Case Name: Galina Oleinikova-Davis v. David Gilman Ha
Case No.: 2018-CV-333647

Motion to Strike Punitive Damages Allegations by Defendant David Gilman Ha

Factual and Procedural Background

This is a motor vehicle accident case. On February 2, 2018, plaintiff Galina Oleinikova-Davis (“Plaintiff”) was operating a vehicle in the City of San Jose in Santa Clara County. (Complaint at ¶ 8.) At the time, Plaintiff was driving in the left-most lane of an expressway and approaching an intersection with a “green” traffic signal. (Id. at ¶ 10.)

As Plaintiff traveled toward the intersection, defendant David Gilman Ha (“Defendant”) approached her vehicle from behind, moved to the left of Plaintiff’s vehicle into a left turn lane, but continued to travel straight through the intersection. (Complaint at ¶ 10, subd. (a).) After passing the intersection, Defendant was illegally driving in the center divide lane/median, overtaking Plaintiff’s vehicle (which was still traveling in the left-most traffic lane) from the left. (Id. at ¶ 10, subd. (b).) As Defendant partially overtook Plaintiff’s vehicle, he entered the left-most traffic lane from the left (in which Plaintiff’s vehicle was still traveling). (Id. at ¶ 10, subd. (c).) In doing so, Defendant caused his vehicle to strike Plaintiff’s car from the left side, and then caused a further collision between their vehicles by immediately and abruptly stopping in the left-most traffic lane, even though there were no vehicles in front of him. (Ibid.)

On August 22, 2018, Plaintiff filed the operative Complaint against Defendant for negligence.

Motion to Strike Punitive Damages Allegations

Currently before the Court is Defendant’s motion to strike the punitive damages allegations in the Complaint. Plaintiff filed written opposition.

Meet and Confer Requirement

As a preliminary matter, the Court notes that Defendant did not meet and confer before filing the motion to strike.

Before filing a motion to strike, the moving party shall “meet and confer in person or by telephone” with the opposing party to determine “whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) This conference should occur at least five days before the deadline to file the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(2).)
When filing the motion to strike, the moving party must include a declaration stating either “the means by which the moving party met and conferred with [the other party] and that the parties did not reach an agreement resolving the objections raised by the motion to strike” or [the other party] “failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 435.5, subd. (a)(3).) “A determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).)

Here, defense counsel failed to file a meet and confer declaration as required by Code of Civil Procedure section 435.5. Nor is there any indication in the moving papers that counsel engaged in meet and confer efforts before filing the motion to strike. In furtherance of judicial economy, the Court will overlook Defendant’s failure to comply with Code of Civil Procedure section 435.5 in this instance. The Court hereby admonishes defense counsel to comply with the Code of Civil Procedure with respect to future filings.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Analysis

“In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘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.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ is ‘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.’” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations omitted].)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (See Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510.)

Here, Plaintiff’s prayer for relief includes a request for punitive damages. The claim for punitive damages is supported by allegations set forth in paragraph 11 which provides:

“Defendant engaged in despicable conduct. Defendant acted with conscious disregard for the safety of others including Plaintiff. Defendant acted with conscious disregard for the high degree of probability that his acts would result in injuries to others including Plaintiff. Plaintiff is entitled to punitive damages.”

(Complaint at ¶ 11.)

Such allegations constitute mere conclusions and are not supported by underlying facts of malice, oppression, fraud, or despicable conduct to establish a basis for punitive damages. The balance of the Complaint alleges facts to support Plaintiff’s claim for negligence but does not provide an award for punitive damages. Therefore, the punitive damages allegations are hereby stricken however Plaintiff will be given an opportunity to amend her pleading. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [with respect to motion to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].)

Disposition

The motion to strike punitive damages allegations is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.