foregoing, this Court finds that Defendant’s arguments “challenging
18 the sufficiency of Plaintiff’s factual allegations without any argument that the claims are
19 redundant, immaterial, impertinent or scandalous” are better suited for a Rule 12(b)(6)
20
21
22 1 Defendant also argues that “[a] motion to strike is often the preferred vehicle for
23 dismissing a prayer for relief such as punitive damages.” ECF No. 13-1 at 2 (citing to
Wilkerson v. Butler, 229 F.R.D 166, 172 (E.D. Cal. 2005)). However, Wilkerson states that
24
a “motion to strike is appropriate to address requested relief, such as punitive damages,
25 which is not recoverable as a matter of law,” not that it is the preferred vehicle. Wilkerson,
229 F.R.D at 172 (emphasis added). In any event, Wilkerson was decided prior to the Ninth
26
Circuit’s ruling in Whittlestone which expressly held that “Rule 12(f) does not authorize
27 district courts to strike claims for damages on the ground that such claims are precluded as
a matter of law.” 618 F.3d at 975. Thus, to the extent Wilkerson conflicts with the holding
28
1 motion, not a Rule 12(f) motion. Kelley, 750 F. Supp. 2d at 1146; see also Whittlestone,
2 618 F.3d at 973 (citing Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th
3 Cir. 1987) (“The purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal
4 sufficiency of complaints....”)); Haney, Inc. v. Axium BioResearch, No. 3:23-cv-01990-
5 RBM-JLB, 2025 WL 2734218, at *17-18 (S.D. Cal. Sept. 25, 2025) (denying a motion to
6 strike punitive damages for failure to state a claim for similar reasons). However, given
7 that Defendant concurrently filed a Motion to Dismiss Plaintiff’s punitive damages claim
8 based on substantially the same arguments, the Court finds it appropriate to address the
9 substance of the instant motion to strike together with the arguments in Defendant’s motion
10 to dismiss pursuant to the standard of review under Rule 12(b)(6).
11 Accordingly, the Court DENIES Defendant’s motion to strike.
12 II. Motion to Dismiss Under Rule 12(b)(6)
13 Defendant moves to dismiss Plaintiff’s fourth claim seeking punitive damages for
14 malice and oppression of the disabled pursuant to Rule 12(b)(6). Fed. R. Civ. P. 12(6).
15 Defendant argues that dismissal is proper because 1) California courts do not recognize a
16 cause of action for malice and oppression and 2) Plaintiff fails to plead sufficient facts to
17 support his claim for punitive damages under section 3294(a). Cal. Civ. Code § 3294(a).
18 Specifically, Defendant argues that to the extent Plaintiff seeks punitive damages based on
19 violation of the Unruh Act or DPA, Plaintiff fails to allege facts showing that Defendant
20 acted with intention, and much less with malice and oppression. ECF No. 14 at 3.
21 In opposition, Plaintiff argues that his request for punitive damages is a remedy, not
22 a claim, subject to dismissal and that his prayer for relief was adequate under the liberal
23 pleading standard of Rule 9(b). Fed. R. Civ. P. 9(b); see generally ECF No. 16.
24 A. Legal Standard
25 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint.
26 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). To survive a 12(b)(6) motion, “a
27 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
28 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
1 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when
2 the factual allegations permit “the court to draw the reasonable inference that the defendant
3 is liable for the misconduct alleged.” Id. In other words, “the non-conclusory factual
4 content, and reasonable inferences from that content, must be plausibly suggestive of a
5 claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th
6 Cir. 2009) (citing Iqbal, 556 U.S. at 678). Although the factual allegations must be more
7 than speculative, a well-pleaded complaint may proceed even if the likelihood of recovery
8 is remote. Twombly, 550 U.S. at 555–56.
9 When ruling on a 12(b)(6) motion, courts must accept as true the facts alleged in the
10 complaint and draw all inferences in the light most favorable to the non-moving party. See
11 Iqbal, 556 U.S. at 678; see also Moss, 572 F.3d at 969. “Threadbare recitals of the elements
12 of a cause of action, supported by mere conclusory statements, do not suffice,” and courts
13 need not accept as true legal conclusions cast as factual allegations. Iqbal, 556 U.S. at 678.
