Judge Steven A. Ellis, Case Number: 23STCV11537, Date: 2023-08-14 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV11537, Date: 2023-08-14 Tentative Ruling

Case Number: 23STCV11537 Hearing Date: March 25, 2024 Dept: 29

Motion to Strike filed by Defendant Serajul Islam.

Tentative

Defendant’s motion to strike is GRANTED without leave to amend.

Background

This case arises out of an incident that allegedly occurred on May 29, 2022, on Vermont Avenue in Los Angeles, California.

On May 23, 2023, Plaintiff Abdus Samad (“Plaintiff”) filed the initial Complaint in this action asserting causes of action for negligence, intentional tort, and premises liability against Defendants Quazi Moshhoorul Huda (“Huda”), Serajul Islam (“Islam”), and Does 1 through 100. On July 31, 2023, Plaintiff filed a First Amended Complaint (“FAC”) against the same defendants, asserting a single cause of action for negligence.

On October 16, 2023, the Court granted Defendant Islam’s motion to strike the punitive damages allegations in the FAC, with leave to amend.

On November 1, 2023, Plaintiff filed a Second Amended Complaint (“SAC”) against the same defendants, asserting a single cause of action for negligence.

On January 4, 2024, the Court granted Defendant Islam’s motion to strike the punitive damages in the SAC. The Court granted Plaintiff leave to amend “one additional time” but made clear that Plaintiff “should assume that this is his final opportunity to plead, with adequate specificity and particularity, his claim for punitive damages.” (Minute Order dated January 4, 2024, at pp. 4-5.)

On January 25, 2024, Plaintiff filed a Third Amended Complaint (“TAC”) against the same defendants, asserting a single cause of action for negligence.

On February 26, 2024, Defendant Islam filed this motion to strike the punitive damages allegations in the TAC. Islam also request that the Court take judicial notice of the Minute Orders of October 16, 2023, and January 4, 2024. On March 12, Plaintiff filed an opposition to the motion, and on March 18 Defendant Islam filed a reply.

Legal Standard

Code of Civil Procedure section 435 authorizes a party to file a motion to strike. “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 as follows:

“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.)

Preliminary Matters

Defendant Islam’s request for the Court to take judicial notice of its prior minute orders (dated October 16, 2023, and January 4, 2024) is GRANTED.

The Court finds that counsel for the moving party made an adequate effort to meet and confer under Code of Civil Procedure section 435.5. (Landers Decl., ¶ 1; Exh. 1.)

Discussion

To plead 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. (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 the TAC, Plaintiff asserts one cause of action for general negligence. (TAC, at p. 4.) Plaintiff alleges that on May 29, 2022, Defendant Islam “caused my cell phone to be confiscated by himself and several others while I, within my legal rights as a licensed journalist, … record[ed] the events that were taking place at the time.” (Ibid.) Defendant Huda is alleged to have “published via social media … extremely incriminating false statements against me” which have “had a devastating effect on my credibility as a journalist within my community.” (Ibid.)

In an Exemplary Damages attachment, labeled as page 3 of the TAC, Plaintiff alleges that Defendant Huda “had a similar altercation causing harm and damage in another matter,” which led to “a judgment entered against defendant Huda in that case.” (TAC, at p. 3.) Plaintiff also states in this attachment that he has “suffered immense damage due to the actions of both Defendants Huda and Islam.” (Ibid.)

The TAC also contains a two-page attachment in which Plaintiff sets forth 7 numbered paragraphs. These paragraphs set forth mostly conclusory statements that when Defendant Islam confiscated Plaintiff’s camera, Islam engaged in malicious, oppressive, and despicable conduct.

Finally, in Exhibit 0 to the TAC, Plaintiff attaches a police report, a handwritten description of what may be the incident that describes various events but does not allege any specific allegation of conduct by any identified Defendant, and certain other documents (including approximately 46 pages of Plaintiff’s medical records).

The Court has compared the TAC to the SAC. Certain materials in the SAC have been omitted, and what was a 15-numbered paragraph attachment to the SAC has been streamlines and rephrased as a 7-numbered paragraph attachment to the TAC. But what is missing from the TAC, as was missing from the FAC and SAC, are factual allegations pleaded with particularity that would, if proven, establish a basis for the award of punitive damages.

The Court has carefully reviewed the TAC and the arguments of each side and concludes that the TAC, like the FAC and SAC, fails to state facts with sufficient particularity to support a claim against Defendant Islam for the recovery of punitive damages. Defendant Islam is alleged to have been involved in some way (along with others) in taking Plaintiff’s cell phone from him. Plaintiff asserts a claim against Defendant Islam for negligence, not for an intentional tort. (TAC, at pp. 3, 4.) Others were also involved in this alleged taking of the cell phone, and it is not clear from the TAC who did what, and other individuals (including, but not limited to Defendant Huda) are alleged to have committed other wrongful acts against Plaintiff. There are statements in the exhibits about robbery, defamation, and kidnapping, but Plaintiff does not allege who (Defendant Islam, Defendant Huda, or others) committed which act or acts. Accordingly, the TAC, as pleaded, fails to state a claim for punitive damages against Defendant Islam.

Twice before the Court granted Plaintiff leave to amend. In its last order, the Court specifically warned Plaintiff that he should assume that this would be his final opportunity to plead, with adequate specificity and particularity, his claim for punitive damages. Plaintiff still has not done so, despite repeated opportunities. Accordingly, the Court concludes that Plaintiff is unable to plead a viable claim for punitive damages against Defendant Islam.

Defendant Islam’s motion to strike the punitive damages allegations against him in the TAC is GRANTED without leave to amend.

Conclusion

The Court GRANTS Defendant Islam’s motion to strike the punitive damages against him in the TAC WITHOUT LEAVE TO AMEND.

The Court GRANTS Defendant Islam 21 days to file a responsive pleading.

The Court further notes that this ruling applies to the punitive damages claims against Defendant Islam only. The punitive damages allegations remain in the TAC as against the other defendants.

Moving party to give notice.