TENTATIVE RULING

Calendar:    10

Date:               12/13/2024 

Case No: 24 NNCV02910 Trial Date: None Set 

Case Name: Fuentes v. Armsdon Inc., et al.

MOTION TO STRIKE

Moving Party:            Defendants Armsdon Inc. and Liyung Hui      

Responding Party: Plaintiff Teresa Fuentes  (No Opposition)     

RELIEF REQUESTED:

CAUSES OF ACTION: from Complaint   

1) Negligence—General

2) Negligence—Motor Vehicle 

3) Negligent Hiring and Supervision

4) Negligent Entrustment

SUMMARY OF FACTS:

The complaint alleges that at the time of the collision, defendant Hui was an agent or employee of defendant Armsdon Inc., which provided the vehicle to defendant Hui to drive.  The complaint alleges that defendant Hui was acting within the scope of her agency for defendant Armsdon at the time of the collision, and that defendant Armsdon negligently entrusted the vehicle to Hui.   

ANALYSIS:

Defendants Armsdon, Inc. and Liying Hui seek to strike from the complaint the prayer for punitive damages. 

Under CCP § 435, a party may serve and file a motion to strike a part of a pleading.  

Under CCP § 436:

“The court may, upon a motion made pursuant to CCP § 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

Under CCP § 431.10(c), an “immaterial allegation,” as defined in that section, “means ‘irrelevant matter’ as that term is used in Section 436.”

CCP § 431.10(b) defines an immaterial allegation as follows:

“(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  

CCP § 437 provides, in pertinent part:

(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The process for the trial court in ruling on a motion to strike is summarized by the Second District in Clauson v. Superior Court (1998 2nd Dist.) 67 Cal.App.4th 1253: 

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519, 11 Cal.Rptr.2d 161; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91, 168 Cal.Rptr. 319; see California Judges Benchbook, Civil Proceedings Before Trial (1995) § 12.94, p. 611.)”

Clauson, at 1255.   

Specifically, with respect to the claims for punitive damages, Civil Code § 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…”  “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  Civil Code § 3294 (c)(2).   “Malice” is defined to mean “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.”  Civil Code § 3294 (c)(a).   

“Despicable” has been defined as a powerful term that refers to circumstances that are “base,” “vile,” or “contemptible”.   College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.  Such conduct has been described as “[having] the character of outrage frequently associated with crime.”  Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894, quotation omitted.  Punitive damages are appropriate if the defendant’s acts are “reprehensible, fraudulent or in blatant violation of law or policy.”  Tomiselli v. Transamerica Insurance Co. (1994) 25 Cal.App.4th 1269, 1287. 

It is held that claims for punitive damages cannot be alleged by conclusory allegations that defendant acted intentionally, willfully or fraudulently.  Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.  It is also held that a punitive damages claim must include factual allegations of wrongful motive, intent, or purpose.  Cyrus v. Haveson (1976, 2nd Dist.) 65 Cal.App.3d 306, 317.  

"[A] conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.   In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences." 

Taylor, at 895 896, citations omitted.

 

With respect to the claim for punitive damages against the snowboarder North, the court of appeal observed that since the Supreme Court decision in Taylor, the punitive damages statute had been amended in 1980 to add the definition of malice, and that, “As amended, malice, based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’”  Lackner, at 1211.  The court of appeal noted, “The statute’s reference to ‘despicable conduct’ represents ‘a new substantive limitation on punitive damage awards.’”  Lackner, at 1211, quoting College Hospital, Inc. v. Superior Court (1984) 8 Cal.4th 704, 725.  

“Additionally, the 1987 amendment increased the burden of proof. Malice or oppression must now be established “by clear and convincing evidence.” (Stats.1987, ch. 1498, § 5.) That standard “requires a finding of high probability .... ‘ “so clear as to leave no substantial doubt”; “sufficiently strong to command the unhesitating assent of every reasonable mind.” ’ [Citation.]” (In re Angelia P. (1981) 28 Cal.3d 908, 919, 171 Cal.Rptr. 637, 623 P.2d 198, superseded by statute on other grounds as stated in Orange County Social Services Agency v. Jill V. (1994) 31 Cal.App.4th 221, 229, 36 Cal.Rptr.2d 848; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.(2000) 78 Cal.App.4th 847, 891, 93 Cal.Rptr.2d 364.)

