Judge: Lynette Gridiron Winston, Case: 23PSCV03693, Date: 2024-05-22 Tentative Ruling

Case Number: 23PSCV03693    Hearing Date: May 22, 2024    Dept: 6

CASE NAME:  David Thomas Torres v. Consumer Portfolio Services, Inc., et al. 

Defendant Guillermo Antonio Orozco’s Motion to Strike Portions of Plaintiff’s Complaint 

TENTATIVE RULING 

The Court GRANTS Defendant Guillermo Antonio Orozco’s motion to strike portions of Plaintiff’s complaint with 20 days’ leave to amend. 

The Court STRIKES Plaintiff’s prayer for punitive damages, specifically on page 3 of 3 of the Judicial Counsel Complaint, paragraph 14.a.(2). 

Defendant Orozco is ordered to give notice of the Court’s ruling within five calendar days of this order. 

BACKGROUND 

This is a personal injury action. On November 29, 2023, plaintiff David Thomas Torres (Plaintiff) filed this action against defendants Consumer Portfolio Services, Inc., Guillermo Antonio Orozco (Orozco), and Does 1 to 15, alleging causes of action for motor vehicle and general negligence. 

On April 18, 2024, Defendant Orozco moved to strike portions of the complaint. The motion is unopposed. 

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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, 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.” (Id., § 436.) 

REQUESTS FOR JUDICIAL NOTICE 

            “Any request for judicial notice must be made in a separate document listing the specific items for which notice is requested and must comply with rule 3.1306(c).” (Cal. Rules of Court, rule 3.1113, subd. (l).) “A party requesting judicial notice of material under Evidence Code sections 452 or 453 must provide the court and each party with a copy of the material. If the material is part of a file in the court in which the matter is being heard, the party must: (1) Specify in writing the part of the court file sought to be judicially noticed; and (2) Either make arrangements with the clerk to have the file in the courtroom at the time of the hearing or confirm with the clerk that the file is electronically accessible to the court.” (Id., rule 3.1306, subd. (c).) 

            Defendant Orozco made a general request for the Court to take judicial notice of various documents in its file. (Notice, 2:2-4.) To the extent Orozco is requesting the Court to take judicial notice of the complaint, the Court will do so. (Evid. Code, § 452, subd. (d).) However, the Court takes judicial notice of the complaint only as to the existence, content, and authenticity of public records and other specified documents, it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.) 

The Court also notes, however, that Orozco’s request for judicial notice was not made in a separate document per rule 3.1113, subdivision (l), of the California Rules of Court, nor did Orozco provide copies of the documents sought to be judicially noticed per rule 3.1306, subdivision (c), of the California Rules of Court. (Cal. Rules of Court, rules 3.1113, subd. (l), 3.1306, subd. (c).) The Court admonishes Orozco to comply with the requirements of the California Rules of Court going forward. 

DISCUSSION 

Meet and Confer 

Per Code of Civil Procedure section 435.5, subdivision (a), Defendant Orozco was required to meet and confer in person or by telephone before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) Orozco provided no declaration indicating whether Orozco attempted to meet and confer with Plaintiff. (See Id., § 435.5, subd. (a)(3).) Nevertheless, the Court may not deny a motion to strike for failure to adequately meet and confer. (Id., § 435.5, subd. (a)(4).) 

Punitive Damages 

A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) 

Orozco moves to strike Plaintiff’s request for punitive damages on the grounds that the complaint fails to allege specific facts by clear and convincing evidence that Orozco acted with malice, oppression, or fraud. Orozco contends carelessness, characterized as negligence or recklessness, is not sufficient to support an award of punitive damages. Orozco contends that the complaint does not allege facts indicating that Orozco intentionally caused the underlying accident in this case, and that merely alleging that Orozco fled the scene of the accident is not the proximate cause of Plaintiff’s injuries or sufficient for punitive damages. 

The Court also notes that Plaintiff did not oppose the motion, which the Court construes as a tacit admission that Defendant Orozco’s arguments are meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) 

Plaintiff alleges Defendant Orozco negligently struck Plaintiff’s vehicle with his vehicle on October 29, 2022. (Compl., Second Cause of Action, GN-1.) 

The Court finds insufficient facts have been alleged to pray for punitive damages. In essence, Plaintiff is seeking punitive damages from Defendant Orozco for his failure to properly operate an automobile. There is no allegation in the complaint showing Defendant Orozco intended to cause Plaintiff's injuries or that Defendant Orozco consciously disregarded Plaintiff's safety. The Complaint alleges “Defendant’s conscious decision to flee the scene of an accident, which resulted in serious and life-threatening injuries for Plaintiff due to the magnitude of the crash, constitutes despicable conduct and was done with a willful and knowing disregard of the right and safety of others.” (Id.) However, Plaintiff's summary allegation tracking the language of Civil Code section 3294 is insufficient and the causing of negligent harm through operating an automobile does not suffice as a prima facie case for punitive damages. 

Moreover, merely fleeing the scene of an accident does not warrant the imposition of punitive damages because the act of fleeing is not the basis for the claims alleged in the complaint. (See Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 (fleeing the scene of an accident act is not a separately actionable tort unless the act of fleeing causes additional damages above and beyond those caused by the accident.).) The complaint does not allege facts showing that Plaintiff suffered any additional harm by Defendant Orozco's failure to stop after the accident. Therefore, there is no basis to award punitive damages based upon such conduct. 

CONCLUSION 

The Court GRANTS Defendant Guillermo Antonio Orozco’s motion to strike portions of Plaintiff’s complaint with 20 days’ leave to amend. 

The Court STRIKES Plaintiff’s prayer for punitive damages, specifically on page 3 of 3 of the Judicial Counsel Complaint, paragraph 14.a.(2). 

Defendant Orozco is ordered to give notice of the Court’s ruling within five calendar days of this order.