Judge: Steven A. Ellis, Case: 23STCV30462, Date: 2025-02-18 Tentative Ruling
Case Number: 23STCV30462 Hearing Date: February 18, 2025 Dept: 29
Kursh v. Coleman
23STCV30462
Defendant’s Motion to Strike
Tentative
The motion is granted in part, with leave to
amend.
Background
On December 14,
2023, Zykiah Kursh (“Plaintiff”) filed a complaint against Mark Stephen Coleman
(“Defendant”) and Does 1 through 50 for motor vehicle negligence, negligence
per se, and intentional infliction of emotion distress arising out of an accident
on February 12, 2022.
On December
23, 2024, Defendant filed this motion to strike. On February 7, 2025, Plaintiff
filed an untimely opposition. Defendant filed a reply on February 11, 2025.
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 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
The meet and confer
requirement of Code of Civil Procedure section 435.5 is satisfied. (Dondanville
Decl., ¶¶ 3-6.)
The Court, in
its discretion, considers Plaintiff’s late-filed opposition, as well as
Defendant’s reply.
Discussion
Defendant requests that
the Court strike the following allegations in the complaint relating to punitive
damages:
(1) Portions of Paragraphs
11 and 29 through 35 of the Complaint, which allege that defendant was driving
under the influence at the time of the accident;
(2) The entirety of Paragraph
35 of the Complaint; and
(3) No. 6 in the Prayer for
Relief, which requests Exemplary damages pursuant to Civil Code section 3294.
Item 1 – Paragraphs 11,
and 29 through 35
The motion to strike
these portions of the Complaint is denied.
Under California pleading rules, Plaintiff need only allege the ultimate
facts; the supporting evidence need not be set forth in a pleading. The allegation that defendant drove when he knew
or should have known that he was impaired is a material allegation supporting a
cause of action for negligence.
Items 2 & 3 –
Paragraph 35 and No. 6 in Prayer for Relief 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 (among other things): (1) that Defendant
drove while intoxicated and “too drunk to drive safely” (Complaint, ¶ 11.);
that Defendant acted “in conscious disregard for the safety and wellbeing” of
Plaintiff, that Defendant knew that he was intoxicated, and that he intentionally
drove a vehicle (id., ¶ 31.); that Defendant “intended” to cause harm to
Plaintiff or “acted with reckless disregard of the probability” that his conduct
would cause harm to Plaintiff (id., ¶ 32); and that Defendant acted “with
malice, oppression and fraud and a conscious disregard for the safety and
wellbeing” of Plaintiff (id., ¶ 35).
The Court
has carefully reviewed the Complaint as well as the argument presented by both
sides. Based upon its independent review
of the Complaint, the Court finds that Plaintiff has not alleged facts
sufficient to support a claim for punitive damages against Defendant. Under the case law, more than mere negligence
or driving while intoxicated is required to recover punitive damages, and,
labels and conclusions aside, the Complaint does not contain sufficiently
particular factual allegations of oppression, fraud, or malice by Defendant.
The motion to strike is
granted with leave to amend.
Conclusion
The Court GRANTS
IN PART AND DENIED IN PART Defendant’s motion to strike.
The Court DENIES
the motion to strike portions of paragraphs 11, and 29 through 34.
The Court GRANTS
the motion to strike paragraph 35 and item number 6 of the prayer for relief.
The Court GRANTS
Plaintiff leave to file an amended complaint by no later than March 4, 2025.