Judge: Serena R. Murillo, Case: 22STCV27630, Date: 2023-03-21 Tentative Ruling

Case Number: 22STCV27630    Hearing Date: March 21, 2023    Dept: 29



Defendant Romuald Ansermet’s motion to strike is DENIED.

Legal Standard

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 


A.      Meet and Confer

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).)

The Court notes that there is no declaration filed, and thus, the meet and confer requirement is unsatisfied. However, as this is not a basis to deny the motion to strike, the court will address the merits of the motion. (CCP § 435.5(a)(4).) Nevertheless, the Court admonishes defense counsel and directs counsel, moving forward, to meet and confer with opposing counsel before filing a demurrer or motion to strike.

B. Timeliness of Motion to Strike

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. (CCP § 435(b)(1).)

The Court notes that the motion to strike is untimely. However, an untimely motion to strike may be considered by the court in its discretion.  (Jackson v. Doe (2011) 192 Call.App.4th 742, 750.)  As such, the Court will address the motion to strike on its merits.  

C. Merits

Defendant moves to strike portions of Plaintiff’s Complaint praying for punitive damages, arguing that plaintiff has failed to adequately plead allegations which give rise to 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.) 


“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] 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. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (footnote omitted).) 


Here, the complaint alleges that Defendants chased down Plaintiff in their mutual apartment lobby with their dog and proceeded to attack him, making physical contact by punching the Plaintiff in the face and placing him into a headlock, resulting in head, neck, back, shoulder, wrist, and foot pain. (Complaint, 25.) Defendants chased Plaintiff with violent pretenses. Defendants proceeded to punch Plaintiff, causing visible injury to Plaintiff’s face. (Id., 26.) The complaint further alleges that Defendants have acted wantonly and with recklessness and conscious disregard of the rights of Plaintiff through bullying, violence, intimidation and harassment of Plaintiff. (Id., 22.) Defendants’ actions constitute extreme violations of well-settled California law, and demonstrate a blatant disregard for Plaintiff’s safety, as well as his basic human dignity. (Id.)


The Court finds sufficient facts have been alleged to pray for punitive damages.  The complaint alleges that Defendant chased Plaintiff down then physically attacked Plaintiff and caused visible injury to his face. These facts show Defendant intended to cause Plaintiff injury, or at the very least, a conscious disregard of Plaintiff’s rights. Further, as alleged, this is despicable conduct, which would be looked down upon in society as contemptible. 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.)




Accordingly, Defendant’s motion to strike is DENIED.