Judge: David B. Gelfound, Case: 23CHCV02708, Date: 2024-09-05 Tentative Ruling

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Case Number: 23CHCV02708    Hearing Date: September 5, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO STRIKE PUNITIVE DAMAGES FROM PLAINTIFFS’ SECOND AMENDED COMPLAINT

Motion filed: 6/21/24

MOVING PARTY: Defendant Vinko Cosic

RESPONDING PARTY: Plaintiffs Kelly Emily Alarcon, Jorge Lopez, and Steven Lopez

NOTICE: OK.

RELIEF REQUESTED: An order from this Court striking portions of the Second Amended Complaint pertaining to punitive damages.

TENTATIVE RULING: The motion is GRANTED without leave to amend.

BACKGROUND

This action arises from alleged damages resulting from a motor vehicle collision that occurred on or about September 23, 2021.

On September 8, 2023, Plaintiffs Kelly Emily Alarcon, Jorge Lopez, and Steven Lopez (collectively, “Plaintiffs”) initiated the action. Subsequently, on September 18, 2023, Plaintiffs filed their First Amended Complaint, and on May 24, 2024, Plaintiffs filed their operative Second Amended Complaint against Defendant Vinko Cosic (“Cosic” or “Defendant”) and Does 1 through 50, alleging four causes of action: (1) Negligence, (2) Negligence Per Se, (3) Statutory Liability, and (4) Punitive Damages.

On August 16, 2024, Defendant filed the instant Motion to Strike Punitive Damages from the SAC (the “Motion”).

Subsequently, on August 16, 2024, Plaintiffs filed their Opposition. Defendant replied on August 28, 2024.

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, Defendant’s counsel, Stephanie M. Fernandez, attests that she called Plaintiffs’ counsel, Jonathan Paul Garcia, on June 5, 2024, to meet and confer issues raised in the Motion. (Fernandez Decl. ¶ 2.) Despite these efforts, the parties were unable to reach an agreement. (Ibid.)

Accordingly, the Court finds that the requirement for meet and confer declaration has been met, pursuant to Code of Civil Procedure section 435.5, subdivision (a).

2.      Timeliness

“A party served with a cross-complaint may within 30 days after service move, demur, or otherwise plead to the cross-complaint in the same manner as to an original complaint.” (Code Civ. Proc., § 432.10) 

“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 complaint or cross-complaint unless extended by court order or stipulation.]” (Code Civ. Proc. § 435, subd. (b)(1).)”

“Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days, but the extension shall not apply to extend the time for filing any of the following[.] [inapplicable here]” (Code Civ. Proc., §1010.6, subd. (a)(3)(B).)

Here, the SAC was served on May 24, 2024, via electronic service. The Motion was filed and served on June 21, 2024, within the timeframe that Defendant was allowed to respond to the SAC.

Based on the above records, the Court finds the Motion is timely.

A.    Motion to Strike the Fourth Cause of Action

Defendant moves for the Court to strike portions of the SAC pertaining to punitive damages:

1.      Paragraph “D” of Prayer for Relief: “D. Punitive damages;”

2.      Paragraph 39, in its entirety: “As additional damages against Defendant VINKO COSIC, an individual, and DOES 1 THROUGH 50, Inclusive, and each of them, Plaintiffs allege that Defendants were guilty of malice and oppression within Civil Code Section 3294, and that Plaintiffs should recover punitive damages in addition to actual and general damages.”

3.      Paragraph 45, in its entirety: “Defendant VINKO COSIC knew that it was reckless to operate a motor vehicle while distracted and intoxicated and that such operating of a motor vehicle under the circumstances was dangerous for everyone on the road, however, despite knowing this he willfully decided to continue to drive his vehicle endangering the community.”

4.      Paragraph 46, in its entirety: “Defendant VINKO COSIC made the conscious decision to operate his vehicle while intoxicated, knowing he was unfit to drove at that time, on the date of the incident.”

5.      Paragraph 48, in its entirety: “Despite having the knowledge that probable serious injury to others would result from driving while intoxicated on public roads where others are present, Defendant VINKO COSIC willfully failed to avoid such consequences.”

6.      Paragraph 49, in its entirety: “Defendant VINKO COSIC acted with willful and conscious disregard that serious injury to others would result from his actions, specifically, Defendant VINKO COSIC operated his vehicle after knowing that he was unfit to drive at or near certain public roadways known as RAILROAD AVENUE and MARKET STREET in the City of Canyon Country, and did so operate his vehicle knowing that such conduct was dangerous resulting in him fleeing the scene of collision.”

1)      Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [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 (1994) 8 Cal.4th 704, 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

i.                    Improper Labeling of the Fourth Cause of Action

In California, it is well-established that there is no separate cause of action for punitive damages. (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1164.) Instead, a claim for punitive damages is merely an additional remedy that is dependent on a viable cause of action for an underlying tort. (Brewer v. Second Baptist Church of Los Angeles (1948) 32 Cal.2d 791, 801-802; Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1137.)

Civil Code section 3294, which authorizes punitive damages “in addition to actual damages,” is found under Civil Code “Division 4. General Provisions,” “Part 1. Relief,” “Title 2 Compensatory Relief,” and “Chapter 1 Damages in General.” Thus, based on its language and structural placement in the code, it is clear that the statute does not create a cause of action but provides additional relief for damages.

