Judge: Sandy N. Leal, Case: 2022-01297346, Date: 2023-07-27 Tentative Ruling
Motion to Strike Portions Of Complaint
Defendant Mike Moinfar’s motion to strike the punitive damages allegations in paragraphs 62, 63, 65 and paragraph 3 of the prayer for punitive damages in the complaint is GRANTED WITH 20 DAYS LEAVE TO AMEND.
“The court may, upon a motion made pursuant to Section 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.” (Code Civ. Proc., § 436.)
Civil Code § 3294, subdivision (a) permits the recovery of punitive damages upon a clear and convincing showing that a defendant is guilty of oppression, fraud or malice. “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. (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Id., § 3294, subd. (c)(2).) “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. (Id., § 3294 subd (c)(3).) “The term ‘despicable,’ though not defined in the statute, is applicable to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299, internal quotation marks omitted.)
“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.” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) However, if the allegations demonstrate malice, unintentional torts may support punitive damages under Civil Code section 3294. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 (Taylor).
At the time Taylor was decided, Civil Code section 3294 did not include a definition of malice and malice was construed to mean malice in fact, which could be established by conduct that was done with a conscious disregard of the right and safety of others. (Taylor, supra, 24 Cal.3d at 894; Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211 (Lackner).) “In 1980, the Legislature amended section 3294 by adding the definition of malice stated in Taylor [Citations.] That definition was amended in 1987. As amended, malice, based upon a conscious disregard of the plaintiff's rights, requires proof that the defendant's conduct is ‘despicable’ and ‘willful.’ [Citation.] The statute's reference to ‘despicable conduct’ represents ‘a new substantive limitation on punitive damage awards.’ [Citation]” (Lackner, supra, 135 Cal.App.4th at 1211.); see College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)
For punitive damages under the current definition of malice, “conscious disregard for the safety of another may be found where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. [Citation.] Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. [Citation.] Such conduct has been described as having the character of outrage frequently associated with crime. [Citations.]” (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 332-333.)
A complaint must plead facts to support a claim for punitive damages, conclusory allegations are insufficient. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) “In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.)
Here, the complaint alleges that Defendant Moinfar drove at an excessive speed on the wrong side of the road climbing over a blind hill in a congested area adjacent to a campground, was unable to brake in time, collided head-on to Plaintiffs’ vehicle, and seriously injured them. In paragraph 65, Plaintiffs claim punitive damages based on all three statutory definitions: malice, fraud, and oppression.
The allegations are insufficient to plead punitive damages based on fraud because there are no factual allegations in paragraphs 62, 63, or 65, nor in the complaint as a whole, to show that Defendant Moinfar acted fraudulently.
The allegations in paragraphs 62, 63 and 65, and the complaint as a whole, are also insufficient to plead punitive damages based on malice. Punitive damages under malice can be based on conduct intended to cause injury or despicable conduct with a willful and conscious disregard of the rights or safety of others. Paragraph 65 alleges that Defendant Moinfar intended to injure Plaintiffs. However, there are no factual allegations to support that allegation. The 3rd cause of action is for gross negligence, not an intentional tort. Defendant Moinfar may have intended to drive at a high rate of speed on the wrong side of the road but that does not show that he intended to injure Plaintiffs. Paragraph 65 also alleges that Defendant Moinfar’s conduct was despicable and committed with a willful and conscious disregard with the rights and safety of others. While the allegations show that Defendant Moinfar’s conduct was willful and in conscious disregard of the rights and safety of others, it does not rise to the level of despicable conduct. As currently pled, Defendant Moinfar’s conduct, while undoubtedly reckless, was not so vile, base, contemptible, miserable, wretched or loathsome as to constitute despicable conduct.
Lastly, allegations in paragraphs 62, 63 and 65, and the complaint as a whole, are insufficient to plead punitive damages based on oppression. Oppression requires despicable conduct and the allegations do not currently show despicable conduct.
Because the allegations are insufficient to support a claim for punitive damages, the motion to strike the punitive damages allegations in paragraphs 62, 63, 65 and paragraph 3 of the prayer for punitive damages in the complaint is GRANTED WITH 20 DAYS LEAVE TO AMEND.
Defendant shall give notice of ruling.