Judge: Serena R. Murillo, Case: 20STCV44687, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV44687    Hearing Date: September 21, 2022    Dept: 29

Jose Manuel Gomez Cerritos v. Jose Miguel Martinez, et al. 

Motion to Strike Punitive Damages from First Amended Complaint filed by Defendant Gustavo Espinoza

TENTATIVE

Defendant Gustavo Espinoza’s motion to strike punitive damages is GRANTED with 30 days leave to amend.

Meet and Confer

The motion to strike is accompanied by the declaration of Paul F. Sullivan which satisfies the meet and confer requirements. (Code Civ. Proc. § 435.5(a).) 

Discussion

As an initial matter, Plaintiffs argue that Defendant filed their motion to strike 8 days after the deadline to file and serve a responsive pleading.

However, as the motion to strike has been fully briefed by both parties, the Court finds that any potential minor delay in filing the motion would have been de minimis and would not have affected the substantial rights of Plaintiffs. The Court further has the discretion to treat a motion to strike as timely even past the 30 day deadline, particularly on an amended complaint. (McAllister v. County of Monterey¿(2007) 147 Cal.App.4th 253, 280.) 

Defendant also argues that Plaintiff’s opposition was not timely. Again, as Defendant has not argued it was prejudiced, the Court exercises its discretion to consider the opposition.

Defendant moves to strike cause of action for punitive damages, arguing the allegations do not support a claim for punitive damages.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)  

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)  

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.) 

Plaintiffs Jose Manuel Gomez Cerritos, Mirna Gonzalez de Gomez, and Manuel Gomez Gonzalez allege that on December 18, 2018, Defendants Jose Miguel Martinez and Gustavo Espinoza drove an automobile at an excessive speed, collided into Plaintiffs’ vehicle, and subsequently attempted to flee the scene in violation of California Vehicle Code Sections 20001, 20002, 22350, and 21703. Additionally, Plaintiffs allege that despite having the knowledge that probable serious injury would result from driving at excessive speeds, Defendant willfully failed to avoid such consequences. The complaint further alleges that Defendant continued to act with the willful and conscious disregard of the safety of others after the collision by fleeing the scene. Defendant acted with knowledge that probable serious injury would result from failing to render aid to the injured party, and serious injury did result.

The Court again finds insufficient facts have been alleged to pray for punitive damages, and notes that the allegations in the FAC are nearly identical to those in the complaint, which the Court already found were insufficient to allege punitive damages. Again, the Court notes, in essence, Plaintiff is seeking punitive damages from Defendant for his failure to properly operate an automobile. Plaintiff’s summary allegation tracking the language of Civil Code section 3294 is insufficient and the causing of negligent harm through operating an automobile does not suffice as a prima facie case for punitive damages.  

While Plaintiffs allege that Defendant fled the scene of the accident, merely fleeing the scene of an accident does not warrant the imposition of punitive damages because the act of fleeing is not the basis for the claims alleged in the complaint.  (See Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, 679 (fleeing the scene of an accident act is not a separately actionable tort unless the act of fleeing causes additional injuries above and beyond those caused by the accident.).)  Further, although the FAC alleges “Defendant acted with knowledge that probable serious injury would result from failing to render aid to the injured party, and serious injury did result,” it is unclear if Plaintiffs are alleging that serious injury resulted from the collision itself or from Defendants fleeing the scene. If it is the former, it is not sufficient under Brooks v. E.J. Willig Truck Transp. Co., 40 Cal.2d at 679, and if it is the latter, it is still not sufficient as the allegation is conclusory. Therefore, there is no basis to award punitive damages based upon the FAC. 

Therefore, the allegations in the FAC are insufficient to state a prima facie claim for punitive damages for oppression and malice. Accordingly, Defendants’ Motion to strike is GRANTED. As to leave to amend, the Court notes that Plaintiffs were given an opportunity to amend the pleadings in order to cure the defects of the complaint, which they still have not done and in fact did not make any real attempt to do so. Nevertheless, the Court will allow leave to amend one more time.  

Conclusion

Based on the foregoing, Defendant’s motion to strike punitive damages is GRANTED with 30 days leave to amend.

Moving party is ordered to give notice.