Case Number: BC536690    Hearing Date: September 30, 2014    Dept: 93

NOTE: IF COUNSEL WISH TO BE HEARD ON THE TENTATIVE BELOW, THE HEARING WILL BE HELD ON WEDNESDAY, OCTOBER 1, 2014 AT 1:30 P.M. BECAUSE THE COURTROOM WILL NEED TO BE DARK ON THE AFTERNOON OF SEPTEMBER 30, 2014. IF COUNSEL NEED TO RESCHEDULE FOR ANOTHER DATE, PLEASE CALL THE COURTROOM.

Superior Court of California
County of Los Angeles
Department 93

PEDRO ORTEGA,

Plaintiff(s),
v.

ANTHONY YANG, et al.,

Defendant(s).
Case No.: BC536690

Hearing Date: September 30, 2014

[TENTATIVE] RULING RE:
DEFENDANT ANTHONY YANG’S MOTION TO STRIKE PLAINTIFF’S PRAYER FOR PUNITIVE DAMAGES

Defendant Anthony Yang’s Motion to Strike Plaintiff’s Prayer for Punitive Damages is GRANTED with 20 days’ leave to amend.

Background

Defendant Anthony Yang (“Yang”) has filed a Motion to Strike the punitive damages request in Plaintiff’s First Amended Complaint (“FAC”) filed on May 14, 2014, on the basis that Plaintiff has failed to allege that defendant acted with malice or conscious disregard.

Plaintiff filed his Opposition five court days late on September 23, 2014, and improperly served the Opposition by U.S. mail. (See Code Civ. Proc., §1005 (b),(c).) Because the Court’s tentative is to grant the motion, the Court has considered the Opposition, notwithstanding it being filed and served in an untimely manner. However, Plaintiff is cautioned to file timely papers in any future pleadings filed with the Court in this action.

Allegations in the Complaint

Plaintiff alleges the following facts regarding the motor vehicle accident giving rise to the instant action:
1) Defendant negligently owned, operated, maintained, entrusted, and/or controlled the subject vehicle, to cause it to collide with Plaintiff’s vehicle.

2) Defendant owed Plaintiff a legal duty or duties. Defendants breached their duty or duties to Plaintiff.

3) Defendants’ vehicle did actually collide with Plaintiffs vehicle,

4) As a result, Defendant was the actual and proximate cause of damages to Plaintiff and Plaintiff’s vehicle in an amount according to proof at trial.

5) By reason of foregoing, Defendants, and each of them, are liable for, and Plaintiff is entitled to recover, Plaintiffs general, special, actual, and compensatory damages, including but not limited to,

Plaintiff’s necessary medical and related expenses, past, present and future lost earnings, loss of future earning capacity, as well as metal, emotional, and physical pain and suffering, in an amount according to proof at trial.

(Complaint, p. 11.)

Discussion

Cal. Civil Code Section 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . . ” Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

The opposition does not demonstrate that a request for punitive damages is warranted. Although the opposition includes numerous additional facts regarding the circumstances of the subject motor vehicle accident, and attaches the police report, a motion to strike can only consider those matters that are on the face of the operative complaint. (See Tucker v. Pacific Bell Mobile Services (2012) 208 Cal.App.4th 201, 212.) The asserted facts set forth in the opposition and the attached police report are not alleged in the Complaint. Indeed, while the Complaint alleges a collision between Defendant’s vehicle and Plaintiff’s vehicle, the Opposition alleges that Plaintiff was struck by Defendant’s vehicle while walking. (Opp., p. 1:21-23.) There are no facts alleged in the Complaint that take Defendant’s conduct beyond mere negligence or suggest that Defendant’s conduct was malicious or oppressive.

However, because Plaintiff has demonstrated the possibility of curing the defect, and has not yet amended the complaint in response to a motion to strike or demurrer, the Court grants leave to amend. (See Grieves, supra, 157 Cal.App.3d at 168 (“An amendment should be allowed where the defect, though one of substance, may possibly be cured by supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so ….”)(emphasis in original).)

Defendant is ordered to give notice of this Order.

DATED: September 30, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court