Judge: Kerry Bensinger, Case: 22STCV11740, Date: 2023-09-20 Tentative Ruling

Case Number: 22STCV11740    Hearing Date: September 20, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     September 20, 2023                           TRIAL DATE:  October 4, 2023

CASE:                         Fernando Pupo v. Jaqueline Osnaya

CASE NO.:                 22STCV11740

DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:               Defendant Jaqueline Osnaya

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On April 6, 2022, Plaintiff, Fernando Pupo, filed a complaint against Defendant, Jaqueline Osnaya, for injuries arising from a motor vehicle collision.  Plaintiff alleges Defendant was operating an automobile while under the influence of a substance.  The Complaint sets forth a single cause of action for negligence.  Plaintiff seeks punitive damages and attorney’s fees.

On August 31, 2023, Defendant filed this demurrer and a motion to strike portions of Plaintiff’s Complaint.

The demurrer and motion to strike are unopposed.

As the motion to strike attacks the request for punitive damages and attorney’s fees, and the demurrer challenges only the sufficiency of the allegations as to the punitive damages request, the Court considers the motion to strike, and not the demurrer.

II.        LEGAL STANDARD FOR MOTION TO STRIKE  

            Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (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, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿ 

            “The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.) 

A failure to oppose a motion may be deemed a consent to the granting of the motion.  (Cal. Rules of Court, rule 8.54, subd. (c).)

III.      DISCUSSION

A.  Meet and Confer

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Heather Siegler.)

B.  Analysis

            1. Punitive damages

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”  (Civ. Code, § 3294, subd. (a).)

Defendant argues the Court should strike the request for punitive damages from the Complaint because there are no allegations to show that Defendant acted with malice, oppression, or fraud within the meaning of Civil Code section 3294.  The Court agrees the  punitive damages request should be stricken from the Complaint, but not for the reason Defendant identifies. “Ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 899-900.)  In Taylor, the Supreme Court departed from that general principle in a case involving a defendant who allegedly became intoxicated and operated a motor vehicle thereafter.  (Id. at p. 892.)  The trial court sustained defendant’s demurrer to the complaint insofar as it sought recovery of punitive damages.  Citing Searle, supra, Supreme Court reasoned that driving while intoxicated may constitute conscious disregard of the safety of others.  (Id. at pp. 896-897.)  A conscious disregard for the safety of others may in turn constitute malice within the meaning of Civil Code section 3294.  (Id. at p. 891.)  For these reasons, the Court issued a writ of mandate directing the trial court to reinstate the portion of the complaint which sought recovery of punitive damages.  In sum, under Taylor, allegations of drunk driving are sufficient to sustain the potential imposition of punitive damages. 

Here, however, the Complaint simply alleges that Defendant “negligently operated a certain automobile, UNDER THE INFLUENCE OF A SUBSTANCE, (despicable conduct)”.  (Complaint, ¶ 10.)  Missing from the Complaint are any allegations showing the factual basis for the belief that Defendant was “under the influence of a substance.”  The Complaint is deficient.

Accordingly, the motion to strike punitive damages is granted.

            2. Attorney’s Fees

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”  (Code Civ. Proc., § 1021.)

Defendant next seeks to strike attorney’s fees from the Complaint because there are no allegations identifying any statute to support an award of attorney’s fees.  The Court agrees.  There are no allegations showing the statutory basis for an award of attorney’s fees.

Accordingly, the motion to strike attorney’s fees is granted.

            IV.        CONCLUSION

The unopposed motion to strike punitive damages and attorney’s fees is granted.  Leave to amend is GRANTED as to punitive damages only.

Given the Court’s ruling on the motion to strike, the demurrer is MOOT.

Plaintiff is to file and serve a First Amended Complaint within 20 days of this order.

Defendant is to file and serve a responsive pleading to the First Amended Complaint within 30 days of service of the amended pleading.

Moving party to give notice, unless waived. 

Dated:   September 20, 2023                                   ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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 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.