I. BACKGROUND 

Plaintiff Christian Tolbert (“Plaintiff”) filed this action against defendant Mario Munoz (“Defendant”) for damages arising from an automobile incident. The complaint sets forth a single cause of action for negligence. The complaint includes a prayer for punitive damages.   

Defendant now moves to strike the following from the complaint: (1) Page 2, paragraph 10, lines 21 through 23; (2) page 2, paragraph 11, line 23; and (3) page 4, Prayer for punitive damages, Paragraph 6, line 17. 

Any opposition was due on or before March 27, 2024; the motion is unopposed. 

II. MOTION TO STRIKE 

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 435.5(a).) 

Defense counsel provides that he called Plaintiff’s counsel requesting a stipulation to strike punitive damages from the complaint. (Botros Decl. ¶ 5.) Plaintiff’s counsel stated they would review the file and respond back, but after multiple follow-ups, Plaintiff’s counsel has not responded to date. (Id. at ¶¶ 5-10.) The meet and confer requirement is therefore met.  

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) 

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (Emphasis added.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid.)  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.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.) 

The complaint alleges in relevant part:  

“10. At all times mentioned in this complaint, defendant MARIO MUNOZ , WERE driving and operating the automobile UNDER THE INFLUENCE (despicable conduct) with the consent, permission, and knowledge of defendant, MARIO MUNOZ, and/or or authorized agents. 

11. On JULY 17, 2021defendant MARIO MUNOZ, and/or, negligently operated a certain automobile, UNDER THE INFLUENCE, (despicable conduct) and, as a proximate result of that negligent operation, collided with plaintiff's automobile. […].” (Compl. at ¶¶ 10-11.) 

Here, Plaintiff pleads no basis for punitive damages arising from this automobile accident. A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Plaintiff’s conclusory allegation that Defendant was driving under the influence is insufficient to rise to the level of conduct warranting punitive damages. Altogether, the complaint fails to allege any facts that Defendant engaged in any conduct that constitutes malicious or oppressive conduct toward Plaintiff. 

However, aside from seeking to strike Plaintiff’s prayer for punitive damages, Defendant also seeks to strike the allegations that he was driving under the influence. For a motion to strike, the Court’s review is limited to the face of the pleading and matters judicially noticeable. Defendant may not turn this motion into an evidentiary-based hearing by submitting Defendant’s declaration to contest the merits of the allegations. 

Based on the foregoing, the motion is GRANTED IN PART as to the prayer for punitive damages only.  

III. CONCLUSION 

The burden is on Plaintiff to show in what manner he can amend the complaint, and how that amendment will change the legal effect of the pleading.¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)¿Because Plaintiff did not oppose the motion, Plaintiff necessarily fails to meet this burden.  

Therefore, Defendant’s motion to strike the prayer for punitive damages against it is GRANTED without leave to amend. The remaining request to strike the intoxication allegations is denied.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 9th day of April 2024