Lackner, at 1211-1212. 

Defendants argue that the complaint falls short of alleging any facts to warrant punitive damages here, and that it fails to sufficiently allege despicable or willful conduct, as now required under the statute.  

The complaint alleges that defendant Hui, while operating a vehicle entrusted to Hui by Hui’s employer defendant Armsdon, while in the course and scope of Hui’s employment, while driving at a “high rate of speed,” collided with the left side of plaintiff’s vehicle from behind while plaintiff was stopped at a red light.  [Complaint, paras. 9, 10].  It is alleged that defendant “swerved in a last second attempt to make a left turn, but failed to adequately position her vehicle within the turn lane.”  [Complaint, para. 11].  The complaint alleges that plaintiff was “aware of the unsafe rate of speed at which it was driving,” and “should have known that traveling at such speeds while approaching a red light could result in injury to Plaintiff.”  [Complaint, para. 13].  It is also alleged that defendant knew or should have known plaintiff’s car was stopped ahead, and “should have known that making a dangerous attempt to make a left turn was a reckless disregard for the safety of others on San Gabriel Blvd.”  [Complaint, para. 13].   

This recitation is not sufficient to allege malice or conscious disregard of the rights or safety of plaintiff at the level required or with the factual supporting detail required to seek punitive damages against defendant Hui.  There is no attempt to allege that the conduct was despicable or willful. Rather, the claim against defendant Hui are negligence claims, which at best allege recklessness.  The motion to strike is granted.  

With respect to defendant Armsdon, the complaint alleges its claims against this defendant with reference to foreseeability, not malice ofrconscious disregard of safety.  The complaint alleges:

“32.  Defendant, Armsdon owed a duty to Plaintiff and to the public to use care, prudence and reasonable diligence when selecting to employ or hire employees who drive their vehicles, and to use care and prudence when training and supervising them to avoid a foreseeable risk of harm to drivers, pedestrians, property and the public as a whole.  

33.  This duty was breached because Defendant knew or should have known that its agent or employee, Ms. Hui, was not capable of adequately driving a motor vehicle. Defendant failed to supervise her, and continued to employ her to operate the vehicle without regard to the foreseeable risk that its driver may be unable to safely operate that vehicle, which would endanger Plaintiff and the public.

34….‘But for’ Defendant Armsdon’s failure to supervise Defendant Liying Hui, the driver would not have operated the bus, and the collision would not have occurred. The breach was a substantial factor in causing the harm because it is foreseeable that an unsupervised, ill-equipped driver could cause an accident. Defendant is informed and believes that Defendant remodels commercial and residential property, and therefore regularly employs individuals to drive supplies to different locations to further its business.”

[Complaint, paras. 32-34]. 

However, this is the original complaint in the matter, and it is held that in the case of an original complaint, plaintiff need not even request leave to amend: “unless [an original complaint] shows on its face that it is incapable of amendment, denial of leave to amend constituted an abuse of discretion, irrespective of whether leave to amend is requested or not.”  King v. Mortimer (1948) 83 Cal.App.2d 153, 158, citations omitted.  The court of appeal in King cited to CCP section 472c, which provides, in pertinent part, “the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made.”    

This complaint is plaintiff’s first attempt to seek punitive damages and it is not entirely clear from the face of the complaint that it could not be amended to state a claim for punitive damages based on additional facts.   One opportunity to amend will be permitted, if possible.  Plaintiff should be mindful that if plaintiff is inclined to choose not to amend at this time, the motion to strike is granted without prejudice to plaintiff bringing a motion to amend the pleading to seek punitive damages should facts develop during discovery which support such a claim.  

RULING:

[No Opposition]     

UNOPPOSED Motion to Strike Portions of Complaint is GRANTED WITH LEAVE TO AMEND. 

The Court strikes the prayer for punitive damages on page 8, line 9, Prayer para. 3 of the Complaint on the ground the pleading fails to sufficiently allege specific facts supporting a claim that either defendant acted with malice, oppression, or fraud. 

Ten days leave to amend, if possible. 

The parties are ordered to meet and confer in full compliance with CCP §435.5 before any further motion to strike may be filed.  

 DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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