Judge: Michael E. Whitaker, Case: 21STCV30906, Date: 2023-05-05 Tentative Ruling

Case Number: 21STCV30906    Hearing Date: May 5, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Mitchell Kellam (Plaintiff) sued Defendants Kevin Ponce Garcia (Garcia) and Star Wholesale Electric Supply & Lighting, Inc. (Star) (collectively, Defendants) based on a motor vehicle collision, immediately after which Garcia purportedly fled the scene.  Star moves to strike Plaintiff’s prayer for punitive damages.  Plaintiff opposes the motion.  Star replies.

ANALYSIS

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

1. Punitive Damages

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means 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.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” 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, subd. (c)(1)-(3), emphasis added.)  

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

In Taylor v. Superior Court, the California Supreme Court held:  “We consider whether punitive damages are recoverable in a personal injury action brought against an intoxicated driver.  As will appear, we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.”  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892 [cleaned up].)  The California high court further held that “[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.”  (Id. at p. 899.)  But the California high court also stated, “Although the circumstances in a particular case may disclose similar wilful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.”  (Id. at pp. 899-900.) 

Here, Star argues that Plaintiff’s allegations related to his punitive damages claim are broad, conclusory, and fail to raise specific facts on the part of Star that equate to oppressive, malicious, or fraudulent conduct.  Star further argues that Plaintiff’s hit-and-run allegations are insufficient to support a prayer for punitive damages, citing to Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679, which states leaving the scene of an accident is independently actionable only if the defendant’s leaving the scene was “a proximate cause of further injury or death” beyond the accident itself.  While the court in Brooks did not consider whether punitive damages can be imposed based on a hit and run incident, it did hold that fleeing an accident scene only constitutes a tort if the act itself causes the plaintiff additional injury above and beyond the damages caused by the collision that preceded the flight.  (Ibid.) 

Plaintiff’s Complaint alleges the following in regard to the punitive damages claim:

• On or about August 23, 2019 Plaintiff was lawfully operating his vehicle near Whittier Blvd. and Sorensen Ave. Defendant KEVIN PONCE GARCIA was operating his vehicle near Whittier Blvd. and Sorensen Ave. directly behind Plaintiffs vehicle without caution and in such an unsafe manner that he violently collided into Plaintiffs vehicle. Defendant KEVIN PONCE GARCIA immediately fled the scene after the collision.

• Plaintiff is informed and believes and thereon alleges that Defendants KEVIN PONCE GARCIA, an individual; 5 STAR WHOLESALE ELECTRIC SUPPLY & LIGHTING, INC, a California corporation; and DOES 1 to 50, inclusive, negligently, carelessly, recklessly, unskillfully, unlawfully, tortuously, wrongfully, wantonly, maliciously, willfully, oppressively, and despicably entrusted, managed, maintained, operated, controlled and drove said vehicle.

• Defendant KEVIN PONCE GARCIA, and each of them, was aware that the outset of the probable consequences of such conduct and willfully and deliberately failed to avoid those consequences, an act or omission with conscious disregard for the safety of others. Conscious disregard of the safety of others constitutes malice. Defendant KEVIN PONCE GARCIA, and each of them, was aware of the probable consequences of his conduct and he willfully and deliberately failed to avoid these consequences.

• Defendants KEVIN PONCE GARCIA'S conduct was so outrageous as to exceed all bounds of that usually tolerated by a civilized community.

• Defendant KEVIN PONCE GARCIA acted with the intention of causing, or reckless disregard of the probability of causing, emotional distress when Defendant knowingly operated his vehicle without caution, and in such a reckless and unsafe manner, that he negligently and violently collided into Plaintiffs vehicle. Defendant KEVIN PONCE GARCIA immediately fled the scene after the collision.

• Defendant KEVIN PONCE GARCIA's outrageous, malicious, oppressive and despicable conduct as set forth above was intended to cause injury to the Plaintiff and subjected the Plaintiff to cruel and unjust hardship with a willful and conscious disregard for the Plaintiffs rights and safety such that Defendant is subject to punitive damages as set forth in California Civil Code 5 3294.

(Complaint, pp. 5-7.)  Star concludes Plaintiff’s failure to allege additional injuries caused specifically by Garcia fleeing the scene rather than immediately providing aid to Plaintiff after the incident, defeats Plaintiff’s prayer for punitive damages based on said hit-and-run allegations.  The Court agrees, finding that Plaintiff’s allegations of Garcia fleeing the scene after the vehicle collision are not sufficient, on their own, to support a claim for punitive damages.  The Court further finds that Plaintiff has failed to plead specific facts demonstrating oppressive, fraudulent, or malicious conduct on the part of Star.[1]

2. Leave to Amend

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, in opposition, Plaintiff asserts the following: “Plaintiff can assert additional facts if the Court is amenable to granting any part of the motion to strike . . . .”  (Plaintiff’s Opposition, p. 13.)  Because Plaintiff fails to identify with specificity what additional facts he can allege to bolster his claim for punitive damages, and further fails to explain how said facts will affect the legal viability of his punitive damages claim, the Court finds that Plaintiff has failed to meet his burden.   

CONCLUSION AND ORDER

Therefore, the Court grants Star’s motion to strike Plaintiff’s prayer for punitive damages without leave to amend.  The Court orders Star to file and serve an answer to the Complaint on or before May 26, 2023.     

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.