Judge Lee S. Arian, Case Number: 22STCV15937, Date: 2024-01-24 Tentative Ruling

MOVING PARTY: Defendants Trukman Enterprises, Inc., Ultimate Express Moving, Jose Antonio Cabrera, and Joshua B. Quijano

On May 13, 2022, Plaintiff Mireya B. De La Rosa Gallegos (“Plaintiff”), individually and as successor in interest to decedent Jose Humberto De La Rosa Moreno (“Decedent”) filed this action against Defendants Trukman Enterprises, Inc. (“Trukman”), Ultimate Express Moving (“Ultimate”), Jose Antonio Cabrera (“Cabrera”), Joshua B. Quijano (“Quijano”), and Does 1 to 100, inclusive, asserting causes of action for (1) negligence and (2) survival action.

The operative Complaint alleges the following. On May 22, 2020, Defendant Cabrera was driving a 2011 Freightliner Truck License No. XP18101 (the “Freightliner”) in a parking lot at the corner of Osborne Street and Remick Avenue in Los Angeles. (Compl., ¶ 9.) On information and belief, the Decedent was at the parking lot corner when Cabrera, who was traveling too fast, swerved to avoid a speedbump, struck the Decedent, and pushed him approximately 70 feet. (Compl., ¶ 11.) Cabrera then continued southbound towards the exit on Osborne Street, dragging Decedent to his resting position. (Compl., ¶ 11.) Cabrera then ran over Decedent and fled the scene. (Compl., ¶ 11.) As a result of the accident, Decedent suffered several lacerations to the head, internal bleeding in the stomach area, broken ribs, fracture to the lower spine/tailbone, broken jaw, severed right ear, dislocated right shoulder, and abrasions to the left ankle. (Compl., ¶ 12.) Decedent was pronounced dead at the scene; he was 54 years old at the time of his death. (Compl., ¶¶ 1, 12.) Plaintiff is the daughter and surviving heir of Decedent. (Compl., ¶ 1.) Defendants Trukman, Ultimate, and Quijiano are the owners of the Freightliner Cabrera was driving. (Compl., ¶ 10.) At the time of the accident, Cabrera was “acting within the course and scope of his employment and/or agency with Defendants TRUKMAN ENTERPRISES, INC. dba ULTIMATE EXPRESS MOVING, and DOES 1 through 100, inclusive ….” (Compl., ¶ 28.)

On January 26, 2024, Defendants Trukman Enterprises, Inc., Ultimate Express Moving, Cabrera, and Joshua B. Quijano (collectively, “Defendants”) filed the instant motion to strike the punitive damages and attorney fees allegations in the Complaint.

“The court may, upon a motion … 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.”

(Code Civ. Proc., § 436.) The grounds for a motion to strike shall 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, subd. (a).)

“Civil Code section 3294, subdivision (a) provides: ‘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.’” (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)

As used in Civil Code section 3924: “‘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).)

“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 [that] 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 Court (1984) 157 Cal.App.3d 159, 166 [footnote omitted].)

“For corporate punitive damages liability, [Civil Code] section 3294, subdivision (b), requires that the wrongful act giving rise to the exemplary damages be committed by an ‘officer, director, or managing agent.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 572.) “The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, by selecting the term ‘managing agent,’ and placing it in the same category as ‘officer’ and ‘director,’ the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer’s liability for punitive damages.” (Id. at p. 573.)

“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).)

Here, defense counsel testifies that on November 22, 2023, she “requested … Plaintiff to provide the basis for her claim for punitive damages and attorney’s fees. To date, Plaintiff has not responded.” (Motion to Strike, Declaration of Marie Maurice, ¶ 7.)

2. Paragraph 30, p. 7, lines 26 – “An award of punitive damages is therefore appropriate.”

3. Paragraph 31, p. 8, lines 1-2 – “As a result of all the foregoing, Plaintiff seeks the recovery of punitive damages according to proof at trial.”

