Case Number: BC611992 Hearing Date: May 22, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MOTION DENIED

On March 1, 2016, Plaintiff David Schonhardt (“Plaintiff”) filed this action against Defendants David Haupt (“David”) and Shan Alexander Haupt (“Shan”) (collectively, “Defendants”) for motor vehicle negligence relating to a March 7, 2014 automobile accident. On January 3, 2018, Plaintiff filed a first amended complaint adding allegations that David negligently entrusted his vehicle to his son, Shan, which precludes limitation on David’s liability otherwise afforded under Vehicle Code section 17151, subdivision (a). Defendants move to strike portions of Plaintiff’s complaint as being irrelevant, false, and improper. (Code of Civ. Proc., §§ 435, 436.)

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 of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code of Civ. Proc., § 436, subds. (a)-(b); 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 grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code of Civ. Proc., § 437.) A motion to strike must be accompanied by a meet and confer declaration in compliance with Code of Civil Procedure section 435.5.

“The liability of an owner, bailee of an owner, or personal representative of a decedent imposed . . . and not arising through the relationship of principal and agent or master and servant is limited to the amount of fifteen thousands dollars ($15,000) for the death of or injury to one person in any one accident and, subject to the limit as to one person, is limited to the amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person is any one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of others in any one accident.” (Veh. Code., § 17151, subd. (a).)

Defendants contend that Plaintiff inserted “inexperienced, unsafe and uninsured” to support a claim of negligent entrustment, which will preclude limiting David’s liability under Vehicle Code section 17151. However, Defendants argue there is no evidence Shan was intoxicated, reckless, or incompetent.

Plaintiff argues that on the face of the pleading, there are sufficient allegations supporting a theory of liability of negligent entrustment and if true, the allegations are essential to support a claim of greater liability than that precluded by the code.

The Court finds the words Defendants seek to strike are essential to Plaintiff’s claim of negligent entrustment. Defendants do not seek to strike Plaintiff’s claim of negligent entrustment, or contend Plaintiff alleges insufficient facts to support a claim of negligent entrustment. Rather, Defendants contend there is insufficient evidence supporting recklessness or incompetence. However, a Motion to strike is not the proper method to consider evidence, or the lack thereof, to determine the viability of Plaintiff’s claims. The Court is limited to the allegations made in the complaint and these are deemed true for purposes of evaluating a motion to strike.

Accordingly, the Motion to strike is DENIED.

Moving party to give notice.