Moreover, the first paragraph under the Fourth Cause of Action asserts, “As additional damages against Defendants VINKO COSIC, an individual, and DOES 1 THROUGH 50, Inclusive, and each of them, Plaintiffs allege that Defendants were guilty of malice and oppression within Civil Code Section 3294, and that Plaintiffs should recover punitive damages in addition to actual and general damages.” (SAC, ¶ 39.) (Italics in original, underlines added.)

It is clear from the allegation that punitive damages are additional damages Plaintiffs seek to recover when asserted in parallel with “actual and general damages.”

Accordingly, the Court observes that the SAC improperly labels the Fourth Cause of Action as one for “Punitive Damages against All Defendants,” which is not a legally recognizable cause of action according to established California law. However, this mislabeling alone is not grounds to strike the factual allegations contained within it.

ii.                  Allegation Pertaining to Defendant’s Driving Under the Influence

The California Supreme Court has held that punitive damages may be imposed for driving while intoxicated under certain circumstances but has not held that punitive damages are always appropriate in cases involving driving while intoxicated.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892 (Taylor).)  In Taylor, the complaint alleged that the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident.  (Id. at p. 893.)  Further, the defendant accepted employment which required him both to call on various commercial establishments where alcoholic beverages were sold, and to deliver or transport such beverages in his car.  (Ibid.)  Finally, the complaint alleged that at the time of the accident, the defendant was transporting alcoholic beverages and simultaneously driving while consuming an alcoholic beverage.  (Ibid.)  The California Supreme Court found these circumstances to be circumstances of aggravation or outrage and there was “no valid reason whatever for immunizing the driver himself from the exposure to punitive damages given the demonstrable and almost inevitable risk visited upon the innocent public by his voluntary conduct as alleged in the complaint.”  (Id. at p. 898.)

Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82(Dawes), clarified that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant’s decision to drive while intoxicated made the risk of harm to others probable.  (Dawes, supra, at p. 89.)  In Dawes, the circumstances constituted more than the “ordinary driving while intoxicated,” with fact showing a probable risk of injury to others due to the defendant’s driving while intoxicated, at a high rate of speed, zigzagging through traffic, in the middle of the afternoon, and in locations of heavy pedestrian and vehicle traffic.  (Id. at pp. 88-89.) 

            Here, the SAC states general allegations that Defendant operated the vehicle “in a negligent, careless, and reckless manner, and with gross negligence, and conscious disregard, and ... were otherwise careless and negligent in the instance.” (SAC, ¶ 15, 17.) Additionally,  “[t]he video that was obtained from a witness at the scene shows the Defendant driving as if he was under the influence and clearly shows that the Defendant was not in his right state of mind to be able to drive a vehicle under those circumstances.” (Id. ¶ 41.) “As a result of Defendant VINKO COSIC’S allegedly intoxicated state, he failed to properly observe Plaintiffs ahead of him and the excessive speed at which he was travelling [...]” (Id. ¶ 44.) “Defendant VINKO COSIC knew that it was reckless to operate a motor vehicle while distracted and intoxicated[...]” (Id. ¶ 45.) “Despite having the knowledge that probable serious injury to others would result from driving while intoxicated on public roads where others are present, Defendant VINKO COSIC willfully failed to avoid such consequences.” (Id. ¶ 48.) “Defendant VINKO COSIC operated his vehicle after knowing that he was unfit to drive at or near certain public roadways known as RAILROAD AVENUE and MARKET STREET in the City of Canyon Country[.]” (Id. ¶ 49.)

            In comparison with the facts alleged in Dawes, the Court finds that Plaintiff’s general allegations are insufficient to demonstrate circumstances beyond the “ordinary driving while intoxicated” that would make the risk of harm to others probable. Furthermore, the SAC lacks a sufficient factual showing that, in the view of Taylor, would rise to the level “aggravation or outrage.” (Taylor, supra, 24 Cal.3d at p. 894.)

            Therefore, the Court concludes that Plaintiffs’ allegations pertaining to Defendants’ driving under the influence are insufficient to support a claim for punitive damages.

iii.                Allegations Pertaining to Defendant’s Conduct after the Collision

In the Opposition, Plaintiffs argue that malice, oppression or fraud, as defined under Civil Code section 3294(c), is also supported by the alleged facts that, after causing injuries, Defendant “[left] the sense knowing that people more likely than not are injured and not reasonably assist the injured people involved.” (Opp’n. at p. 7.)

In the SAC, Plaintiffs allege that “After the collision, Defendant VINKO COSIC fled the scene without attempting to exchange insurance information.” (SAC ¶ 43.)

However, Plaintiffs do not allege facts that demonstrate Defendant’s conduct after the collision caused any additional damages beyond those incurred from the accident itself. (See Brooks v. E. J. Willing Truck Transp. Co. (1953) 40 Cal.2d 669, 679 [the court held that a hit-and-run only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit-and-run.])

Therefore, the Court finds that Plaintiffs’ allegations pertaining to Defendant’s conduct after the collision are insufficient to support a claim for punitive damages.

Based on the foregoing, the Court GRANTS WITHOUT LEAVE TO AMEND the Motion to Strike in its entirety. If Plaintiffs later determine, through the course of discovery, that additional facts exist to support a claim for punitive damages, Plaintiffs may file a motion for leave to amend.  

CONCLUSION

The Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND.

Moving party to give notice.