18-CIV-00221 KWOK M. CHING VS. SOUTH SAN FRANCISCO SCAVENGER CO. INC., ET AL.

KWOK M. CHING SOUTH SAN FRANCISCO SCAVENGER CO. INC.
ALBERT LEE IAN R. FELDMAN

DEFENDANT SOUTH SAN FRANCISCO SCAVENGER CO., INC.’S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ UNVERIFIED FIRST AMENDED COMPLAINT TENTATIVE RULING:

Defendant South San Francisco Scavenger Co., Inc.’s Motion to Strike Portions of Plaintiff Kwok Ching’s First Amended Complaint (FAC), filed 5-22-18, is GRANTED. Code Civ. Proc. § 436.

As an initial matter, the Court finds the meet and confer requirement in Code Civ. Proc. § 435.5 was satisfied. Defendant identified to Plaintiff, in writing, the portions of the First Amended Complaint subject to the motion to strike, and the attorneys then discussed the motion via telephone, including a discussion the requirements of Civ. Code § 3294. The Court finds this sufficient.

As stated in the Court’s Order below, sustaining Defendant’s Demurrer to the FAC’s Fifth Cause of Action for unfair business practices under Code Civ. Proc. § 17200 et. seq., the FAC fails to state a cause of action. Accordingly, the requested remedies pertaining to that cause of action (injunctive relief, restitution, and statutory penalties) are without support and thereafter should be, and are, stricken.

All language in the FAC referencing or requesting punitive damages under Civ. Code § 3294 are also stricken. Punitive damages in negligence cases are permissible only in rare circumstances involving particularly egregious conduct. Plaintiff’s reliance on Taylor v. Superior Court (1979) 24 Cal.3d 890 is misplaced. Taylor was a drunk driving case where defendant, as alleged, had engaged in particularly outrageous conduct showing a conscious disregard for others’ safety. Here, Defendant allegedly hit Plaintiff’s car while backing up, without a working rear-view camera. The majority of cars driven every day have no rear-view camera. These alleged facts do not reasonably support an allegation of “despicable” conduct, as that terms has been defined by the Courts.