Judge: Edward B. Moreton, Jr., Case: 24SMCV00375, Date: 2024-04-05 Tentative Ruling

Case Number: 24SMCV00375    Hearing Date: April 5, 2024    Dept: 205

Superior Court of California 

County of Los Angeles 

Beverly Hills Courthouse | Department 205 

BACKGROUND

This case arises from a two-vehicle accident that occurred on February 18, 2022.  On January 26, 2024, Plaintiff Juventino Gonzalez filed his Complaint against Defendant Julian Shojaie.  On February 7, 2024, Plaintiff filed his operative First Amended Complaint against Defendant asserting a single cause of action for negligence. 

On March 11, 2024, Defendant filed the instant motion to strike portions of the FAC pursuant to Code of Civil Procedure sections 435 and 436.  Plaintiff filed his opposition on March 22, 2024, and Plaintiff filed his reply on March 25, 2024. 

LEGAL STANDARD

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.  (Code of Civ., Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322(b).)  The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code. Civ. Proc., § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

DISCUSSION

Defendant seeks an order to strike the following portions from Plaintiff’s FAC:

(1)   Paragraph 9 on the grounds that the matter is irrelevant, improper: “Subsequent to the collision, Defendant JULIAN SHOJAIE fled the scene immediately after the collision which demonstrates a malicious and willful disregard for the consequences of his actions, underscoring the necessity for punitive damages in this case.”

(2)   Paragraph 10, lines 21-23 up to and including “hit and run felony” on the grounds that the matter is irrelevant, improper: “As a result of Defendant JULIAN SHOJAIE’S negligent maneuver, followed by an intentional failure to stop, identify himself, render aid, or otherwise comply with California Vehicle Code 20001(a) – Hit and Run Felony.”

(3)   Paragraph 14 on the grounds that the matter is irrelevant, improper: “At the same time and place, Defendant JULIAN SHOJAIE fled the scene immediately after the incident.”

(4)   Prayer for Relief – Paragraph 2 at line 15 on the grounds that the matter is irrelevant, improper, as the facts alleged do not rise to the levels of “malice, fraud, oppression” as required to support a punitive damages award: “For an award of punitive and exemplary damages according to proof.”

Meet and Confer

Code of Civil Procedure Section 435.5(a) states that “[b]efore 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. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.” 

As a preliminary matter, the motion to strike is accompanied by the declaration of defense counsel, Daniel Feldman, which satisfies the meet and confer requirements under Code of Civil Procedure section 435.5.  (Declaration of Daniel Feldman, ¶¶ 3-4.)  

Motion to Strike Punitive Damages

A motion to strike punitive damages allegations may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Civil Code Section 3294 authorizes the recovery of punitive damages where it is proved by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civil Code § 3294(a).)  “Malice” is defined as either 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. (Civil Code § 3294(c)(1).)  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  (Civil Code § 3294(c)(2).)  Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 the Supreme Court held that a hit and run cannot give rise to damages unless the fact that the defendant fled the scene was “a proximate cause of further injury or death” beyond the accident itself.  Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run.  It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional injury above and beyond the damages caused by the collision that precedes fleeing the scene.  (Id. at 679-680.)

Defendant argues that Plaintiff’s allegations in the FAC fail to set forth specific facts justifying the prayer for punitive damages and thus does not meet the Code of Civil Procedure section 3294 requirements of “malice.”  Specifically, Defendant argues that “Plaintiff’s basis for his claim for punitive damages is that Defendant allegedly fled the scene of the accident”; however, “[t]his alleged after-the-fact conduct…does not give rise to the requisite ‘malice’ nor does it show that Defendant’s conduct was so ‘wanton and willful’ that injury to Plaintiff was virtually certain.”  (Motion p. 8.)  Further, paragraphs 9, 10, and 14 contain allegations which are “irrelevant and not essential to Plaintiff’s Negligence cause of action.”  (Id. p. 9.)

In opposition, Plaintiff argues that Defendant’s conduct constitutes malice sufficient to support punitive damages because, based on the police report, Defendant’ conduct “comprises driving at reckless speeds, causing a harrowing crash, and subsequently fleeing the scene.”  (Opposition, p. 4.)  In support of Plaintiff’s argument that a hit and run may qualify for punitive damages where there is an act inflicting further harm, Plaintiff cites cases including Blake v. Black, 2021 Cal. Super. LEXIS 76835, Flores v. Steven, 2023 Cal. Super. LEXIS 22946, and Vencebi v. Trigueros, 2021 Cal. Super. LEXIS 92446.  (Id. pp. 4-5.)  In the alternative, Plaintiff seeks leave to amend.  (Id. p. 5.)

In reply, Defendant argues Plaintiff’s opposition should be based on the four corners of the FAC, not on additional hearsay and unsubstantiated allegations (e.g., witness statements, that Plaintiff’s vehicle went airborne and flipped multiple time, suspected intoxication, or that Defendant’s conduct suggest possible driving under the influence.)  (Reply, p. 2.)  Also, Plaintiff’s cited cases do not appear to be published cases, and unlike this case, Vencebi dealt with an emotional distress cause of action.  (Id. p. 2.)

Here, the FAC merely alleges that Defendant fled the scene of the accident.  Plaintiff alleges no facts that fleeing the scene caused or contributed additional damage to Plaintiff beyond the initial damages incurred from the accident itself.  Therefore, there are no facts to show that the act of hitting and running was in fact tortious conduct.  If the act of hitting and running, in and of itself, does not give rise to a tort, then it logically follows that the act cannot give rise to a claim for punitive damages.  As Plaintiff’s claim for punitive damages rely solely on the Defendant’s alleged fleeing the scene and the FAC contains no allegations that Defendant’s fleeing caused additional damage, the FAC does not allege sufficient facts to support a claim for punitive damages.

The Court grants the motion to strike.  The Court will allow Plaintiff twenty (20) days leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s motion to strike is GRANTED, with twenty (20) days leave to amend.  

Dated: April 5, 2024