Judge: Mel Red Recana, Case: 24STCV07667, Date: 2024-07-11 Tentative Ruling
Case Number: 24STCV07667 Hearing Date: July 11, 2024 Dept: 45
Hearing date: July 11, 2024
Moving Party: Defendant Foremost Insurance Company
Grand Rapids, Michigan
Responding
Party: Plaintiff Philip Markowitz
Motion to Strike Punitive Damages Allegations
The court has
considered the moving papers, opposition, and reply.
The motion is
granted with 20 days leave to amend.
Background
This
is an action arising from the alleged “not providing coverage and unreasonably
delaying in making a coverage determination on [a] claim.” (Complaint, ¶ 29.)
On March 27, 2024, Plaintiff Philip Markowitz (“Plaintiff”) filed a Complaint
against Defendants Foremost Insurance Company Grand Rapids, Michigan
(“Defendant”) and Does 1 to 10, alleging causes of action for: (1) Breach of
Insurance Contract; and (2) Tortious Breach of Insurance Contract.
On
March 28, 2024, this action was reassigned to the Honorable Mel Red Recana
sitting in Department 45 at the Stanley Mosk Courthouse. (03/28/24 Minute
Order.)
On
May 8, 2024, Defendant filed and served the instant Motion to Strike Punitive
Damages Allegations. Also, on such date, Plaintiff filed and served an
opposition to the motion. Defendant filed and served a reply brief on July 2,
2024.
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 of Civ. Proc., § 435,
subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ 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, subd. (a)-(b); Stafford v. Shultz
(1954) 42 Cal.2d 767, 782.)¿
Meet and Confer
Before filing a
motion to strike, the moving party must meet and confer in person, by telephone,
or by video conference with the party who filed the pleading to attempt to
reach an agreement that would resolve the objections to the pleading. (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).)
Counsel
for Defendant, James P. Lemieux (“Lemieux”), provides a declaration in support
of the motion. Counsel states the following: on April 30, 2024, he wrote to
Plaintiff’s counsel, Jeffrey A. Cohen, Esq., regarding Plaintiff’s punitive
damages allegations. (Lemieux Decl., ¶ 2; Ex. A.) He expressed his concern that
the complaint did not allege sufficient facts to support the claim and that the
claim was unsupported and defective as pleaded. (Id.) He asked that
Plaintiff agree to strike his punitive damages claim from the complaint without
prejudice. (Id.) Shortly after the letter was transmitted, Mr. Cohen
responded by e-mail on April 30, 2024, and Mr. Cohen disagreed. (Id., ¶ 3; Ex. B.) Mr. Cohen argued
that Plaintiff sufficiently alleged a bad faith claim and that bad faith allows
for punitive damages awards. (Id.) Given the impasse over the propriety
of Plaintiff’s punitive damage claim, the instant motion was necessary to
resolve the issue. (Id., ¶ 4.)
The Court finds that the meet and
confer requirement has not been met as counsel did not meet and confer in
person, by telephone, or by video conference. The Court, however, will still
assess the merits of the motion to strike. The Court reminds the parties of the
need to comply with the requirements of the Code of Civil Procedure.
Discussion
Allegations of the
Complaint
The Complaint relevantly states the following: in 2018, Plaintiff
obtained a marine insurance policy from Defendant that provided for insurance
coverage to and for Plaintiff’s watercraft vessel (the “Vessel”). (Complaint, ¶
4.) In June 2022, Plaintiff renewed the policy, and the effective dates of the
policy were from June 18, 2022, through June 18, 2023. (Complaint, ¶¶ 5-6.) The
coverage amount for losses under the policy is $95,000.00. (Complaint, ¶ 7.) On
January 23, 2023, heavy rains flooded the Vessel and damaged its engines, which
resulted in an unforeseen, sudden, and accidental loss to the Vessel.
(Complaint, ¶ 9.) Plaintiff reported the loss to Defendant in February 2023.
(Complaint, ¶ 10.) Plaintiff submitted a claim to Defendant. (Complaint, ¶¶ 11-12.)
Plaintiff then alleges that Defendant asked for additional information
concerning the claim, which was provided, and to this day Defendant has failed
to provide a coverage determination for the amount of the loss. (Complaint, ¶¶
13-24.) Defendant has not paid Plaintiff any money on the claim, in whole or in
part, to date, and has not made a coverage determination after over a year to
review, analyze, and process the claim. (Complaint, ¶ 26.)
Appropriateness of Striking 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.) Civil 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.” (Civil Code
§ 3294(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 California Civil
Code, Section 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.” California Civil Code, Section
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 pled 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.)
The
Court finds that Plaintiff’s punitive damages allegations are insufficient.
Plaintiff seeks punitive damages pursuant to its second cause of action.
(Complaint, ¶ 33.) Such allegations, however, are set forth in a conclusory
manner. Plaintiff has not alleged sufficient facts to impose punitive damages
against Defendant. Plaintiff has not made a showing of malice, fraud, or
oppression. Moreover, the opposition to the motion to strike seems to argue as
to the sufficiency of the second cause of action and does not make a reasoned
argument as to the sufficiency of the punitive damages allegations in the complaint.
The Court therefore finds it appropriate to strike punitive damages allegations
from the complaint.
Based
on the foregoing, the Court GRANTS the motion to strike with 20 days leave to
amend.
It is so
ordered.
Dated:
July 11, 2024
_______________________
MEL RED RECANA
Judge of the
Superior Court