Judge: Edward B. Moreton, Jr., Case: 22SMCV02034, Date: 2023-01-17 Tentative Ruling

Case Number: 22SMCV02034    Hearing Date: January 17, 2023    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

MOVING PARTY:                    Defendant Moonshadows, Inc.

RESPONDING PARTY:         Plaintiff Estate of Adrine Mekertichian

BACKGROUND

Adrine Mekertichian was struck by a car and died while crossing the street to dine at Defendant Moonshadows Malibu, Inc.  Plaintiff, Mekertichian’s estate, is suing Defendant for negligence and premises liability.  Plaintiff alleges Defendant told Mekertichian to park and walk across Pacific Coast Highway despite purportedly knowing this is an extremely dangerous area for pedestrians. 

This hearing is on Defendant’s motion to strike Plaintiff’s claim for punitive damages.  Defendant argues the Complaint is devoid of any material allegations of fact that would give rise to a finding that Defendant acted with malice, oppression or fraud.  Plaintiff has not filed an opposition. 

LEGAL STANDARD

The court may, upon 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).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436, subd. (b).)  The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws.  (Code Civ. Proc. §436.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc. § 437.)  The adequacy of a claim for punitive damages may be tested by a motion to strike.  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

DISCUSSION

Defendant moves to strike Plaintiff’s claim for punitive damages.  Defendant argues Plaintiff has not alleged any facts that would support a finding of malice, oppression and fraud.  The Court agrees.   

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.”  (Clauson v. Superior Court (1998) 67 Cal.App.4^th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  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 (1984) 157 Cal.App.3d 159, 166 (citations omitted).)  Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4^th 1033, 1041.)  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)   

Malice is defined as “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.”  Civ. Code § 3294.  “[A]bsent an intent to injure the plaintiff, malice requires more than a willful and conscious disregard of the plaintiffs’ interest.  The additional component of ‘despicable conduct’ must be found.”  (College Hosp. Inc. v. Superior Court (1994) 8 Cal.4^th 704, 725.)  Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Id.  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.”  Id.

Malice and oppression both include a finding of despicable conduct.  “Despicable” connotes conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4^th 702, 715.)  “Such conduct has been described as having the character of outrage frequently associated with [a] crime.”  (Id.)

Here, Plaintiff has failed to allege any facts that would give rise to a showing of malice, oppression or fraud.  Plaintiff generally alleges based on information and belief that Defendant directed Mekertichian to park across Pacific Coast Highway, that Defendant was aware of prior pedestrian vehicle accidents having occurred on Pacific Coast Highway, and that therefore Defendant acted with a “willful disregard of human life[.]”  Compl. ¶¶15, 18-20, 23, 32.  These allegations sound in negligence and are insufficient to constitute malice, oppression or fraud. 

Indeed, Plaintiff has only brought negligence-based claims (negligence and premises liability) against Defendant.  (See Sanchez v. Hatcher, 2021 Cal. Super. Lexis 121596 at *6 (“Premises Liability is a type of negligence, but also its own cause of action. The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.”)  Negligence-based causes of action generally in and of themselves will not support a claim for punitive damages.  (Lutizetti v. Bogert, 2021 Cal. Super. Lexis 71183 at *3.)  Plain unintentional carelessness, characterized as negligence or recklessness, is not sufficient to support punitive damages. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286 (“Conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages”); G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32 (“When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice”); Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87 (“Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant “has been guilty of oppression, fraud, or malice,” the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages”).

Plaintiff also fails to state a claim for punitive damages against a corporate defendant.  Section 3294 states that for a valid claim for punitive damages to be made against an employer, the employer must have had advance knowledge of the unfitness of the employee and employed him or her in conscious disregard of the rights or safety of others “or authorized or ratified the wrongful conduct.”  “With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”  Code Civ. Proc. §3294.  There are no such allegations in the Complaint. 

Accordingly, the Court grants Defendant’s motion to strike Plaintiff’s punitive damages claim.  Plaintiff has the burden to show and has not shown these defects can be cured with amendment.  Accordingly, no leave to amend shall be granted.         

CONCLUSION

Based on the foregoing, the Court GRANTS Defendant’s motion to strike without leave to amend. 

DATED: January 17, 2023                                                   ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court