Case Name: Nicole Albaum v. Ravinderpal Singh, et al.

Case No.: 2014-1-CV-268097

Motion to Strike Portions of the Complaint filed by Elham Amarlou

Factual and Procedural Background

On or about July 10, 2014, defendant Ravinderpal Singh (“Singh”), while acting in the course and scope of his employment with defendant Saini Bros Trucking Inc. (“SBT”), negligently operated a tractor-trailer on State Route 17 in such a manner that ultimately caused a multi-vehicle collision that caused injuries and damages to plaintiff Elham Amarlou (“Amarlou”). (Complaint, ¶12.)

The tractor and/or one or both of the trailers being hauled by defendant Singh bore signs of malfunction, or poor maintenance, with equipment that included, but was not limited to, the braking mechanisms of both trailers. (Complaint, ¶13.) Defendants SBT; The Don Chapin Co., Inc.; Assured Aggregates Company, Inc.; Charles F. Gagliasso Trucking, Inc.; Saini Trucking, and others, failed to systematically inspect, repair, and/or maintain, or cause to be systematically inspected, repaired, and/or maintained, the commercial motor vehicles involved in the subject incident. (Complaint, ¶14.)

On April 15, 2016, plaintiff Amarlou filed a complaint in the Superior Court of California, County of Monterey asserting causes of action for:

(1) Negligence
(2) Negligent Hiring, Supervision, Training, and/or Retention
(3) Unfair Competition

Plaintiff Amarlou’s action was transferred to Santa Clara County Superior Court on or about November 15, 2016 and consolidated with a number of other actions relating to the vehicular accident which occurred on July 10, 2014.

On April 18, 2017, defendants Singh, Saini Bros Trucking, Inc., and Surinder Banwait (collectively, “SBT Defendants”) filed the motion now before the court, a motion to strike portions of Amarlou’s complaint relating to punitive damages.

On May 18, 2017, plaintiff Amarlou filed opposition to the SBT Defendants’ motion to strike.

I. Requests for Judicial Notice

In support of their demurrer, the SBT Defendants request judicial notice of plaintiff Amarlou’s complaint filed April 15, 2016. The SBT Defendants’ request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].)

In opposition, plaintiff Amarlou requests judicial notice of: (1) Notice and Acknowledgment of Receipt – Civil filed March 23, 2017 in Case No. 1-16-CV-302729; (2) the First Amended Complaint filed by McGuire Plaintiffs on February 22, 2016, in Case No. 1-14-CV-268097; (3) Motion to Strike filed by Saini Bros Trucking, Inc. and Parminder Tambar, heard on April 26, 2016 in Case No. 1-14-CV-268097; (4) McGuire Plaintiff’s Opposition (filed April 13, 2016) to Motion to Strike filed by Saini Bros Trucking, Inc., and Parminder Tambar, in Case No. 1-14-CV-268097; and (5) Order re: Demurrer and Motion to Strike of April 19, 2016 in Case No. 1-14-CV-268097. Plaintiff Amarlou’s request for judicial notice is GRANTED. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].)

II. The SBT Defendants’ motion to strike portions of the complaint filed by plaintiff Amarlou is GRANTED.

The SBT Defendants move to strike plaintiff Amarlou’s allegations regarding punitive damages. Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” SBT Defendants’ argument is that the allegations here sound in negligence and do not support a claim for punitive damages.

Plaintiff Amarlou opposes the motion on the sole basis that the motion to strike is untimely. “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).) Unless extended by stipulation or court order, defendant’s answer is due within 30 days after service of the complaint. (See Code Civ. Proc., §412.20, subd. (a)(3).) A defendant has 30 days from the date of signing an acknowledgment of service within which to respond to the complaint. (See Code Civ. Proc., §415.30, subd. (c).)

Plaintiff Amarlou asks this court to take judicial notice of the fact that the SBT Defendants’ counsel executed acknowledgment of receipt on March 17, 2017. Consequently, SBT Defendants had until April 17, 2017 to file the motion to strike, but did not do so until April 18, 2017, one day late.

“Technically, defendants are ‘in default’ if they fail to file an answer, demurrer or other permitted response within the time allowed by law and without a court order excusing such filing. [¶] By itself, being ‘in default’ has no legal consequences because defendant can still appear in the action until the clerk has entered his or her default. [¶] Thus, even though the time to respond has expired, if no default yet has been entered, defendant can file a pleading or motion.” (Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶¶5:2 – 5:3, p. 5-1 citing Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141—“it is now well established by the case law that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional time within which to plead and he is not strictly in default.”)

Here, the court will exercise its discretion to consider SBT Defendants’ motion to strike on its merits. (Cf. Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2016) ¶7:24, p. 7(I)-16 citing Jackson v. Doe (2011) 192 Cal.App.4th 742, 750—“An untimely demurrer may be considered by the court in its discretion.”)

Timeliness aside, plaintiff Amarlou concedes the motion to strike has merit and merely asks for 15 days’ leave to amend. Accordingly, SBT Defendants’ motion to strike portions of the complaint filed by Elham Amarlou is GRANTED with 15 days’ leave to amend.