Maricela Sanchez, et al. v. Petra Avendano, et al.
Case No: 19CV00935
Hearing Date: Mon May 13, 2019 9:30

Nature of Proceedings: Motion Strike Portions of Plaintiff’s Complaint; Srike Portions of Plaintiff’s First Amended Complaint

CASE:

Maricela Sanchez, et al. v. Petra Avendano, et al., Case No. 19CV00935 (Judge Sterne)

HEARING DATE: May 13, 2019

MATTER: Motion to Strike Portions of First Amended Complaint

ATTORNEYS:

Juan J. Huerta for Plaintiffs Maricela Sanchez and Eustacio Sanchez Fuentes

Paul V. Ash for Defendants Petra Avendano and Jaime Guerrero

TENTATIVE RULING: Defendants’ motion to strike the punitive damages allegations in plaintiffs’ first amended complaint is granted. Plaintiffs shall have to and including May 23, 2019, to file a further amended complaint.

BACKGROUND:

This is an action for personal injuries arising out of a motor vehicle accident. According to the allegations, on June 27, 2018, plaintiffs Eustacio Sanchez Fuentes and Maricela Sanchez were traveling eastbound on La Colina Road in Santa Barbara and had come to a stop when their vehicle was rear-ended by a vehicle driven by defendant Petra Avendano and owned by defendant Jaime Guerrero. Avendano was an unlicensed driver and was allegedly traveling at a high rate of speed and using her cell phone at the time of the collision. Plaintiffs’ first amended complaint (“FAC”), filed on March 8, 2019, alleges causes of action for motor vehicle liability and negligence (both general negligence and negligence per se). The FAC includes allegations of “reckless misconduct and/or despicable conduct,” as well as a claim for punitive damages.

Defendants now move for an order striking the punitive damages claim and the “reckless misconduct and/or despicable conduct” allegations.

ANALYSIS:

“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). A motion to strike may be brought to strike out “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code Civ. Proc. §436, subd. (b). A motion to strike may also be brought to strike out “any irrelevant, false, or improper matter inserted in any pleading.” Code Civ. Proc. §436, subd. (a). “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” Code Civ. Proc. §431.10, subd. (b)(3) and (c).

Here, defendants move for an order striking the allegations and prayer for punitive damages in the FAC. In order to state a claim for punitive damages, the plaintiff must allege facts demonstrating that the defendant acted with malice or oppression. Civ. Code §3294; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042. “Malice” means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civ. Code §3294, subd. (c)(1). As stated in Flyer’s Bodyshop Profit Sharing Plan v. Tycor Title Insurance Company (1986) 185 Cal.App.3d 1149, 1155:

“[T]o establish malice, it is not sufficient to show only that the defendant’s conduct was negligent, grossly negligent or even reckless. [Citation.] There must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”

“Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civ. Code §3294, subd. (c)(2). “Despicable conduct” is conduct that is so “base,” “vile,” or “contemptible” that “it would be looked down upon and despised by ordinary decent people.” American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050. Defendants argue that facts amounting to malice or oppression have not been alleged in the FAC. The court agrees.

In support of their punitive damages claim, plaintiffs allege:

● Defendants negligently and with malice aforethought operated their vehicle in such a manner so as to cause it to collide with plaintiffs’ vehicle.

● Defendants operated their vehicle while distracted, occupied, involved with or in the process of communicating, texting, internet browsing, engaging in social media, and otherwise using a cell phone or other wireless device.

● Defendants had full knowledge that such actions, including texting, could lead to serious injury and damage to persons and/or property, and defendants’ actions were done and continued with an intentional, willful, conscious, and/or reckless disregard for the safety of plaintiffs and others.

● Defendants engaged in the use of a wireless communications device while operating a vehicle despite knowledge of the safety hazards and dangers they created to themselves and others.

● Defendants were driving at such an extreme speed that they were unable to stop before striking plaintiffs’ fully stopped vehicle in the rear. In driving at an unsafe speed while distracted, defendants created an extremely dangerous situation to plaintiffs and others as a result of their willful acts.

● Defendants acted willfully and with malice and oppression.

(FAC, p. 6:9-25; p. 7, ¶EX-2.)

These allegations are insufficient to support the heightened factual pleading requirement for punitive damages for two reasons. First, “the conclusory characterization of defendant’s conduct as intentional [or] willful . . . is a patently insufficient statement of ‘oppression . . . or malice’ . . . within the meaning of section 3294.” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. Rather, the plaintiff must allege “ultimate facts” showing that the defendant acted with malice or oppression. Clauson v. Los Angeles Superior Court (1998) 67 Cal.App.4th 1253, 1255; see also, Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166. Second, as discussed above, it is insufficient to show that the defendant’s conduct was negligent, grossly negligent, or even reckless. Punitive damages are appropriate only where the defendant’s acts were intended to cause injury to the plaintiff or were done with a willful and conscious disregard of the rights or safety of others and were so “base,” “vile,” or “contemptible” as to be looked down upon and despised by ordinary people.

Here, plaintiffs seek the recovery of punitive damages based on allegations that defendant Avendano was an unlicensed driver, that she was traveling at a high rate of speed, and that she was using her cell phone at the time of the collision. (FAC, p. 6:9-25.) Such allegations are insufficient as a matter of law to support an award of punitive damages because they do not establish that defendant intended to injure plaintiffs or acted despicably in reckless disregard of plaintiffs’ safety. At most, the allegations are indicative of negligent or grossly negligent conduct.

Based on the foregoing, the court will grant defendants’ motion to strike the punitive damages allegations in plaintiffs’ FAC. Specifically, the following language and sections are ordered stricken:

1. “Reckless Conduct with attendant Exemplary Damages” (p. 3, ¶10.f.).

2. “Punitive Damages” (p. 3, ¶14.a(2)).

3. Reckless Misconduct And/Or Despicable Conduct allegations (p. 6:2-25).

4. Exemplary Damages Attachment (p. 7).

Plaintiffs shall have to and including May 23, 2019, to file a further amended complaint if they choose.