Judge: Gary I. Micon, Case: 24CHCV03012, Date: 2025-01-28 Tentative Ruling
Case Number: 24CHCV03012 Hearing Date: January 28, 2025 Dept: F43
Dept.
F43
Date: 01-28-25
Case # 24CHCV03012, Diaz, et al. v. Santos
Trial
Date: None set.
MOTION TO STRIKE
MOVING
PARTY: Defendant Cesar Augusto Santos
RESPONDING
PARTY: No response has been filed.
RELIEF
REQUESTED
Order
striking prejudgment interest and interest on damages from the complaint.
RULING: Motion is granted,
with leave to amend.
SUMMARY
OF ACTION
Plaintiffs
Yury Elizabeth Blanco Diaz and Yvonne Aileen Blanco (Plaintiffs) filed this
personal injury action against defendant Cesar Augusto Santos (Defendant) and Does
1 through 50 on August 21, 2024, alleging causes of action for motor vehicle
and general negligence. The complaint
alleges that on September 29, 2023, Defendant rented a vehicle and collided
with Plaintiff’s vehicle which resulted in injuries and damages to Plaintiffs.
Defendant
filed this motion to strike on October 29, 2024. No opposition has been filed.
MEET
AND CONFER
Before
filing a motion to strike, the parties must meet and confer “in person, by
telephone, or by video conference.”
(Code Civ. Proc., § 435.5, subd. (a).)
The moving party must file and serve a meet and confer declaration
stating either: “(A) The means by which the moving party met and conferred with
the party who filed the pleading subject to motion, and that the parties did
not reach an agreement resolving the objections raised in the motion to
strike;” or “(B) That the party who filed the pleading subject to motion to
strike failed to respond to the meet and confer request of the moving party or
otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).)
On
October 23, 2024, defense counsel emailed Plaintiffs’ counsel about why
Plaintiffs’ request for prejudgment interest is improper. (Declaration of Dwayne S. Beck, ¶ 2, Exh.
A.) After receiving no response, defense
counsel’s paralegal called Plaintiffs’ counsel on October 28, 2024 and was told
to send an email. (Beck Dec., ¶ 3.) The paralegal emailed Plaintiffs’ counsel to
follow up on whether Plaintiffs would agree to strike prejudgment interest from
the complaint. (Beck Dec., ¶¶ 3-4, Exh.
B.) Plaintiffs’ counsel did not
respond. (Beck Dec., ¶ 5.)
SUMMARY
OF ARGUMENTS
Defendant
argues Plaintiffs cannot collect prejudgment interest under any of the statutes
cited in the Complaint. Plaintiffs
cannot recover prejudgment interest under Civil Code section 3291 because
Plaintiffs’ claims do not concern any settlement offers nor does the complaint
allege that any settlement offers were made or rejected under Civil Procedure
Code section 998. Plaintiffs cannot
recover prejudgment interest under Civil Code section 3287 because the
complaint does not allege a contract claim involving liquidated damages which
are certain. Further, Plaintiffs cannot
recover prejudgment interest under Civil Code section 3288 because the
Complaint does not allege facts suggesting Plaintiffs were denied the
“accretion of wealth” or specific facts supporting claims for oppression,
fraud, or malice.
Plaintiffs
do not oppose.
ANALYSIS
A
party may move to strike the whole or any part of a complaint within 30 days
after service of the complaint unless extended by court order or
stipulation. (Code Civ. Proc., § 435,
subd. (b)(1).) Before filing a motion to
strike, the parties must meet and confer “in person, by telephone, or by video
conference.” (Code Civ. Proc., § 435.5,
subd. (a).) The moving party must file
and serve a meet and confer declaration stating either: “(A) The means by which
the moving party met and conferred with the party who filed the pleading
subject to the motion to strike, and that the parties did not reach an
agreement resolving the objections raised by the motion to strike;” or “(B)
That the party who filed the pleading subject to the motion to strike failed to
respond to the meet and confer request of the moving party or otherwise failed
to meet and confer in good faith.” (Code
Civ. Proc., § 435.35, subd. (a)(3).)
A
court may, upon motion or at any time, strike from the complaint “any
irrelevant, false, or improper matter” or “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, subds. (a)-(b), 187; Greshko v. County of Los Angeles (1987) 194
Cal.App.3d 822, 830 [noting the court’s inherent power to limit the focus of
the proceedings to the issues framed by the remaining viable pleadings].) An “irrelevant matter” is an allegation 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 or cross-complaint.” (Code
Civ. Proc., § 431.10, subds. (b)-(c).)
