Judge: Michael E. Whitaker, Case: 22STCV05102, Date: 2022-12-16 Tentative Ruling

Case Number: 22STCV05102    Hearing Date: December 16, 2022    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

MOTIONS

Plaintiffs Claudia Guzman, Liliana Guzman, and Rene Junior Guzman (collectively, Plaintiffs) sued Defendant Gerardo Garciavara (Defendant) based on a pedestrian versus automobile collision.  Defendant demurs to the first and second causes of action in Plaintiffs’ complaint.  Defendant also moves to strike Plaintiffs’ prayer for punitive damages and related portions of Plaintiffs’ complaint.  Plaintiffs have not filed oppositions to the demurrer and motion.

ANALYSIS

1. DEMURRER

    

   “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

    

   Defendant demurs to Plaintiff’s first and second causes of action for motor vehicle and negligence claims as being duplicative of Defendant’s third cause of action for wrongful death.  Under a wrongful death cause of action, the specified heirs are entitled to recover damages on their own behalf for the loss they have sustained by the reason of the bodily injury victim’s death. (See Corder v. Corder (2007) 41 Cal.4th 644, 651.) The elements of a wrongful death action are (1) a tort such as negligence or another wrongful act, (2) resulting death, and (3) loss/damage suffered by the heirs. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

    

   The crux of Plaintiffs’ third cause of action is as Decedent Angela Maria Santio’s children, they are entitled to damages for the negligence of Defendant resulting in Decedent’s death.  (See Complaint, p. 6.)  Rather than pleading a different or alternate set of facts against Defendant as the underlying negligence for the wrongful death cause of action, Plaintiffs reallege and incorporate the allegations made against Defendant in the motor vehicle and negligence causes of action.  (See Complaint, p. 6.)   Accordingly, the Court agrees with Defendant and sustains the demurrer to the first and second causes of action as duplicative of the third cause of action.

    

2. MOTION TO STRIKE

    

   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.)

    

   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, emphasis added.) 

Here, Defendant moves to strike Plaintiffs’ prayer for punitive damages and related portions of Plaintiffs’ complaint for failure to allege facts sufficient to demonstrate malicious, oppressive or fraudulent conduct on the part of Defendant to support a claim for punitive damages. Defendant argues that the complaint’s allegations allege nothing beyond negligent conduct, failing to allege aggravating circumstances warranting punitive damages.

The complaint alleges, “Defendant Gerardo Garciavara operated a car under the influence of alcohol. He failed to observe his surroundings and collided with Decedent Angela Maria Santio. The collision caused Decedent significant bodily injury. Defendant Gerardo Garciavara as cited and arrested for operating a vehicle under the influence. Defendant Gerardo Garciavara made a conscious decision to operate the vehicle while intoxicated, in reckless disregard for the safety of others.”  (Complaint, p. 7.) The Court finds that Plaintiffs’ complaint fails to allege material facts demonstrating circumstances which disclose Defendant’s conscious and deliberate disregard of the probable dangerous consequences of his conduct that it may be called willful or wanton. The Court thus concludes that Plaintiffs have not alleged malice, oppression or fraud on the part of Defendant to support a claim for punitive damages.

1. LEAVE TO AMEND

Plaintiffs have 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.) The 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, Plaintiffs have not opposed the demurrer and motion to strike. Consequently, they have failed to meet their burden. Thus, the Court will deny Plaintiffs leave to amend the Complaint.

CONCLUSION AND ORDER

Therefore, the Court sustains without leave to amend Defendant’s demurrer to the first and second causes of action in the complaint.  Further, the Court grants without leave to amend Defendant’s motion to strike portions of, and the claim and prayer for punitive damages in Plaintiffs’ complaint.

Defendant shall file and serve an Answer to the complaint on or before January 6, 2023. 

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