Judge: Lynne M. Hobbs, Case: 22STCV10473, Date: 2024-03-20 Tentative Ruling

Case Number: 22STCV10473    Hearing Date: March 20, 2024    Dept: 30

GREGORY WILSON, et al. vs DARREASHA DUKES

TENTATIVE

The Court GRANTS Defendant’s motion to strike with 30 days leave to amend. Moving party to give notice.

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, subd. (b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436, subd. (a).) A court may “[s]trike 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.” (Code Civ. Proc., § 436, subd. (b).)

Discussion

A. Meet and Confer

“Before filing a motion to strike . . . the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

Defendant’s counsel, Cherie A. Enge (“Enge”), declares that on February 14, 2024, she called Plaintiffs’ counsel and spoke with Plaintiffs’ counsel’s assistant who refused to let defense counsel speak to Plaintiffs’ counsel. (Enge Decl., ¶ 11.) Plaintiffs’ counsel’s assistant informed defense counsel that he messaged Plaintiffs’ counsel who confirmed that he would not stipulate to striking the prayer for attorneys’ fees or punitive damages. (Enge Decl., ¶ 11.) Counsel states that the parties have been unable to reach an agreement regarding the prayer for punitive/exemplary damages or attorneys’ fees. (Enge Decl., ¶ 13.)

The Court finds that the meet and confer requirement has not been met as the parties’ counsel have not met and conferred in person, by telephone, or by video conference. The Court will still assess the motion to strike on the merits. However, the Court reminds the parties of the need to comply with the Code of Civil Procedure.

B. Punitive Damages

“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.) Civ. Code § 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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.” (Civ. Code, § 3294, subd. (c)(1).) “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under Civ. Code § 3294(c)(3) “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(c)(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Specific facts must be alleged in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)

Plaintiffs allege that Defendant was negligently operating an automobile, which collided with Plaintiffs’ automobile. (Complaint, ¶ 11.) The prayer for relief in the complaint seeks punitive damages.

The Court finds that Plaintiffs have not alleged sufficient facts showing malice, fraud, or oppression to warrant the imposition of punitive damages. The complaint is rooted in negligence, and negligent conduct will not support a claim for punitive damages under Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th 1269, 1288. Moreover, the complaint only makes conclusory allegations and does not set forth specific facts. (Complaint, ¶¶ 11-17.) The complaint does not allege that Defendant acted with malice, fraud, or oppression.

C. Attorneys’ Fees

“California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees.” (In re FairWageLaw (2009) 176 Cal.App.4th 279, 288.) “Unless authorized by statute or agreement, attorney’s fees ordinarily are not recoverable as costs.” (Lerner v. Ward (1993) 13 Cal.App.4th 155, 158.) “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce the contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract . . . shall be entitled to reasonable attorney’s fees in addition to other costs.” (Code Civ. Proc., § 1717, subd. (a).)

The complaint fails to allege entitlement to attorneys’ fees by statute or agreement of the parties. Moreover, Defendant’s motion is unopposed which “creates an inference that the motion is meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Based on the foregoing, the Court GRANTS Defendant’s motion to strike with 30 days leave to amend.