14 (citing Twombly, 550 U.S. at 555). “Determining whether a complaint states a plausible
15 claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on
16 its judicial experience and common sense.” Id. at 679.
17 The pleadings of a pro se plaintiff “must be held to less stringent standards than
18 formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
19 (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“Iqbal incorporated the Twombly
20 pleading standard and Twombly did not alter courts’ treatment of pro se filings;
21 accordingly, we continue to construe pro se filings liberally when evaluating them under
22 Iqbal.”)). Although the pleadings are still evaluated under Iqbal and Twombly, courts are
23 obligated, “particularly in civil rights cases, to construe the pleadings liberally and to afford
24 the [pro se] petitioner the benefit of any doubt.” Id.
25 B. Independent Claim for Malice and Oppression
26 The Court agrees that malice and oppression do not constitute an independent cause
27 of action under California law. See Cal. Civ. Code § 3294. Rather, they are predicates for
28 a punitive damages remedy under section 3294.
1 Here, although Plaintiff styles his request for punitive damages under section 3294
2 as a separate claim for malice and oppression, the claim clearly states that the claim
3 supplements counts two and three. AC at 7. This means that, rather than standing on its
4 own, Plaintiff’s request for punitive damages under section 3294 depends on Plaintiff
5 succeeding on his Unruh Act and DPA claims at trial. Thus, notwithstanding that the claim
6 for malice and oppression appears as a separate claim in Plaintiff’s Amended Complaint,
7 the Court finds the claim to be a request for punitive damages under section 3294, pursuant
8 to Plaintiff’s claims under the Unruh Act and the DPA.
9 Accordingly, Plaintiff must properly allege a prayer for punitive damages for malice
10 and oppression under the applicable pleading standard, independently from the sufficiency
11 of the allegations for the underlying causes of action under the Unruh Act and the DPA.
12 In considering the sufficiency of Plaintiff’s allegations for malice or oppression under
13 section 3294, the Court will also consider the factual allegations supporting Plaintiff’s
14 Unruh Act and DPA claims to determine whether dismissal under Rule 12(b)(6) is proper.
15 C. Applicable Pleading Standard
16 The Court holds, and the parties agree, that this Court should apply federal
17 procedural rules given that the matter proceeds before this Court based on diversity
18 jurisdiction. See Clark v. Allstate Ins. Co., 106 F. Supp. 2d 1016, 1019 (S.D. Cal. 2000)
19 (“It is well-established that federal courts sitting in diversity must apply state substantive
20 law and federal procedural rules.”). The Court will now consider whether the Iqbal and
21 Twombly pleading standard or the Rule 9(b) standard is proper to assess the sufficiency of
22 Plaintiff’s prayer for punitive damages under Rule 12(b)(6).
23 In support of his argument that the Court should apply the Rule 9(b) pleading
24 standard, Plaintiff cites Gastelum v. Starbucks Corp. (Starbucks), No. 5:22-cv-08149 (N.D.
25 Cal. Nov. 27, 2024), in which he is a party and where the court applied the “liberal pleading
26 standard of Rule 9(b)” to hold that plaintiff stated a claim for punitive damages under
27 section 3294. See ECF No. 16 at 3–4 (explaining that “under federal pleading standards,
28 malice, intent, knowledge, and other conditions of a person’s mind may be alleged
1 generally” and holding that “Plaintiff states a claim for punitive damages for his state law
2 claims because his third amended complaint clearly requests punitive damages and makes
3 conclusory assertions of intentional and malicious misconduct”) (citing Clark, 106 F. Supp.
4 2d 1019–20). Although Defendant does not directly address this argument, the Court finds
5 Clark unavailing because it was decided prior to the Supreme Court’s decision in Twombly
6 in 2007 and in Iqbal in 2009. 106 F. Supp. 2d at 1019.
