Judge: Michael E. Whitaker, Case: 23SMCV04739, Date: 2023-12-13 Tentative Ruling

Case Number: 23SMCV04739    Hearing Date: December 13, 2023    Dept: 207

TENTATIVE RULING

MOTION

This case arises from an alleged vehicle accident.  Defendant Devonn Burress (“Defendant”) has moved to strike from the Complaint references to and requests for punitive damages.  Plaintiff Joshua Sheiner opposes the motion and Defendant replies.

ANALYSIS

1. UNTIMELY OPPOSITION

            Code of Civil Procedure section 1005, subdivision (b) provides, “All papers opposing a motion […] shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  The court has discretion whether to consider late-filed papers.  (Cal. Rules of Court, rule 3.1300(d).)  

            The hearing on this motion to strike was noticed for December 13, 2023.  Therefore, Plaintiff’s opposition was due November 30.  Plaintiff did not file an opposition until after business hours on December 6, the date Plaintiff’s Reply brief was due.  Plaintiff indicates in the opposition that “Due to clerical errors on Plaintiff’s calendar, the hearing date for this motion was set for the following month and has caused Plaintiff miss [sic] the appropriate date to file an opposition to the motion brought before the Court by Defendant.”  (Opp. at p. 5:13-15.)  Plaintiff also “respectfully requests that the Court continue this the (sic) following hearing, scheduled for December 13, 2023, or in the alternative to deny Defendant’s Motion to Strike in its Entirety.”   (Opp. at p. 5:16-18.)

            Although Plaintiff’s opposition is untimely, the Court finds no prejudice here, as Defendant was able to draft and file a Reply brief on December 7.  Therefore the Court exercises its discretion and considers both the late-filed opposition and reply briefs.

            The Court declines to grant Plaintiff’s request to continue the hearing, as it is not properly before the Court via noticed motion or ex parte application.

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.) 

In addition, while leaving the scene of an accident without rendering aid violates the Vehicle Code, it is independently actionable only if the defendant’s leaving the scene of the incident was “a proximate cause of further injury or death” beyond the harm resulting from the underlying incident.  (Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669.)  In particular, the Supreme Court held:

One who negligently injures another and renders him helpless is bound to use reasonable care to prevent any further harm which the actor realizes or should realize threatens the injured person. This duty existed at common law although the accident was caused in part by the contributory negligence of the person who was injured. Sections 4801 and 4822 of the Vehicle Code require an automobile driver who injures another to stop and render aid. This duty is imposed upon the driver whether or not he is responsible for the accident, and a violation gives rise to civil liability if it is a proximate cause of further injury or death. Failure to stop and render aid constitutes negligence as a matter of law, in the absence of a legally sufficient excuse or justification.

(Id. at pp. 678–679, emphasis added [cleaned up]; Karl v. C. A. Reed Lumber Co. (1969) 275 Cal.App.2d 358, 361 [“failure to stop and render aid after an injury-causing accident may constitute an independent wrong irrespective of any legal responsibility for the original injury”].)

            Here, Plaintiff alleges as follows:

Due to the negligent and reckless actions of the Defendant while operating a vehicle, an accident ensued with the Plaintiff. Defendant did not stop when the accident ensued, and fled the scene. Plaintiff was injured by and through the negligent actions of Defendant. As a direct and proximate result of Defendants negligence, carelessness, and failure to keep a lookout for other vehicles, while operating their own vehicle, Plaintiff was injured in health, strength, and activity. Plaintiff seeks General, Special, and Punitive damages.

(Complaint, p. 4.)   Defendant argues that the allegations are conclusory and insufficient to support a claim of punitive damages. 

            Plaintiff counters that the Complaint adequately alleges that Defendant violated Vehicle Code sections 20001 and 20003 by failing to stop at the scene of the accident and provide identifying information to the other driver.  In so doing, Plaintiff contends Defendant committed a crime, and therefore Defendant’s conduct constitutes both malice and oppression.  Plaintiff further contends that the motion to strike is premature as discovery is ongoing.

            The Court agrees with Defendant.  “When nondeliberate injury is charged, allegations that the defendant’s conduct was […] unlawful do not support a claim for exemplary damages; such allegations do not charge malice.”  (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  Plaintiff does not allege any facts suggesting that Defendant’s failure to stop proximately caused any further injury to Plaintiff beyond those caused by the initial accident resulting in the nondeliberate injury. 

            Therefore, the Court finds that Plaintiff does not allege sufficient facts to support a claim for punitive damages.

3. 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.)  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, Plaintiff asserts the following additional facts in the opposition:

On December 15, 2022, Plaintiff was driving westbound on the 10 Freeway in Los Angeles. Plaintiff’s vehicle was suddenly struck from behind by the Defendant (the “Accident” as hereafter referenced). The Plaintiff immediately attempted to pull over to the shoulder of the freeway, only to find that the Defendant had no intention of pulling over or stopping to exchange information, as would have been appropriate in this situation. Instead, the Defendant sped away from the scene of the Accident, leading the Plaintiff to follow the Defendant for a period of time before losing sight of the Defendant’s vehicle.

(Opp. at p. 2:3-9.) 

            These allegations clarify that Defendant’s vehicle collided with Plaintiff’s vehicle from behind, and that Defendant “sped away” from the scene in a manner that Plaintiff, attempting to follow Defendant’s vehicle, ultimately lost sight of Defendant’s vehicle.  However, they do not demonstrate that Plaintiff sustained any additional injuries proximately caused by Defendant’s alleged failure to stop.

Therefore, Plaintiff has not demonstrated there are additional facts that could be added to the Complaint to support Plaintiff’s claim for punitive damages.

CONCLUSION AND ORDER

The Court grants Defendant’s Motion to Strike references to punitive damages from the Complaint without leave to amend. 

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

DATED:  December 13, 2023                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court