Judge: Kerry Bensinger, Case: 21STCV36237, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV36237    Hearing Date: January 19, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On October 1, 2021, plaintiff Alina Landver (“Plaintiff”) filed this action.

On December 5, 2022, Plaintiff filed her First Amended Complaint (“FAC”) against defendants Keagan Serdar (“Keagan”) and Laura Serdar (“Laura”) (collectively, “Defendants”), asserting causes of action for (1) motor vehicle, (2) general negligence, and (3) negligent entrustment (which is mentioned in Paragraph 10 of the third page of the Complaint).

The FAC alleges the following. This action arises from an automobile collision that occurred on October 5, 2019, in Los Angeles, California. Plaintiff was at a complete stop on the I-5 freeway, when Keagan rear-ended her with a vehicle owned by Laura.

On December 27, 2022, Defendants filed the instant motion to strike portions of the FAC.

As of January 14, 2023, no opposition has been filed.

A non-jury trial is set for April 3, 2023. 

II. 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 Civ. Proc., § 435 subd., (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc, § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) An immaterial or irrelevant allegation is one 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.  (Code Civ Proc, § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

“Before 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.” (Code Civ Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).) 

III. MEET AND CONFER

          The Defendants have satisfied the meet and confer requirement. (Motion, declaration of Shirley Carpenter Bridwell, ¶¶ 2-4.)

IV. DISCUSSION

Defendants move to strike portions of the FAC. Specifically, they move to strike:

1.   The request for punitive damages (Paragraph 14(a)(2) on Page 3 of the FAC); and

2.   The “Exemplary Damages Attachment,” in its entirety.

(Notice of Motion, p. 2:6-7.)

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

Here, Plaintiff accuses the Defendants of oppression and malice.

“Malice is defined as ‘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.’ (Id., subd. (c)(2).)” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210 (“Lackner”) [emphasis added].)

“‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]” (Lackner, supra, 135 Cal.App.4th at p. 1210.) “As amended to include [despicable], the [Civil Code section 3294] 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, 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.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

          Here, the FAC only alleges that Laura negligently entrusted her vehicle to her son, Keagan.

          With regards to Keagan, the Exemplary Damages Attachment to the FAC alleges the following. Defendant Keagan “drove at too fast a speed and failed to stop at a freeway speed with great force due to inattention while failing to have his foot on the brake at 65 miles per hour.” Further, as he approached the I-5 freeway from 1-110 at a high speed, he rear-ended Plaintiff causing her great harm. Defendant’s conduct was malicious as he acted in wanton and willful disregard of Plaintiff’s rights or safety for reasons, including (1) allowing five underage passengers to horseplay in a moving vehicle driven by underage driver with a provisional license and with no supervision by its registered owner, (2) causing same vehicle to violently crash and severely injure someone, and (3) permanently exacerbating an endocrine condition for a lifetime of pain. The defendant acted in conscious disregard of Plaintiff’s rights and safety because he was aware that such conduct could cause Plaintiff great harm. The defendant also acted with oppression because his conduct was reckless, egregious, and subjected Plaintiff to cruel and unjust hardship.

          Defendants argue that Plaintiff has failed to plead facts showing that they acted with oppression or malice. They insist that the FAC only alleges negligence and nothing more.  

          The Court agrees that the FAC fails to allege any facts showing malice or oppression. Merely entrusting a vehicle to another, without more, is not sufficient to support a claim for punitive damages against Defendant Laura. There are also no facts supporting such damages against Keagan. The FAC alleges that Defendant Keagan allowed “five underage passengers to horseplay in a moving vehicle.” However, the FAC does not allege that horseplay distracted Keagan or that Keagan was also engaging in the horseplay, failed to pay attention to the road, and, therefore, rear-ended the Plaintiff. In other words, there is no connection between the horseplay allegation and Keagan’s “inattention,” which caused the alleged rear-ending.

Accordingly, since the FAC fails to allege facts showing that (1) one or both of the defendants intended to cause injury to the Plaintiff, or (2) engaged in despicable conduct (i.e., conduct has been described as having the character of outrage frequently associated with crime), the Court finds it proper to grant the motion.

          “‘Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.’ [Citations.] A pleading may be stricken only upon terms the court deems proper [citation], that is, terms that are just. [Citations.] It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action. [Citation.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174–1175 (“Velez”).)

          However, the burden is on the Plaintiff “to articulate how [she] could amend [her] pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; Velez, supra, 142 Cal.App.4th at p. 1175.) To satisfy that burden, Plaintiff “must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [his] pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

          Here, the Court previously granted the Defendants’ motion to strike punitive damages in the original complaint, with leave to amend. (See Minute Order dated December 5, 2022, p. 3.) However, the amended complaint still fails to allege facts sufficient to support a claim for punitive damages. In addition, despite being served the moving papers, Plaintiff has not filed an opposition articulating how she can further amend the pleading to render it sufficient.

          For the reasons set forth above, the Court finds it proper to grant the motion, without leave to amend.

V.        CONCLUSION

The Motion to Strike is GRANTED, without leave to amend.

The Court orders the following stricken from the First Amended Complaint:

1.   The request for punitive damages (Paragraph 14(a)(2) on Page 3 of the First Amended Complaint); and

2.   The Exemplary Damages Attachment, in its entirety.

Moving parties to give notice.

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

        Dated this 19th day of January 2023