Case Number: BC719564 Hearing Date: November 28, 2018 Dept: 2

Defendants’ Motion to Strike Portions of Plaintiff’s Complaint, filed on 9/27/18, is GRANTED. Cal. Code Civil Procedure § 436.

The court has discretion to strike any irrelevant, false, or improper matter in any pleading or any part of a pleading not drawn or filed in conformity with the law. Cal. Code Civil Procedure § 436.

Plaintiffs’ opposition, filed on 11/19/18 is untimely. The opposition is required to be filed and served nine court days before the hearing (by 11/13/18.). Cal. Code Civil Procedure § 1005(b). While the Proof of Service attached to the opposition states the opposition was served on 11/13/18, Defendants still had not received it by 11/21/18, which prevented Defendant from filing a timely reply brief, due on 11/19/18. The opposition itself was filed on 11/19/18. Declaration of Fajardo, ¶ 6.

Defense counsel complied with his statutory obligation to meet and confer by contacting Plaintiffs’ counsel’s office by telephone and leaving three telephone messages. Declaration of Milton Fajardo, filed 11/21/8, ¶ 3. Plaintiffs’ counsel did not respond. Id . ¶ 3-4.

To support a claim for punitive damages, Plaintiffs must allege facts and circumstances showing malice, fraud or oppression. The Judicial Council Form Complaint does not include an Exemplary Damages Attachment describing the conduct supporting the prayer for punitive damages. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166.

The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of others. Cal. Civil Code § 3294(a). Oppressive conduct is defined as “despicable conduct” that subjects a person to cruel and unjust hardship in conscious disregard of a person’s rights. Cal. Civil Code § 3294(c).

The complaint alleges claims for motor vehicle negligence and loss of consortium. Plaintiff alleges that Defendants rear-ended Plaintiffs’ vehicle while Plaintiffs were at a complete stop. Complaint, page 3. Defendants allegedly refused to provide their insurance information at the time of the accident, requiring Plaintiffs to file a police report. Id.

The claims do not assert facts that can be described as “despicable” which is conduct so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.

Punitive damages are appropriate if the tortious conduct rises to levels of extreme indifference to Plaintiffs’ rights. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal. App. 4th 1017, 1051.

Plaintiffs do not allege a tort claim based on the refusal to provide insurance information. The alleged conduct constituting negligence is the negligent operation of Defendants’ vehicle.

The allegations sound in negligence. Negligence, gross negligence, or reckless conduct is insufficient to support the prayer for punitive damages. Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.

Plaintiffs ask for leave to amend, which is DENIED. Leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured. It is the Plaintiffs’ burden to demonstrate how the defects can be cured. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, 302.

Plaintiffs have not met that burden.

Moving party is ordered to give notice.