Case Number: BC694532 Hearing Date: May 23, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S PRAYER FOR PUNITIVE DAMAGES AND RELATED ALLEGATIONS; MOTION DENIED

On February 16, 2018, Plaintiff Lisa Diane Sockolov (“Plaintiff”) filed this action against Defendants Felipe Magalhaes (“Felipe”) and Humberto Magalhaes (“Humberto”) (collectively, “Defendants”) for motor vehicle and general negligence and intentional infliction of emotional distress relating to a February 16, 2017 automobile accident. Plaintiff seeks punitive damages. Defendants move to strike the prayer for punitive damages and related allegations.

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.)

The parties have sufficiently met and conferred prior to filing this Motion to strike. (Declaration of Jonathan Tarkowski, ¶ 4.)

On February 16, 2017, Humberto was driving a vehicle owned by Felipe. Plaintiff alleges Humberto was driving recklessly and unlawfully at a high speed when he rear-ended Plaintiff’s vehicle. Plaintiff alleges Defendant violated multiple sections of the Vehicle Code, including excessive speed, following too closely, and fleeing the scene of the collision.

Humberto submits the First Amended Complaint of People v. Magalhaes, Case No. 7AR23052, showing criminal charges for hit and run and giving false information to a peace officer, and subsequent dismissal of these charges against Humberto. The Court takes judicial notice of these court records. (Evid. Code, § 452(d).)

Humberto’s Motion to strike is based on the dismissal of the charges against him in the concurrent criminal proceedings. However, in considering a motion to strike, the Court considers whether allegations in the complaint, taken as true, have been sufficiently pled to support a claim or cause of action, or whether allegations are necessary and relevant to a Plaintiff’s assertion of a claim or cause of action. Here, Humberto does not argue Plaintiff has pled insufficient allegations to support an award of punitive damages. Rather, Humberto appears to attack the merits of Plaintiff’s complaint and contends that the acts that led to the criminal complaint are the grounds for Plaintiff’s claim for punitive damages. Since the criminal complaint has been dismissed, Humberto argues the claim for punitive damages should be dismissed.

The Court finds Humberto has not shown the allegations for punitive damages are insufficient, irrelevant, false, or unnecessary. That the criminal charges against Humberto were dismissed does not lead to the conclusion that the allegations cannot be proven in a civil case or do not support an award of punitive damages.

In light of the foregoing, the Motion to strike is DENIED.

Moving party to give notice.