Judge Jill Feeney, Case 21STCV06294 2022-09-09 Tentative Ruling

On February 16, 2021, Plaintiffs Eulalia Pacherrez, Ariana Arroyo, and Brianna Cruz (collectively “Plaintiffs”) filed their Complaint alleging causes of action for motor vehicle negligence and general negligence against Defendant Vicky Andrade.

On April 18, 2022, Plaintiffs filed a Doe Amendment and added Defendant Julian Romero as Doe 1. On that same date, Plaintiffs also filed the First Amended Complaint (“FAC”) alleging motor vehicle negligence, general negligence, Violation of Vehicle Code 20001(a) – misdemeanor hit and run, and intentional infliction of emotional distress against Defendants Vicky Andrade and Julian Romero (collectively “Defendants”).

On June 30, 2022, Plaintiffs filed a Second Amended Complaint (“SAC”) alleging the same four causes of action for motor vehicle negligence, general negligence, Violation of Vehicle Code 20001(a) – misdemeanor hit and run, and intentional infliction of emotional distress.

3. Paragraph 4 under the Third Cause of Action for Violation of Vehicle Code 20001(a) – Misdemeanor Hit and Run, the paragraph “Defendant JULIAN ROMERO’s conduct was despicable and demonstrated a conscious and willful disregard for the Plaintiff’s rights and safety.”

4. Paragraph 5 under the Third Cause of Action for Violation of Vehicle Code 20001(a) – Misdemeanor Hit and Run, the paragraph “Based on the foregoing, Plaintiffs are entitled, pursuant to Civil Code 3291, et seq., to punitive damages in the sum to be ascertained at trial against Defendants JULIAN ROMERO and each of them, in doing the things herein, ratified and acknowledged the acts of defendant JULIAN ROMERO.”;

5. Paragraph 2 under the Fourth Cause of action for Intentional Infliction of emotional Distress, the paragraph “Defendants JULIAN ROMERO’s conduct was so outrageous as to exceed all bounds of that usually tolerated by a civilized community.”;

6. Paragraph 5 under the Fourth Cause of action for Intentional Infliction of emotional Distress, the paragraph “Defendant JULIAN ROMERO’s conduct was despicable and demonstrated a conscious and willful disregard of the Plaintiffs’ rights and safety.”; and

7. Paragraph 6 under the Fourth Cause of action for Intentional Infliction of emotional Distress, the paragraph “Defendant JULIAN ROMERO’s outrageous, malicious, oppressive and despicable conduct as set forth above was intended to cause injury to the Plaintiffs and subjected the Plaintiffs to cruel and unjust hardship with a willful and conscious disregard for the Plaintiffs’ rights and safety such that Defendant is subject to punitive damages as set forth in California Civil Code § 3294.”

Similar to their Motion to Strike Portions of Plaintiffs’ FAC, Defendants move on the grounds that Plaintiffs have not set forth sufficient facts to justify a claim for punitive damages. Defendants argue the SAC merely alleges negligent acts which do not rise to the level of malice, oppression, or fraud required to support a claim for punitive damages under Civil Code section 3294. Defendants argue this is case of motor vehicle negligence at best.

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, subd. (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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).)

“Malice is defined in the statute as conduct 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code § 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute 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., supra, 8 Cal.4th at p. 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.)

“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. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues argued in the motion to strike. (See Code of Civ. Proc. §§ 430.41; 435.5.)

Defendants’ Counsel’s declaration states that Defendants’ Counsel called Plaintiffs’ Counsel on August 1, 2022, and Plaintiffs respectfully declined to remove the punitive damages allegations from their SAC. (Ly Decl., ¶ 3.) Defendants adequately attempted to resolve the issue through a meet and confer prior to filing the instant motion.

Similar to the FAC, the SAC alleges Defendant Julian Romero maliciously, willfully, oppressively, and despicably drove his vehicle. (SAC p.5, ¶2.) Likewise, in the third cause of action Plaintiffs allege: “Defendant JULIAN ROMERO's conduct was despicable and demonstrated a conscious and willful disregard for the Plaintiffs' rights and safety.” (SAC p.6, ¶4.) As to the fourth cause of action, Plaintiffs allege: “Defendant JULIAN ROMERO's conduct was so outrageous as to exceed all bounds of that usually tolerated by a civilized community” and “[d]efendant JULIAN ROMERO's conduct was despicable and demonstrated a conscious and willful disregard for the Plaintiffs' rights and safety.” (SAC p.7, ¶¶ 2,5.) These continue to just be conclusory statements of law. Plaintiffs have failed to allege malicious, oppressive, or fraudulent conduct needed to support a claim for punitive damages. (Grieves, supra, 157 Cal.App.3d at 166.)

The only additional allegation plead in the SAC is that Defendant Romero “intentionally misrepresented to the Plaintiffs that he intended to exit the freeway to safely provide his information and/or provide aid to the Plaintiffs, who were severely injured as a result of the collision. However, despite knowing that it is a crime to flee the scene of an accident, without stopping and providing his information, Defendant JULIAN ROMERO made the intentional choice to flee and sped off into the freeway.” (SAC p. 7, ¶ 3.) However, punitive damages are only appropriate when a defendant’s malicious conduct was the cause of the alleged harm. (See, e.g., Taylor v. Superior Court, supra, 24 Cal.3d at 898; finding that intoxication knowingly increased chances of harm to injured driver.) Here, Plaintiffs do not allege facts that indicate Defendant Romero acted despicably in a way that consciously disregarded an increased risk of an accident with Plaintiff. (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) Plaintiffs merely allege that Defendant Romero acted despicably after the accident—or the harm—had already occurred.