1. Prayer, item no. 6, page 8, line 22 – “Attorneys’ fees, expenses, and costs allowed by law;”

Defendants do not argue much in support of their request to strike the punitive allegations in the Complaint other than to cite relevant law and state that the Complaint has not alleged facts sufficient to constitute oppression, fraud, or malice on the part of any defendant. (Demurrer, pp. 6:17-18; 7:15.)

With regard to the corporate defendants, as stated above and as Defendants state in their motion, Civil Code section 3294, subdivision (b), requires that the wrongful act giving rise to punitive damages be committed or ratified by an officer, director, or managing agent. Plaintiff argues that Paragraphs 28, 29, and 30 in the Complaint make that allegation. (Opposition, p. 9:8-10.) The Court disagrees. Neither those nor other paragraphs in the Complaint allege facts showing that the wrongful acts were committed by or ratified officers, directors, or managing agents of the corporate defendants.

Accordingly, the Court grants the request to strike the punitive damages allegations with regard to the corporate defendants, Trukman and Ultimate.

With regard to Quijano, the Court also finds that the Complaint fails to allege facts showing that the defendant acted in a way that warrants punitive damages. The Complaint alleges that the defendant instructed and directed Cabrera to leave the parking lot and that as Cabrera attempted to leave the parking lot, he hit and struck the Decedent. (Compl., ¶ 28(a).) However, merely instructing a person to leave a parking lot is insufficient to warrant punitive damages. Although “[a] conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code,” “[i]n order to justify an award of punitive damages on [that] 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.) Here, there are no allegations showing malice, specifically, that Quijano was aware Cabrera would strike the Decedent if he left the parking lot and still told Cabrera to leave the parking lot. There are also no facts showing oppression and fraud by Quijano.

Accordingly, the Court grants the request to strike the punitive damages allegations with regard to Defendant Quijano.

With regard to Cabrera, the Complaint alleges that Cabrera was driving too fast and struck the Decedent while attempting to avoid a speed bump and that after striking the Decedent, he caused the Freightliner to drag and run over the Decedent before fleeing the scene of the accident. (Compl., ¶ 11.)

Although those facts are detailed, it is not clear whether Cabrera saw the Decedent or other pedestrians before and/or after striking the Decedent such that one can infer Cabrera was acting in conscious disregard of the Decedent’s safety at the time of the incident (i.e., he was aware of the probable dangerous consequences of his conduct towards Decedent and willfully and deliberately failed to avoid those consequences).

Accordingly, the Court grants the request to strike the punitive damages allegations with regard to Defendant Cabrera.

With regard to the prayer for attorney’s fees, Defendants argue Plaintiff has not alleged a statutory or contractual basis for attorney’s fees. (Motion, p. 7:25-27.)

Indeed, as the Court of Appeal stated in Hom v. Petrou (2021) 67 Cal.App.5th 459, 464: “‘A party may not recover attorney fees unless expressly authorized by statute or contract. [Citations.] In the absence of a statute authorizing the recovery of attorney fees, the parties may agree on whether and how to allocate attorney fees. [Citations.] …. The parties may agree to award attorney fees on claims sounding in both contract and tort.’ [Citation.]”

Here, Plaintiff admits that currently there is no contractual or statutory basis for her request for attorney’s fees. She only argues (without citing any authority in support of her argument that) it would be premature for the Court to strike her request for attorney’s fees because (1) it is possible (not certain) that Defendants might deny a request for admission, (2) which, if Plaintiff proves its truth during trial, the Court may order Defendants to pay fees and costs Plaintiff incurred in making that proof. (Opposition, p. 9:13-21.) The Court finds Plaintiff’s argument unpersuasive.

Accordingly, the Court grants the request to strike the prayer for attorney’s fees, expenses, and costs.

“‘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.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174.)

The Motion to Strike is GRANTED with leave to amend within 30 days of this ruling. If Plaintiff does amend, Defendants are ordered to file and serve their responsive pleading within 30 days of service of that amended complaint.

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.

Hon. Lee S. Arian

Judge of the Superior Court