7 As an initial matter, this Court acknowledges that district courts within the Ninth
8 Circuit are split on whether the Iqbal and Twombly pleading standards can be used to
9 dismiss a prayer for punitive damages. Compare Kelley, 750 F. Supp. at 1146–47
10 (dismissing punitive damages claim based on the Iqbal and Twombly pleading standards)
11 with Rees v. PNC Bank, N.A., 308 F.R.D. 266, 273 (N.D. Cal. 2015) (adopting the Rule
12 9(b) standard and stating “in federal court, a plaintiff may include a short and plain prayer
13 for punitive damages that relies entirely on unsupported and conclusory averments of
14 malice or fraudulent intent”) (citing Clark, 106 F. Supp. 2d at 1019).
15 However, this Court has previously held that the Iqbal and Twombly pleading
16 requirements apply to a request for punitive damages under California law “because
17 Federal Rule of Civil Procedure 8(a), which dictates federal pleading standards, applies to
18 both the statement of the claim and the demand for relief sought, applying Twombly and
19 Iqbal to a claim for punitive damages harmonizes Supreme Court case law with the Federal
20 Rules of Civil Procedure.” Pa. Transformer Tech., Inc. v. Charter Oak Fire, No. 3:22-cv-
21 00611, 2023 WL 2415163, at *2 (S.D. Cal. Mar. 8, 2023).
22 This Court finds no reason to depart from its prior holding. See also Kelley, 750 F.
23 Supp. at 1147 (“T]he application of the pleading standards set forth in Twombly and Iqbal
24 to claims for punitive damages under California law serves the salutary purpose of
25 harmonizing standards applicable to state and federal proceedings while avoiding
26 unnecessary pleading distinctions between consequential and punitive damages claims in
27 diversity proceedings in federal court.”). Accordingly, the Court will evaluate Plaintiff’s
28 punitive damages allegations under the Twombly and Iqbal standards.
1 D. Allegations for Punitive Damages Under Cal. Civ. Code § 3294
2 Under California Civil Code § 3294, “[i]n an action for the breach of an obligation
3 not arising from contract, where it is proven by clear and convincing evidence that the
4 defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the
5 actual damages, may recover damages for the sake of example and by way of punishing
6 the defendant.” Cal. Civ. Code § 3294(a). Malice is defined as “conduct which is intended
7 by the defendant to cause injury to the plaintiff or despicable conduct which is carried on
8 by the defendant with a willful and conscious disregard of the rights or safety of others.”
9 Id. § 3294(c)(1). Oppression is “despicable conduct that subjects a person to cruel and
10 unjust hardship in conscious disregard of that person's rights.” Id. § 3294(c)(2).
11 Despicable conduct is defined as “conduct that is so vile, base, contemptible, miserable,
12 wretched or loathsome that it would be looked down upon and despised by ordinary decent
13 people.” Lackner v. North, 135 Cal. App. 4th 1188, 1210 (2006) (internal citations and
14 quotations omitted).
15 “Corporations are legal entities which do not have minds capable of recklessness,
16 wickedness, or intent to injure or deceive. An award of punitive damages against a
17 corporation therefore must rest on the malice of the corporation's employees.” Cruz v.
18 Homebase, 83 Cal. App. 4th 160, 167 (2000). Section 3294(b) provides that an employer
19 cannot be held liable for employee acts unless “the employer had advance knowledge of
20 the unfitness of the employee and employed him or her with a conscious disregard of the
21 rights or safety of others or authorized or ratified the wrongful conduct for which the
22 damages are awarded or was personally guilty of oppression, fraud, or malice.” Cal. Civ.
23 Code § 3294(b). “The advance knowledge and conscious disregard, authorization,
24 ratification or act of oppression, fraud, or malice must be on the part of an officer, director,
25 or managing agent of the corporation.” Id. Plaintiff must prove ratification by clear and
26 convincing evidence. Barton v. Alexander Hamilton Life Ins. Co., 110 Cal. App. 4th 1640,
27 1644 (2003).
