Judge: Anne Hwang, Case: 23STCV06585, Date: 2023-10-31 Tentative Ruling

Case Number: 23STCV06585    Hearing Date: October 31, 2023    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

On March 24, 2023, Plaintiffs Jeremy David Asheghian and Daniel Jacobi (Plaintiffs) filed a complaint against Defendant Beth Schuster and Does 1 to 20 for negligence and negligence per se surrounding a motor vehicle accident.

Defendant now demurs to the Complaint alleging it does not state facts to support its claim for punitive damages. Defendant also moves to strike references to punitive damages in the Complaint. No opposition was filed.

LEGAL STANDARD

Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.

MEET AND CONFER

Based on Defendant’s counsel’s declaration, it appears the parties did not meet and confer in-person or by telephone. (Opfell Decl. ¶ 3.) However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)  

ANALYSIS

As stated above, a demurrer only tests the sufficiency of the allegations in the complaint. However, the relief sought for in the prayer of the complaint is not subject to a demurrer. (See Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562.) The proper procedure to attack an improper claim for punitive damages is through a motion to strike.

Therefore, Defendant’s demurrer to the punitive damages claim is overruled because it is not a cause of action. The Court now turns to Defendant’s motion to strike.

Defendant’s Motion to Strike             

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.) 

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.) 

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) 

The Court finds that Plaintiffs’ allegations do not support punitive damages against Defendant. The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated under certain circumstances, but it has not held that punitive damages are always appropriate in cases involving driving while intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) In Taylor, the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident. (Id. at 893.) Further, the defendant accepted employment which required him both to call on various commercial establishments where alcoholic beverages were sold, and to deliver or transport such beverages in his car. (Id.) Finally, the complaint alleged that at the time of the accident, defendant was transporting alcoholic beverages and simultaneously driving while consuming an alcoholic beverage. (Id.) The California Supreme Court found these circumstances to be circumstances of aggravation or outrage and there was “no valid reason whatever for immunizing the driver himself from the exposure to punitive damages given the demonstrable and almost inevitable risk visited upon the innocent public by his voluntary conduct as alleged in the complaint.” (Id. at 898.)

Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, clarified that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant’s decision to drive while intoxicated made the risk of harm to others probable. (Id. at 89.) In Dawes, the circumstances constituted more than the “ordinary driving while intoxicated,” where there was a probable risk of injury to others due to the defendant’s driving while intoxicated, at a high rate of speed, zigzagging through traffic, in the middle of the afternoon, and in locations of heavy pedestrian and vehicle traffic. (Id. at 88-89.)

Here, Plaintiffs’ Complaint does not allege specific facts that show malice, fraud, or oppression. Instead, the Complaint only alleges that Defendant was driving “under the influence of a substance (despicable conduct).” (Complaint ¶¶ 12, 13.) As discussed in Dawes, this alone does not convey that Defendant’s conduct created a probable risk to others. As a result, it does not meet the standard for malicious and despicable conduct because it does not allege specific facts to support that finding. Merely stating as a conclusion that the conduct was despicable is not enough. Accordingly, the Court grants the motion to strike.

The burden is on Plaintiffs to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiffs do not oppose the motion or request leave to amend. Therefore, Plaintiffs have not met their burden.         

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to Plaintiff’s claim for punitive damages.

Defendant’s motion to strike paragraphs 12, 13 and prayer 6 “For punitive damages” is GRANTED without leave to amend.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.