Case Name: Juan Hinojosa, et al. v. Duran & Venables, Inc., et al.
Case No.: 16CV289697

This is a personal injury lawsuit. According to the allegations in the first amended complaint (“FAC”), Juan and Armando Hinojosa (collectively, “Plaintiffs”) were “working in a lift-basket, about two stories high, on the exterior of the Lexington Elementary School in Los Gatos California when [defendant Steve] Lamming intentionally and recklessly rammed his backhoe into [their] vehicle.” (FAC, ¶ 9.) Plaintiffs suffered serious injuries because the movement of the backhoe caused their lift basket to slam into the side of the building. (FAC, ¶ 10.) Plaintiffs assert causes of action against defendants Steve Lamming and his employer Duran & Venables, Inc. (collectively, “Defendants”) for negligence, battery, and intentional infliction of emotional distress for which they seek compensatory and punitive damages. Defendants filed a demurrer to and motion to strike Plaintiffs’ punitive damages allegations. For the following reasons, the demurrer is overruled and the motion to strike is denied.

First and foremost, Defendants did not properly notice either their demurrer or motion to strike. When demurring or moving to strike a pleading or portions thereof, a party must file a notice of hearing, the demurrer or motion itself, and a supporting memorandum of points and authorities. (Cal. Rules of Court, rule 3.1112(a); see also Code Civ. Proc., §§ 435, subd. (b)(1), 1005, 1010.) Here, Defendants merely filed two memorandums of points and authorities, one supporting their demurrer and one supporting their motion to strike. They did not file a notice of hearing, demurrer, and motion to strike, either separately or in combination. (See Cal. Rules of Court, rule 3.1112(c).)

This is problematic because “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken” or, if directed to an entire paragraph, identify that paragraph. (Cal. Rules of Court, rule 3.1322(a); see also Cal. Rules of Court, rule 3.1112(d).) Defendants failed to comply with this requirement, and they do not otherwise identify which punitive damages allegations they seek to strike in either of the memorandums filed.

Similarly, a party must identify in his or her demurrer itself the statutory ground for the demurrer, which grounds are set forth in Code of Civil Procedure section 430.10, and whether the demurrer is directed to the entire pleading or a cause of action therein. (Code Civ. Proc., § 430.60; Cal. Rules of Court, rule 3.1320(a).) If a defendant fails to do so, the demurrer “may be disregarded.” (Code Civ. Proc., § 430.60.) Defendants wholly failed to comply with this requirement. For this reason alone, their demurrer may be disregarded.

More significantly, Defendants are improperly using their demurrer to test the sufficiency of punitive damages allegations as opposed to a cause of action. There is no cause of action for punitive damages; they are a remedy. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 163.) Consequently, a demurrer is not the proper procedural vehicle for challenging the sufficiency of punitive damages allegations. (Ibid.; see also Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385.) “The adequacy of [ ] punitive damage allegations [may be] tested by motion to strike.” (Grieves, supra, 157 Cal.App.3d at p. 164.)

Additionally, the grounds for a demurrer or motion to strike must be apparent from the face of the pleading or matters subject to judicial notice. (Code Civ. Proc., §§ 430.30, subd. (a), 437.) Defendants’ assertion that the punitive damages allegations are insufficient is based primarily on a deposition excerpt that is attached as an exhibit to their memorandum of points and authorities. Defendants appear to be relying on this excerpt as evidence because they did not file any request for judicial notice. (See Cal. Rules of Court, rule 3.1306(c).) And even if they had, this deposition excerpt does not constitute a proper subject of judicial notice under Evidence Code sections 451 or 452. Accordingly, it cannot be considered.

In summary, Defendants’ demurrer and motion to strike are defective because they were not properly noticed, do not adequately specify the punitive damages allegations being challenged, and are based on matters that cannot be considered by the Court. In addition, Defendants’ demurrer is simply the wrong procedural vehicle for challenging punitive damages allegations.

The Court also notes, as pointed out by Plaintiffs in their opposition, Defendants did not file any declaration showing they met and conferred before filing the demurrer and motion to strike as required by Code of Civil Procedure sections 430.41 and 435.5. Although “a determination by the court that the meet and confer process was insufficient is not grounds” for overruling a demurrer or denying a motion to strike (Code Civ. Proc., §§ 430.41, subd. (a)(4), 435.5, subd. (a)(4)), Defendants are expected to comply with this statutory requirement.

In conclusion, Defendants’ demurrer to the punitive damages allegations is OVERRULED and their motion to strike the same is DENIED.