Case Number: BC692040 Hearing Date: June 06, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE PORTIONS OF THE COMPLAINT; MOTION GRANTED

On January 29, 2018, Plaintiff Genaro Guerrero (“Plaintiff”) filed this action against Defendant Bren Anthony Foster (“Defendant”) for negligence, and assault and battery relating to an August 13, 2017 incident wherein Defendant allegedly yelled and screamed at Plaintiff and then ran over Plaintiff, causing injuries. Defendant moves to strike the prayer for punitive damages.

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.

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.) 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.)

Defendant contends Plaintiff has not alleged specific facts sufficient to show oppression, fraud or malice and support an award for punitive damages. Plaintiff alleges Defendant purposefully lunged his vehicle at Plaintiff, causing Plaintiff catastrophic injuries. (Complaint, ¶ 21.) Plaintiff contends this is sufficient to support an award of punitive damages.

The Court agrees that, without more, Plaintiff has not sufficiently alleged malice, fraud, or oppression. Intentional conduct is not sufficient to show intent to cause harm or despicable conduct carried on with conscious disregard for the rights and safety of others. While it may be inferred that purposefully lunging a vehicle at another person would result in injury, Plaintiff must allege more facts to establish a prima facie case for malice.

Accordingly, the Motion to strike is GRANTED with twenty (20) days’ leave to amend.

Moving party to give notice.