2018-00227729-CU-PA

James Solis vs. Elena Solano

Nature of Proceeding: Motion to Strike

Filed By: Raymundo, Larisa K.

Defendant Solano’s Motion to Strike punitive damages language from the Complaint is granted, with leave to amend.

Defendant’s Request for Judicial Notice of the Complaint is granted.

Plaintiff has filed a non-opposition to the motion to strike, requesting leave to amend.

Objections to a complaint’s prayer for damages typically lie with a motion to strike. ( Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384-385 [“The

appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.”]) As such, it is appropriate to bring a motion to strike when a complaint improperly seeks punitive damages. (Id.; see also Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1561-1562; Grieves v. Sup.Ct. (Fox) (1984) 157 Cal.App.3d 159, 164.)

Civil Code 3294(a) provides that punitive damages may be obtained in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. California courts require that specific facts be pled in support of punitive damage allegations; mere conclusions are not enough. (Hilliard v. A.H. Robbins (1983) 148 Cal.App.3d 374, 391; Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6-7; Grieves v. Sup. Ct., supra, 157 Cal.App.3d at 166.)

Plaintiff alleges that defendant acted with gross negligence when her vehicle struck plaintiff’s near a school. These allegations are not sufficient to support a claim for punitive damages. Negligence –even gross negligence– cannot support an award of punitive damages. (Grieves v. Sup. Ct., supra, 157 Cal. App.3d at 166-168; Woolslrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10). Non-intentional conduct can only support a punitive damage award if the defendant intentionally performs an act, and that act is of such severity and shocking character that it warrants the same treatment as that accorded willful misconduct. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279.) Here, plaintiffs fail to state specific facts which show that defendant acted with malice.

Plaintiff shall file and serve an Amended Complaint on or before October 9, 2018. Response to be filed and served within 30 days of service of the Amended Complaint, 35 days if served by mail.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.