Judge Steven A. Ellis, Case Number: 21STCV34618, Date: 2023-07-20 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV34618, Date: 2023-07-20 Tentative Ruling

Case Number: 21STCV34618 Hearing Date: July 20, 2023 Dept: 29

TENTATIVE

Defendants Steven Silva’s motion to strike is GRANTED with LEAVE TO AMEND.

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.) The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Meet and Confer

The court notes that counsel’s declaration satisfies the meet and confer requirement under Code of Civil Procedure section 435.5(a)(3). (Barcelos-Pettit Decl., ¶¶ 3-8.)

Procedural Issues

In the reply of Defendant Steven Silva (“Defendant”), he requests that the Court disregard Plaintiffs’ opposition as it was untimely filed.

The hearing on this motion is scheduled for July 20, 2023. Plaintiffs’ opposition was due nine court days before the hearing. (Code Civ. Proc. § 1005(b).) Plaintiffs were required to serve the opposition by “personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers … are filed.” (Id., § 1005(c).)

Plaintiffs’ Opposition was due on July 7, 2023. It was not filed until July 10, 2023, the next court day. It was served by email on July 10 – and so it appears that Defendant received the Opposition on the next business day after it was due to be filed.

The Court will exercise its discretion to consider Plaintiffs’ late filing. If Defendant contends that he has been unfairly prejudiced by the late filing, he may raise this issue at the hearing, and the Court will consider continuing the hearing and granting Defendant additional time to file a revised reply to cure any prejudice.

Discussion

Defendant moves to strike Plaintiffs’ request for exemplary damages, punitive damages, and the entirety of the Exemplary Damages Attachment in the Complaint.

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.)

Here, Defendant argues Plaintiffs have failed to allege specific facts showing that Defendant acted with oppression, fraud, or malice to support Plaintiffs’ prayer for punitive damages because the Complaint alleges that Defendant was negligent in the operation, maintenance and/or in entrusting his vehicle. Defendant states that negligence does not give rise to punitive damages and that Plaintiffs do not assert any claim for any intentional tort. Although Plaintiffs allege that Defendant left the scene of the accident without complying with statutory requirements, Defendant argues that there are no allegations giving rise to fraud, malice, or oppression that would support an award of punitive damages.

In opposition, Plaintiffs argue the facts pled in the Complaint are sufficient to constitute a claim for punitive damages under Civil Code section 3294. Plaintiffs assert that their allegation that Defendant fled from the scene is sufficient to support a finding of malice as such conduct shows a willful and conscious disregard of the rights and safety of others.

In reply, Defendant argues that none of the cases cited by Plaintiffs supports their claim for punitive damages since many of the cases are related to drunk driving, which is inapplicable to the facts of this case. Additionally, those cases included more specific allegations than are present here. Defendant points out that Plaintiffs cite no case law to support their argument that allegedly fleeing the scene of an accident, alone, is sufficient to give rise to a claim for punitive damages. Defendant also states that although Plaintiffs speculate that Defendant was under the influence, but there is no allegation of such. Additionally, Defendant asserts that the Court should not grant leave to amend because there are no facts which would support a basis for punitive damages. Specifically, Defendant points out that the traffic collision report shows that Plaintiffs were able to drive their vehicle from the scene and no one asserted any injuries at the scene.

The Court has carefully considered the arguments of the parties and rules that the allegations in the Complaint are not sufficient to support a claim for punitive damages. Plaintiff has not sufficiently alleged facts that, if proven, would establish that Defendant engaged in conduct that endangered others or was carried on with a willful and conscious disregard of the rights or safety of others. The Complaint does not contain any other allegation that would satisfy the requirements for malice or oppression.

The Court will, however, grant Plaintiffs leave to amend.

Conclusion

Accordingly, Defendant’s motion to strike is GRANTED with LEAVE TO AMEND within 30 days of the date of the hearing.

Moving Party to give notice.