28 Here, Plaintiff’s request for punitive damages is supported by two allegations: 1)
1 “By its continuing and unrelenting discrimination against the disabled, including Plaintiff,
2 Defendant is and has been guilty of oppression and malice;” 2) “Defendant’ [sic] malice
3 and oppression of the disabled are intentional, premeditated, and specifically designed as
4 a marketing strategy.” AC at 7. These conclusory statements do not allege any facts
5 describing discriminatory conduct or intent, nor do they explain how the conduct actually
6 alleged—Plaintiff arrived at a Subway store “own[ed], operate[d], lease[d], or lease[d] to
7 a third party” by Defendant—qualifies under the standard for malice and oppression.
8 Plaintiff also fails to identify any officer, director, or managing agent of Defendant who
9 participated in malicious or pressive conduct, consciously disregarded the rights of others,
10 or ratified another employee’s conduct in doing so, as required by § 3294(b). See Cruz, 83
11 Cal. App. 4th at 167–68.
12 In addition, Plaintiff’s allegation that “intentional segregation and discrimination of
13 the type alleged here, and indeed any segregation and discrimination against any member
14 of a protective [sic] class, is malicious or oppressive as a matter of law” is not supported
15 by facts or California law. Id. Discrimination against a protected class is not per se
16 malicious or oppressive and Plaintiff must allege sufficient facts to satisfy the requirements
17 of the statute. See Cal. Civ. Code § 3294; Colucci v. T-Mobile USA, Inc., 48 Cal. App. 5th
18 442, 454–55 (2020) (holding that there has to be clear and convincing evidence that the
19 actions are malicious or oppressive).
20 Finally, Plaintiff’s underlying state law claims also lack factual support. Plaintiff’s
21 Unruh Act claim consists of a conclusory allegation that “[d]efendant’s store violated the
22 Unruh Act by denying Plaintiff’s rights to full and equal use.” Id. at 5. Similarly,
23 Plaintiff’s DPA claim relies on threadbare legal conclusions that “Defendants [sic] have
24 violated the DPA by denying Plaintiff equal access to its public accommodation on the
25 basis of his disability as outlined above” and “Plaintiff has been aggrieved by Defendant’s
26 non-compliance with accessibility laws.” Id. at 6–7.
27 Based on the foregoing, the Court finds that Plaintiff fails to allege facts
28 demonstrating that Defendant’s conduct satisfies the definition of malice and oppression
1 |}under § 3294(c). Given the lack of factual allegations that, for example, identify such an
2 || officer, director, or managing agent or that plausibly allege why the acts qualify as malice
3 oppression, the Court finds that Plaintiff fails to state a plausible claim for punitive
4 || damages based on malice and oppression.
5 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff's claim
6 || for punitive damages for malice and oppression.
7 CONCLUSION
8 Accordingly, the Court HEREBY ORDERS:
9 1. Defendant’s Motion to Strike is DENIED.
10 2. Defendant’s Motion to Dismiss due to Plaintiffs failure to sufficiently allege a
11 prayer for relief supporting punitive damages under a malice and oppression
12 theory against corporate Defendant under /gba/ and Twombly is GRANTED.
13 3. The Court GRANTS Plaintiff forty-five (45) days from the date of this Order to
14 file an Amended Complaint which cures the aforementioned deficiencies.
15 Plaintiff is cautioned, however, that should he choose to file an Amended
16 Complaint, it must be complete by itself, comply with the Federal Rules of Civil
17 Procedure, including Rule 8(a), and that any claim not re-alleged will be
18 considered waived. See CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
19 & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading
20 supersedes the original’); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
21 2012) (noting that claims dismissed with leave to amend which are not re-alleged
22 in an amended pleading may be considered “‘waived if not replied”).
23 IT IS SO ORDERED.
24 || DATED: March 24, 2026
25
26 JC A. HOUSTON
ITED STATES DISTRICT JUDGE
28
10

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11366855. Public record. Not legal advice.