Judge: James L. Crandall, Case: 21-1208733, Date: 2022-10-20 Tentative Ruling

Motion to Strike Portions of Complaint

Defendant, Anzhela Kosolapova’s Motion to Strike Portions of the Complaint is GRANTED.

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Kamerlingh (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].)

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, sub. (b)(1).)

The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Defendant moves to strike the following from the Complaint:

· On page 3, ¶ 14(a)(2), which reads as follows: “punitive damages”.

· Page 6, Exemplary Damages Attachment, in its entirety.

Meet and Confer Efforts

Code of Civil Procedure section 435.5, subdivision (a) states: “Before filing a motion to strike pursuant to this chapter, 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.” Further,

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(3) The moving party shall file and serve with the motion to strike a declaration stating either of the following:

(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.

(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.

(4) A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.

(Code Civ. Proc. § 435.5(a)(3)-(a)(4).)

The Declaration of Mark P. LaScola in Support of Motion states that he sent meet and confer correspondence to Plaintiff by email on 7-28-22 and 8-5-22 but received no response. (LaScola Decl., ¶¶ 4, 5, Exhibits A-B.)

Further, LaScola attests that he spoke to his colleague Kristine M. Gamboa on 8-15-22, who indicated that Plaintiff failed to appear at the Case Management Conference. (LaScola Decl. ¶ 6.)

“Based upon Plaintiff’s failure to both appear at the Case Management Conference and respond to either of my correspondences, as well as the issues outlined within the Motion to Strike, it remains unclear as to how we ever could informally resolve the issues now before the Court, thus leaving me no choice but to move forward with filing this Motion to Strike on behalf of Defendant.” (LaScola Decl., ¶ 7.)

The LaScola Declaration meets the requirements of Code of Civil Procedure section 435.5, subdivision (a)(3)(B). LaScola attests that he engaged in meet and confer attempts with Plaintiff, who failed to respond on multiple occasions.

Because failure to meet and confer is not grounds to grant or deny the motion, the court will consider the merits of Defendant’s motion.

Merits

Plaintiff may recover damages “in an action from breach “not arising from contract” if Plaintiff proves by clear and convincing evidence that Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294 subd. (a).)

“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.” (Civ. Code, § 3294 subd. (c)(1).)

“Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (c)(2).)

“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.” (Civ. Code, § 3294, subd. (c)(3).)

A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Defendant argues that the motion must be granted because the Exemplary Damages Attachment to the Complaint is insufficient to allege malice, oppression, or fraud as required by Civil Code section 3294. (Motion, 2-8.) Further, Defendant argues that driving while intoxicated is not, by itself, sufficient to warrant imposition of punitive damages. (Motion, 7-8.)

Plaintiff does not oppose the motion.

Here, the Complaint states as follows on the Exemplary Damages Attachment:

“Defendant Anzhela Kosolapova operated a car under the influence of alcohol. She failed to observe the traffic around her and collided with the rear of stopped vehicles and knocked Plaintiff to the ground. The collision caused Plaintiff significant bodily injury. Defendant Anzhela Kosolapova was cited and arrested for operating a vehicle under the influence of alcohol. Defendant Anzhela Kosolapova made a conscious decision to operate the vehicle while intoxicated, in reckless disregard for the safety of others.”

(See Complaint, p. 6.)

The court finds that the Complaint is insufficiently pled to sustain a claim for punitive damages. The Complaint alleges that Defendant “made a conscious decision to operate the vehicle while intoxicated.”

There are no other facts alleged about Defendant’s conduct. The court finds that this statement is conclusory and patently insufficient to support a claim for punitive damages.

Defendant’s Motion to Strike Portions of the Complaint is GRANTED. 

Plaintiff is granted 30 days leave to amend.

Defendant is to give notice.

Future hearing dates

10/6/23 – MSC

11/6/23 – Jury Trial