Judge Jill Feeney, Case 21STCV37822 2022-08-09 Tentative Ruling

This is an action for wrongful death and negligence arising from a vehicle accident which resulted in the death of Ana Elena Moreno Santos (“Decedent”). Plaintiffs Marvin Merino and Jezebel Moreno, a minor, by and through her Guardian ad Litem, Marvin Merino filed their complaint against Juan Carlos Menjivar, Dewayne Maurice Floyd, and Dart International on October 13, 2021.

Moving Defendants argue that Plaintiffs’ Complaint contains only legal conclusions in support of their demand for punitive damages. Defendant Floyd’s act of parking his semi-truck on the side of an interstate highway alone does not show a conscious disregard for the safety of others.

Plaintiffs argue that Defendant Floyd’s conduct as alleged in the SAC is sufficient to support a claim for punitive damages because, according to the SAC, he knowingly parked his truck along a busy freeway and chose not to place any cones or reflective signs to warn of the truck’s presence on the shoulder.

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).)

Allegations of negligence, gross negligence or recklessness are not sufficient to allege a claim for punitive damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-11.) As a point of comparison, gross negligence is defined as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” (CACI No. 425.)

“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 section 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.)

With respect to oppression, that is defined as conduct that is despicable and subjected a plaintiff to cruel and unjust hardship in knowing disregard of plaintiff’s rights. (CACI No. 3115.)

“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 demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and 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 in argued in the demurrer and motion to strike. (See Code of Civ. Proc. §§ 430.41; 435.5.)

Moving Defendants’ Counsel’s declaration appears to show Moving Defendants attempted to meet and confer via email, rather than by telephone or in person. (Snyder Decl., ¶ 7.) Moving Defendants did not properly meet and confer with Plaintiff prior to filing this motion. This is not a basis for denying the motion, but in the future the Court will delay motions hearings to ensure that a meet and confer is conducted.

As a rule of law, it has long been established one cannot recover punitive damages in a wrongful death claim under California law. (Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450.) The California Court of Appeal in Ford held that the purpose of restricting the plaintiff in a wrongful death action to compensatory damages is to place a reasonable limit on his recovery and that the legislature feared that recovery would be excessive in cases involving death. (Ford Motor Co. v. Superior Court, supra, 120 Cal.App.3d 748, 752.)

Moving Defendants seek to strike Plaintiffs’ prayer for punitive damages on the grounds that they have not alleged facts to show Defendants acted with conscious disregard for the safety of others or demonstrated despicable conduct.

Plaintiffs’ SAC alleges that on August 15, 2021, Floyd and International Dart caused a truck to be parked illegally on the shoulder of the road without any warning signs. (SAC, ¶13.) Defendant Menjivar was driving his Lexus at high speed while under the influence of alcohol and/or drugs and crashed into the truck. (Id., ¶14.) The crash caused the death of Ana Elena Moreno Santos. (Id., ¶15.)

The facts alleged in the SAC are insufficient to support a claim for punitive damages as to Moving Defendants because there are not factual allegations supporting the contention that Moving Defendants acted with a conscious disregard for the safety of others or that their conduct was despicable. The mere act of parking illegally on the shoulder of the road without putting out cones or warning signs alone does not demonstrate that Moving Defendants knew of the probable consequences of their actions and failed to avoid those consequences. Moreover, the are no allegations support a conclusion that the conduct here was despicable.