Judge: Andrew E. Cooper, Case: 23CHCV00923, Date: 2023-10-02 Tentative Ruling

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Case Number: 23CHCV00923    Hearing Date: October 2, 2023    Dept: F51

MOTION TO STRIKE

Motion Filed: 6/30/23

MOVING PARTY: Defendant D L English Design (“Defendant”)

RESPONDING PARTY: Plaintiff Stephanie Gissell Penaloza (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: Defendant moves to strike the prayer for punitive damages in Plaintiff’s first amended complaint (“FAC”).

TENTATIVE RULING: The motion is denied. Defendant shall file and serve an answer to Plaintiff’s FAC within 30 days of this hearing date.

BACKGROUND 

This is a personal injury action in which Plaintiff alleges that on 4/9/21, she was a passenger in a parked United States Postal Service (“USPS”) truck when it was struck by a 2018 Ford commercial-grade van owned by Defendant and driven by nonmoving Defendant Moses Garcia within the scope and course of his employment with Defendant. (FAC p. 5.)

Plaintiff alleges that she was “in the process of sorting through packages in the back of her vehicle when Defendant-driver … collided into the rear of said USPS vehicle.” (Ibid.) “The force of this rear-end collision was so severe as to propel the parked USPS truck forward and to the right with such speed and at such distance that Plaintiff’s vehicle collided with a third (non-party) vehicle legally parked on street near the curb and unoccupied at the time.” (Ibid.) “Defendant-driver then fled the scene of the crash in violation of California Vehicle Code sections 20001 and 20002.” (Ibid.)

On 4/3/23, Plaintiff filed her original complaint against Defendant, alleging the following causes of action: (1) Personal Injury – Motor Vehicle; (2) General Negligence; and (3) Willful Misconduct. On 6/2/23, Plaintiff filed her FAC, alleging the same causes of action against Defendant. On 9/18/23, Plaintiff named Moses Garcia as previously unnamed Doe defendant 1.

On 6/30/23, Defendant filed the instant motion to strike. On 9/18/23, Plaintiff filed her opposition. On 9/25/23, Defendant filed its reply.

ANALYSIS

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id. at subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)¿Here, Defendant moves to strike all references of punitive damages from Plaintiff’s FAC.

A.    Meet and Confer

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are required to meet and confer at least five days before the date a motion to strike must be filed, otherwise the moving party is granted a 30-day extension to file the motion. (Ibid.)¿ 

Here, Defendant’s counsel declares that on 6/27/23, she sent Plaintiff’s counsel a meet and confer email regarding the issues raised in the instant motion but received no response. (Decl. of Zojeila I. Flores ¶¶ 8–9.) Therefore, the Court finds that counsel has satisfied the preliminary meet-and-confer requirements under Code of Civil Procedure section 435.5, subdivision (a).)

¿¿ 

B.     Punitive Damages 

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) 

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

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1.      Malice

Here, Plaintiff alleges that punitive damages are warranted because “Defendants, including Defendant-driver, made the deliberate decision to flee the scene after the subject crash. After colliding into the back of Plaintiff’s truck, seeing Plaintiff hurl out of the USPS truck, strike the Defendant’s commercial van, and collapse to the hard roadway, and feeling the impact on Defendants’ vehicle to such an extent that it broke off the front license plate and frame and caused substantial fluid leakage from Defendants’ vehicle, Defendant-driver fled the scene of the incident Defendants caused, leaving Plaintiff lying on the ground outside, unprotected, severely injured, and vulnerable.” (FAC p. 6, ¶ 5.)

Plaintiff further alleges that thereafter, Defendant attempted to cover up the incident by requesting, obtaining, and affixing a new license plate with a new license number onto the subject vehicle, denying any involvement with the collision, and refusing to cooperate with law enforcement or Plaintiff. (Id. at p. 7, ¶¶ 8–11.)

Defendant argues that Plaintiff has insufficiently alleged facts to support her prayer for punitive damages because she has not alleged facts to support a finding of malice, fraud or oppression. Defendant argues that “there are no allegations of pre-incident evil motive with intent to injure Plaintiff. Further, there are no factual allegations of actual knowledge before the incident that there was a substantial risk of harm to Plaintiff and Defendant knowingly failed to take actions to eliminate that risk before the incident occurred.” (Def.’s Mot. 9:21–24 [emphasis in original].)

The Court notes that Defendant does not cite to any legal authority that requires a plaintiff’s allegation of malicious conduct pertain to pre-incident conduct. Moreover, the Court agrees with Plaintiff that the facts alleged, taken in context as a whole, demonstrate “Defendants’ conscious disregard for the safety of Plaintiff … (which has been specifically plead) by Moses Garcia’s flight and failure to render aid despite the facts Mr. Garcia caused the strong rear-end collision, observed the resulting side impact with a parked vehicle and ejection of Plaintiff from the back of the USPS truck onto Defendants’ van and thereafter onto the ground.” (Pls.’ Opp. 4:11–15.)

Based on the foregoing, the Court finds that Plaintiff’s factual assertions are sufficient at the pleading stage to allege malicious conduct warranting a prayer for punitive damages. (Civ. Code § 3294, subd. (c)(1).) Accordingly, the motion to strike Plaintiff’s prayer for punitive damages is denied on this basis.

2.      Employer Liability

“An employer shall not be liable for [punitive] damages … based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code § 3294, subd. (b).)

Here, Defendant argues that “while there is a conclusory allegation that it had notice that the unknown driver was unfit or incompetent to operate the vehicle, there are no factual allegations as to why D L ENGLISH DESIGN knew the driver would cause an accident before he left Defendant’s place of business.” (Defs.’ Mot. 11:15–18.) Defendant further argues that “the purported allegations regarding a cover up contain no factual averments about when or to whom alleged fraudulent and deceitful statements were made, or the substantive content thereof. The only factual allegation is that Defendant ordered a new license plate for its vehicle as it was required to do.” (Id. at 11:24–27.)

Here, Plaintiff alleges in her FAC that prior to the collision, Defendant entrusted Garcia with the vehicle “despite their notice and/or knowledge that Defendant-driver was unfit and incompetent to operate their vehicle. Nevertheless, Defendants allowed their vehicle to be driven by Defendant driver, thereby endangering Plaintiff, and other members of the driving public in Los Angeles County.” (FAC p. 7, ¶ 7.) Plaintiff further alleges that Defendant ratified Garcia’s conduct through its “deliberate, callous, and egregious attempt to hide their culpability in the subject incident, to mask the involvement of their van in said crash, and to evade the attention of any law enforcement, such as the local police department investigating the subject crash. (Id. at p. 7, ¶ 8.)

Defendant asserts that “requesting a license plate for a vehicle that needs a license plate to operate on the road demonstrates compliance with motor vehicle laws, not a scheme to endanger the public.” (Defs.’ Reply 4:16–18.) The Court declines to make such a factual determination at the pleading stage. Moreover, Plaintiff’s allegations of malice and employer liability go beyond the scope of Defendant’s replacement of the subject vehicle’s license plate and include failure to report the incident to law enforcement, denial of involvement, and refusal to name the driver. (FAC p. 7, ¶¶ 10–11.)

Based on the foregoing, the Court finds that Plaintiff’s allegations are sufficient to warrant a prayer for punitive damages against Defendant for its employee’s conduct under Civil Code section 3294, subdivision (b). Accordingly, the motion to strike Plaintiff’s prayer for punitive damages is denied on this basis.

CONCLUSION 

The motion is denied. Defendant shall file and serve an answer to Plaintiff’s FAC within 30 days of this hearing date.