Judge Steven A. Ellis, Case Number: 23STCV06538, Date: 2024-12-05 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV06538, Date: 2024-12-05 Tentative Ruling

Case Number: 23STCV06538 Hearing Date: December 5, 2024 Dept: 29

Tumpson v. Tacchino
23STCV06538
Defendants’ Motion to Strike

Tentative

The motion is granted, with leave to amend.

Background

On March 24, 2023, Albert Tumpson (“Plaintiff”) filed a complaint against Riley Tacchino, Gloria Tacchino (collectively “Defendants”), and Does 1 through 50 for motor vehicle and general negligence arising out of an automobile accident occurring on April 18, 2021.

On November 4, 2024, Defendants filed this motion to strike punitive damages from Plaintiff’s complaint. Plaintiff filed an opposition on November 20; Defendant filed a reply on November 25.

Legal Standard

Under Code of Civil Procedure section 435, “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, subd. (b)(1).)

Code of Civil Procedure section 436 provides:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike 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.) In ruling on a motion to strike, the court must assume the truth of the properly pleaded facts in the complaint or other pleading. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.)

Discussion

The motion to strike is accompanied by the declaration of Clark Conforti, which satisfies the statutory pre-filing requirement. (Code of Civ. Proc. § 435.5, subd. (a).)

Defendants move to strike the request for punitive damages in paragraph 14 of page 3 of the complaint and to strike the reference to despicable conduct and punitive damages in paragraph GN-1 of page 5 of the complaint. Defendants argue that punitive damages cannot be recovered for negligent conduct, and that although Plaintiff alleges that Defendant Riley Tacchino made an abrupt and dangerous lane change, Plaintiff’s complaint lacks sufficient allegations to support the claim for punitive damages.

The law is clear that to recover punitive damages in a tort action, Civil Code section 3294 requires a plaintiff to prove by clear and convincing evidence “that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a); see also (College Hosp., Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 721; Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1042.)

“Malice” is defined in section 3294, subdivision (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, subdivision (c)(2), as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

“Fraud” is defined in section 3294, subdivision (c)(3), as “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.”

The term “despicable conduct,” as used in subdivisions (c)(1) and (c)(2), has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., College Hospital, supra, 8 Cal.4th at p. 725; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891; see also CACI 3940 [“Despicable conduct is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”].)

The basis for punitive damages must be pleaded with particularity; conclusory allegations devoid of any factual assertions are insufficient. (Ibid.; see also Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) 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. (Today IV’s Inc. v. Los Angeles County MTA (2022) 83 Cal.App.5th 1137, 1193; Turman, supra, 191 Cal. App. 4th at p. 63.)

Pleading negligence, gross negligence, or even recklessness is not sufficient. (Dawes v. Super. Ct. (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that the defendant intended to cause harm to plaintiff or “acted in such an outrageous and reprehensible manner that the jury could infer that [the defendant] knowingly disregarded the substantial certainty of injury to others.” (Id. at p. 90; see also, e.g., American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.).

In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court addressed whether punitive damages may be recovered in an action based upon allegedly intoxicated driving. As the court, stated, “the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. at p. 892.) “One who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’” (Id. at p. 899.) But the court also noted, “Although the circumstances in a particular case may disclose similar wilful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” (Id. at pp. 899-900.)

Subsequently, in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, the Court of Appeal, applying and interpreting Taylor, held that driving while intoxicated does not always give rise to a claim for punitive damages. (Id. at p. 89.) “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver's decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (Ibid.)

Applying these principles, the California Supreme Court in Peterson v. Superior Court (1982) 31 Cal.3d 147 issued a peremptory writ directing the trial court to vacate its order granting a motion to strike punitive damages allegations. In that case, plaintiff alleged that defendant had earlier in the day driven in excess of 100 miles per hour; that plaintiff had objected to the high speed; and defendant, after consuming additional alcohol, then drove at a speed in excess of 75 miles per hour. (Id., at p. 162.)

Here, Plaintiff alleges that “Defendant made an abrupt left turn” and that it appeared as if Defendant was “trying to make a left turn … from the incorrect lane, which was 2 or 3 lanes to the right of the left turn pocket.” (Complaint, at p. 5.)

Here, Plaintiff’s complaint alleges that Defendant Riley Tacchino made an unexpected left turn from the lane to the right of where Plaintiff was driving. (Complaint, GN-1 ¶ 2.) The Court finds Plaintiff allegations appear to be based in negligence and do not rise to the level necessary to support the recovery of punitive damages. There are no specific factual allegations in the complaint that would, if proven, establish that Defendant intended to cause injury to others, that Defendant engaged in despicable conduct with a willful and conscious disregard of the rights or safety of others, or otherwise that the Defendant acted with oppression, fraud, or malice.

Plaintiff in his opposition argues that Defendant’s conduct was malicious, citing Taylor, supra. In Taylor, the California Supreme Court addressed whether punitive damages may be recovered in an action based upon allegedly intoxicated driving. As the court stated, “the act of operating a motor vehicle while intoxicated may constitute an act of “malice” under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (24 Cal. 3d at p. 892.) “One who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’” (Id. at p. 899.) But the court also noted, “Although the circumstances in a particular case may disclose similar wilful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” (Id. at pp. 899-900.)

Plaintiff’s complaint does not allege facts that, if proven, would establish oppression, fraud, or malice. Accordingly, the motion to strike is granted.

As this is the first pleading by Plaintiff, and the defect is, at least in part, an absence of sufficient particularity, leave to amend is granted.

Conclusion

The Court GRANTS Defendants’ motion to strike.

The Court STRIKES the following from Plaintiff’s complaint: (1) Page 3, paragraph 14a(2), the phrase “punitive damages”; and (2) Page 5, paragraph GN-1, the entirety of the final paragraph, beginning with the phrase “The conduct of Defendant” and ending with “in this case.”

The Court GRANTS Plaintiff leave to amend within 10 days of notice.

Moving Party is ORDERED to give notice.