Judge: Michael E. Whitaker, Case: 22STCV21454, Date: 2023-01-30 Tentative Ruling

Case Number: 22STCV21454    Hearing Date: January 30, 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

Plaintiffs Christopher Newman and William Bowden (collectively, Plaintiffs) sued Defendant Paula Biren (Defendant) based on injuries Plaintiffs alleged they sustained when Defendant struck them while they were lawfully walking in a crosswalk.  Plaintiffs further allege that Defendant was wearing a Controlled Ankle Movement Boot (CAM) while she was driving. 

Defendant moves to strike Plaintiffs’ claim and prayer for punitive damages in the first amended complaint (FAC).  Plaintiffs oppose the motion.  Defendant 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, emphasis added.)

Here, Defendant argues Plaintiffs have failed to allege specific facts showing that Defendant acted with malice, fraud, or oppression.  Plaintiffs’ FAC alleges in pertinent part the following:

• Defendants PAULA BIREN and DOES 1 TO 100, inclusive, and each of them had a duty to operate their motor vehicle in as a reasonable person would, breached that duty by operating their vehicle in a negligent and careless manner, which caused their motor vehicle driven and controlled by PAULA BIREN and DOES 1 to 100, inclusive, and each of them, to collide with PLAINTIFFS’ persons and cause serious personal injuries, harms, and damages, as PLAINTIFFS were lawful pedestrians and had the right of way.

• Defendants PAULA BIREN and DOES 1 TO 100, inclusive, and each of them, were operating their motor vehicle, on information and belief, while wearing a cam walking boot on her right foot, as depicted in photos taken at the scene, which conduct was despicable and was done with a willful and knowing disregard of the rights or safety of others, including PLAINTIFFS'. On information and belief, Defendants PAULA BIREN and DOES 1 TO 100, inclusive, and each of them acted with knowing disregard as Defendant PAULA BIREN and DOES 1 TO 100, inclusive, and each of them, were aware of the probable dangerous consequences of wearing a cam walking boot on the primary foot used for accelerating and braking, which was unsafe as braking response time is unreasonably increased while wearing a cam walking boot during the operation of a motor vehicle, and deliberately failed to avoid those consequences, which was a substantial factor in causing serious personal injuries, harms, and damages to PLAINTIFFS.

   

• Defendants PAULA BIREN and DOES 1 TO 100, inclusive, and each of them had a duty to operate their motor vehicle in as a reasonable person would, breached that duty by operating their vehicle in a negligent and careless manner, which caused their motor vehicle driven and controlled by PAULA BIREN and DOES 1 to 100, inclusive, and each of them, to collide with PLAINTIFFS’ persons and cause serious personal injuries, harms, and damages, as PLAINTIFFS were lawful pedestrians and had the right of way.

   

• Defendants PAULA BIREN and DOES 1 TO 100, inclusive, and each of them, were operating their motor vehicle, on information and belief, while wearing a cam walking boot on her right foot, as depicted in photos taken at the scene, which conduct was despicable and was done with a willful and knowing disregard of the rights or safety of others, including PLAINTIFFS'. On information and belief, Defendants PAULA BIREN and DOES 1 TO 100, inclusive, and each of them acted with knowing disregard as Defendant PAULA BIREN and DOES 1 TO 100, inclusive, and each of them, were aware of the probable dangerous consequences of wearing a cam walking boot on the primary foot used for accelerating and braking, which was unsafe as braking response time is unreasonably increased while wearing a cam walking boot during the operation of a motor vehicle, and deliberately failed to avoid those consequences, which was a substantial factor in causing serious personal injuries, harms, and damages to PLAINTIFFS.

(FAC, Second Cause of Action & Attachment MV-2f.)

The Court finds these allegations insufficient to demonstrate despicable conduct which is carried on by Defendant with a willful and conscious disregard of the rights or safety of others.  Plaintiffs’ allegation that Defendant wore a CAM while driving amounts at most to reckless disobedience of traffic laws which does not rise to the level of malice, oppression or fraud.  Without such assertions, Plaintiffs’ claim and prayer for punitive damages is deficient. 

1. Leave to Amend

Plaintiffs have the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a claim for punitive damages. (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 failed to meet their burden to show how the amended complaint could be amended to establish a claim for punitive damages against Defendant. Plaintiffs’ opposition to the motion sets forth generalized statement that leave to amend should be granted, without providing in particular what factual allegations Plaintiffs can and will assert to cure the deficiencies with their claim for punitive damages vis-à-vis Defendant.

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to strike Plaintiffs’ claim and prayer for punitive damages without leave to amend. 

The Court orders Defendant to file and serve an answer to the Complaint within 20 days of the hearing.   Defendant shall provide notice of the Court’s orders and file a proof of service of such.