The Court must read the factual allegations in the complaint as a whole
and assume their truth. (Clauson v.
Superior Court (1998) 67 Cal.App.4th 1253, 1255.)
Defendant
asks the court to strike Page 3, paragraph 11(g) from the Complaint:
“Prejudgment interest and interest on damages under Civil Code Section 3287,
3288, 3291.”
The
purpose of Civil Code section 3287 is to make the plaintiff whole again as of
the date of the injury. (State of
California v. Continental Ins. Co. (2017) 15 Cal.App.5th 1017, 1038.) Section 3287 allows interest where the amount
due to plaintiff is fixed by the term of a contract.” (Ibid.) If the damages are “certain,” interest must
be awarded. (Ibid.) Because the Complaint does not allege facts
sufficient to plead a contract or contractual terms supporting prejudgment
interest and the amount of damages is not “certain,” the Court strikes
Plaintiffs’ request for prejudgment interest under section 3287.
Civil
Code section 3288 allows prejudgment interest in cases based on noncontractual
obligations or in cases concerning oppression, fraud, or malice, where there is
a loss of property. (Civ. Code, § 3288;
see In re Pago Pago Aircrash (C.D. Cal. 1981) 525 F.Supp. 1007 [awarding
prejudgment interest where airline found liable for “willful misconduct”
causing plane crash]; see also Southern Pacific Transp. Co. v. State of
California (1981) 115 Cal.App.3d 116 [refusing to award prejudgment
interest in tort action where oppression, fraud, and malice were rendered
obsolete where the doctrine of comparative negligence is applied]; Greater
Westcheter Homeowners Ass’n v. City of Los Angeles (1979) 26 Cal.3d 86, 102
[including unliquidated tort claims].) Section
3288 is limited to the “accretion of wealth which money or particular property
could have produced during a period of loss” but not for intangible, noneconomic
damages such as mental and emotional injuries. (BladeRoom Group Limited v. Emerson
Electric Co. (2021) 20 F.4th 1231, 1249; see also Greater Westchester
Homeowners Ass’n v. City of Los Angeles (1979) 26 Cal.3d 86, 102-103.) However, plaintiffs may recover prejudgment
interest on damages attributable to an ascertainable economic value such as
loss of earning capacity, if plaintiffs
allege “specific damage that is supported by tangible evidence.” (Canavin v. Pacific Southwest Airlines
(1983) 148 Cal.App.3d 512, 527.)
The
Complaint alleges damages for “wage loss, loss of use of property, hospital and
medical expenses, general damage, property damage, loss of earning capacity,
and other damages [including] Loss of society, love, protection companionship,
[and] consortium[.]” The Complaint alleges
Plaintiff suffered “property damage,” while alleging Defendants collided with
Plaintiff’s vehicle. (See Compl., at
p. 3, ¶ 11(a)-(e).) The Complaint does
not allege facts establishing oppression, fraud, or malice. Reading the Complaint as a whole, Plaintiff’s
vehicle was damaged during the collision. (Compl., p. 5, ¶ 3.) However, the Complaint does not allege facts
showing property damage or loss led to Plaintiffs losing wealth the property
would have produced between the time of the collision and the end of this case. Although prejudgment interest may be rewarded
on wage loss, it cannot be awarded on loss of love, protection, companionship
and other non-specified injuries and damages.
Further, the Complaint is unclear about whether Plaintiffs seek 3288
prejudgment interest for the damages listed in paragraph 11(g) or all damages
listed in paragraph 11. Therefore, the
Court strikes Plaintiffs’ request for prejudgment interest under section 3288.
Under
Civil Code section 3291, a plaintiff may recover prejudgment interest in a
personal injury case if the plaintiff makes or is offered a pretrial 998
settlement compromise that is less than the amount recovered at trial. (Civ. Code, § 3291; Lakin v. Watkins
Associated Indus. (1993) 6 Cal.4th 644, 661.) Because the Complaint is silent regarding any
pretrial 998 settlement offer made or rejected by Plaintiffs, the Court strikes
Plaintiff’s request for prejudgment interest under section 3291.
Accordingly,
the Court strikes paragraph 11(g) from the Complaint, with leave to amend.
CONCLUSION
Defendant’s motion to strike Page 3, paragraph 11(g)
from the Complaint is granted, with leave to amend.
1. Plaintiff
may file an amended complaint within thirty (30) days of the date of this
order.
Defendant to give notice.