Judge: Steven A. Ellis, Case: 22STCV32476, Date: 2023-08-07 Tentative Ruling

Case Number: 22STCV32476    Hearing Date: August 7, 2023    Dept: 29

TENTATIVE

Defendants’ Motion to Strike Portions of Plaintiff’s Complaint is GRANTED with leave to amend.

Background

This action stems from a vehicle collision when Aziz Yadegari (“Plaintiff”) was allegedly hit by Justin Harty on October 20, 2020. (Complaint, ¶ 12.) Plaintiff filed the operative Complaint on October 4, 2022 which contains a single cause of action for negligence. Defendant Justin Harty and Defendant Cynthia Cantalupo (collectively, “Defendants”) have filed the instant Motion to Strike (“Motion”) on July 7, 2023. No Opposition nor Reply Papers have been filed.  

Legal Standard

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) Motions to strike punitive damages may be granted, where the alleged facts do not support conclusions of malice, fraud or oppression. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Meet and Confer

Defendants have satisfied their obligation to meet and confer prior to filing a motion to strike.

(Krantz Dec., ¶¶ 6-7.)     

Discussion

Defendants’ primary contention in their Motion is that the punitive damages requests against Defendant Harty are not plead with the requisite specificity. Defendants specifically point to the following clauses:

·         Specifically: Page 2, Paragraph 11, lines 24-26, which states: "At all times mentioned in this complaint, Defendant HARTY was driving and operating the automobile UNDER THE INFLUENCE OF ALCOHOL, (despicable conduct) with the consent, permission, and knowledge of defendant or authorized agents"

·         Specifically: Page 2, Paragraph 12, lines 27-28, which states: "On October 20, 2020, defendant HARTY negligently operated a certain automobile UNDER THE INFLUENCE OF ALCOHOL, ( despicable conduct) and, as approximate result of that negligent operation, collided with plaintiffs automobile."

·         Specifically: Page 4, Prayer for Relief Section, Sentence 6, which states: "6. For punitive damages"  

Here, the Complaint alleges that Defendant Harty was driving under the influence of alcohol (Complaint, ¶¶ 11 & 12.) However, this is a conclusory statement that is unsupported by any other allegations in the Complaint. Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent or malicious. (See Smith v. Sup.Ct. (Bucher) (1992) 10 CA4th 1033, 1041-1042.)

Defendants point this Court to Taylor v. Superior Court (1979) 24 Cal.3d 890 which considered the exact question that is at issue here: whether punitive damages are recoverable in a personal injury action brought against an intoxicated driver. (Taylor, supra at 854-855.) The Taylor Court concluded that operating a motor vehicle while intoxicated may constitute malice if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences. The Taylor Court recognized the obvious dangers of driving under the influence of alcohol: “One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal…” (Taylor, supra at 897.) However, the Complaint here contains nothing more than a bare allegation that Defendant was under the influence.

Dawes v. Superior Court (1980) 111 Cal.App.3d 82 is instructive. Dawes contained allegations that defendant “knew he was intoxicated and knew that he was driving at 65 mph in a 35 mph zone … with knowledge that serious injury would probably result to persons in the area”, this sufficiently alleges “conscious disregard for the safety of others…” or malice. (Dawes, supra at 88-89.) However, the Complaint here similar this language.

Accordingly, the Court grants the Motion, striking the aforementioned clauses with leave to amend.   

The Court also grants the request to strike all requests for attorney fees in the Complaint. “Attorney fees are not an authorized category of recoverable costs in this case involving claims of negligence and negligence per se.” (Oakes v. Progressive Transportation Services, Inc. (2021) 71 Cal.App.5^th 486, 491.)      

Conclusion

Defendants’ Motion to Strike Complaint is GRANTED. The following portions of the Complaint are stricken: (a) Paragraph 11; (b) Paragraph 12; (c) Prayer for Relief, item 5; (d) Prayer for Relief, item 6.

The Court GRANTS Plaintiff leave to amend within 30 days of service of the order.

Moving party to give notice.