Judge: Lynne M. Hobbs, Case: 22STCV00752, Date: 2023-11-08 Tentative Ruling

Case Number: 22STCV00752    Hearing Date: November 8, 2023    Dept: 30

MAE ELIZABETH BRUNSON vs JOAO JORGE WURTH

Motion to Strike without Demurrer

TENTATIVE

Defendant’s motion to strike is GRANTED with 20 days leave to amend.  Moving party is ordered to give notice.

Discussion  

Defendant moves to strike the prayers for punitive damages and attorney fees in the complaint.

As an initial matter, Plaintiff argues Defendant has failed to quote in full those portions of the claim for punitive damages in the pleading sought to be stricken. The notice of motion to strike must quote in full the portions to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (Cal. Rules of Court, Rule 3.1322(a).) However, the notice of motion states it seeks to strike the following portions of the complaint: Page 5, number 7, line 10; and Page 5, number 8, line 11, on the grounds that the complaint fails to state sufficient facts to sustain its allegations for punitive damages and attorney fees. This is sufficient.

Plaintiff also argues the motion is untimely, however, the Court may at any time in its discretion grant a motion to strike under Code of Civil Procedure section 436.

I. 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.)

“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.)

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.)

“An employer shall not be liable for [punitive] damages ..., based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct.... With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, [or] ratification ... must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code § 3294.) The California Supreme Court interpreted the “latter statement as requiring the officer, director, or managing agent to be someone who ‘exercise[s] substantial discretionary authority over decisions that ultimately determine corporate policy.’” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577.)

Plaintiff alleges that that Defendant negligently operated a certain automobile, and, as a result collided with Plaintiff’s vehicle. The Court finds insufficient facts have been alleged to pray for punitive damages. In essence, Plaintiff is seeking punitive damages for the failure to properly operate an automobile. The causing of negligent harm through operating an automobile does not suffice as a prima facie case for punitive damages.

Plaintiff seems to imply Defendant was intoxicated, although the complaint does not plead such facts.

Even assuming for the sake of argument that this assertion is true, Taylor v. Sup. Ct., 24 Cal.3d 890, 896-97 fell short, however, of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The Court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under § 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. at p. 892.)

Further, Taylor was decided prior to 1987, at which time the Legislature added the requirement to Civil Code Section 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. “[T]he statute's reference to ‘despicable’ conduct seems to represent a new substantive limitation on punitive damage awards.¿Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ (4 Oxford English Dict. (2d ed. 1989) p. 529.)¿As amended to include this word,¿the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (Coll. Hosp., supra, 8 Cal. 4th at 725 [emphasis added].)

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.)

Lastly, Plaintiff argues the motion is untimely, however, the Court may at any time in its discretion grant a motion to strike under Code of Civil Procedure section 436.

Accordingly, Defendant’s Motion to strike is GRANTED as to the prayer for punitive damages with leave to amend.

II. Attorney Fees

Defendant also moves to strike Plaintiff’s prayer for attorney fees, arguing the cause of action alleged does not allow for attorney fees and Plaintiff has not provided any legal authority to support its prayer for attorney fees.

California Code of Civil Procedure section 1021 provides for attorney’s fees specifically provided by statute or by agreement between the parties. (Code Civ. Proc. § 1021.)

Plaintiff does not allege any agreement of the parties or cite any statutory basis that would provide for attorney’s fees pursuant to CCP § 1021.

Thus, the motion to strike the prayer for attorney’s fees is GRANTED with leave to amend.