Judge: Daniel M. Crowley, Case: 21STCV43669, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV43669    Hearing Date: September 20, 2022    Dept: 28

Defendants Gilad Avidor Incorporated and Gilad Avidor’s Motion to Strike

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On November 30, 2021, Plaintiff Allie Rose Weinstein (“Allie”) and Jeremy Weinstein (“Jeremy”) filed this action against Defendant Francisco Barrer (“Barrera”), Anali Manzanares Teodoro (“Teodoro”), Seguros Amigos Insurance, Inc. (“Seguros”) and Infinity Insurance Company (“Infinity”) for negligence per se, conspiracy, aiding and abetting, and four causes of actions for negligence.

On January 25, 2022, Plaintiffs filed the FAC adding Defendants Base Builders, Inc. (“BB”), Base Construction, Inc. (“BC”), Go Construction, Inc. (“GC”), Go Construction & Design, Inc. (“GCD”), Gilad Avidor Incorporated (“GA”) and Gilad Avidor (“Avidor”). It also added one additional cause of action for negligence.

On April 1, 2022, the Court dismissed BB, BC, and GC pursuant to Plaintiff’s request. On May 5, 2022, Barrera and Teodoro filed this answer.

On July 1, 2022, Plaintiffs filed the SAC, removing the cause of action for conspiracy.

On August 5, 2022, GA and Avidor (“Moving Defendants”) filed a Motion to Strike to be heard on September 20, 2022. On September 7, 2022, Plaintiffs filed an opposition.

Trial is scheduled for May 30, 2023.

PARTY’S REQUESTS

Moving Defendant requests the Court strike page 37, lines 20-21, the request for punitive damages as to the fourth cause of action.

Plaintiffs request the Court deny the motion.

LEGAL STANDARD

“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.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff v. Bank of Am (2017) 9 Cal.App.5th 719, 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

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.)

DISCUSSION

Plaintiffs’ complaint alleges that Plaintiff was struck by Barrera, who was driving while intoxicated; Plaintiffs further allege that Barrera became intoxicated while in the course and scope of his employment with Moving Defendants.

Moving Defendants request that the Court strike the request for punitive damages as to the fourth cause of action for negligence (Count III). In order to make a request for punitive damages, Plaintiffs must allege that Moving Defendants acted fraudulently, oppressively, or maliciously. There is clearly no allegation of fraud or oppression, and the Court does not find any basis for malice. Count III, the basis for this request for punitive damages, alleges that Barrera was allowed and provided alcohol at his work site, to drink during or after hours. Furthermore, Count III argues that Moving Defendants knew or should have known Barrera was unfit to drive, and in allowing him to drink and then drive, acted with malice. The Court disagrees; malice requires either intent to cause injury to Plaintiff or despicable conduct with willful and conscious disregard of the rights of others. Allowing an employee to drink on or after hours does not rise to the level of despicable conduct required for a showing of malice. Moving Defendants have met their burden as to this portion, and thus the burden shifts to Plaintiff.

Plaintiffs argue that other courts have held that drunk driving can be a basis for punitive damages, to which the Court agrees; however, Moving Defendants are not the party that Plaintiffs are alleging drove while intoxicated. Moving Defendants are the party Plaintiff alleges provided the alcohol. Additionally, the Court notes that drunk driving is not sufficient, on its own, to find malice; it only provides a basis for punitive damages when coupled with other factors. As such, the Court does not find a basis for punitive damages here and grants the motion.

CONCLUSION

Defendants Gilad Avidor Incorporated and Gilad Avidor’s Motion to Strike is GRANTED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

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