Judge: Audra Mori, Case: 21STCV40572, Date: 2022-08-15 Tentative Ruling

Case Number: 21STCV40572    Hearing Date: August 15, 2022    Dept: 31






















      CASE NO: 21STCV40572




Dept. 31

1:30 p.m.

August 15, 2022


1. Background

Plaintiffs Ivan N. Castellanos and Miguel A. Castellanos (collectively, “Plaintiffs”) filed this action against Defendants Gerardo Martinez (“Gerardo”) and Elida L. Martinez (“Elida”) (collectively, “Defendants”) for damages arising from a motor vehicle accident.  The complaint alleges that Elida negligently entrusted her vehicle to Gerardo, who caused the subject accident by driving the wrong way into oncoming traffic on a freeway and colliding head on with Plaintiffs’ vehicle.  The complaint alleges causes of action for motor vehicle and general negligence; it includes a prayer for punitive damages against Defendants. 


At this time, Defendants move for judgment on the pleadings as to, or in the alternative, to strike, the request for punitive damages.  Plaintiffs filed an opposition on August 2, 2022, and thereafter filed a supplemental opposition on August 8, 2022.  Defendants filed a reply, and in part contends the supplemental opposition should be disregarded. 


As Defendant contends, the supplemental opposition was filed late and after the time any opposition was due.  While Plaintiffs state in the supplemental opposition that they reserved the right to present the supplemental opposition in their original opposition, Plaintiffs fail to cite any authority stating that a party can reserve such a right, nor do Plaintiffs provide any authority holding that such a filing is proper.  (See CCP § 1005.)  Further, Plaintiffs did not obtain leave of court to file a supplemental opposition.  Therefore, the court will not consider Plaintiffs’ supplemental opposition; only Plaintiffs’ opposition filed on August 2, 2022, is considered.[1]


2. Motion for Judgment on the Pleadings

Defendants move for judgment on the pleadings as to the prayer for punitive damages in the complaint. 


A defendant may move for judgment on the pleadings when the “complaint does not state facts sufficient to constitute a cause of action against that defendant.”  (C.C.P. §438(b)(1) and (c)(1)(B)(ii).)  “A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings.”  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999 [Citations Omitted]; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“A motion for judgment on the pleadings ‘is made on the same grounds, and is decided on the same basis, as a general demurrer, i.e., it will be granted only if the complaint on its face fails to state a cause of action.’ (5 Witkin, Cal. Procedure (3d ed. 1985) Pleadings, § 953, pp. 385-386.)”].) 


A motion for judgment on the pleadings, like a demurrer, will not lie to challenge improper requests for punitive damages, since a prayer for punitive damages is not a separate cause of action.  (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-64.)  A demurrer and a motion for judgment on the pleadings challenge only the sufficiency of the cause of action pleaded and must be overruled if any valid cause of action is pleaded; a demand for improper relief does not vitiate an otherwise valid cause of action.  (Id. at 164-65; Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-62.) 


The proper procedure to challenge an improper request for punitive damages is to bring a motion to strike the prayer and allegations regarding the punitive damages.  Consequently, the court will address the punitive damages requested in analyzing Defendants’ motion to strike below.


3. Motion to Strike

            a. Timeliness of the motion

            The court notes that Defendants filed their answer on May 2, 2022, but did not file this motion to strike until May 24, 2022.  A motion to strike must be filed and served “within the allowed time to respond to a pleading.”  (CCP § 435(b)(1).)  The court has the discretion to rule on an untimely motion to strike.  (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749-50.)  Defendants filed the instant motion shortly after filing their answer, and Plaintiffs do not object to the filing of instant motion on the grounds that it is untimely or that any delay prejudiced them.  In the absence of evidence of any prejudice to Plaintiffs, the court considers Defendants’ motion to strike on the merits. 


b. Meet and Confer

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading that is subject to the motion to strike for purposes of determining whether an agreement can be reached through a filing of an amended pleading.  (Code Civ. Proc, § 435.5.)


