Case Number: 19STCV15590 Hearing Date: September 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION TO STRIKE CLAIMS FOR PUNTIIVE DAMAGES

Plaintiff Myrtle Lewis’s (“Plaintiff”) first amended complaint (“FAC”) against Defendants Jerry Chrakian (“Chrakian”) and South Coast Medical Transportation Inc. (“South Coast”) alleges motor vehicle negligence arising out of an automobile collision. Plaintiff was a passenger in the vehicle driven by Defendant Chrakian and owned by South Coast. Defendants move to strike Plaintiff’s request 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 Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); 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 court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

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.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

The FAC alleges that Chrakian “was inattentive and driving at unsafe speed” and exhibited gross negligence by telling Defendant to “share a seatbelt with another passenger” after Plaintiff notified Chrakian that her seatbelt was not working. The FAC alleges Chrakian “purposefully and willfully manipulated his cell phone and/or other handheld device while driving,” “in willful disregard for the safety of others operated his cell phone while driving thereby affecting his ability to drive a motor vehicle safely and legally,” “acted recklessly, willfully, and wantonly,” and “was aware of the probably dangerous consequences of his conduct and he willfully and deliberately failed to avoid these consequences, showing a conscious disregard for the safety of others.” These allegations constitute negligence or at most gross negligence. They are insufficient to establish intentional or despicable conduct against Defendants.

The FAC also alleges that Defendant South Coast failed to maintain the safety and condition of their vehicles, including seatbelts, and failed to train, supervise, manage or provide adequate guidance to Chrakian. An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).)

Plaintiff did not allege facts sufficient to establish that Defendant South Coast authorized or ratified the alleged wrongful conduct of Defendant Chrakian. Nor do the allegations that South Coast failed to maintain the safety and condition of its vehicles, including seatbelts, rise to the level of extreme indifference to Plaintiff’s rights

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

Moving party to give notice.