Judge: Daniel M. Crowley, Case: 22STCV29134, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCV29134    Hearing Date: March 15, 2023    Dept: 28

Defendant Francisco Antonio Pavan’s Motion to Strike.

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

BACKGROUND

On September 7, 2022, Plaintiff Debbie Phipps (“Plaintiff”) filed this action against Defendant Francisco Antonio Pavan (“Defendant”) for wrongful death.

On October 28, 2022, Plaintiff filed the First Amended Complaint.

On January 6, 2023, Plaintiff filed the Second Amended Complaint.

On February 3, 2023, Defendant filed a Motion to Strike to be heard on March 15, 2023. On February 23, 2023, Plaintiff filed an opposition. On March 8, 2023, Defendant filed a reply.

Trial is scheduled for March 6, 2024. 

PARTY’S REQUESTS

Defendant requests the Court strike ¶7, ¶8, ¶10 and ¶17.

Plaintiff requests 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, supra, 9 Cal.App.5th p. 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.) 

DISCUSSION

Defendant requests the Court strike references to potential claims for malice as Plaintiff’s SAC does not request punitive damages. The relevant paragraphs discuss Defendant’s violation of the California Vehicle Code as indicative of a conscious disregard for Decedent and Defendant acting with malice and oppression.

Plaintiff requests the Court deny the motion, as the inclusion of relevant statutes is intended to supplement their cause of action with the negligence per se theory of liability. Plaintiff is presenting statutes that Defendant violated in order to preserve this theory of liability.

The Court finds merit in Plaintiff’s argument and thus will not strike ¶7, which identifies and describes particular Vehicle Code violations. However, ¶¶8 and 10 are simply allegations of malice or oppression that make general claims about Defendant violating traffic laws. ¶7 already clearly addresses the issue of traffic laws, and there are no requests for punitive. The Court will strike ¶¶8 and 10 as irrelevant and unduly cumulative.

Defendant also requests the Court strike the request for “special damages,” citing it as unnecessary and potentially seeking recovery beyond the damages authorized by wrongful death statutes. The Court disagrees; special damages is another term for economic damages, which are explicitly allowed under case law and statute. (CCP § 377.61). Plaintiff is merely asserting their right to collect statutorily allowed damages. The Court denies the motion as to this request.

CONCLUSION

Defendant Francisco Antonio Pavan’s Motion to Strike is GRANTED, in part, with 30 days leave to amend. The Court strikes ¶¶8 and 10. The motion is DENIED as to the request to strike ¶¶7 and 17.

            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.