Judge: Steven A. Ellis, Case: 22STCV13233, Date: 2024-01-17 Tentative Ruling
Case Number: 22STCV13233 Hearing Date: January 17, 2024 Dept: 29
Motion to Strike Portions of Plaintiff’s Complaint filed by Defendant
Jose Delgado
Tentative
The motion to strike is GRANTED with leave to amend.
Background
On April
20, 2022, Plaintiff Kimberly Gavilanes (“Plaintiff”) filed the Complaint in
this action against Defendants Jose Delgado (“Defendant”) and Does 1 to 20 asserting
a single cause of action for negligence. The complaint arises from an alleged
automobile accident that on June 24, 2020.
On
September 27, 2023, Defendant filed the motion before the Court to strike portions
of the complaint. Defendant seeks to strike references to punitive damages from
the complaint and the prayer for relief, as well the request for attorneys’
fees in the prayer.
Plaintiff
has not filed an opposition.
“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).) A court may “[s]trike out any irrelevant, false, or improper matter
inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike 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(b).)
Discussion
“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.”
(Clauson v. Superior Court (1998) 67 Cal.App.4th 1253,
1255.) Civil Code section 3294
authorizes punitive damages upon a showing of malice, fraud, or
oppression. Malice is defined as either
“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)(1).) “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.” (Mock v. Michigan Millers Mutual Ins. Co.
(1992) 4 Cal. App. 4th 306, 331.) Fraud
under California Civil Code, Section 3294(c)(3) “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.” California Civil Code, Section 3294(2)
defines oppression as “despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights.” Specific facts must be pled in support of
punitive damages. (Hillard v. A.H.
Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant
“act[ed] with the intent to vex, injure or annoy, or with a conscious disregard
of the plaintiff’s rights.” (Silberg
v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not
support a claim for punitive damages. (Tomaselli
v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)
Plaintiff alleges that
Defendant Jose Delgado was driving an automobile under the influence.
(Complaint, ¶ 10.) According to the complaint, Defendant Jose Delgado
negligently operated an automobile which collided with Plaintiff’s automobile.
(Id., ¶ 11.) The prayer for relief in the complaint seeks punitive
damages.
The Court finds that
Plaintiff has not alleged sufficient facts showing malice, fraud, or oppression
to warrant the imposition of punitive damages. Plaintiff’s complaint is rooted
in negligence, and negligent conduct will not support a claim for punitive
damages under Tomaselli v. Transamerica Ins. Co., supra, 25
Cal.App.4th 1269, 1288. Moreover, the complaint only makes conclusory
allegations and does not set forth specific facts. (Complaint, ¶¶ 9-11.)
Therefore, the Court finds it
appropriate to strike punitive damages allegations from the complaint and
prayer for relief.
The Court also grants the
motion to strike the request for attorney’s fees from the prayer for
relief.
“Unless authorized by statute
or agreement, attorney’s fees ordinarily are not recoverable as costs.” (Lerner
v. Ward (1993) 13 Cal.App.4th 155, 158.) “In any action on a contract,
where the contract specifically provides that attorney’s fees and costs, which
are incurred to enforce the contract, shall be awarded either to one of the
parties or to the prevailing party, then the party who is determined to be the
party prevailing on the contract . . . shall be entitled to reasonable
attorney’s fees in addition to other costs.” (Code Civ. Proc. § 1717(a).)
In this personal injury
action, nowhere in the Complaint does Plaintiff allege any right to recover attorney’s
fees by statute or agreement of the parties.
The Court therefore GRANTS
Defendant’s motion to strike in its entirety.
As this is the first
pleading, and there is at least some reasonable possibility of amendment, the
Court GRANTS the motion WITH LEAVE TO AMEND.
Conclusion
The Court
GRANTS Defendant’s motion to strike.
The Court GRANTS Plaintiff leave to amend within 30 days
of notice of this ruling.
Moving party is ORDERED to give notice.