2017-00224176-CU-PO

Daryl Eric Thomas vs. Juana Dominguez

Nature of Proceeding: Motion to Strike

Filed By: Sell, James E.

Defendant Erik Dominguez’s (“Erik”) motion to strike the punitive damages allegations from the First Amended Complaint (“1AC”) is DENIED, as follows.

Factual Background

This action arises out of an incident wherein plaintiff, who was on a sidewalk in Sacramento County, was shot with paintballs by the occupants of a Honda vehicle traveling on a public road. The 1AC names Juana Dominguez and Does 1-100 as defendants, purporting to assert a total of six causes of action (“COA”) for assault, battery, parental liability, intentional infliction of emotional distress, negligence and strict liability based on an ultrahazardous activity. Erik was recently added as Doe Defendant 1.

Erik now moves to strike from the 1AC the conclusory allegations of malice, oppression and fraud and the prayer for punitive damages on the ground that these matters are irrelevant, false or improper. More specifically, although the 1AC asserts that plaintiff was struck with paintballs while walking, he pled no specific facts to support the conclusory allegations that defendants acted wantonly, despicably, maliciously, oppressively and fraudulently.

Plaintiff opposes, arguing that the 1AC adequately alleges facts which establish defendants’ conduct was malicious and oppressive. Among other things, plaintiff cites that allegations that the paintballs were intentionally directed at him with the purpose of injuring him for an improper or evil motive amounting to malice, knowing the conduct was certain to cause injury and in conscious disregard of plaintiff’s rights.

Analysis

The motion to strike will be denied. The court finds the current allegations sufficient to support a finding of malice and/or oppression so as to justify the imposition of punitive damages.

If not already done, defendant Erik may file and serve his answer to the 1AC no later than 12/31/2018.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)