Judge Lynne M. Hobbs, Case Number: 21STCV23135, Date: 2024-01-23 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV23135, Date: 2024-01-23 Tentative Ruling

Case Number: 21STCV23135 Hearing Date: January 23, 2024 Dept: 30

ROGELIO CERNA vs GEORGE WARTHAN, et al.

TENTATIVE

Defendant George Allen Warthan, erroneously sued as George Warthan, Allen Warthan, Horizontal Grading & Paving, and Horizontal Paving’s motion to strike is GRANTED in part and DENIED in part. It is granted as requested, except for Paragraph 22, lines 4 through 5, Paragraph 22, lines 10 through 11 and Paragraph 4 of Plaintiff’s Prayer. Moving party to give notice.

Meet and Confer

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading in person or by telephone for the purposes of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike. (Code Civ. Proc., § 435.5.(a).)

The meet and confer requirement has not been met, but because this is not a reason to deny the motion, the Court turns to the merits. (Moon Decl.)

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. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Discussion

Defendants move to strike portions of Plaintiff’s Complaint relating to allegations for punitive damages. Specifically, Defendants move to strike:

· Paragraph 21, lines 25 through 27 regarding “outrageous, despicable and in a reckless and conscious disregard for the safety”...”exceeded all bounds of society and was extreme and outrageous”...

· Paragraph 22, lines 4 through 5 regarding “purposefully and intentionally fleeing the scene of the accident”...

· Paragraph 22, lines 7 through 8 regarding “conscious and reckless disregard of the safety of plaintiff and amounts to malice, oppression and fraud”....

· Paragraph 22, lines 10 through regarding “sped through several lights; stop signs etc. 11 and was purposefully and intentionally fleeing the scene of the accident"...

· Paragraph 23, lines 12 through 13 regarding “despicable and reckless conduct”...”reckless 13 disregard”...

· Paragraph 26, lines 19 through 21 regarding “malice, oppression and fraud and a reckless and conscious disregard for the safety"... "so as to justify the imposition of punitive and exemplary damages"...

· Paragraph 4 of Plaintiff’s Prayer regarding “For such other and further relief as the Court may deem just and proper." Assuming this request includes exemplary and/or punitive damages.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) “Fraud” is defined in section 3294(c)(3) as “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.”

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co., 185 Cal. App. 3d 1149, 1155 (1986); see also Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1228 (1995) [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

In Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 the court found that a hit and run cannot give rise to damages unless the fact of the hit and run caused additional damages above and beyond the accident itself. Brooks did not consider the issue of whether punitive damages can be imposed based on a hit and run. It did, however, hold that such act only constitutes a tort if the act itself causes the plaintiff additional damages above and beyond the damages caused by the accident that precedes the hit and run. For example, if a plaintiff is struck and is seriously bleeding following the accident, the fact that the defendant hits and runs could cause additional damage due to loss of blood, death, etc. If, however, the accident causes immediate soft tissue damage, no amount of aid would reduce or minimize the future damages, and the act of hitting and running would not give rise to additional damages. If the act of hitting and running, in and of itself, does not give rise to a tort, then it logically follows that the act cannot give rise to a claim for punitive damages.

Here, Plaintiff alleges that Defendant fled the scene knowing Plaintiff was injured and helpless (Compl. ¶ 22); and the act of fleeing caused Plaintiff emotional distress. (Id., ¶ 23.) However, these general allegations are insufficient to show that Plaintiff experienced additional injury above and beyond the injuries from the collision, due to Defendant’s fleeing from the scene. Plaintiff must plead additional injury, and with greater specificity in order to state a prima facie claim for punitive damages. Thus, the motion is granted in part.

However, the Court declines to grant the motion as to: (1) Paragraph 22, lines 4 through 5 regarding “purposefully and intentionally fleeing the scene of the accident”; (2) Paragraph 22, lines 10 through 11 regarding “sped through several lights; stop signs etc. and was purposefully and intentionally fleeing the scene of the accident"; and (3) Paragraph 4 of Plaintiff’s Prayer regarding “For such other and further relief as the Court may deem just and proper." The allegations relating to fleeing the scene are relevant to the other portions of the complaint. Further, the prayer for other relief does not pray for punitive damages and is not irrelevant.