Judge: Anne Hwang, Case: 21STCV39870, Date: 2024-10-07 Tentative Ruling

Case Number: 21STCV39870    Hearing Date: October 7, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Defendant Rack Room Shoes, Inc. (“Defendant”) moves for an order striking Plaintiff’s prayer for punitive damages without leave to amend.

BACKGROUND

            On October 29, 2021, Plaintiff Scott A. Mailly (“Plaintiff” or “Mailly”), filed an action against Defendant Jessica Canton for general negligence.  Plaintiff alleges that Defendant struck him with her car while he was at a marked crosswalk on October 31, 2019.

On October 3, 2023, Plaintiff amended the Complaint to add the following Defendants: Janeth Pardo (“Pardo”) as Doe 1, Off Broadway Shoes, Inc. (“Off Broadway”) as Doe 2, and Rack Room Shoes, Inc. (“Rack Room”) as Doe 3.  On December 6, 2023, pursuant to Plaintiff’s request Defendant Pardo and Off Broadway were dismissed without prejudice.  On December 27, 2023, Defendant Canton was dismissed with prejudice.

            On January 5, 2024, Defendant Rack Room Shoes, Inc. filed an Answer.

            On August 21, 2024, Defendant Rack Room filed the instant Motion to Strike Portions of Complaint (“Motion”).  Plaintiff filed an Opposition on September 24, 2024.  No reply has been filed.

ANALYSIS

Legal Standard

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 § 436, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Id. at § 437.)

Moreover, Code of Civil Procedure section 435.5 requires that “[b]efore 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 whether an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code of Civ. Proc., § 435.5, subd. (a).)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.¿ (Civ. Code, § 3294, subd. (a).)¿ “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.¿ (Civ. Code, § 3294, subd. (c)(1).)¿ “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’¿ [Citation.]”¿ (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)¿¿¿¿ 

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.¿ The additional component of ‘despicable conduct’ must be found.”¿ (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.)¿ The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”¿ (Ibid.)¿ Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.¿ Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”¿ (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)¿ Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”¿ (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)¿ 

“[M]alice is the basis for assessing punitive damages for nonintentional conduct; that is, acts performed without intent to harm. [Citation omitted.] Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.” (Ford Motor Co. v. Home Ins. Co.¿(1981) 116 Cal.App.3d 374, 381.) A conscious disregard for the safety of others can constitute malice if the plaintiff establishes that “the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–96.)

Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-96; see also Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.)  To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences."  (Taylor, supra, 24 Cal.3d at 895–96.) The conduct giving rise to punitive damages must be a proximate cause of the harm inflicted upon a plaintiff. (See CACI Instruction No. 3940 [“The purposes of punitive damages are to punish a wrongdoer for the conduct that harmed the plaintiff and to discourage similar conduct in the future.”].)

“[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment. [Citation omitted.] However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton¿(2002) 96 Cal.App.4th 1017, 1049.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases¿(2018) 24 Cal.App.5th 1150, 1159) (internal quotations omitted.)  

Discussion

Defendant Rack Room moves to strike Plaintiff’s request for punitive damages on the basis that there are no allegations in the Complaint to support a prayer for punitive damages.

Here, the form complaint filed on October 29, 2021, alleges as follows.  On October 31, 2019, Defendant Jessica Canton “[n]egligently struck Plaintiff, Scott Mailly, with her car while Plaintiff was in a marked crosswalk at the intersection of Sunset Blvd and Orange Drive.  Defendant's conduct was in conscious disregard for the life and safety of pedestrians such as Plaintiff.”  (Compl., GN-1.)  As a result, Plaintiff is seeking damages in the form of wage loss, hospital and medical expenses, general damage, loss of earning capacity, and punitive damages.  (Id., ¶¶ 11, 14.)

Defendant argues that the Complaint contains allegations pertaining only to Defendant Canton.  On October 3, 2023, Plaintiff filed an amendment adding Defendant Rack Room as Doe 3, but did not present any allegations against Rack Room.  Furthermore, Defendant argues Plaintiff has not alleged that Canton or Rack Room acted with malice, fraud, or oppression, and has not presented any specific acts that would support a request for punitive damages.

In opposition, Plaintiff admits that the allegations against Rack Room do not support a request for punitive damages.  Plaintiff requests an opportunity to amend the form Complaint filed by Plaintiff in a self-represented capacity, to cure this deficiency.

Accordingly, Defendant’s Motion to Strike is granted with 20 days leave to amend.

CONCLUSION AND ORDER

The Court GRANTS Defendant Rack Room Shoes, Inc.’s Motion to Strike Portions of Complaint with 20 days leave to amend.

Defendant shall give notice of this order, and file a proof of service of such.