Judge: Lisa R. Jaskol, Case: 23STCV19505, Date: 2023-11-15 Tentative Ruling

Case Number: 23STCV19505    Hearing Date: November 15, 2023    Dept: 28

Having considered the moving papers, the Court rules as follows.  

BACKGROUND 

On August 15, 2023, Plaintiff Stella Kae (“Plaintiff”) filed this action against Defendants Ernesto Chitica Galvan Flavio (“Defendant”) and Does 1-20 for negligence. 

On October 5, 2023, Defendant filed a motion to strike the attorneys’ fees and punitive damages requests from the complaint.  Plaintiff has not filed an opposition. 

Trial is currently scheduled for February 11, 2025. 

PARTY’S REQUESTS 

Defendant requests that the Court strike from the complaint (1) the allegation that Defendant was driving under the influence (paragraphs 10 and 11), (2) the request for attorneys’ fees, and (3) the request for punitive damages. 

LEGAL STANDARD 

A.      Motion to strike 

“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 “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).)  “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)  “Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).) 

“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.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)  “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.”  (Ibid.)  “In ruling on a motion to strike, courts do not read allegations in isolation.”  (Ibid.) 

B.       Punitive damages 

“(a) 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. 

* * * 

“(c) As used in this section, the following definitions shall apply: 

“(1) ‘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. 

“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. 

“(3) ‘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, subds. (a), (c).) 

C.      Attorneys’ fees 

The Court may award attorneys’ fees as an item of costs only when they are authorized by contract, statute, or law.  (Code Civ. Proc., § 1033.5, subd. (a)(10).) 

DISCUSSION 

A.      The complaint 

The complaint alleges the following: 

On April 1, 2023, Defendant was negligently driving an automobile while under the influence and as a result collided with Plaintiff’s automobile, injuring Plaintiff.  (Complaint ¶¶ 10-11.)  By driving under the influence, Defendant engaged in despicable conduct.  (Complaint ¶¶ 10-11.)  Defendant “knew, or in exercise of reasonable care customary for entrustment, maintenance, control, management, driving, manufacture, operation, repair, inspection, of said automobile, should have known such actions and omissions constituted a dangerous and an unreasonable risk of harm, of which Plaintiff was at all times unaware of.  [Defendant] . . . negligently failed to take steps to either make the condition safe or warn Plaintiff of the dangerous condition, thereby causing the hereinafter described injuries and damages to Plaintiff.”  (Complaint ¶ 12.) 

In the prayer, the complaint requests compensatory damages, attorneys’ fees, and punitive damages. 

B.       Defendant’s motion 

1.    Punitive damages request and driving under the influence allegations 

Defendant argues the complaint does not allege facts that support a punitive damage claim against Defendant.  

“Simple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) But a complaint states facts that support a punitive damage claim when its gravamen is that “‘[d]efendant became intoxicated and thereafter drove a car while in that condition, despite his knowledge of the safety hazard he created thereby’” (Peterson v. Superior Court (1983) 31 Cal.3d 147, 163, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 896 (Taylor).)  “[T]he act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under section 3294 if performed under circumstances which disclose a conscious disregard of the probably dangerous consequences.”  (Taylor, supra, 24 Cal.3d at p. 892.) 

“There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.  The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.” (Taylor, supra, 24 Cal.3d at pp. 896-897.) 

“In addition to the requirement that the complaint set forth the elements as stated in [Civil Code] section 3294, it must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193, citing Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 (Brousseau).) “Punitive damages may not be pleaded generally.”  (Ibid., citing Brousseau, 73 Cal.App.3d at p. 872.) 

“[C]onclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint.”  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:181, p. 7(l)-80, emphasis omitted.) 

Applying these authorities, the Court concludes that the complaint does not allege facts showing that Defendant acted with malice, oppression, or fraud for purposes of Civil Code section 3294, subdivision (c).   The complaint does not allege that Defendant intentionally harmed Plaintiff.  And the allegations that Defendant engaged in despicable conduct by driving under the influence and that Defendant knew, or should have known, such actions constituted a dangerous and unreasonable risk of harm are too general to support a claim for punitive damages based on a defendant’s “conscious disregard of the probably dangerous consequences” of driving under the influence.  (Taylor, supra, 24 Cal.3d at p. 892.)

However, the Court will not strike all of paragraphs 10 and 11 as Defendant requests.  Plaintiff is entitled to allege that Defendant drove while under the influence at the time of the accident.  Instead, the Court strikes the parenthetical phrase “(despicable conduct)” from paragraphs 10 and 11 and strikes the punitive damage request in the prayer. 

B.       Attorneys’ fees request 

Plaintiff has not pleaded facts showing that she is entitled to attorneys’ fees as based on contract, statute, or other source of law.  Therefore, the Court grants the motion to strike the complaint’s request for attorneys’ fees. 

CONCLUSION 

The Court GRANTS IN PART the motion to strike of Defendant Ernesto Chitica Galvan Flavio as follows: 

The Court strikes from the complaint the parenthetical phrase “(despicable conduct)” from paragraphs 10 and 11 and strikes the punitive damage request in the prayer. 

The Court strikes from the complaint the request for attorneys’ fees in the prayer. 

In all other respects, the Court DENIES the motion. 

The Court grants Plaintiff Stella Kae 30 days leave to amend. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.