Judge: David B. Gelfound, Case: 23CHCV02013, Date: 2024-04-02 Tentative Ruling

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Case Number: 23CHCV02013    Hearing Date: April 2, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO STRIKE PUNITIVE DAMAGES

Motion filed: 11/3/23

MOVING PARTY: Defendants Emmanuel Gonzalez and Guillermo Luis Rodriguez

RESPONDING PARTY: None

NOTICE: ok 

RELIEF REQUESTED: An order from this Court striking the language regarding punitive damages in the Complaint.

TENTATIVE RULING: The motion is GRANTED with LEAVE TO AMEND.

BACKGROUND

This action arises from a vehicle collision allegedly caused by Defendants.

On July 10, 2023, Plaintiff Barbara Deeann Costanzo (“Plaintiff”) filed her Complaint against Defendants Emmanuel Gonzalez and Guillermo Luis Rodriguez (collectively, “Defendants”), and Does 1-100. The Complaint alleges motor vehicle liability and general negligence, seeking, inter alia, punitive damages. 

On November 13, 2023, Defendants filed the instant Motion to Strike.

            No opposing papers have been received by the Court.

ANALYSIS

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz, 42 Cal. 2d 767, 782 (1954) [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)    An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

A.    Procedural Requirements

1.      Meet and Confer

“Before filing a motion to strike . . . the moving party 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.”  (Code Civ. Proc. § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc. § 435.5, subd. (a)(3).) 

Here, Defendants’ counsel states that on October 30, 2023, he conducted a telephonic meet and confer with Plaintiff’s counsel regarding the issues presented in the instant motion During this conversation, Defendants’ counsel outlined their position and requested the dismissal of the punitive damages allegations. Plaintiff’s counsel declined the request on November 1, 2023. (Armstrong Decl., ¶ 3.)

Based on the declaration, the Court finds that the meet and confer requirements under Code of Civil Procedure section 435.5 subdivision (a) have been met.

2.      Timeliness

“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 [e.g., 30 days after the service of the compliant or cross-complaint unless extended by court order or stipulation.]” (Code Civ. Proc. § 435, subd. (b)(1).)

“If the parties are unable to meet and confer at least 5 days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due[.]” (Code Civ. Proc. § 435.5, subd. (a)(2).)

Here, the Complaint was served via substituted service on Defendants on August 12, 2023, followed by mail service on August 16, 2023. (8/18/23 Proof of Service). Pursuant to Code of Civil Procedure section 415.20 subdivision (a), service in this manner is deemed completed on the 10th day after the mailing. Therefore, combining this with the 30-day rule to respond to the Complaint after the service, the deadline for Defendants to file a motion to strike was established as September 25, 2023.

However, Defendants filed their Motion on November 13, 2023, missing the established deadline. Consequently, the Court considers the filing of the Motion untimely.

Notably, the meet and confer process took place on October 30, 2023. (Armstrong Decl., ¶ 3.) Despite this effort, Defendants have not provided a declaration “stating under penalty or perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer [at least 5 days before the date the motion to strike must be filed,]” as required by Code of Civil Procedure section 435.5 subdivision (a)(2). This omission precludes Defendants from being entitled to the 30-day automatic extension for filing their motion.

Given that Plaintiff does not oppose the timeliness issue of the Motion, the Court will now proceed to evaluate the Motion on its merits.

B.     Motion to Strike Punitive Damages

Defendants request that the following allegations be stricken from the complaint:

1.      Page 3 of the Complaint, No. 10(f);

2.      Page 3 of the Complaint, No. 15 (General Negligence -1, Motor Vehicle -1 and Punitive Damages); and

3.      The Exemplary Damages Attachment in its entirety.

“Punitive damages are accessible only upon a showing that the defendant acted with the intent to vex, injure, or annoy.”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1286 (internal citation omitted).) To withstand a motion to strike punitive damages allegations, the complaint must set forth facts supporting a claim for punitive damages: “the mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Citation omitted.) Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (Fox) (1984) 157 Cal.App.3d 159, 166.)

Civil Code § 3294 subdivision (c) defines malice, oppression, and fraud:

(1) ‘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.

(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

“[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, 8 Cal. 4th 704, 725 (1994).)

Here, Defendants argue that the Complaint lacks any factual allegations of gross negligence, i.e., “want of even scant care” or recklessness, much less despicable conduct, citing Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185, and Lackner v. North (2006) 135 Cal.App.4th 1188, 1209-1210. (Mot., at 4.)

The Court observes that in the Complaint’s Exemplary Damages Attachment, the selection is “malice ...as defined in Civil Code section 3294[.]” However, the facts supporting plaintiff’s claim section merely allege, in relevant part, that “[a]s Plaintiff was traveling, Emmanuel Gonzalez and Guillermo Luis Rodriguez AND DOES 1 TO 100, inclusive, and each of them, negligently, carelessly and recklessly, failed to control, and stop his/their vehicle thereby causing his/their vehicle to collide with Plaintiff's vehicle ... and each of them, carried a conduct with conscious disregard to the safety of the Plaintiff” (Compl., Exemplary Damages Attachment, ¶ Ex. “2.”)

Considering established precedents, the Court determines that mere allegations of “reckless” and “conscious disregard to the safety of the Plaintiff,” do not suffice to meet the requirements of alleging punitive damages.

Therefore, the Court GRANTS with LEAVE TO AMEND the Motion to Strike Punitive Damages.

CONCLUSION

The Motion to Strike is GRANTED.

Plaintiff is GRANTED LEAVE TO AMEND the Complaint within 10 days of notice of this order.

Moving party to give notice.