Case Number: BC671976 Hearing Date: January 16, 2018 Dept: 97

48

allison paige gottwalt, et al.,

Plaintiffs,

v.

keegan wolfgang cuellar-mendez,

Defendant.

Case No.: BC671976

Hearing Date: January 16, 2018

[TENTATIVE] order RE:

motion to strike portions of plaintiffs’ complaint

BACKGROUND

This action arises out of an alleged motor vehicle accident between Plaintiffs Allison Paige Gottwalt and Alexis Druyan (“Plaintiffs”) and Defendant Keegan Wolfgang Cuellar-Mendez (“Defendant”) that occurred on March 4, 2016. The Complaint, filed on August 14, 2017, alleges two causes of action for negligence.

Defendant moves to strike allegations for punitive damages. Plaintiffs oppose.

LEGAL STANDARD

Pursuant to CCP §436, the court may “[s]trike out any irrelevant, false, or improper matter” contained in the pleading or “[s]trike 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.

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, §3294(a).) “Malice” is defined as conduct intended to cause injury to a person, or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” is defined as despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) Lastly, “Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

In 1987, the legislature amended Civil Code section 3294 to include a requirement that conduct in conscious disregard of the rights and safety of others be “despicable” in order to support the imposition of punitive damages. “Despicable conduct” refers to conduct that is “base, vile, or contemptible.” (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [quotation marks omitted].) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th 1033, 1042.) A motion to strike punitive damages allegations, specifically, may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See e.g., Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

DISCUSSION

The complaint alleges that Defendant “negligently, carelessly, unskillfully, tortuously, wantonly, and wrongfully entrusted, permitted, managed, serviced, repaired, inspected, maintained, operated, controlled and drover their said certain MERCEDES in a reckless manner to cause the MERCEDES to crash into the rear of Plaintiff’s NISSAN, and thereby proximately causing the injuries and damages….” (Compl., ¶14.) Plaintiffs allege that Defendant operated his vehicle in an unsafe manner by driving at excessive speeds during heavy traffic. (Id., ¶¶17-18.) Plaintiffs also allege that Defendant has been convicted 3 times for driving at excessive speeds and that upon information and belief, Defendant was not wearing corrective lenses while driving. (Id., ¶18.)

Based on the allegations in the complaint, the Court finds that the complaint regarding Defendant’s allegedly malicious and reckless conduct are insufficient to support the imposition of punitive damages. At most, the complaint alleges that Defendant was negligent in operating his vehicle because he did not exercise ordinary care to avoid an impending collision. Furthermore, Plaintiffs allege based on information and belief that Defendant was not wearing corrective lenses, but this allegation is not substantiated with information leading Plaintiffs to believe that this allegation is true. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158-59.) The Court finds that the fact that an accident occurred, without more, has the character of ordinary negligent driving and does not show aggravating circumstances warranting punitive damages.

Conclusion and Order

Defendant’s motion to strike is granted as requested with 10 days leave to amend.

Defendant is ordered to provide notice of this order.