Judge: Matthew C. Braner, Case: 37-2023-00047672-CU-PA-CTL, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 21, 2024

03/22/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2023-00047672-CU-PA-CTL HARPER-THORNTON VS PETROTTA-ANDRE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Matthew W. Andre's motion to strike the Complaint is DENIED as moot.

Defendants Cynthia Petrotta-Andre and Matthew Andre's motion to strike the First Amended Complaint is GRANTED.

Preliminarily, the court notes the Defendants have directed their motions to strike at different pleadings.

Plaintiff filed her initial complaint on November 1, 2023. (ROA # 1.) On December 13, 2023, Defendants Cynthia Petrotta-Andre and Matthew Andre filed a motion to strike challenging the claims for punitive/exemplary damages in the initial complaint. (ROA #15.) On January 8, 2024, Plaintiff served on all Defendants a First Amended Complaint (FAC) alleging causes of action for motor vehicle negligence, negligent entrustment under Vehicle Code § 14607, imputed negligence under Vehicle Code § 17708, and intentional infliction of emotional distress (IIED).

(ROA # 9, p. 10.) Plaintiff filed the FAC on January 12, 2024, but the first page of the FAC on file with the court is Plaintiff's objections to a deposition notice. (Id., p. 1.) On February 6, 2024, Defendant Matthew W. Andre filed his instant motion to strike directed at the initial complaint. (ROA #22.) In contrast, on February 7, 2024, Defendants Cynthia Petrotta-Andre and Matthew Andre filed their instant motion to strike directed at the FAC. (ROA #30.) In consideration of Plaintiff's pro se status and proof of service attached to the FAC on file, and to facilitate a timely resolution of the issues raised in the motions, the court treats the FAC as the operative pleading. (ROA #19.) Defendant Matthew W. Andre's Motion to Strike '[T]he filing of an amended complaint renders moot a demurrer to the original complaint.' (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [citing Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054]; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 ['[A]n amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.'].) Here, Defendant Matthew W. Andre's motion to strike filed on February 6, 2024 is directed at the initial complaint. (ROA # 22; ROA #23, Ex. A.) However, Plaintiff served the FAC on all Defendants and filed the FAC on January 12, 2024, over three weeks earlier. (ROA #19.) Plaintiff had the right to file the FAC Calendar No.: Event ID:  TENTATIVE RULINGS

3065305  14 CASE NUMBER: CASE TITLE:  HARPER-THORNTON VS PETROTTA-ANDRE [IMAGED]  37-2023-00047672-CU-PA-CTL without leave of court and did so within the time period for filing an opposition to Defendants Cynthia Petrotta-Andre and Matthew Andre's prior motion to strike the initial complaint. (Code Civ. Proc., § 472, subd. (a) ['A party may amend its pleading once without leave of the court at any time . . . after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.'].) Accordingly, Defendant Matthew W. Andre's motion to strike the initial complaint is denied as moot.

Defendants Cynthia Petrotta-Andre and Matthew Andre's Motion to Strike A court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' (Code Civ. Proc., § 436, subd. (a).) An improper claim for punitive damages can be stricken. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-64.) Punitive damages are not favored and are generally granted only 'with the greatest caution.' (Dyna-Med, Inc. v. Fair Employment and Housing Comm'n (1987) 43 Ca1.3d 1379, 1392.) A claim for punitive damages must also be pled with specificity; conclusory allegations unsupported by facts showing malicious, fraudulent, or oppressive intentions will not suffice. (G.D.

Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32-33; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42.) Punitive damages are available only in non-contract actions 'where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.' (Code Civ. Proc., § 3294, subd. (a). Malice is defined as conduct that '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).) Oppression means 'despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.' (Civ.

Code, § 3294, subd. (c)(2).) Despicable conduct refers to circumstances that are base, vile, or contemptible. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228.) Facts that, if true, would demonstrate mere negligence or only recklessness do not warrant an award of punitive damages. (Johns-Mansville Sales Corporate Private Carriage v. Workers Comp. Appeals Bd.

(1979) 96 Cal.App.3d 923, 931.) Even gross negligence is not sufficient. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-11.) Here, the FAC lacks the requisite specific, non-conclusory factual allegations of reprehensible conduct that might support a claim for punitive damages. There are no specific allegations against Defendant Cynthia Petrotta-Andre to support punitive damages against her. (See ROA #19, at p. 7: 4-9 [requesting punitive damages against all Defendants].) Additionally, the allegations in the FAC related to the IIED cause of action against Defendant Matthew Andre are not sufficient to support a claim for punitive damages. To the extent the basis for punitive damages are the allegations regarding Defendant Matthew Andre's negligent driving or negligent failure to comply with the Vehicle Code, 'routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.' (Taylor v. Superior Court (1979) 24 Cal.3d 890, 899-900.) Moreover, Plaintiff has not pled with specificity that Defendant Matthew Andre's conduct in fleeing the scene instead of stopping and rendering assistance and providing false information caused Plaintiff to suffer additional or greater damage separate from the preceding collision. The caselaw Plaintiff cites is inapposite, as those cases concern injuries that stem from drunk driving, which is not alleged in the FAC. (See Taylor, supra, 24 Cal.3d at p. 899 ['[O]ne who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, 'such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.' '].) Accordingly, Defendants Cynthia Petrotta-Andre and Matthew Andre's motion to strike is granted and the portions of the FAC stated in Defendants' notice of motion related to punitive damages are stricken.

Plaintiff will be given leave to amend her FAC on this issue.

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3065305  14 CASE NUMBER: CASE TITLE:  HARPER-THORNTON VS PETROTTA-ANDRE [IMAGED]  37-2023-00047672-CU-PA-CTL Plaintiff has 30 days from entry of this order to file and serve an amended complaint.

The minute order is the order of the court.

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