Judge: William A. Crowfoot, Case: 22STCV01614, Date: 2022-09-02 Tentative Ruling

Case Number: 22STCV01614    Hearing Date: September 2, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On January 14, 2022, Plaintiff Egal Shahbaz (“Shahbaz”) filed this action against Defendants John Liska (“Liska”), Charles Phillippi (erroneously sued as Bob Smith) (“Phillippi”), and Tri-West Enterprises, LLC (erroneously sued as Rocco’s Tavern, CC, LLC) (“Tri-West”).  Shahbaz alleges that on October 16, 2021, in a parking lot of a bar owned by Tri-West, Phillippi broke the driver’s side window of Plaintiff’s vehicle, while Plaintiff was in the driver’s seat, with the intent to offend or cause Plaintiff serious bodily harm.  (Compl., p. 4, IT-1.)  Phillippi allegedly “punched the driver’s side window of [Shahbaz’s] vehicle twice” while Shahbaz was in the driver’s seat, and that Shahbaz was hurt while trying to avoid harm.  (Compl., p.5, IT-1.)

On March 15, 2022, Shahbaz filed an amendment to the complaint replacing Rocco’s Tavern, CC, LLC with the correct name of Tri-West Enterprises, LLC (“Tri-West”).

On April 15, 2022, the Court sustained in part Liska’s demurrer as to the third and fourth causes of action, with 20 days leave for Shahbaz to amend.

On May 24, 2022, the Court granted in part Liska’s and Tri-West’s motion to strike as to Shahbaz’s prayer for punitive damages, paragraph 4 of page 4, and paragraph 4 of page 5.

On June 9, 2022, Tri-West filed its Answer, which included a general denial of Shahbaz’s allegations as well as multiple affirmative defenses. 

On August 2, 2022, Phillippi filed this motion to strike Shahbaz’s punitive damage allegations and request for punitive damages (p. 4, ¶ 3; p. 5, ¶ 3).  (Phillippi’s Mot. to Strike., p. 2:10–14.)  On August 19, 2022, Shahbaz filed his opposition, requesting that the Court deny the motion to strike in its entirety.  On August 26, 2022, Phillippi filed his reply, repeating his prior arguments.

II.        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, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or through judicial notice.  (Code Civ. Proc., § 437.)

III.      DISCUSSION

A.        Meet and Confer

“Before filing a motion to strike . . . 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.”  (Code Civ Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either:  (1) the means by which the parties met and conferred and that the parties did not reach an agreement,  or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)

Defense counsel met and conferred with Shahbaz’s counsel on the telephone on June 30, 2022 regarding the issues raised in this motion.  (Phillippi’s Mot. to Strike, Decl. Mekha, ¶ 3.)  The meet and confer requirement is satisfied.

B.        Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Id.)  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.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.)  The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

The case of Morgan v. Davidson (2018) 29 Cal.App.5th 540 is instructive.  In Morgan, the Court of Appeal found that a defendant had acted with malice because the defendant struck the plaintiff with the intention of causing plaintiff to suffer an injury.  (Morgan, supra, at 547.)  The Court found that substantial evidence supported this finding because the defendant had struck the plaintiff multiple times and “repeatedly striking a person indicates a desire to cause to [sic] harm.”  (Ibid.)

Here, Shahbaz pleads allegations that are sufficient to withstand Phillippi’s motion to strike.  Shahbaz alleges that Phillippi punched Shahbaz’s driver’s side window twice while Shahbaz was sitting in the driver’s seat.  (Compl., p.5, IT-1.)  Shahbaz further alleges that this second punch broke the window and that Shahbaz directly suffered harms as he tried to avoid the punch.  (Ibid.)  These allegations, taken as true for the purposes of the motion to strike, constitute malice as that term is defined by statute.  (Code Civ. Proc., §§ 3294, subd. (a), 3294, subd. (c)(1).)

Accordingly, Phillippi’s motion to strike is DENIED.

IV.      CONCLUSION

Defendant Charles Phillippi’s Motion to Strke Portions of Plaintiff’s Complaint is DENIED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.