Judge: Steven A. Ellis, Case: 23STCV26512, Date: 2024-02-02 Tentative Ruling
Case Number: 23STCV26512 Hearing Date: February 2, 2024 Dept: 29
Motion to Strike filed by
Defendant Justina Antoon.
Tentative
The motion to strike is granted with leave to amend.
Background
On October
30, 2023, Plaintiff Drew Albo (“Plaintiff”) filed his complaint against
Defendant Justina Antoon (“Defendant”) and Does 1 through 20 for a Negligence
cause of action stemming from motor vehicle accident occurring December 7,
2022.
On January
5, 2024, Defendant filed her motion to strike.
No
opposition has been filed.
Legal Standard
“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).)
“Before filing a motion to strike pursuant to this
chapter, the moving party shall meet and confer in person or by telephone with
the party who filed the pleading that is subject to the motion to strike for
the purpose of determining if an agreement can be reached that resolves the
objections to be raised in the motion to strike. If an amended pleading is
filed, the responding party shall meet and confer again with the party who
filed the amended pleading before filing a motion to strike the amended pleading.”
(Code of Civ. Proc. § 435.5(a).)
Discussion
The motion to strike is accompanied
by the declaration of Vincent H. Brunello which satisfies the meet and confer
requirement.
Defendant
requests the Court strike punitive damages from Plaintiff’s complaint. Defendant
contends that punitive damages cannot be recovered for negligent conduct, and
that Plaintiff’s complaint lacks sufficient allegations to support the claim
for punitive damages.
To recover punitive damages in a tort action, Civil Code section
3294, subdivision (a), requires that a plaintiff prove by clear and convincing
evidence “that the defendant has been guilty of oppression, fraud, or malice.” In
subdivision (c), the Legislature defines the terms “oppression,” “fraud,” and
“malice” for purposes of recovering punitive damages under section 3294:
(1)
“Malice”
means 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.
(2) “Oppression” means
despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
(3)
“Fraud” 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.
(Civ. Code, § 3294, subd. (c)(1)-(3).)
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.
Superior Court (1994) 8 Cal.4th 704, 721; Smith v. Superior Court
(1992) 10 Cal.App.4th 1033, 1042.) The basis for punitive damages must be pleaded
with specificity; 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. (Turman v. Turning Point of Central
California (2010) 191 Cal. App. 4th 53, 63.)
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.)
Here, although Plaintiff’s complaint alleges that Defendant
was driving under the influence (Complaint, ¶ 10), Plaintiff otherwise alleges
that Defendant negligently operated his vehicle which resulted in Plaintiff’s
injuries. (Complaint, ¶¶ 11-16.) There are no specific factual allegations in
the complaint that would, if proven, establish that the risk of injury to other
was probable or otherwise that the Defendant acted with oppression, fraud, or
malice. For that reason, the Court GRANTS Defendant’s motion to strike.
As this is the initial complaint and
the defect is one of specificity in pleading, the Court GRANTS Plaintiff leave
to amend.
Conclusion
Accordingly,
Defendant’s motion to strike is GRANTED.
Plaintiff is
GRANTED leave to amend within 21 days of notice of this ruling.
Moving party is ordered to give notice.