Judge: Steven A. Ellis, Case: 23STCV09039, Date: 2023-08-31 Tentative Ruling

Case Number: 23STCV09039    Hearing Date: October 6, 2023    Dept: 29

TENTATIVE

The Court GRANTS Defendant’s motion to strike with 30 days leave to amend.

Legal Standard

California Code of Civil Procedure, Section 436(a) allows a court to strike out any irrelevant, false, or improper matter inserted in any pleading.  California Code of Civil Procedure, Section 436(b) allows a court to 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.

Discussion

Meet and Confer

The Court finds that the meet and confer requirement pursuant to Code Civ. Proc. § 435.5 has been met. On September 28, 2023, counsel for Defendant filed and served a supplemental declaration of counsel, John O. Connor (“O’Connor”), stating that despite his continued attempts to meet and confer with Plaintiff, he has not received any response from Plaintiff or Plaintiff’s counsel. (O’Connor Supp. Decl., ¶¶ 9-12.)

Punitive Damages

Defendant contends that the request for punitive damages should be stricken from the complaint.

“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.)  California 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.)

Here, the Court finds that the complaint alleges merely negligent conduct which is insufficient to support a claim for punitive damages.  The complaint alleges that Defendant negligently operated an automobile under the influence and, as a proximate result of that negligent operation, collided with Plaintiff’s automobile. (Complaint at ¶ 12.) The allegations of the complaint are rooted in the purported negligent behavior of Defendant. (Id., ¶¶ 12-14.)  Moreover, the complaint sets forth only conclusory allegations which will not support an entitlement to punitive damages. The complaint makes no showing of malice, fraud, or oppression.

Thus, the Court finds it appropriate to strike punitive damages from the prayer for relief.

Attorneys’ Fees

Defendant contends that Plaintiff has pled insufficient facts to support the request for attorneys’ fees and costs.

Code Civ. Proc. § 1021 except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs. If a party is entitled by statute or attorneys’ fees, such fact must be alleged in the complaint and included in the prayer for relief. (Wiley v. Rhodes (1990) 223 Cal.App.3d 1470, 1474.)

Here, the complaint does not set forth any facts showing entitlement to attorneys’ fees. Plaintiff only includes the reference to attorneys’ fees in the prayer for relief.

Thus, the Court strikes the reference to attorneys’ fees from the prayer for relief.

Conclusion

Accordingly, the Court GRANTS Defendant’s motion to strike with 30 days leave to amend.

Moving party is ordered to give notice.