Judge: Daniel M. Crowley, Case: 20STCV05738, Date: 2022-10-21 Tentative Ruling

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Case Number: 20STCV05738    Hearing Date: October 21, 2022    Dept: 28

Motion to Strike Punitive Damages

Having considered the moving papers, the Court rules as follows:

BACKGROUND

On February 14, 2020, Plaintiff Mari L. Waldstein (“Waldstein”) filed this action against Defendants Stefan R. Dickerson (“Dickerson”) and Geico Insurance Co. (“Geico”) for motor vehicle negligence and failure to render aid.

On May 5, 2022, Plaintiff filed a Second Amended Complaint for motor vehicle negligence. Defendant demurred and moved to strike punitive damages. On July 13, 2022, the Court overruled the demurrer but granted the motion to strike with leave to amend.

On August 11, 2022, Plaintiff filed a Third Amended Complaint (“TAC”) for motor vehicle negligence. Defendant does not demur but again moves to strike punitive damages.  

PARTY’S REQUESTS

Defendant asks the Court to strike all references, allegations and prayers for punitive damages as alleged on pg. 2, lines 6-24 and Page 3, lines 1-23 of the TAC.

MEET AND CONFER

Code of Civil Procedure section 435.5 states that a party who moves to strike “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.” However, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc. § 345.5(a)(4).)

Here, Defendants offer a declaration from counsel stating that she mailed a meet and confer correspondence on August 31, 2022. This is not sufficient—the statute requires meet and confer efforts to occur in person or by telephone. Nonetheless, this is not grounds to deny the motion and thus the Court will consider the merits.

LEGAL STANDARD

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof…” (Code Civ. Proc. § 435(b)(1).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc. § 437(a).) “The court may, upon a motion made pursuant to Section 435…Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436.)

DISCUSSION

            In her TAC, Plaintiff includes a cause of action for punitive damages. (TAC, 2:6.) Plaintiff then includes several allegations that attempt to establish a basis for punitive damages. (TAC, 2:6-3:23.) Defendants move to strike those portions of Plaintiff’s TAC.

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

            In her TAC, Plaintiff alleges Defendant Dickerson struck her while she was crossing the street causing her injury and momentary loss of consciousness. (TAC, 2:14.) Plaintiff also alleges Dickerson left the scene. (TAC, 2:18.) Finally, Plaintiff states Defendant “may” have been under the influence of drugs and alcohol. (TAC, 3:7.)

            While the allegations of hit and run may rise to the level of gross negligence, they do not establish Dickerson acted with malice, fraud, or oppression. There are no allegations that Defendant intended to harm Plaintiff. (See Coll. Hosp., Inc., supra, 8 Cal. 4th at 725.) Furthermore, Plaintiff only alleges a cause of action for negligent operation of a motor vehicle, and it is well-established that punitive damages are not recoverable in simple negligence actions. (See Spencer, supra, 5 Cal.App. at 128.)

            While courts have in some instances awarded punitive damages against defendants who were intoxicated, in this case Plaintiff does not make such allegations. Plaintiff merely alleges that Dickerson “may” have been intoxicated because its “reasonable to assume Defendant had something to hide.” (TAC, 3:8.) This is not a sufficient allegation of malice, fraud, or oppression.

            Plaintiff fails to plead facts giving rise to a claim for punitive damages and therefore Defendants’ Motion to Strike is granted. Plaintiff has been given an opportunity to amend her complaint and only alleges negligence in both her Second and Third Amended Complaints. Therefore, the Motion is granted without leave to amend.

CONCLUSION

The motion is GRANTED without leave to amend.

Page 2, lines 6-24 and Page 3, lines 1-23 are stricken from Plaintiff’s Third Amended Complaint.

Defendant is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.