Case Number: BC697517 Hearing Date: May 15, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO STRIKE CLAIM FOR PUNITIVE DAMAGES AND RELATED ALLEGATIONS

On March 12, 2018, Plaintiff Blanca Marcela Garcia (“Plaintiff”) filed this action against Defendants I.T. Nella, Inc. (“I.T.”), Kamran Akbari (“Akbari”), and Vaheh Ghazarian (“Ghazarian”) (collectively, “Defendants”) for negligence, negligence per se, and negligent entrustment relating to an October 28, 2016 vehicle versus semi-truck collision. On February 8, 2019, Plaintiff filed a First Amended Complaint (FAC) seeking punitive damages. Defendants move to strike the punitive damages claim.

Plaintiff alleges she was injured in an automobile accident with a freightliner semi-truck driven by Akbari and owned by I.T. and Ghazarian. Plaintiff alleges Akbari negligently operated the semi-truck, and punitive damages are warranted because I.T. and Ghazarian did not train Akbari in the operation of the large semi-truck. (FAC, ¶ 10.) Plaintiff also alleges Defendants were substantially certain that Plaintiff and other similarly situated motorists would be on the public street and highways and at severe risk of injury and death due to Defendants’ lack of company protocols, driver training, and other inexperience. Akbari was sent out to drive a large semi-truck in a reckless and wanton manner, and ultimately collided with Plaintiff who was stopped in traffic. (FAC, ¶ 11.) Plaintiff alleges Defendants acted with a deliberate and despicable disregard for human lives and safety, with knowledge that the harms and dangers which occurred were highly likely and substantially certain to result. (FAC, ¶ 12.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

Defendants argue Plaintiff’s allegations fail to state specific facts showing intent to harm other drivers, malice, or despicable conduct. Defendants argue Akbari had to undergo training to obtain a California Commercial Vehicle Driver’s License that complied with the Federal Motor Carrier Safety Administration, and at most, Plaintiff’s allegations amount to carelessness or negligence. Defendants contend an employer shall not be liable for damages based on the acts of an employee unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294.)

Plaintiff contends Defendants’ failure to train Akbari and give him polices or procedures about operating the vehicle shows they had an evil motive and consciously disregarded Plaintiff’s rights, all of which rise to the level of malicious, oppressive, and fraudulent conduct, and is evidence of intentional conduct to harm those sharing the road. Plaintiff relies on the deposition testimony of Defendants’ operations manager, Karen Babayan, who testified that Defendants check the DMV record of a potential driver to ensure safety, but know that having a license does not guarantee a driver’s ability to drive.

The Court finds Plaintiff’s allegations are insufficient to show conduct intended to cause harm or despicable conduct carried out with conscious disregard to the rights and safety of others. Plaintiff’s allegations constitute negligence, or at most, gross negligence. There are no factual allegations establishing an intent to harm Plaintiff or despicable conduct having the character of outrage frequently associated with crime. Plaintiff’s claims lie in negligent entrustment or negligent hiring, training, and supervision, which Plaintiff has already alleged. There are insufficient facts making a prima facie showing of malice, oppression, or fraud.

The Motion to strike is GRANTED. Plaintiff was previously granted leave to amend to add allegations of punitive damages based on the deposition of Babayan, but has failed to allege sufficient facts supporting an award of punitive damages. Therefore, the motion is granted without leave to amend, unless Plaintiff’s counsel appears at the hearing on this motion and shows how the FAC can be successfully amended to establish malice, fraud, or oppression.

Moving party to give notice.