Here, Defendants’ counsel states that defense counsel spoke with Plaintiffs’ counsel on the telephone on May 2, 2022, and discussed Defendants’ contention that the complaint fails to state sufficient facts to warrant punitive damages.  Defense counsel provides the parties could not reach an agreement regarding these issues.  (Mot. Eng Decl. ¶ 2.)  While Plaintiffs’ counsel contends that Defendants did not comply with the meet and confer requirements, Defendants’ counsel declaration is sufficient in this regard.  Furthermore, Plaintiffs are aware of the basis for the motion and have opposed it on the merits. 


            c. Request for Judicial Notice

Plaintiffs request judicial notice be taken of the filings in this matter, including the complaint and petition for guardian ad litem.  The request is granted pursuant to Evidence Code § 452(d).


            d. Analysis

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 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.  (CCP § 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.”  (CCP § 436.)


Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (Civil Code §3294.)


Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required.  Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences).  Thus it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.  Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages.  Something more than the mere commission of a tort is always required for punitive damages.  There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.  (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)


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 willfully and deliberately failed to avoid those consequences."  (Taylor, supra, 24 Cal.3d at 895-96.)  Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)


Here, the complaint alleges that Gerardo illegally drove Elida’s vehicle the wrong way on the freeway and collided head on with Plaintiffs’ vehicle.  (Compl. at p. 4.)  Pertaining to the request for punitive damages, the complaint alleges:


The negligent entrustment by [Elida] of her vehicle to her son, [Gerardo], a well-known dangerous, careless, reckless, criminal, negligent and unlawful vehicle driver, and the ‘wrong-way’ driving and the manner, direction and speed of driving by the defendant [Gerardo] of the vehicle he was operating and driving was grossly willful, wanton and reckless, and was done so in a total, complete and absolute reckless disregard of the rights, interests, safety, health, welfare, well-being, risks, injury and life of and to the Plaintiffs…


(Compl. at p. 6 [capitalizations omitted].)  


            The complaint solely asserts conclusory allegations against Defendants, which are insufficient to support a claim for punitive damages.  (Brousseau, 73 Cal.App.3d at 872.)  There are no specific facts alleged suggesting malice, fraud, or oppression by Defendants concerning the subject accident.  Relating to Elida, the complaint alleges the legal conclusion that she negligently entrusted her vehicle to Gerardo, and that Gerardo was a well-known dangerous, negligent reckless and criminal driver, among other conclusory allegations, with no facts alleged regarding what qualities or factors made Gerardo unfit and competent to drive Elida’s vehicle.  Similarly, regarding Gerardo’s driving, the complaint makes the conclusory allegation that the manner, direction and speed of his driving was reckless with no facts pled to support these claims.  There are presently no allegations showing that Gerardo, for example, was aware of the probable dangerous consequences of any of his conduct.  (Taylor, 24 Cal.3d at 896.)  The complaint, therefore, does not sufficiently allege a claim for punitive damages against Defendants.  (See Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90 [“Allegations of intoxication, excessive speed, driving with defective equipment or the running of a stop signal, without more, do not state a cause of action for punitive damages.”].)


            The request to strike the prayer for punitive damages is granted. 


            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.)  In this case, Plaintiffs aver they have further ample facts to support a prayer for punitive damages.


            Therefore, the motion is granted with twenty (20) days leave to amend. 


Defendants are ordered to give notice. 




Dated this 15th day of August 2022





Hon. Audra Mori

Judge of the Superior Court


[1] Plaintiffs seemingly filed the supplemental opposition to submit a Traffic Collision report concerning the accident.  However, in ruling on a motion for judgment on the pleadings and/or motion to strike the court is limited to analyzing the four corners of the complaint and judicially noticeable evidence, and thus, would not consider the report.  (See Vehicle Code § 20013 [“No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident….”]; see also People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17 [“we decline to take judicial notice of the truth or accuracy of an entry in a police report, because such a report is reasonably subject to dispute”] disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1345, fn. 1 [“it would have been improper for the court to take judicial notice of the police report…”].)