TENTATIVE RULING

Defendant Herbert Paschal’s Motion to Strike Punitive Damages and Request for Attorney Fees from Plaintiff’s First Amended Complaint is GRANTED with thirty (30) days leave to amend as to Plaintiff Tatjana Plampe’s claims and prayer for punitive damages and GRANTED without leave to amend as to Plaintiff Tatjana Plampe’s prayer for attorney fees.

Plaintiff Tatjana Plampe may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Herbert Paschal to give notice. 

REASONING

Defendant Herbert Paschal (“Defendant”) moves the Court for an order striking Plaintiff Tatjana Plampe (“Plaintiff”)’s claims for punitive damages and attorney fees from her First Amended Complaint (“FAC”) on the ground that the punitive damages allegations are unsupported by the required specific factual showing of malice, oppression, or fraud, and there is no right to attorney fees against Defendant under statute or contract.

The court may, upon 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).) The court may also strike 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, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff’s allegations of malice, oppression, and fraud are conclusory and do not support an award of punitive damages as stated. Plaintiff states that Defendant’s conduct was malicious but provides only a conclusory statement to this effect (FAC ¶¶ 7, 62); she states that Defendant’s conduct was criminal (FAC ¶ 23), but she provides no allegations to support this claim; and she alleges that Defendant acted with the intent to cause harmful or offensive contact against Plaintiff or harm Plaintiff (FAC ¶¶ 53, 60), but there are no allegations as to how Defendant intended to cause harm, as the conduct, as stated, appears to be merely negligent. Accordingly, Defendant’s motion to strike is GRANTED with thirty (30) days leave to amend as to Plaintiff’s claims and prayer for punitive damages.

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc., §§ 1032, subd. (b), 1033.5, subd. (a)(10).) Plaintiff argues that her request for attorney fees is proper simply because there is a possibility attorney fees may be warranted, but Plaintiff fails to identify the basis for any such fees in the FAC or in the opposition to the motion. Thus, Defendant’s motion to strike is GRANTED without leave to amend as to Plaintiff’s prayer for attorney fees.